Can the Government Get Out of the Marriage Business?

About a month ago, before the oral arguments in Obergefell v. Hodges, I profiled two amicus briefs that took competing views of the "original understanding" of the Fourteenth Amendment and how it applies to the question of same-sex marriage.

One of those briefs was filed by the Cato Institute and several high-profile conservative scholars who specialize in "originalist" legal theory.  When the text of a law is silent on an issue or otherwise unclear, originalism is an approach to legal interpretation that tries to discern either what the writers of a law intended the law to do at the time it was passed, or what the words they used meant at that time.

Generally speaking, originalists tend to be a conservative lot. The authors of the Cato brief are no exception. Yet despite their ideological leanings, they actually argue in favor of same-sex marriage. As they see it, the original understanding of "equal protection," represented by the words of the Fourteenth Amendment, was a broad principle opposed to separating U.S. citizens into distinct and inferior castes. In their view, same-sex marriage bans relegate same-sex couples to second-tier status and are therefore unconstitutional.

This is all well and good, and in line with the majority of amicus briefs filed in Obergefell. But the conclusion of the Cato brief is noteworthy. The primary question in the case is whether the Fourteenth Amendment requires states to issue licenses to same-sex couples who seek to marry. To that question, the brief provides this answer:

"Of course" the Fourteenth Amendment doesn't require the states to issue licenses, they say. But since states do actually issue marriage licenses, the states cannot exclude same-sex couples. That's a sound equal protection argument.

But it does raise an interesting question. Can states get out of the marriage business altogether? Or, in other words, does the Fourteenth Amendment actually require states to issue civil marriage licenses at all? Is the Cato brief correct that it doesn't?

In an earlier post, I addressed the question of whether states should abandon civil marriage. I don't think they should. But from a Constitutional standpoint, would that even be an option at all?

The Fourteenth Amendment doesn't just command equal protection. It also commands due process, which means the government can't take your life, liberty, or property without (1) a really good reason to do so, and (2) a scheme to either allow you a chance to defend yourself or receive fair compensation for your loss. So if civil marriage is considered a liberty interest, then states can't deny it to anyone without a really good reason.

Is civil marriage a liberty interest? The Supreme Court has repeatedly said that it is. In 1888, the Court declared that marriage creates "the most important relation in life," and has "more to do with the morals and civilization of a people than any other institution." Maynard v. Hill, 125 U.S. 190, 205 (1888). Later, the Court said that legislation involving marital rights "involves one of the basic civil rights of man." Skinner v. Oklahoma, 316 U.S. 535 (1942).

Most famously, the Court unanimously declared again in 1967 that marriage was a basic civil right that required due process protection. "The freedom to marry, or not marry...resides with the individual and cannot be infringed by the State." Loving v. Virginia, 388 U.S. 1, 12 (1967). Of course, Loving dealt specifically with marital restrictions based on the race of the partners, but the underlying principle was clear: civil marriage is a fundamental right that the states cannot easily trifle with.

And just in case you're not convinced, "it is clear that among the decisions that an individual may make without unjustified government interference  are personal decisions 'relating to marriage.'" Carey v. Population Servs. Int'l, 431 U.S. 678, 684-685 (1977). "The right to marry is...implicit in the Fourteenth Amendment's Due Process Clause." Zablocki v. Redhail, 434 U.S. 374, 384 (1978)

If we take the Court at its word that marriage is a fundamental right, a liberty interest protected by due process, then the answer to our question seems clear. States cannot deny that right by refusing to issue civil marriage licenses to everybody.

But what about marriages that don't involve the state? Would the government really be infringing on the right to marry if it just abandoned licensing but didn't prevent people from getting married at church or in some other private setting? My sense is that yes, that would still be an infringement because marriage without state licensing wouldn't carry any actual weight. It wouldn't mean anything within the context of civil society. I discuss that more thoroughly in my previous post so won't elaborate here.

My reading of the Supreme Court's precedent on the question of marriage suggests to me that the Fourteenth Amendment does in fact require the states to issue marriage licenses in the first place, not just issue them equally if it elects to issue them at all. Though the Amendment is silent on marriage, the Supreme Court has not been. As a fundamental right, marriage may not be denied by the state. "Getting out of the marriage business" would be the ultimate denial.

Constructive Uses of Freedom

Anti-Muslim attention hound Pamela Geller hosted a "Draw Muhammad" event in Texas this past weekend. Perhaps unsurprisingly in the wake of the Charlie Hebdo massacre in France, it resulted in an attack by apparent Muslim extremists angered by the obvious provocation.

Incidents like this spark the never-ending debate about the limits---if there are to be any---of free speech. On one side, the absolutists who argue that absolute freedom of speech includes an absolute freedom from using good judgment. On another, religious hypocrites who insist they should be free to mock and ridicule others but would happily accept an American Christian theocracy. And on yet another side (this is a triangle), a bipartisan group of authoritarians who believe security is probably a good justification for curbing some mean language.

This is not going to be a "free speech is important, but..." college newspaper editorial. I, like the late Supreme Court Justice Hugo Black, interpret the First Amendment strictly. It says government shall make no law abridging the freedom of speech, and I read that to mean "NO law." I think that rule applies to obscenity laws, so-called hate speech laws, and anything that would prohibit "shouting 'fire' in a crowded theater," too. If I'm any kind of "qualified absolutist" as Justice Black has been described, the qualifications would be few and far between.

That said, you can simultaneously embrace the absolute freedom of speech but still believe that such freedom can and should be used for constructive ends. That's why events like Geller's bother me. Of course she and her supporters have the freedom to purposely provoke Muslims with cartoons of Muhammad. And of course nothing they did justifies the violent attack that resulted. But that still doesn't mean they're good or right or heroes for doing it. And I don't think the cartoonists at Charlie Hebdo, who frequently used racist caricatures to get across their satirical points, should be lauded as heroes of freedom, either. This is not at all to detract from the tragedy of their murders or justify the extremists who killed them.

Last month, cartoonist Gary Trudeau accepted a Polk Award for his long career with remarks that infuriated people who believe the freedom of speech justifies literally anything and everything people want to say. He urged cartoonists and satirists like those at Charlie Hebdo to avoid the urge to "punch down," and instead turn their wit and criticism against those in power. A marginalized minority religion is an easy target. Elites who exploit the masses (and can ruin your career or reputation if you raise their ire) are a more constructive punching bag.

Trudeau then addressed certain absolutists specifically:

What free speech absolutists have failed to acknowledge is that because one has the right to offend a group does not mean that one must. Or that that group gives up the right to be outraged. They’re allowed to feel pain. Freedom should always be discussed within the context of responsibility. At some point free expression absolutism becomes childish and unserious. It becomes its own kind of fanaticism.

This was not well received. David Frum took umbrage in the Atlantic, accusing Trudeau of victim-blaming and ignoring the real source of societal privilege---the will to violence. In my view, Frum tries too hard to wring sympathy for extremists and a desire for censorship from Trudeau's reasonable call for personal temperance. One can simultaneously believe that the freedom to be offensive should be protected but not necessarily used.

It is not anti-freedom to encourage people not to be assholes simply because they can be.

Which brings us back to the Geller event in Texas. The sole purpose of the event was to provoke anger among Muslims who Geller hates and smears at any chance she can get. Her hatred is tribal---an us-against-them, spiritual war between two mutually exclusive civilizations. Those who attended used their freedom only to incite, not for any constructive purpose.

Should we pass laws against events like that? No. There is no justification, whether it be to encourage religious or ethnic sensitivity or to prevent violent responses, for the government to attempt to curb religious criticism or blasphemy of any kind. America should become neither a police state nor a theocracy. But that's not where the discussion should end.

Yes, you have and should have the freedom to criticize any religion. But of what value is your criticism? Are you illuminating contradictions, or exposing corruption, or are you just harassing and ridiculing The Other as part of a tribal circle jerk? It is not unreasonable or fascist to suggest that our freedom can be used for more constructive ends than petty agitation.

Our diverse society includes people of as many different backgrounds and viewpoints as you can imagine. It is critical that we protect everyone's freedom to believe and say whatever they feel. It is also critical that we maintain a dialogue among each other to avoid or minimize unnecessary conflict that solves no problems and helps no one in need. That dialogue should begin with an affirmation of our freedom, not end there.

Amicus Brief Profile: a War of Original Understanding

In a short series, I will profile several individual amicus briefs filed in the same-sex marriage cases currently consolidated before the U.S. Supreme Court and slated for oral argument on April 28, 2015.

In the same-sex marriage cases currently before the Supreme Court (consolidated as Obergefell v. Hodges), over one hundred amicus (or "friend of the court") briefs have been filed. The majority are in support of the petitioners - same-sex couples from Kentucky, Michigan, Tennessee, and Ohio. Amicus briefs in favor of the respondents - the states - are less in number but no less fervent.

In previous installments, I have profiled one amicus brief at a time. But today, I will profile two. The first is Brief of Amici Curiae Cato Institute, William N. Eskridge Jr., and Steven Calabresi in Support of Petitioners. Along with Eskridge, counsel for these amici is Ilya Shapiro of Cato. The second is Brief of Amici Curiae Scholars of Originalism in Support of Respondents, William C. Duncan of the Marriage Law Foundation as counsel of record.

First, a little background. Steven Calabresi is a Yale Law School graduate who now teaches at Northwestern University. While at Yale, he co-founded the Federalist Society, then went on to clerk for Judge Robert Bork at the D.C. Circuit and Justice Antonin Scalia at the U.S. Supreme Court. Few can rival Professor Calabresi's conservative legal credentials. Ilya Shapiro, similarly, is a big name among libertarian legal scholars, and the Cato Institute has long been a major conservative policy promoter. Professor Eskridge, for his part, has spent many years arguing against anti-gay discrimination in the law.

William Duncan of the Marriage Law Foundation is a conservative activist opposed to same-sex marriage. He writes on behalf of several conservative law professors, including Lawrence Alexander of the University of San Diego, Bruce Frohnen of Ohio Northern University, and George Mason professor Nelson Lund (a frequent writer for the conservative Heritage Foundation).

From that roster of names, you might think the briefs would agree. They do not.

The brief by Eskridge, Calabresi, and Shapiro ("the Cato brief"), was filed on behalf of the Petitioners (the same-sex couples) and therefore first. The "Scholars brief" was filed second, and contrary to standard amicus brief practice (where the amici argue whether the opinion below was right or wrong) it confronts the first brief head-on. In fact, it doesn't address the Sixth Circuit opinion much at all - it restricts its focus to the wrongness of the Cato brief.

So what does the Cato brief actually argue? It approaches the question of same-sex marriage from an "originalist" perspective. Originalism is a method of legal interpretation that seeks - whenever the actual text of a law is silent on a precise issue - to discern what the drafters (or "framers") of a law or constitutional provision either intended or meant to do at the time. There is actually a dispute among originalists whether the intent or the meaning is more important, and that dispute rears its head in these two briefs.

The Cato brief begins by criticizing the Sixth Circuit's opinion, which cited the "original understanding" of the Fourteenth Amendment. That understanding, in Judge Jeffrey Sutton's view, never could have anticipated same-sex marriage and therefore the Amendment does not compel states to recognize such unions. That approach was wrong, the Cato brief argues. The correct focus should be on the "original meaning," or how the "well-established meaning of terminology added to the Constitution in 1868 applies to modern exclusions of new as well as established social groups."

So what is that "original meaning?" Cato argues that it is twofold - that the Equal Protection Clause ensures equal laws and prohibits "caste legislation." Regardless of whether the framers of the Fourteenth Amendment anticipated gay marriage per se, the meaning of the broad language they enshrined in the constitution is clear: the government could not then and cannot now deny equal protection to castes of unpopular or undesirable citizens.

This "original meaning" is illuminated by underlying principles which are fixed but must be applied to new situations as they arise:

The Cato brief then addresses several contrary assertions. First, it disputes that the Fourteenth Amendment should be viewed through a "narrow, race-based view," on two bases: that equal protection was a concept embraced broadly by Americans prior to the Civil War and drafts of the Amendment which restricted its protections to issues of race were rejected in favor of broader language.

The Sixth Circuit held that gay marriage bans were rational because they merely codified long-established views about marriage. The Cato brief argues the opposite - the bans are constitutionally suspect because they are "new expressions of anti-gay attitudes that dominated American public law in the 20th Century." And simply because gay people were not identified as a distinct category of person in 1868 does not make them any less distinct today. In fact, by the 1950s they were distinguished as a criminal class by anti-sodomy laws. Therefore, Cato argues, the Fourteenth Amendment protects them from governmental attack.

Furthermore,

The Cato brief then concludes by attacking the various state justifications for discriminatory marriage bans in much the same way that the Petitioners themselves have done.*

The Scholars brief launches into a direct attack on the Cato brief in its very first sentence, arguing that the latter is "contrary to what nearly everyone had until recently supposed" about "the original meaning of the Fourteenth Amendment."

The Scholars criticize Cato's distinction between "original understanding" and "original meaning," calling it "untenable" and not based on either of the predominant originalist approaches toward intent or meaning. Yet, even accepting Cato's interpretation of the Fourteenth Amendment (as a general prohibition of class legislation), the state marriage bans do not run afoul of it because they are a benign adoption of "a traditional conception of marriage."

On the first subject, the Scholars write:

The Scholars brush aside the internal debate among originalists regarding intent vs. meaning. Both approaches attempt to discern the "original understanding" of a law or constitutional provision.

Of course, the Scholars admit, laws prohibiting theft enacted centuries ago aren't restricted to theft of goods that existed at the time. It is just as illegal to steal a cell phone as it is a wood-burning stove. But that's not the point. The Fourteenth Amendment, they say, could not be designed to prevent class legislation such as the states' marriage bans because nearly every law applies to classes of people in some form or another. And even though class distinctions historically considered suspect (race, religion, ancestry) are foreclosed in most cases, the Fourteenth Amendment can't possibly extend to gay marriage bans because those laws don't really single out and mistreat people based on sexual orientation:

The Scholars brief echos the Kentucky brief by arguing that "persons of any sexual orientation are wholly free to marry if they so choose." Or, conversely, both gay people and straight people are equally prohibited from marrying people of the same sex. This is an echo of the arguments made in favor of interracial marriage bans prior to Loving v. Virginia. According to the defenders of anti-miscegenation statutes, those laws were not discriminatory because both whites and blacks were prohibited from marrying people of a different race. In Loving, the Supreme Court unanimously rejected this argument.

Perhaps acknowledging the obvious historical parallel, the Scholars attempt to distinguish Loving. First, interracial marriage bans didn't define marriage, they argue. Second, bans on interracial marriages "accepted the traditional and legal conception of what marriage is" (two people of different sexes), but then wrongly imposed race-based restrictions on which different-sex couples could enter the institution. The two situations are clearly different, the Scholars say, because gay people are fully allowed to enter different-sex marriages.

It is worth noting here that, aside from the fact that this argument precludes gay people from marrying people they actually desire to marry, it conflicts with originalist interpretations of the Fourteenth Amendment prior to Loving. In 1966, the Virginia Law Review published an article by Alfred Avins titled "Anti-Miscegenation Laws and the Fourteenth Amendment: the Original Intent." "I believe that once the original understanding and intent of the framers is ascertained, the inquiry [as to the constitutionality of interracial marriage bans] should be at an end," Avins wrote.

So what was the "original understanding and intent" of the Fourteenth Amendment's framers? Avins explores debates within Congress beginning in 1864. It turns out that the framers made many references to interracial marriage in their discussions, mostly dismissive. As Avins explains:

In other words, Congressmen at the time easily dispatched slippery slope warnings from their racist colleagues because they did not intend - or mean - at all for the Fourteenth Amendment to compel an end to interracial marriage bans.

Avins provides quote after quote, mostly from the 39th Congress of 1866. Illinois Senator Lyman Trumbull, a major proponent of both the Fourteenth Amendment and the ill-fated Civil Rights Act, took great pains to distinguish the future impact of the new protections from the elimination of anti-miscegenation laws:

And on and on. Avins makes a very strong case that the original intent (or meaning) of the Fourteenth Amendment was not for the end of anti-miscegenation laws at all. Rather, it fully accepted a prohibition of interracial marriage as one that equally applied to all and was therefore constitutional.

It is hard to argue, therefore, that from an originalist perspective, Loving v. Virginia was correct. If, as the Scholars brief argues, we should not take an abstract approach to discern the underlying principles of the Fourteenth Amendment, and instead must focus on the intent and meaning of the framers from their contemporary worldview, then Loving simply cannot be correct, let alone any future ruling in favor of gay marriage.

And such is the problem with originalism. While perhaps quite useful when interpreting statutes and provisions governing the regulation of commerce, or national security, or the separation of powers, the doctrine fails miserably at illuminating the constitutional rights of individuals. The original Constitution and Bill of Rights were framed when only land-holding white men could vote or hold office. Slavery was legal. Women were the property of their fathers or husbands. In the realm of individual rights, relying on the intent or meaning of those framers necessitates a deference to a power structure we now view as abhorrent and unjust. Even the Reconstruction amendments, protecting the rights of blacks to vote and ensuring due process and equal protection under state laws, were framed by people with a profoundly different concept of civil rights and individual liberty than the one we hold today. We should rely on them to define the Constitution forever?

The Cato brief is a welcome departure from this strict view. It embraces an underlying principle of equality that, judging from the words the framers of the Fourteenth Amendment actually used, protects everyone from class-based legislation such as gay marriage bans. Whether or not this new perspective can be called "originalist," I don't know. I'm inclined to agree with the Scholars that it is not. But that's OK. If an originalist perspective cannot find in the meaning of the Fourteenth Amendment an individual right to marry the person of your choice, then what good is it? Whose interest does it serve?

*Of note is the Conclusion section of the Cato brief, which I will discuss in a subsequent post.

Religious Freedom, Then and Now

The hot topic in the news over the past two weeks has been the passage of Indiana's "religious freedom" law, which mimics the federal Religious Freedom Restoration Act in some ways but differs in others. The law has been slammed as a "license to discriminate" against gay people. Though it is not quite that bad, the timing makes the intent transparent. Indiana began issuing same-sex marriage licenses in October and the Supreme Court is soon to rule on the issue nation-wide. Opponents of LGBT equality fear a dark future of inclusion and acceptance and are working to create legal loopholes for the intolerant.

RFRAs impose a "compelling interest" test on state laws which "substantially burden" religious practices. That means the government has to show that it has a really good reason for a law, and the law has to apply with "the least restrictive means possible."

I wrote a piece about Indiana's law (and Kentucky's) for Insider Louisville and was interviewed for TV by WLKY and for print by the Lexington Herald-Leader. I talked about the interplay between anti-discrimination laws and ordinances and how the law can be used to defend against them. I noted that Kentucky and Indiana already allow anti-LGBT discrimination in most parts of the state, and that these new protections for religious beliefs potentially compound that problem.

But there's a lot more to say about the federal and state RFRAs, and not enough focus has been put on the history of such legislation.

First, a distinction. The original federal RFRA was passed in 1993 in the wake of a Supreme Court case called Employment Division v. Smith. The Court ruled that an Oregon man could be denied unemployment benefits because he was fired for using peyote. As a Native American, he argued that peyote was part of his regular religious practice, and that Oregon's unemployment rules infringed on his First Amendment right to free religious exercise.

The Supreme Court ruled against him. In an opinion by Justice Antonin Scalia and joined by all the conservative members of the Court at the time, the Court held that laws of "general applicability," such as a law denying unemployment benefits to people fired for drug use, did not violate the First Amendment.

Congress responded by passing the Religious Freedom Restoration Act, which rolled back the clock to 1963, when the Supreme Court last held that strict scrutiny should be applied to laws which infringe on religious freedom.

The situation that gave rise to the federal RFRA was very specific: a law made it effectively impossible for Mr. Smith to simultaneously maintain his employment and practice his religion. He had to choose between his spiritual beliefs and full participation in society. By choosing his religion, he became a victim of a state law which, while not targeted at him specifically, made no exception for his honestly held religious beliefs.

State laws like the Indiana RFRA arose much later, and without such a specific situation in mind. Rather than shield people victimized by state laws, they are designed to shield victimizers.

They are intended to give an "out" to people who discriminate against others, not those who are given the same false choice as Mr. Smith. Someone who wants to exclude gay people (for example) from their business is not given a choice between the practice of their religion and full participation in society. Their participation is not at risk. They are not forced to choose between not having a business and not excluding minority customers. Their businesses will persist despite the "burden" of having to take money from paying customers whose identities they dislike.

In his opinion, Justice Scalia actually illustrated the underlying problem with RFRAs:

If the "compelling interest" test is to be applied at all, then, it must be applied across the board, to all actions thought to be religiously commanded. Moreover, if "compelling interest" really means what it says (and watering it down here would subvert its rigor in the other fields where it is applied), many laws will not meet the test. Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society's diversity of religious beliefs, and its determination to coerce or suppress none of them. Precisely because "we are a cosmopolitan nation made up of people of almost every conceivable religious preference," and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind -- ranging from compulsory military service to the payment of taxes to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races. The First Amendment's protection of religious liberty does not require this.

Employment Division v. Smith, 494 U.S. 872, 888-889 (1993) (internal citations omitted).

Justice Scalia, himself a very conservative Christian, saw then the problem with the test that RFRAs now impose on state governments. While I generally agree that any law which actually infringes on religious practice should be subject to a higher level of judicial scrutiny, I also agree with Justice Scalia that such a broad brush rule makes governing in a diverse society quite difficult, and can undermine very important laws which protect the less powerful and less popular, not to mention basic public safety.

Amicus Brief Profile: NAACP Legal Defense & Educational Fund

In a short series, I will profile several individual amicus briefs filed in the same-sex marriage cases currently consolidated before the U.S. Supreme Court and slated for oral argument on April 28, 2015.

In the same-sex marriage cases currently before the Supreme Court (consolidated as Obergefell v. Hodges), already nearly one hundred amicus (or "friend of the court") briefs have been filed. The vast majority so far are in support of the petitioners - same-sex couples from Kentucky, Michigan, Tennessee, and Ohio. Amicus briefs in favor of the respondents - the states - are due at the end of March.

One of the amicus briefs in favor of the petitioners was filed by the NAACP and the NAACP Legal Defense & Educational Fund through counsel John Paul Schnapper-Casteras, Sherrilyn Ifill, Janai Nelson, Christina Swarns, Jin Hee Lee, Rachel M. Kleinman, Marshall W. Taylor, and Khyla D. Craine.

The brief focuses almost entirely on Loving v. Virginia, the landmark 1967 Supreme Court case that struck down state bans on interracial marriage, called "anti-miscegenation" laws. States defending their bans on gay marriage have frequently attempted to distinguish Loving on the basis that it: 1) dealt only with issues of race; 2) dealt with a criminal law, not a civil ban; 3) assumed that any "fundamental right" to marriage applies to different-sex marriage only; or 4) some combination of those three.

The NAACP brief tackles those arguments head-on, and goes further to point out that the states' arguments today against same-sex marriage are largely identical to the arguments made against interracial marriage before 1967. The states appeal to tradition. They claim the federal courts have no power to restrict state marriage laws. They argue that allowing same-sex couples to marry will endanger children. And they argue that same-sex marriage is such a radical concept that society must not be forced to accept it overnight.

First, a history lesson:

The parallels between the arguments against interracial marriage and same-sex marriage are clear, and the NAACP brief does good work making that point. Furthermore, the brief notes that, "since Loving, none of the social or genetic harms crudely predicted [before Loving] have come to pass." Public sentiment toward interracial marriage is the only thing that has changed. Only 4% supported interracial marriage in 1958, compared to 87% today.

The brief argues that the implications of Loving and the Fourteenth Amendment are not limited to issues of race alone:

The brief criticizes the reasoning of the Sixth Circuit in DeBoer v. Snyder that Loving is distinguishable because "it did not create a new definition of marriage." The NAACP argues that such a conclusion misses the point, and narrows the important affirmation of personal liberty that Loving embraces.

The brief's final section is devoted to dispatching every argument advanced by the states. First, tradition. The NAACP notes that the Supreme Court in 1967 was facing a very long tradition of anti-miscegenation laws in the United States. Many states' interracial marriage bans predated the Civil War and some predated the Revolution. Yet tradition alone cannot protect a law from constitutional scrutiny.

Next, the brief tackles the argument that state legislators or voters retain sole discretion when it comes to domestic policy:

Third, the brief attacks the idea that same-sex marriage bans are rational because the purpose of marriage is to promote responsible procreation or is otherwise linked to the ability to reproduce. "Nowhere did Loving link the right to marry to a couple's ability to procreate," and other Supreme Court decisions, "have made clear that the right to marriage...is...an expression of emotional support and public commitment."

Finally, the NAACP confronts an argument made by Idaho governor Butch Otter in an amicus brief he filed in this case. He argued that same-sex marriage bans do not discriminate because they apply to homosexuals and heterosexuals equally. Both are prohibited from marrying someone of the same sex.

The brief concludes by noting the consistency of "protect the children" arguments made by states in defense of both anti-miscegenation laws and same-sex marriage bans. Before 1967, states like Virginia argued that they had a legitimate interest in preserving racial integrity and discouraging the creation of a "mongrel breed of citizens." The Court in Loving denounced these arguments as "obviously and endorsement of the doctrine of White Supremacy." Arguments today warning that same-sex couples are bad parents or morally incapable of raising responsible children are similarly nonsensical. Social and biological scientific consensus is clear: same-sex couples are perfectly fit to be parents and should be allowed to raise children with an underlying marital foundation.