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Judicial Watch • Obergefell v. Richard Hodges 556 562 571 574 marriage

Obergefell v. Richard Hodges 556 562 571 574 marriage

Obergefell v. Richard Hodges 556 562 571 574 marriage

Page 1: Obergefell v. Richard Hodges 556 562 571 574 marriage

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Date Created:April 2, 2015

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Tags:marriages, conflict, Loving, DeBoer, marriage, constitutional, Windsor, Constitution, DOMA, amendment, federal, Supreme Court, states, court, united


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No. 14-556, -562, -571, -574 THE
Supreme Court the United States
_________
JAMES OBERGEFELL, al.,
Petitioners,
RICHARD HODGES, HIS OFFICIAL CAPACITY
DIRECTOR OHIO DEPARTMENT HEALTH, al.
Respondents.
_________ Writ Certiorari the United States
Court Appeals for the Sixth Circuit
_________
BRIEF AMICUS CURIAE
JUDICIAL WATCH, INC. SUPPORT RESPONDENTS
_________
James Peterson
Counsel Record
JUDICIAL WATCH, INC.
425 Third Street, S.W.
Washington, 20024
(202) 646-5172
jpeterson@judicialwatch.org
Meredith Liberto
P.O. Box 64743
Virginia Beach, 23467
Counsel for Amicus Curiae
LEGAL PRINTERS
LLC,
Washington 202-747-2400 legalprinters.com
QUESTION PRESENTED
Does the Fourteenth Amendment require State recognize marriage between two people the
same sex when their marriage was lawfully licensed
and performed out-of-state?
TABLE CONTENTS
QUESTION PRESENTED ........................................
TABLE CONTENTS ............................................
TABLE AUTHORITIES ..................................... iii
INTEREST AMICUS CURIAE ............................1
SUMMARY THE ARGUMENT ............................1
ARGUMENT ...............................................................2 Denying recognition out-of-state
marriages that conflict with state law not constitutional violation .............................2 Defining marriage within the states
sovereign sphere marital relations ..............2 Upholding the traditional definition
marriage does not violate the rational
basis test ...........................................................4 Requiring Recognition out-of-state
marriages that conflict with state law
leads constitutional conflicts .....................10
CONCLUSION ..........................................................16
iii
TABLE AUTHORITIES
CASES
Baker Nelson,
409 U.S. 810 (1972) ............................................4,
Bourke Beshear,
996 Supp. 542 (W.D. Ky. 2014) ....................6
DeBoer Snyder,
772 F.3d 388 (6th Cir. 2014)............ 10, 12, Sylva Ballentine,
351 U.S. 570 (1956) ................................................3
Gregory Ashcroft,
501 U.S. 452 (1991) ..............................................14
Heller Doe,
509 U.S. 312 (1993) ................................................5
Henry Himes, Supp. 1036 (S.D. Ohio 2014) ...................6 Burrus,
136 U.S. 586 (1890) ................................................2 Estate Stiles, Ohio St. (1979) ......................................12
Jones Hallahan,
501 S.W.2d 588 (Ky. 1973) ................................5,
Korematsu U.S.,
323 U.S. 214 (1944) ............................................4,
Lane County Oregon, U.S. (1869) .................................................14
Loving Virginia,
388 U.S. (1967) ....................................................4
Marsh Chambers,
463 U.S. 783 (1983) ............................................8,
Mazzolini Mazzolini,
155 N.E.2d 206 (Ohio 1958) ..........................11,
Moore East Cleveland,
431 U.S. 494 (1977) ................................................8
Obergefell Wymyslo,
962 Supp. 968 (2013) ....................................6
Nevada Hall,
440 U.S. 410 (1979) ..............................................12
Reynolds United States, U.S. 145 (1878) ................................................11
Romer Evans,
517 U.S. 620 (1996) ...............................................5
Skinner Oklahoma,
316 U.S. 535 (1942) ............................................4,
Tanco Haslam, Supp. 759 (M.D. Tenn. 2014) ....................6
Texas White, U.S. 700 (1869) ................................................14
Town Greece Galloway,
134 Ct. 1811 (2014)......................................8,
U.S. Windsor,
133 Ct. 2673 (2013)............................................3
Vacco Quill,
521 U.S. 793 (1997) ................................................5
Vance Bradley,
440 U.S. (1979) ..................................................5
Wiley Woods,
393 Pa. 341 (1958). ................................................8
Williams North Carolina,
317 U.S. 287 (1942) ............................................2,
Wisconsin Yoder,
406 U.S. 205 (1972) ................................................8
CONSTIUTIONAL AND STATUTORY
PROVISIONS
U.S. Const. amend. .............................................13
U.S. Const. amend. XIX ............................................13
U.S. Const. amend. XXVI .........................................13
Ky. Const. 233A ........................................................6
Ohio Const. art. XV, ............................................6
Tenn. Const. art. XI, ............................................6 Act Regulating Marriages
1803 Ohio Laws ................................................5 Act Concerning Marriages (1741), Public Acts the General Assembly North-Carolina and Tennessee (1815) .................................................................6
OTHER AUTHORITIES
The Federalist No. (James Madison) ...................15
Letter from Samuel Adams Richard
Henry Lee, August 24, 1789 ..........................14,
Restatement (Second) Conflict Laws 283........................................................11
INTEREST THE AMICUS CURIAE1
Judicial Watch, Inc. Judicial Watch notfor-profit, educational foundation that seeks
promote integrity, transparency, and accountability government and fidelity the rule law. Judicial Watch regularly files amicus curiae briefs and
has appeared amicus curiae this Court
number occasions.
Judicial Watch seeks participate amicus
curiae for the purpose highlighting the proper role the States and the democratic process the area marital relations. particular concern Judicial Watch the inevitable constitutional conflicts
that will result should the Court permit the federal
courts commandeer the role the States and the
democratic process. Judicial Watch addresses the
second issue before the Court regarding the recognition out-of-state marriages that conflict with state
law.
SUMMARY THE ARGUMENT
The role defining marriage and implementing
laws regard has always been primarily the
province the States. This Court has clearly and
firmly confirmed this. Interference with the States
Pursuant Supreme Court Rule 37.6, Amicus Curiae
states that counsel for party authored this brief whole part and that person entity, other than Amicus
Curiae and their counsel, made monetary contribution
intended fund the preparation and submission this brief.
All parties have consented the filing this brief; letters
reflecting the parties consent have been filed with the Clerk.
sovereign sphere and ultimately, with the right
their citizens engage the democratic process,
contrary our system government and will result dangerous constitutional conflicts.
ARGUMENT DENYING RECOGNITION OUT-OFSTATE MARRIAGES THAT CONFLICT
WITH STATE LAW NOT
CONSTITUTIONAL VIOLATION.
The consolidated Petitioners claim that the laws the States Ohio, Kentucky and Tennessee which not recognize out-of-state marriages that conflict
with state law, violate the Equal Protection and Due
Process clauses the Fourteenth Amendment.
None the Petitioners address the Full Faith and
Credit Clause. DEFINING MARRIAGE WITHIN
THE STATES SOVEREIGN SPHERE MARITAL RELATIONS.
The whole subject the domestic relations
husband and wife, parent and child, belongs the
laws the States and not the laws the United
States. Burrus, 136 U.S. 586, 593-94 (1890).
This clear holding has been reaffirmed this Court
time and again. See Williams North Carolina, 317
U.S. 287, 298 (1942) The definition marriage
the foundation the State broader authority
regulate the subject domestic relations with
respect the protection offspring, property
interests, and the enforcement marital responsibilities. see also U.S. Windsor, 133 Ct. 2673,
2689 (2013) history and tradition the definition
and regulation marriage has been treated
being within the authority and realm the separate
States.
While within the federal government
power intervene the sphere marital relations,
this Court has made very clear that those interventions are infrequent, deferential State
authority, and always with the balance federalism mind. See e.g., Windsor, 133 Ct. 2690; see
also Sylva Ballentine, 351 U.S. 570, 590 (1956).
This general point cannot overstated here.
was the primary reason the Court held that the
federal Defense Marriage Act DOMA was
unconstitutional Windsor. The Court held that
Congress had overstepped its authority and infringed the State New York sovereign authority define marriage and allow the formation
consensus respecting the way members discrete
community treat each other their daily contact
and constant interaction with each other. Windsor,
133 Ct. 2692. New York actions were without doubt proper exercise its sovereign authority within our federal system, all the way that the
Framers the Constitution intended. Id.
The cases before the Court now are simply the
flip side Windsor coin. was within the
sovereign authority the State New York and its
citizens redefine marriage, also within the
sovereign authority the States Ohio, Kentucky,
Tennessee and Michigan and their citizens maintain their current and democratically defined definition marriage. UPHOLDING THE TRADITIONAL
DEFINITION MARRIAGE DOES
NOT VIOLATE THE RATIONAL BASIS
TEST.
This Court has never held there fundamental
right same sex marriage. Loving Virginia,
case often cited Petitioners support their
cause find such fundamental right, the Court
held that marriage one the basic civil rights
man, fundamental our very existence and survival. Loving, 388 U.S. (1967) (citing Skinner
Oklahoma, 316 U.S. 535, 541 (1942)). This Court
further stated that deny this fundamental freedom unsupportable basis the racial classifications embodied the statues, classifications
directly subversive the principle equality the
heart the Fourteenth Amendment, surely
deprive all the State citizens liberty without due
process law. Loving, 388 U.S. 12. essential understand that Loving did not redefine
marriage but simply invalidated unconstitutional
eligibility requirement which was already designated suspect classification and subjected this
Court the most rigid scrutiny. See Korematsu
U.S., 323 U.S. 214, 216 (1944). Attempts shoehorn these cases into Loving would make this
Court summary rejection same sex marriage
substantial federal question Baker Nelson
five years after Loving absurd.2 Baker Nelson,
409 U.S. 810 (1972).
Additionally, sexual orientation has never been
recognized legally protected suspect class. See
Romer Evans, 517 U.S. 620 (1996), see also Korematsu U.S., 323 U.S. 214, 216 (1944). For these
reasons the laws and amendments prohibiting
recognition out-of-state same sex marriages must
meet the rational basis test. See Vacco Quill,
521 U.S. 793, 799 (1997); see also Heller Doe, 509
U.S. 312, 330 (1993).
This Court has been very clear about the burden
imposed legislative actions. [A] law will
sustained can said advance legitimate
government interest, even the law seems unwise works the disadvantage particular group, the rationale for seems tenuous. Romer
632. [W]e will not overturn such statute unless
the varying treatment different groups persons unrelated the achievement any combination legitimate purposes that can only conclude
that the legislature actions were irrational. Vance Bradley, 440 U.S. 93, (1979).
The Respondent States each have defined marriage relationship one man and one woman.
Ohio definition was first set 1803, Kentucky
1973, and Tennessee 1741. See Act Regulating Marriages 1803 Ohio Laws 31, 31; Jones
Hallahan, 501 S.W.2d 588, 589 (Ky. 1973); Act
Interestingly, none the district courts even address
Baker Nelson.
Concerning Marriages (1741), Public Acts
the General Assembly North-Carolina and Tennessee (1815). Each state legislature reaffirmed their
traditional definition and later passed voter
approval, constitutional amendments.
See Ky.
Const. 233A; Ohio Const. art. XV, 11; Tenn.
Const. art. XI, 18.
The Respondent States and their citizens have
given several bases for maintaining the traditional
definition marriage which include child-rearing,
tradition and respect for our constitutional concept federalism. See Obergefell Wymyslo, 962
Supp. 968, 980-81 (2013); Henry Himes,
Supp. 1036, 1050-51, 1056 (S.D. Ohio 2014);
Bourke Beshear, 996 Supp. 542, 552 (W.D.
Ky. 2014); Tanco Haslam, Supp. 759, 768,
771 (M.D. Tenn. 2014). While the district courts
dismissed each these grounds, they did while
applying the incorrect level legal scrutiny. The
U.S. Court Appeals for the Sixth Circuit found
least two sufficient bases retain the traditional
definition marriage under the rational basis test.
First, the Court Appeals recognized the States
interest maintaining the traditional definition
marriage furthers the government interest
child-rearing. DeBoer Snyder, 772 F.3d 388, 40405 (6th Cir. 2014). not society laws for that
matter any one religion laws, but nature laws
(that men and women complement each other biologically), that created the policy imperative. Id.
405. That children can reared outside the
marriage relationship does not change the biological
fact that child can never the biological result same sex relationship. the Court Appeals
explained: creating status (marriage) and subsidizing (e.g., with tax filing privileges and deductions), the States created incentive for
two people who procreate together stay together for purposes rearing offspring. That
does not convict the States irrationality, only awareness the biological reality that couples the same sex not have children the
same way couples opposite sexes and couples the same sex not run the risk unintended offspring.
DeBoer, 772 F.3d 405. fact, this Court acknowledged much
Skinner Oklahoma, 316 U.S. 535, 541 (1942),
stating marriage and procreation are fundamental the very existence and survival the race.
Without opposite sex relationships which the
state domestic relations laws encourage permanence
through marriage the very existence and survival the race issue. Surely that not irrational basis the part the Respondent States.
Second, the Court Appeals found the States
interest maintaining the traditional definition
marriage furthered the government interest
tradition itself. DeBoer, 772 F.3d 406-07. This
Court has recognized the important role tradition. Wisconsin Yoder, 406 U.S. 205 (1972), the Court
held that the right parents make primary
decision-makers for their own children was right
recognized because reflects strong tradition
founded the history and culture Western
civilization. Moore East Cleveland, 431 U.S. 494,
504 (1977) (quoting Yoder, 406 U.S. 232); see e.g.,
Town Greece Galloway, 134 Ct. 1811, 18181820 (2014). While tradition cannot run afoul
constitutional rights and privileges, absent fundamental right suspect classification, can most
certainly form sufficient rational basis. See e.g.,
Marsh Chambers, 463 U.S. 783, 790 (1983). cannot seriously contested and fact, none the Petitioners have claimed much, that marriage, defined one man and one woman, has been
the tradition this country since its founding and
continued, unabated, until only the past ten
fifteen years. And even the most recent years
after some States like Connecticut and New York
passed legislative measures change the traditional
definition marriage, most the States where the
traditional definition marriage has been changed
has been done through judicial actions and not the
will the people. And fact, several States including California and Virginia where the voters clearly
desired maintain the traditional definition
marriage, state administrators and federal courts
denied their collective voices. not stretch
therefore conclude that the majority people
this country still consider marriage defined
one man and one woman just the definition has
been from the founding the nation.
The Court has dealt with the implication
historical and traditional use Establishment
Clause cases which are instructive here. Marsh
Chambers, the Court held that Nebraska practice opening legislative sessions with prayer was not
violation the Establishment Clause. finding,
the Court weighed heavily the longstanding tradition both Nebraska and the United States the
presence prayer legislative sessions well
the presence other religious factors. 463 U.S.
790-91. The Court stated that unique history leads accept the interpretation the First Amendment draftsmen who saw real threat the Establishment Clause arising from prayer similar that
now challenged. Id. And even more clearly the
Court held that applying the First Amendment
the states through the Fourteenth Amendment,
would incongruous interpret that Clause
imposing more stringent First Amendment limits
the states than the draftsmen imposed the Federal Government. Id.
Marriage has, definition, been the province
the States and has been traditionally defined one
man and one woman. This has been the case since
the nation founding. There evidence that
defining marriage that way was viewed discriminatory violation any constitutional
rights principles. Segments society have begun take different perspective but this hardly
sufficient reason cast aside this unique history
consistent with centuries national practice. 463
U.S. 790. [I]t not necessary define the
precise boundary the Establishment Clause where
history shows that the specific practice permitted.
Any test the Court adopts must acknowledge
practice that was accepted the Framers and has
withstood the critical scrutiny time and political
change. Town Greece 1819. From the founding the Republic 2003, every State defined
marriage relationship between man and
woman, meaning the Fourteenth Amendment permits, though does not require, States define
that way. DeBoer, 772 F.3d 388, 404; see also Town Greece, 134 Ct. 1818-1820. REQUIRING RECOGNITION
OUT-OF-STATE MARRIAGES THAT
CONFLICT WITH STATE LAW LEADS CONSTITUTIONAL CONFLICTS.
While denying recognition out-of-state marriages that conflict with state law does not amount constitutional violation, forcing the Respondent
States recognize such marriages will fact lead constitutional conflicts. Three such conflicts are
readily apparent.
First, forcing States recognize out-of-state
same sex marriages that conflict with state law
would ostensibly open the door forcing States
recognize all out-of-state marriages that conflict with
state law regardless the conflict. This would
completely remove the States from the marital
relations sphere the very least, make state laws
worthless.
Part the States authority the sphere
martial relations has been the ability define
marriage general and determine who eligible
marry. with defining the gender the participants, States have also defined the number persons who can involved the marital relationship.3 Common factors involved the eligibility
determination have been age, familial consanguinity,
whether the couple needs physically present
(proxy) and who may solemnize the marriage. Even
among the four Respondent States some these
factors vary age requirements and whether cousins may marry. one seems inclined level
age discrimination claim against the State Kentucky for requiring marriage participants
eighteen years age while neighboring states have
lower age requirements. See Restatement (Second) Conflict Laws 283. important point out the legal effect some these factors have recognition out-of-state
marriage. While states have recognized out-of-state
marriages that not meet their own state marriage
requirements, not unusual for States refuse
recognize out-of-state marriages that conflict with
state laws. For instance, Ohio has recognized out-ofstate marriages between first cousins even though
Ohio residents could not marry they were first
cousins. See Mazzolini Mazzolini, 155 N.E.2d 206,
208 (Ohio 1958). Ohio, however, refused recognize out-of-state marriage between uncle and his should also noted that the Congress first passed
federal anti-bigamy law 1862. This Court upheld the law
Reynolds United States, U.S. 145 (1878).
niece. See Estate Stiles, Ohio St. 73,
(75-76) (1979). The difference between the two cases
was whether the marriage was voidable (first cousins) void fact (uncle and niece). Because Ohio
clearly legislated against the latter relationship, the
court held Ohio was not required recognize the
out-of-state marriage.
Respondent States have
clearly legislated who may marry their jurisdictions.
Also clearly legislated the Respondent States
are the number persons who may marry one
time. Petitioners reasoning followed through
its logical and legal conclusion, what legal foundation the Respondent States, the United States
for that matter, have for denying more than two
willing participants enter into marriage relationship? changing culture can the basis for
undoing centuries legal and moral tradition
gender, why can not also the basis for undoing
centuries legal and moral tradition terms the
number people married? even siblings? constitutionally irrational stand the manwoman definition marriage, must constitutionally irrational stand the monogamous
definition marriage. DeBoer, 772 F.3d 407.4
Despite the absence the Full Faith and Credit Clause
the Petitioners briefs, the Court cannot simply ignore its
existence. The Court held that the Clause does not require
State apply another State law violation its own
legitimate public policy. Nevada Hall, 440 U.S. 410, 422-23
(1979).
This decision not being made vacuum and
must considered light all the state laws
regarding marital relations. Judicially breaking
down the door state sovereignty will lead
door all.
Second, the utmost importance recall
that the laws being questioned Petitioners were
also voted the citizens Respondent States.
These were not only legislative actions but the
actions millions everyday voters. The right
vote clearly defined the Bill Rights the
U.S. Constitution. Citizens right vote shall not denied abridged the United States any
state account race, color, previous condition servitude, sex, age. U.S. CONST. amend. XV,
XIX, XXVI (emphasis added). citizen right
abridged when she deprived that right
the right limited restricted. overstepping
the bounds state sovereignty and declaring
judicial fiat that the millions voters who democratically adopted the marriage amendments were
wrong, the district courts effectively abridged the
right vote each and every one those citizens.
The message sent these citizens that, despite
engaging the democratic process and debate
regarding issues predominately within the state
sphere and casting their constitutionally protected
votes, when federal court decides knows better,
their votes will mean nothing. The inevitable consequence this type federal interference will
voter disenfranchisement. How can beat the
patriotic drum voter involvement when the ultimate end can erased few federal judges?
Third, the health and sustainability our system government depends greatly our principle
federalism. This Court has described our system fundamental principle and referred the Federal Government and State governments both
possessing sovereignty:
The people each State compose State, having its own government, and endowed with all
the functions essential separate and independent existence. Not only, therefore, can
there loss separate and independent
autonomy the States, through their union
under the Constitution, but may not unreasonably said that the preservation the
States, and the maintenance their governments, are much within the design and care the Constitution the preservation the
Union and the maintenance the National
government. The Constitution, all its provisions, looks indestructible Union, composed indestructible States.
Gregory Ashcroft, 501 U.S. 452, 457 (1991) (quoting Texas White, U.S. 700 (1869) and Lane
County Oregon, U.S. (1869)).
Without this delicate balance our constitutional
rights and principles cannot survive. [T]he distinction, for there distinction, between the federal
powers vested Congress, and the sovereign authority belonging the several States, which the
Palladium [the protection] the private, and per-
sonal rights the citizens. Letter from Samuel
Adams Richard Henry Lee, August 24, 1789
(available http://consource.org/document/samueladams-to-richard-henry-lee-1789-8-24/). What the
Petitioners ask this Court weaken that
balance removing the issue defining marriage
from the States and her citizen voters and giving the federal judiciary. principled jurisprudence constitutional evolution turns evolution
society values, not evolution judge values.
DeBoer, 772 416. sure, marriage primarily the province
the States. has been from the nation founding
and the Court should not remove from the States
sovereign sphere. must always recall that:
The powers delegated the proposed Constitution the federal government are few and
defined. Those which remain the State governments are numerous and indefinite. The
powers reserved the several States will extend all the objects which, the ordinary
course affairs, concern the lives, liberties,
and properties the people, and the internal
order, improvement, and prosperity the
State.
The Federalist No. (James Madison).
CONCLUSION
For the foregoing reasons, Amicus respectfully
requests that this Court uphold the decision the
Sixth Circuit Court Appeals.
Respectfully submitted,
James Peterson
Counsel Record
JUDICIAL WATCH, INC.
425 Third Street, S.W., Suite 800
Washington, 20024
(202) 646-5172
jpeterson@judicialwatch.org
Meredith Liberto
P.O. Box 64743
Virginia Beach, 23467
Counsel for Amicus Curiae
April 2015