14-31037 - plaintiffs' reply brief

8/10/2019 14-31037 - Plaintiffs' Reply Brief

1/57

No. 14-31037

In the United States Court of ppeals

for the Fifth Circuit _________

J ONATHAN P. ROBICHEAUX ; DEREK P ENTON ; N ADINE BLANCHARD ; andCOURTNEY BLANCHARD , Plaintiffs Appellants

v.J AMES D. C ALDWELL , in his official capacity as the Louisiana Attorney

General, also known as Buddy Caldwell, Defendant AppelleeJ ONATHAN P. ROBICHEAUX ; D EREK P ENTON ; N ADINE BLANCHARD ;

COURTNEY BLANCHARD ; ROBERT WELLES ; and G ARTH BEAUREGARD , Plaintiffs Appellantsv.

DEVIN G EORGE , in his official capacity as the State Registrar and CenterDirector at Louisiana Department of Health and Hospitals; T IM

B ARFIELD , in his official capacity as the Louisiana Secretary of Revenue;K ATHY K LIEBERT , in her official capacity as the Louisiana Secretary of

Health and Hospitals, Defendants Appellees F ORUM FOR E QUALITY LOUISIANA , INCORPORATED ; J ACQUELINE M.

BRETTNER ; M. L AUREN BRETTNER ; N ICHOLAS J. V AN S ICKELS ; A NDREW S. BOND ; H ENRY L AMBERT ; R. C AREY BOND ; L. H AVARD S COTT , III; andS ERGIO M ARCH P RIETO , Plaintiffs Appellants

v.T IM B ARFIELD , in his official capacity as Secretary of the LouisianaDepartment of Revenue; D EVIN G EORGE , in his official capacity as

Louisiana State Registrar, Defendants Appellees

On Appeal from the United States District Court for the Eastern

District of Louisiana, Case Nos. 2:13-cv-5090, 2:14-cv-97, 2:14-cv-327The Honorable Martin Leach-Cross Feldman, District Judge

REPLY BRIEF OF APPELLANTS

(Counsel Listed on Inside Cover)

Case: 14-31037 Document: 00512830785 Page: 1 Date Filed: 11/07/2014


2/57

K ENNETH D. U PTON J R.Lead Attorney

P AUL D. CASTILLO L AMBDA LEGAL D EFENSE AND

E DUCATION F UND , INC . 3500 Oak Lawn Avenue, Suite 500Dallas, TX 75219T: 214-219-8585, F: [email protected] [email protected]

S USAN L. S OMMER K AREN L. LOEWY O MAR G ONZALEZ -P AGAN

L AMBDA LEGAL D EFENSE ANDE DUCATION F UND , INC .120 Wall Street, 19th FloorNew York, NY 10005T: 212-809-8585, F: [email protected] [email protected]@lambdalegal.org

CAMILLA B. TAYLOR

L AMBDA LEGAL D EFENSE ANDE DUCATION F UND , INC .

105 West Adams, Suite 2600Chicago, Illinois 60603T: 312-663-4413, F: [email protected]

Counsel for All Plaintiffs- Appellants

J. D ALTON COURSON LESLI D. H ARRIS S TONE P IGMAN W ALTHER

W ITTMANN , L.L.C.

546 Carondelet StreetNew Orleans, LA 70130T: 504-581-3200, F: [email protected]@stonepigman.com

Counsel for Plaintiffs-AppellantsForum for Equality Louisiana,Inc., Jacqueline Brettner,Lauren Brettner, Nicholas Van

Sickels, Andrew Bond, HenryLambert, Carey Bond, L. HavardScott, III, and Sergio MarchPrieto

R ICHARD G. P ERQUE L AW OFFICE OF R ICHARD G.

P ERQUE 700 Camp StreetNew Orleans, LA 70130

T: 504-524-3306, F: [email protected]

Counsel for Plaintiffs-AppellantsJonathan P. Robicheaux, DerekPenton, Courtney Blanchard,and Nadine Blanchard

S COTT J. S PIVEY L ANDRY & S PIVEY 320 N. Carrollton Ave, Suite 101New Orleans, LA 70119T: 504-297-1236, F: [email protected] for Plaintiffs-AppellantsGarth Beauregard and RobertWelles



3/57

i

TABLE OF CONTENTS

TABLE OF CONTENTS .......................................................... i

TABLE OF AUTHORITIES .................................................. iii

ARGUMENT IN REPLY ......................................................... 1

I. BOTH WINDSOR AND SCHUETTE UNDERSCORE THE CONSTITUTIONALLIMITS ON LOUISIANAS POWER TO

REGULATE MARRIAGE. ............................................. 4

II. THE RIGHT AT ISSUE IN THIS CASE IS THEFUNDAMENTAL RIGHT TO MARRY, NOT ANEW RIGHT TO SAME -SEX MARRIAG E. .......... 13

III. LOUISIANAS MARRIAGE BAN IS SUBJECTTO HEIGHTENED SCRUTINY UNDER THEEQUAL PROTECTION GUARANTEE. ...................... 18

A. This Court Should Apply HeightenedScrutiny Because Louisianas MarriageBan Classifies on the Basis of SexualOrientation. ......................................................... 19

B. Classifications Based on SexualOrientation Bear the Hallmarks of ThoseWarranting Heightened Scrutiny. ...................... 21

C. The Marriage Ban Warrants HeightenedScrutiny Because It Discriminates on theBasis of Gender. .................................................. 28



4/57

ii

1. Louisianas Marriage Ban FaciallyClassifies on the Basis of Gender . ............. 28

2. Louisianas Marriage Ban AlsoDiscriminates on the Basis of GenderBecause It Requires Adherence ToGender Stereotypes . ................................... 30

IV. LOUISIANAS PROFFERED JUSTIFICATIONSCANNOT SURVIVE EVEN RATIONAL BASISREVIEW. ...................................................................... 31

A. Linking Children to Their BiologicalParents Cannot Justify the Ba n. ....................... 32

B. The Marriage Ban Cannot Be Justifiedby an Interest in Deference to theDemocratic Process. ............................................ 40

CONCLUSION ...................................................................... 43

CERTIFICATE OF SERVICE .............................................. 45

ECF FILING STANDARDCERTIFICATION ................................................................. 46

CERTIFICATE OF COMPLIANCE ...................................... 47



5/57

iii

TABLE OF AUTHORITIES

Cases

Adar v. Smith ,639 F.3d 146 (5th Cir. 2011) ............................................. 36

Baker v. Nelson ,409 U.S. 810 (1972) ............................................................. 9

Baskin v. Bogan ,

766 F.3d 648 (7th Cir. 2014), cert.denied , No. 14-277, 2014 U.S.LEXIS 5797 (Oct. 6, 2014) ........................................ passim

Bd. of Trs. of Univ. of Ala. v. Garrett ,531 U.S. 356 (2001) ..................................................... 12, 39

Bostic v. Schaefer ,760 F.3d 352 (4th Cir. 2014), cert.

denied , No. 14-153, 2014 U.S.LEXIS 6053 (Oct. 6, 2014) ........................................ passim

Bowen v. Gilliard ,483 U.S. 587 (1987) ........................................................... 21

Califano v. Webster ,430 U.S. 313 (1977) ........................................................... 31

City of Cleburne v. Cleburne Living Ctr. ,473 U.S. 432 (1985) ................................................... passim



6/57

iv

Conde-Vidal v. Garcia-Padilla ,2014 U.S. Dist. LEXIS 150487

(D. P.R. Oct. 21, 2014) .................................................... 2, 9

De Leon v. Perry ,975 F. Supp. 2d 632 (W.D. Tex. 2014) .............................. 39

DeBoer v. Snyder ,No. 14-1341, 2014 U.S. App. LEXIS21191 (6th Cir. Nov. 6, 2014) .................................... passim

Eisenstadt v. Baird ,405 U.S. 438 (1972) ..................................................... 35, 39

Frontiero v. Richardson ,411 U.S. 677 (1973) ........................................................... 27

Golinski v. U.S. Office of Pers. Mgmt. ,824 F. Supp. 2d 968 (N.D. Cal.2012) ............................................................................ 24, 25

Hollingsworth v. Perry ,133 S. Ct. 2652 (2013) ....................................................... 18

Johnson v. Johnson ,385 F.3d 503 (5th Cir. 2004) ....................................... 19, 20

Kitchen v. Herbert ,755 F.3d 1193 (10th Cir. 2014),

cert. denied , No. 14-124, 2014 U.S.LEXIS 6637 (Oct. 6, 2014) ...................................... 7, 15, 43



7/57

v

Latta v. Otter ,No. 14-35420, 2014 U.S. App.

LEXIS 19620 (9th Cir. Oct. 7, 2014) ........................ passim

Lawrence v. Texas ,539 U.S. 558 (2003) ..................................................... 10, 26

Massachusetts v. U.S. Dept o f Health & HumanServs. , 682 F.3d 1 (1st Cir. 2012) ..................................... 23

McLaughlin v. Florida ,

379 U.S. 184 (1964) ........................................................... 29

Mississippi Univ. for Women v. Hogan ,458 U.S. 718 (1982) ..................................................... 30, 31

Mitchum v. Foster ,407 U.S. 225 (1972) ............................................................. 5

Nyquist v. Mauclet ,

432 U.S. 1 (1977) ............................................................... 25

Otter v. Latta ,No. 14A374, 2014 U.S. LEXIS 6735 (Oct. 10, 2014) .......... 2

Parnell v. Hamby ,No. 14A413, 2014 U.S. LEXIS 7011 (Oct. 17, 2014) .......... 2

Pedersen v. U.S. Office of Pers. Mgmt. ,

881 F. Supp. 2d 294 (D. Conn. 2012) .......................... 25, 28

Perry v. Schwarzenegger ,704 F. Supp. 2d 921 (N.D. Cal. 2010) ................... 23, 24, 25



8/57

vi

Planned Parenthood v. Casey ,505 U.S. 833 (1992) ........................................................... 12

Romer v. Evans ,517 U.S. 620 (1996) ................................................... passim

Schuette , v. Coal. to Defend Affirmative Action ,134 S. Ct. 1623 (2014) ................................................. 6, 8, 9

Siff v. State Democratic Exec. Comm. ,500 F.2d 1307 (5th Cir. 1974) ........................................... 42

SmithKline Beecham Corp. v. Abbott Labs ,740 F.3d 471 (9th Cir. 2014) ............................................. 20

Turner v. Safley ,482 U.S. 78 (1987) ............................................................. 13

U.S. Dept of Agric. v. Moreno ,413 U.S. 528 (1973) ..................................................... 35, 41

United States v. Virginia ,518 U.S. 515 (1996) ........................................................... 31

United States v. Windsor ,133 S. Ct. 2675 (2013) ............................................... passim

Varnum v. Brien ,763 N.W.2d 862 (Iowa 2009)....................................... 24, 28

Watkins v. U.S. Army ,875 F.2d 699 (9th Cir. 1989) ............................................. 24



9/57

vii

Whitewood v. Wolf ,992 F. Supp. 2d 410 (M.D. Pa. 2014) .................... 24, 26, 27

Windsor v. United States ,699 F.3d 169 (2nd Cir. 2012), aff'd ,133 S. Ct. 2675 (2013) ............................................... passim

Zablocki v. Redhail , 434 U.S. 374(1978) ................................................................................ 13

Constitutional Provisions

L A . CONST . art. XII, 15 ........................................................ 28

Statutes

42 U.S.C. 1983 ...................................................................... 5

L A . C IV . CODE art. 86 ............................................................. 28

L A . REV . S TAT . A NN . 14:89 (2013) ........................................ 26

Other Authorities

Anjani Chandra, et al., Infertility Service Use in theUnited States: Data From the National Survey ofFamily Growth, 1982 2010 , National HealthStatistics Report, Center for Disease Control, No. 73(2014), available at http://www.cdc.gov/nchs/data/nhsr/nhsr073.pdf(last visited Nov. 3, 2014) ................................................. 39

Campbell Robertson, After Arrests on Charges ofSodomy, an Apology, N.Y. Times (July 30, 2013),http://www.nytimes.com/2013/07/30/us/after-arrests-on-charges-of-sodomy-an-apology.html . ........................... 27



10/57

viii

House Legis. Servs., 40th Reg. Leg. Sess.,

Digest H.B. 12 (La. 2014) ................................................. 27

Michael Dorf, What's Wrong With the Sixth CircuitRuling Against A Constitutional Right to SSM , Dorfon Law, http://www.dorfonlaw.org/2014/11/whats-wrong-with-sixth-circuit-ruling.html (last accessedNov. 7, 2014) ..................................................................... 12

Rebekah Allen, Metro Council Rejects Anti-Sodomy

Law Resolution , The Advocate (Feb. 13, 2014),http://theadvocate.com/home/8362443-125/metro-council-rejects-anti-sodomy-law ....................................... 27

U.S. Dept. of Health & Human Services, ChildrensBureau, How Many Children Are in Foster Care inthe U.S.? In My State? (July 2012), available atwww.acf.hhs.gov/programs/cb/faq/foster-care4(last accessed Nov. 3, 2014) .............................................. 36



11/57

1

ARGUMENT IN REPLY

More than two dozen federal circuit and district courts

around the country have struck down as unconstitutional

prohibitions on marriage for same-sex couples. As of this

filing, 32 states and the District of Columbia recognize the

constitutional right of same-sex couples to marry. 1 This

follows the decision by the United States Supreme Court to

deny certiorari review of the decisions of the Fourth,

Seventh, and Tenth Circuits to invalidate the marriage bans

of Virginia, Indiana, Wisconsin, Oklahoma, and Utah, 2 as

1 Those states include: Alaska, Arizona, California, Colorado,Connecticut, Delaware, Hawaii, Idaho, Illinois, Indiana, Iowa, Maine,Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, NewJersey, New Mexico, New York, North Carolina, Oklahoma, Oregon,Pennsylvania, Rhode Island, Utah, Vermont, Virginia, Washington,Wisconsin, West Virginia, and Wyoming.

2 See Rainey v. Bostic , No. 14-153, 2014 U.S. LEXIS 6053 (Oct. 6,2014); Schaefer v. Bostic , No. 14-225, 2014 U.S. LEXIS 6405 (Oct. 6,2014); McQuigg v. Bostic , No. 14-251, 2014 U.S. LEXIS 6316 (Oct. 6,

2014); Bogan v. Baskin , No. 14-277, 2014 U.S. LEXIS 5797 (Oct. 6,2014); Walker v. Wolf , No. 14-278, 2014 U.S. LEXIS 6655 (Oct. 6,2014); Smith v. Bishop , No. 14-136, 2014 U.S. LEXIS 6054 (Oct. 6,2014); Herbert v. Kitchen , No. 14-124, 2014 U.S. LEXIS 6637 (Oct. 6,2014).



12/57

2

well as to deny stays of the rulings by the Ninth Circuit and

a district court invalidating the marriage bans of Nevada,

Idaho, and Alaska. 3

The lower court stands as one of the few outliers in

upholding Louisianas Ban. 4 Its decision ignores that the

power the Constitution grants it also restrains. United

States v. Windsor , 133 S. Ct. 2675, 2695 (2013). While states

have substantial authority to regulate marriage and

domestic relations, government cannot deny the liberty

protected by the Due Process and Equal Protection Clauses

of the Fourteenth Amendment. Id.

Windsor held Section 3 of the Defense of Marriage Act

3 See Otter v. Latta , No. 14A374, 2014 U.S. LEXIS 6735 (Oct. 10,2014); Parnell v. Hamby , No. 14A413, 2014 U.S. LEXIS 7011 (Oct. 17,2014)

4 Out of dozens of federal court decisions, the lower court is joinedby rulings from only two courts the Sixth Circuit and District ofPuerto Rico. See DeBoer v. Snyder , No. 14-1341, 2014 U.S. App. LEXIS21191, slip op. (6th Cir. Nov. 6, 2014); Conde-Vidal v. Garcia-Padilla ,No. 14-cv-1253, 2014 U.S. Dist. LEXIS 150487 (D. P.R. Oct. 21, 2014).



13/57

3

(DOMA), 1 U.S.C. 7, unconstitutional based not on its

federal intrusion on state power and disrupt[ion] of the

federal balance, 133 S. Ct. at 2692, but rather because it

violate[d] basic due process and equal protection principles.

Id. at 2693. Defendants- Appellees ( Defendants ) place gre at

emphasis on Windsor s discussion of federalism and state

power, but Windsor s foremost lesson is that when [t]he

avowed purpose and practical effect of [a] law . . . are to

impose a disadvantage, a separate status, and so a stigma

upon same -sex couples, id. at 2694 , whose moral and

sexual choices the Constitution protects, id. at 2695, the law

is unconstitutional as a deprivation of the liberty of the

person. Id.

Not only do Defendants misapprehend Windsor , but

they also ignore the constitutional constraints on a states

power to regulate marriage, misconstrue the fundamental

right at issue in this case, and fail to acknowledge the proper



14/57

4

equal protection framework applicable to Louisianas

Marriage Ban. They have not even a legitimate and rational,

much less compelling, basis to deny same-sex Louisiana

couples and their families the protections and dignity of

marriage.

I. BOTH WINDSOR AND SCHUETTE UNDERSCORETHE CONSTITUTIONAL LIMITS ON LOUISIANASPOWER TO REGULATE MARRIAGE.

According to Defendants, this case does not concern

severe unconstitutional harms inflicted on a minority of

Louisiana families, but rather mere policy differences that

state citizens [have] the freedom to decide for themselves.

Red Br. 15. In other words, Louisiana would have this Court

forfeit its role as adjudicator of Plaintiffs federal

constitutional rights and leave to Louisiana politicians and

voters whether Plaintiffs fundamental right to marry and

right to equal protection may be trammeled. Appellees could

not be more wrong.



15/57

5

[A] primary purpose of the Constitution is to protect

minorities from oppression by majorities. Latta v. Otter , No.

14-35420, 2014 U.S. App. LEXIS 19620, at *46 (9th Cir. Oct.

7, 2014). This case to enforce federal constitutional rights

was brought under 42 U.S.C. 1983 , which was clearly

conceived [as] . . . altering the relationship between the

States and the Nation with respect to the protection of

federally created rights; it was concerned that state

instrumentalities could not protect those rights; it realized

that state officers might, in fact, be antipathetic to the

vindication of those rights. Mitchum v. Foster , 407 U.S. 225,

242 (1972) . Thus, [m]inorities trampled on by the

democratic process have recourse to the courts; the recourse

is called constitutional la w. Baskin v. Bogan , 766 F.3d 648

(7th Cir. 2014).

In arguing that this case is one of mere policy

differences, Defendants misapprehend both Windsor and



16/57

6

Schuette , v. Coal. to Defend Affirmative Action , 134 S. Ct.

1623 (2014). First, Defendants and the district court misread

Windsor as if it presents two conflicting lessons. On the one

hand, Windsor teaches that the equality and liberty of same-

sex couples may not be violat ed by laws, like Louisianas

Marriage Ban, that serve to demean[] the couple, 133 S. Ct.

at 2692 , humiliate[] . . . children now being raised by same -

sex couples, deprive their families of ext ensive tangible

protections, id . at 2694 , and deny them a dignity and status

of immense import, id . at 2692. On the other, Defendants

contend, Windsor recognized the authority of the State to

redefine marriage and stressed the need for popular

consensus in making such change. Red Br. 17 -18 (internal

quotations omitted).

But Defendants fail to read Windsor s supposedly

conflicting messages in tandem. While Windsor recognized

the authority of states to regulate marriage, Windsor itself



17/57

7

made clear, state laws defining and regulating marriage, of

course, must respect the constitutional rights of persons.

Latta , 2014 U.S. App. LEXIS 19620, at *47 (quoting

Windsor , 133 S. Ct. at 2691). See also Kitchen v. Herbert ,

755 F.3d 1193, 1228-29 (10th Cir. 2014) . Windsor does not

teach us that federalism principles can justify depriving

individuals of their constitutional rights; it reiterates

Loving s admonition that the states must exercise their

authority without trampling constitutional guarantees.

Bostic v. Schaefer , 760 F.3d 352, 379 (4th Cir. 2014). This is

because the power the Constitution grants it also restrains.

Windsor , 133 S. Ct. at 2695.

Second, Defendants misconstrue Schuette to mean that

because the Marriage Ban reflected the will of a majority of

voters, it is immune from constitutional scrutiny. Red Br. 22-

23. This ignores Schuette s context and conflicts with



18/57

8

Schuette s reasoning. 5

Schuette found that a voter-approved state

constitutional amendment prohibiting Michigan public

universities from using race-based preferences in admissions

did not violate the Fourteenth Amendment. 134 S. Ct. at

1629, 1638. In so holding, the Court noted that the

amendment was not used, or . . . likely to be used, to

encourage infliction of injury by reason of race. Id . at 1638.

Absent such injury to a minority, the Court declined to

presume that the voters are not capable of deciding the

issue of affirmative action on their own. Id. at 1637-38. Yet

the Court emphasized that Schuette was not meant to be

inconsistent with the well-established principle that when

hurt or injury is inflicted on . . . minorities by the

encouragement or command of laws or other state action, the

5 See Amicus Br. of CATO Institute and the Constitutional Accountability Center in Support of Plaintiffs-Appellants, Robicheauxv. Caldwell , No. 14-31037 (5th Cir. Oct. 24, 2014).



19/57

9

Constitution requires redress by the courts . Id. at 1637

(emphasis added). Neither federalism nor the democratic

process trump the constitutional constraints placed upon

Louisianas authority to regulate marriage. 6

The recent Sixth Circuit decision in DeBoer , No. 14-

1341, slip op., erred in a different respect in upholding

marriage bans in Ohio, Michigan, Kentucky, and Tennessee.

That Court relied on an originalist interpretation of the

liberty and equality guarantees of the Fourteenth

Amendment namely, that courts must interpret these

guarantees by imagining what the adopters of the

6 State officials repeatedly quote the same line from Conde-Vidal v.Garcia-Padilla , 2014 U.S. Dist. LEXIS 150487, at *8 (D. P.R. Oct. 21,2014), notice of appeal filed (Oct. 28, 2014), for the proposition thatWindsor merely endorsed state control of marriage. Red Br. 3, 10, 17,26. That reading of Windsor conflicts with nearly every other federalcourt to have considered the constitutionality of a marriage ban. See,e.g. , Blue Br. 25-26. Conde-Vidal and DeBoer also were far off themark in holding that the Supreme Courts 1972 summary dismissal inBaker v. Nelson , 409 U.S. 810 (1972), precludes reaching the merits onmarriage claims today. See, e.g., Conde-Vidal , 2014 U.S. Dist. LEXIS150487, at *13. State Officials themselves do not make this meritlessclaim. See Blue Br. 28, 29 n.6.



20/57

10

Fourteenth Amendment would have thought in 1868 about

lesbian and gay people and their desire to marry. DeBoer ,

No. 14-1341, slip op. at 17-18. However, the Supreme Court

repeatedly has rejected such a cramped view of

constitutional interpretation, including when striking down

measures that deprive lesbian and gay people of liberty and

equality:

Had those who drew and ratified the Due ProcessClauses of the Fifth Amendment or the Fourteenth

Amendment known the components of liberty in itsmanifold possibilities, they might have been morespecific. They did not presume to have this insight.They knew times can blind us to certain truths and

later generations can see that laws once thoughtnecessary and proper in fact serve only to oppress. Asthe Constitution endures, persons in every generationcan invoke its principles in their own search for greaterfreedom.

Lawrence v. Texas , 539 U.S. 558, 575, 578-79 (2003) (laws

criminalizing intimacy between persons of the same sex held

unconstitutional; that the governing majority in a State has

traditionally viewed a particular practice as immoral is not a



21/57

11

sufficient reason for upholding a law prohibiting the

practice); see, also, Windsor, 133 S. Ct. at 2689 (federal law

denying marital respect to same-sex spouses violated equal

protection and due process even though until recent years,

many citizens had not even considered the possibility that

two persons of the same sex might aspire to occupy the same

status and dignity as that of a man and woman in lawful

marriage). As the Supreme Court opined over twenty years

ago:

It is . . . tempting . . . to suppose that the Due ProcessClause protects only those practices, defined at themost specific level, that were protected againstgovernment interference by other rules of law when theFourteenth Amendment was ratified. But such a viewwould be inconsistent with our law It is a promise ofthe Constitution that there is a realm of personalliberty which the government may not enter. We havevindicated this principle before. Marriage is mentionednowhere in the Bill of Rights and interracial marriagewas illegal in most States in the 19th century, but theCourt was no doubt correct in finding it to be an aspectof liberty protected against state interference by thesubstantive component of the Due Process Clause inLoving v. Virginia .



22/57

12

Planned Parenthood v. Casey , 505 U.S. 833, 847-48 (1992)

(citations omitted) (emphasis added).7

7 The Sixth Circuit also erroneously distinguished Windsorsfinding that the federal DOMA was an anomalous exercise[] of power

targeting a single group [that] raise[s] suspicion that bigotry ratherthan legitimate policy is afoot by concluding that [o]nly federalismcan supply the a nswer. DeBoer , No. 14-1341, slip op. at 64. But, asone scholar has noted, What made DOMA a deprivation of dignity wasnot that it substituted a federal for a state definition of some legalstatus on a subject traditionally within the primary regulatorycompetence of the states. It was the fact that . . . depriving same-sexcouples of the tangible and intangible benefits of marriage based ontheir sexual orientation was animus not in the sense of hatred, whichhas never been required, but in the sense of unwarranted prejudice.Michael Dorf, What's Wrong With the Sixth Circuit Ruling Against AConstitutional Right to SSM , Dorf on Law,http://www.dorfonlaw.org/2014/11/whats-wrong-with-sixth-circuit-ruling.html (last accessed Nov. 7, 2014). Improper animus does notnecessarily mean legislatures or proponents of the law harboredconscious prejudice or dislike of lesbians and gay men. Instead, thelegislation may reflect mere negative attitudes, or fear,unsubstantiated by factors which are properly cognizable bygovernment. Cleburne , 473 U.S. 432, 448 (1985) . Such attitudes mayresult as well from insensitivity caused by simple want of careful,rational reflection or from some instinctive mechanism to guardagainst people who appear to be different in some respects fromourselves. Bd. of Trs. of Univ. of Ala. v. Garrett , 531 U.S. 356, 374(2001) (Kennedy, J., concurring).



23/57

13

II. THE RIGHT AT ISSUE IN THIS CASE IS THEFUNDAMENTAL RIGHT TO MARRY NOT A NEW

RIGHT TO SAME -SEX MARRIAGE.

Plaintiffs simply seek to marry the one person they

love, honor, and cherish. But, as they did below, Defendants

attempt to reframe this case as invoking a new right to

same -sex marriage. Red Br. 23 -32. This reframing

erroneously narrows the liberty interests at stake by

defining them in relation to a particular group.

As with any fundamental right, the freedom to marry

is defined by the attributes of the right itself, not by the

identity of the people seeking to exercise it. Blue Br. at 38-

40, citing Loving , 388 U.S. 1, Turner v. Safley , 482 U.S. 78

(1987), and Zablocki v. Redhail , 434 U.S. 374 (1978). These

cases rejected status-based restrictions on marriage not by

considering whether to recognize a new, narrow

fundamental right . . . or determining whether the class of

people at issue enjoyed the right as it had previously been



24/57

14

defined, but rather by deciding whether there existed a

sufficiently compelling justification for depriving plaintiffs of

the right they, as people, possessed. Latta , 2014 U.S. App.

LEXIS 19620, at *54-55 (Reinhardt, J., concurring).

Defendants wrongly contend that those cases have no

application here because they involved different-sex couples.

Red Br. 27-28. But as the Fourth Circuit noted in rejecting

this contention, the c hoices that individuals make in the

context of same-sex relationships enjoy the same

constitutional protection as the choices accompanying

opposite- sex relationships. Bostic , 760 F.3d at 377.

Moreover, Defendants argument that because

Louisiana has always excluded same-sex couples from

marriage means that they do not have a right to marry is

wholly circular. To claim that marriage, by definition,

excludes certain couples is simply to insist that those couples

may not marry because they have historically been denied



25/57

15

the right to do so. One might just as easily have argued that

interracial couples are by definition excluded from the

institution of marriage. Kitchen , 755 F.3d at 1216.

Defendants take particular exception to the

applicability of Loving to the present case. Indeed, to

Defendants, the reliance by Plaintiffs and dozens of federal

judges on Loving is a disturbing misuse of a landmark

decision. Red Br. 20. Understandably, Defendants do not

want to be compared to proponents of anti-miscegenation

laws, no matter how similar their arguments are. But Loving

is directly analogous here.8

Loving , explained that [t]he

freedom to marry has long been recognized as one of the

vital personal rights essential to the orderly pursuit of

happiness by free men and that no valid basis justified the

Virginia laws infringement of that right. Bostic , 760 F.3d at

8 See Amicus Br. of NAACP Legal Defense & Educational Fund,Inc. in Support of Plaintiffs-Appellees, De Leon v. Perry , No. 14-50196(5th Cir. Sept. 16, 2014), at 19-32.



26/57

16

376 (quoting Loving , 388 U.S. at 12). As with the Lovings,

Plaintiffs are each denied the freedom . . . to marry the

person whom they chose . . . . The case of lesbians and gays

is indistinguishable. A limitation on the right to marry

another person, whether on account of race or for any other

reason, is a limitation on the right to marry. Latta , 2014

U.S. App. LEXIS 19620, at *56 (Reinhardt, J., concurring).

Here, Plaintiffs do not seek a new right, but rather seek to

exercise a settled fundamental right: the right to marry. 9

Finally, Defendants argue that because the Supreme

Court has not yet expressly declared that the fundamental

right to marry encompasses same-sex couples, same-sex

couples do not share this right. Red Br. 32. But if silence by

9 State Officials also claim that t he married Plaintiffs marriagesare not entitled to full faith and credit. Red Br. 32-35. However,Plaintiffs do not argue that Louisiana must recognize their existingmarriages under the Full Faith and Credit Clause; rather, they assertthat the Marriage Ban is an unconstitutional violation of the EqualProtection and Due Process Clauses of the Fourteenth Amendment.



27/57

17

the Supreme Court on this issue is indicative of its views,

then the only conclusion that follows is that the Court would

find Louisianas Marriage Ban unconstitutional. On October

6, 2014, when presented with seven petitions to accept

certiorari in the Fourth, Seventh, and Tenth Circuit cases

invalidating similar marriage bans in Virginia, Indiana,

Wisconsin, Oklahoma, and Utah, the Court declined to

exercise jurisdiction, rendering final the lower court

judgments striking down those bans. 10 As a result, same-sex

couples now have full marriage rights in those and other

states in the three circuits. And when subsequently

presented with petitions to stay Ninth Circuit decisions

invalidating Idaho and Nevada marriage bans and a district

court decision invalidating Alaskas, the Supreme Court

denied the stays. 11 Following Defendants logic, the Supreme

10 See note 2, supra .

11 See note 3, supra .



28/57

18

Courts silence, as popularly -enacted marriage bans fall

across four different circuits, speaks volumes. 12

III. LOUISIANAS MARR IAGE BAN IS SUBJECT TOHEIGHTENED SCRUTINY UNDER THE EQUALPROTECTION GUARANTEE.

Classifications on the basis of sexual orientation or

gender are subject to heightened scrutiny. Louisianas

gendered entry barrier to civil marriage classifies on both

bases. For this reason, as well as its infringement of the

fundamental right to marry, the Marriage Ban must be

subjected to heightened scrutiny a level of scrutiny

Defendants concede cannot be met.

12 Similarly, in Hollingsworth v. Perry , 133 S. Ct. 2652 (2013), theCourt was presented with the question whether Californias marriageban violated the Fourteenth Amendment. The Court dismissed anappeal from lower court rulings striking down the ban on the groundthat the intervening defendants-appellees lacked standing to appeal.Significantly, the Supreme Courts disposition permitted the districtcourt judgment to stand, resulting in invalidation of the marriage banin California.



29/57

19

A. This Court Should Apply HeightenedScrutiny Because Louisiana s Marriage Ban

Classifies on the Basis of SexualOrientation .

Louisianas Marriage Ban classifies and discriminates

on the basis of sexual orientation. Latta , 2014 U.S. App.

LEXIS 19620, at *29. Accordingly, heightened scrutiny

should apply. See id. ; Baskin , 766 F.3d at 654-55. See also

Windsor v. United States , 699 F.3d 169, 181-82 (2nd Cir.

2012).

When this Court observed ten years ago that [n]either

the Supreme Court nor this court ha[d] recognized sexual

orientation as a suspect classification, Johnson v. Johnson ,

385 F.3d 503, 532 (5th Cir. 2004), it was merely pointing out

what the two courts had yet to do; it was not making a

normative judgment about what the courts might do in an

appropriate case in the future. Certainly Johnson did not

hold that classifications based on sexual orientation must

only be analyzed under rational basis review. This Court did



30/57

20

not need to go further in Johnson because, as in Romer v.

Evans , 517 U.S. 620, 631-32 (1996), the challenged conduct

did not effectuate any legitimate interest. Johnson , 385

F.3d at 532. That this Court did not need to resort in

Johnson to heightened scrutiny to declare state action

targeting gay individuals unconstitutional is no impediment

to applying heightened scrutiny now.

Further, Windsor calls into question any precedent

limiting sexual orientation classifications only to rational

basis review. See SmithKline Beecham Corp. v. Abbott Labs ,

740 F.3d 471, 481 (9th Cir. 2014) (Windsor requires that we

reexamine our prior precedents). In its words and its deed,

Windsor established a level of scrutiny for classifications

based on sexual orientation that is unquestionably higher

than rational basis review. In other words, Windsor requires

that heightened scrutiny be applied to equal protection

claims involving sexual orientation. Id . at 481. See also



31/57

21

Latta , 2014 U.S. App. LEXIS 19620, at *29; Baskin , 766

F.3d at 664-65; Blue Br. 50-51 (collecting additional

citations).

B. Classifications Based on Sexual OrientationBear the Hallmarks of Those WarrantingHeightened Scrutiny.

The traditional hallmarks of a classification

warranting heightened scrutiny are whether the class

(1) historically has been subjected to discrimination, and

(2) has a defining characteristi c that frequently bears [a]

relation to ability to perform or contribute to society.

Windsor , 699 F.3d at 181 (quoting and citing Bowen v.

Gilliard , 483 U.S. 587, 602 (1987), and Cleburne , 473 U.S. at

440-41 ). Courts may also consider whether the class exhibits

obvious, immutable, or distinguishing characteristics that

define them as a discrete group and is a minority or

politically powerless. Windsor , 699 F.3d at 181. The first

two considerations are most important. See id .



32/57

22

(Immutability and lack of political power are not strictly

necessary factors to identify a suspect class.). Sexual

orientation satisfies every one of those considerations. 13

Astoundingly, Defendants argue that lesbians and gay

men have not suffered a history of discrimination because,

according to Defendants, they have not remotely suffered

the pervasive disenfranchisement that led the Court to

recognize women were [a] quasi- suspect class. Red Br. 45.

The same argument was rejected by the Second Circuit:

whether the class has been disenfranchised is not decis ive.

Citizens born out of wedlock have never been inhibited in

13 Defendant s argue that in Windsor the Supreme Court hadample incentive to recognize sexual orientation as a quasi-suspectclass, but declined. Red Br. 44. Again, Defendants argument boilsdown to making the Courts silence on an issue outcome determinative.But the Courts alleged silence or more specifically, the absence ofcertain buzzwords in its opinion does not mean that heightenedscrutiny should not apply. Indeed, following Defendants logic, theCourts failure to critique, review or stay circuit court ho ldingsapplying heightened scrutiny suggests just the opposite. See Windsor ,699 F.3d 169, affd , 133 S. Ct. 2675; Baskin , 766 F.3d 648, cert. denied ,2014 U.S. LEXIS 5797; Latta , 2014 U.S. Dist. LEXIS 66417, staydenied , 2014 U.S. App. LEXIS 19828



33/57

23

voting; yet the Supreme Court has applied intermediate

scrutiny in cases of illegitimacy. Windsor , 699 F.3d at 182.

The relevant question is whether a minority group has

suffered a history of discrimination , not necessarily of

disenfranchisement and, as numerous courts have

concluded, lesbians and gay men have that unfortunate

distinction. Indeed, they are among the most stigmatized,

misunderstood, and discriminated-against minorities in the

history of the world. Baskin , 766 F.3d at 658; see also, e.g. ,

Massachusetts v. U.S. Dept of Health & Human Servs. , 682

F.3d 1, 11 (1st Cir. 2012) (As with . . . women, . . . gays and

lesbians have long been the subject of discrimination.);

Windsor , 699 F.3d at 182; SmithKline , 740 F.3d at 484-85;

Perry v. Schwarzenegger , 704 F. Supp. 2d 921, 981 (N.D.

Cal. 2010); Varnum v. Brien , 763 N.W.2d 862, 889 (Iowa



34/57

24

2009). 14

Second, it is axiomatic that sexual orientation has no

relevance to a persons capabilities as a citizen. Whitewood

v. Wolf , 992 F. Supp. 2d 410, 428 (M.D. Pa. 2014). See also

Windsor, 699 F.3d at 181-85; Watkins v. U.S. Army , 875

F.2d 699, 725 (9th Cir. 1989); Golinski v. U.S. Office of Pers.

Mgmt. , 824 F. Supp. 2d 968, 986 (N.D. Cal. 2012) . By every

available metric, opposite-sex couples are not better than

their same-sex counterparts; instead, as partners, parents

and citizens, opposite-sex couples and same-sex couples are

equal. Perry , 704 F. Supp. 2d at 1002.15

Defendants argue that sexual orientation is not a

14 See also Amicus Br. of Historians of Antigay Discrimination inSupport of Plaintiffs-Appellees, De Leon v. Perry , No. 14-50196 (5thCir. Sept. 16, 2014).

15 See also Amici Curiae Br. of Family Equality Council andCOLAGE in Support of Plaintiffs-Appellees, De Leon v. Perry , No. 14-50196 (5 th Cir. Sept. 16, 2014), at 14-15; Amicus Curiae Br. of the

American Sociological Association in Support of Plaintiffs-Appellees,De Leon v. Perry , No. 14-50196 (5 th Cir. Sept. 16, 2014), at 5-12.



35/57

25

sufficiently distinguishing characteristic to define lesbians

and gay men as a discrete group. Red Br. 46-47. This

consideration is not even necessary to trigger heightened

scrutiny in view of the Supreme Courts recognition of

suspect class to groups with ostensibly mutable

characteristics. Pedersen v. U.S. Office of Pers. Mgmt. , 881

F. Supp. 2d 294, 320 (D. Conn. 2012). 16 Moreover , there is

little doubt that sexual orientation, the ground of the

discrimination, is an immutable (and probably an innate, in

the sense of in- born) characteristic rather than a choice.

Baskin , 766 F.3d at 657; see also Windsor , 699 F.3d at 184;

Perry , 704 F. Supp. 2d at 966; Golinski , 824 F. Supp. 2d at

986. 17

16 Indeed, even though [a]lienage and illegitimacy are actuallysubject to cha nge, the Supreme Court has applied heightened scrutinyto classifications based on those characteristics. Windsor , 699 F.3d at183 n.4; see Nyquist v. Mauclet , 432 U.S. 1, 9 n.11 (1977) (rejecting theargument that alienage did not deserve strict scrutiny because it wasmutable).

17 See also Amicus Br. of the American Psychological Association, etcontinued



36/57

26

Lastly, Defendants argue that lesbians and gay men

are not subject to heightened scrutiny because they have

achieved some political success in recent years. Red Br. 48-

49. Relative lack of political power is not essential for

recognition as a suspect or quasi- suspect class. Whitewood ,

992 F. Supp. 2d at 429. A long history of de jure

discrimination and lack of non-discrimination protections

demonstrates that lesbians and gay men are not in a

position to adequately protect themselves from the

discriminatory wishes of the majoritarian public. Windsor ,

699 F.3d at 185.18

continuational., in Support of Plaintiffs-Appellants, Robicheaux v. Caldwell , No. 14-31037 (5 th Cir. Oct. 24, 2014); Amicus Br. of GLMA: HealthProfessionals Advancing LGBT Equality in Support of Plaintiffs-

Appellees, De Leon v. Perry , No. 14-50196 (5th Cir. Sept. 15, 2014).18 For example, even though a decade has elapsed since L awrence v.

Texas, which declared state anti-sodomy laws unconstitutional, 539U.S. 558, 574 (2003), Louisiana's anti-sodomy statute remains on itsbooks. See L A . REV . STAT . A NN . 14:89 (2013). As recently as 2013 gaymen in Louisiana were arrested for consensual adult intimacy underthe law. See Campbell Robertson, After Arrests on Charges of Sodomy,

continued



37/57

27

While the position of lesbians and gay men has

improved somewhat over the last decade, they still face

pervasive, although at times more subtle, discrimination in

our educational institutions, in the job market and, perhaps

most conspicuously, in the political arena. Frontiero v.

Richardson , 411 U.S. 677, 685-86 (1973) (plurality op.). The

relative lack of political influence of gay people today stands

in contrast to the political power of women in 1973, when a

plurality of the Court concluded in Frontiero , 411 U.S. at

688, that sex-based classifications required heightened

scrutiny. S ee Whitewood , 992 F. Supp. 2d at 430; Pedersen ,

continuationan Apology, N.Y. Times (July 30, 2013),http://www.nytimes.com/2013/07/30/us/after-arrests-on-charges-of-sodomy-an-apology.html . In February 2014, the Baton Rouge MetroCouncil s symbolic resolution to encourage repeal of theunconstitutional law failed. Rebekah Allen, Metro Council Rejects

Anti-Sodomy Law Resolution , The Advocate (Feb. 13, 2014),http://theadvocate.com/home/8362443-125/metro-council-rejects-anti-sodomy-law. On April 15, 2014, by a 27 to 67 vote, the Louisiana Houseof Representatives rejected a proposed bill to repeal the portions of thelaw that criminalized "consensual, uncompensated activity betweenpersons of the same sex." House Legis. Servs., 40th Reg. Leg. Sess.,Digest H.B. 12 (La. 2014).



38/57

28

881 F. Supp. 2d at 328-29; Varnum , 763 N.W.2d at 894.

C. The Marriage Ban Warrants HeightenedScrutiny Because It Discriminates on theBasis of Gender.

Defendants ar gue that Louisianas marriage laws do

not engage in sex discrimination because they do not

advantage one sex over the other. Red Br. 50. But the

Marriage Ban warrants heightened scrutiny because it

classifies based on gender and impermissibly enforces

conformity with gender-based stereotypes about the proper

roles of men and women.

1. Louisianas Marriage Ban FaciallyClassifies on the Basis of Gende r .

The Marriage Ban on its face classifies on the basis of

sex. Robert is precluded from marrying the person he

wishes Garth solely because Robert is a man rather than

a woman. See , e.g ., L A . C IV . CODE art. 86; L A . CONST . art.

XII, 15 . A law that facially dictates that a man may do X

while a woman may not, or vice versa, constitutes, without



39/57

29

more, a gender classification. Latta , 2014 U.S. App. LEXIS

19620, at *61 (Berzon, J., concurring); see also Blue Br. at 56

(gathering citations).

In concluding that these laws facially classify on the

basis of gender, it is of no moment that the prohibitions

treat men as a class and women as a class equally and in

that sense give preference to neither gender, as [Defendants]

fervently maintain . Latta , 2014 U.S. App. LEXIS 19620, at

*68 (Berzon, J., concurring). Judicial inquiry under the

Equal Protection Clause . . . does not end with a showing of

equal application among the members of the class defined by

the legislation. McLaughlin v. Florida , 379 U.S. 184, 191

(1964). As Loving explained, an even -handed state purpose

can still be repugnant to the Fourteenth Amendment, 388

U.S. 11 n. 11. See also Blue Br. at 56-57.



40/57

30

2. Louisianas Marriage Ban l soDiscriminates on the Basis of Gender

Because It Requires Adherence ToGender Stereotypes .

The Ban also, implicitly and explicitly, draw[s] on

archaic and stereotypic notions about the purportedly

distinctive roles and abilities of men and women. Latta ,

2014 U.S. App. LEXIS 19620, at *76 (Berzon, J., concurring).

Eradicating the legal impact of such stereotypes has been a

central concern of constitutional sex-discrimination

jurisprudence fo r the last several decades. Id. (citing

Mississippi Univ. for Women v. Hogan , 458 U.S. 718, 725

(1982)).

The Ban impermissibly seeks to enforce conformity

with gender stereotypes namely that a man should marry a

woman, and a woman marry a man, to satisfy proper gender

roles for marriage. See , e.g. , J.E.B. , 511 U.S. at 131, 142 n.14

(rejecting sex-based restrictions on jury selection because

they enforced stereotypes about [men and womens]



41/57


42/57

32

between the classification adopted and the object to be

attained. Romer , 517 U.S. at 632. A t the very least, a

[discriminatory] law must bear a rational relationship to a

legitimate governmental purpose. Id. at 633. Neither the

purported childrearing nor democratic process justification

asserted by Defendants offers a legitimate and rational basis

for the Marriage Ban.

Indeed, the vast majority of courts applying rational

basis analysis have uniformly held that very similar

marriage bans fail under that standard. See Blue Br. 67-68

(gathering cases). As explained in Plaintiffs opening brief,

no conceivable justification for the Marriage Ban can satisfy

this standard. Blue Br. 65-88.

A. Linking Children to Their BiologicalParents Cannot Justify the Ba n .

According to Defendants , [m]arriage is anchored in

the reality that the vast majority of children come from the

sexual union of a man and a w oman. Red Br. 53. Ignoring



43/57

33

many other family structures single parents, couples with

adopted children, unmarried parents, childless married

couples Defendants imply that to Louisiana, the only

families worthy of marriages protections, dignity and

respect consist of married different-sex spouses whose

children are the genetic products of the marital relationship.

Certainly, a great number of Louisianans, including

Plaintiffs, can take offense from this broad attack on the

value of their families. But in any event, Defendants

argument is anything but rational.

Defendants maintain that the marital presumption of

parentage serves primarily to link children to their biological

parents, justifying the Marriage Bans exclusion of same -sex

couples from marriage. Red Br. 54. This argument is fatally

over- and underinclusive, given the many people who parent,

with Louisianas sanction, outside of traditional

genetically-related married different-sex parent structures,



44/57

34

and the many married different-sex couples who never

parent. As court after court has held, there is simply no

rational connection between barring same-sex couples from

marriage and any asserted governmental interest in

procreation or child-rearing. See Blue Br. 68 n.16 (gathering

cases).

While the Supreme Court permits leeway for

lawmakers to make reasonable predictions and judgments, it

does not permit States to invent facts, or declare them by

fiat, in order to justify a law that otherwise would not satisfy

rational review. See Romer , 517 U.S. at 632-33

(classification must be grounded in a sufficient factual

context for [the court] to ascertain some relation between the

classification and the purpose it serve[s]). The Court has

rejected classifications where the fit between the

classification and its purported goal was attenuated or

irrational. Cleburne , 473 U.S. at 446; U.S. Dept of Agric. v.



45/57

35

Moreno , 413 U.S. 528, 532-33 (1973). Basic equal protection

analysis focuses on whether the States exclusion of a

disadvantaged group from a benefit is rationally related to a

legitimate governmental interest not merely on whether a

legitimate government interest justifies inclusion of the

advantaged group. See, e.g. , Cleburne , 473 U.S. at 448-50

(focusing on citys interest in denying housing for people

with developmental disabilities, not merely on its interest in

permitting housing for others); Moreno , 413 U.S. at 534-36

(focusing on governments interest in excluding unrelated

households from food stamp benefits, not merely its interest

in including related households ) ; Eisenstadt v. Baird , 405

U.S. 438, 448-53 (1972) (focusing on states interest in

denying unmarried couples access to contraception, not

merely its interest in granting married couples access).

Defendants childrearing contentions fail this basic

test. First, by Defendants own admission, the marital



46/57

36

presumption of parentage can and does apply even when the

husband is not the biological father of the child. Red Br. 54

n.25. Likewise, while Louisiana allows only married couples

to adopt jointly, it does allow a single person to adopt. Red

Br. 56. Defendants cite Adar v. Smith , 639 F.3d 146 (5th Cir.

2011), as if Plaintiffs were challenging the exclusion of

unmarried partners from joint adoption. But Plaintiffs ask to

grow their families together while in a civil marriage.

Indeed, if Louisiana may rationally conclude that having

parenthood focused on a married couple . . . furthers the

interests of adopted children, Adar , 639 F.3d at 162, why

then does it deprive many of its more than 4,500 children in

foster homes loving, committed, married same-sex parents? 19

[S]ame -sex marriage improves the prospects of unintended

19 U.S. Dept. of Health & Human Services, Childrens Bureau, HowMany Children Are in Foster Care in the U.S.? In My State? (July2012), available at www.acf.hhs.gov/programs/cb/faq/foster-care4 (lastaccessed Nov. 3, 2014) (as of the end of federal fiscal year 2011, therewere 4,531 children in foster care in Louisiana).



47/57

37

children by increasing the number and resources of

prospective adopters. Baskin , 766 F.3d at 663 . And the

more willing adopters there are, the fewer children there

will be in foster care or being raised by single mothers Id.

Defendants claim that Louisiana acts humanely , not

irrationally, by allowing children deprived of a mother or a

father (or both) to be adopted by someone not related to the

child. Red Br. 65. Louisiana acts anything but humanely

when it excludes thousands of children of same-sex parents

from the protections of marriage. Defendants cannot

rationally say that the preeminent purpose of marriage is to

link children to their biological parents, but then make

marriage a pre-requisite for the joint adoption of children

unrelated to their adoptive parents and apply the marital

presumption of parentage regardless of filiation. Nor can

Louisiana argue that only married couples can raise

children, when Louisiana permits single persons to adopt



48/57

38

and does not require single parents to marry. Therein rests

the irrationality of Louisianas pre -textual argument that

marriage exists to foster linking children to their biological

parents.

Defendants also contend that barring same-sex couples

from marriage need not perfectly match Defendants

asserted interest in linking children to their biological

parents. Red Br. 60. But Louisiana law does not condition

anyones right to marry on an ability or intention to produce

or rear children. Instead, it permits those incapable or

uninterested in childbearing to marry. See Bostic , 760 F.3d

at 58; Baskin , 766 F.3d at 661-62 (that the state permits

infertile couples to marry shows that [t]he state must think

marriage valuable for something other than just

procreation that even non-procreative couples benefit from

marriage) ; De Leon v. Perry , 975 F. Supp. 2d 632, 654 (W.D.



49/57

39

Tex. 2014). 20

Defendants proffered justifications and statistics

demonstrate that the mismatch here is so extreme that any

alleged procreation-related purpose for marriage simply is

not a rational explanation for the line drawn by the

Marriage Ban. Garrett , 531 U.S. at 366 n.4 ; Romer , 517

U.S. at 635; Eisenstadt , 405 U.S. at 449 (no rational basis

where law was riddled with exceptions for similarly

situated groups).

Worst of all, Defendants contention ignor[es] the

20 State Officials claim that statistics from the Centers for DiseaseControl (CDC) prove that linking marriage laws to procreation ishardly irrational. Red Br. 60. In fact, according to the CDC report onwhich Defendants rely, 22.6% of married different-sex couples useinfertility services, a number that does not even take into account thepercentage of married different-sex couples with no desire to havechildren, or who are too elderly to do so, demonstrating the grossoverinclusivity of the Marriage Ban. Anjani Chandra, et al., InfertilityService Use in the United States: Data From the National Survey ofFamily Growth, 1982 2010 , National Health Statistics Report, Centerfor Disease Control, No. 73 at 13 (2014), available at http://www.cdc.gov/nchs/data/nhsr/nhsr073.pdf (last visited Nov. 3,2014).



50/57

40

effect of the ban on the children of same -sex couples.

Baskin , 766 F.3d at 656. 21 The Marriage Ban serves only to

humiliate the children now being raised by same -sex

couples and makes it even more difficult for the children to

understand the integrity and closeness of their own family

and its concord with other families in in their community

and in their daily lives. Windsor , 133 S. Ct. at 2694. This is

exactly what Windsor condemned. The conclusion that

Louisianas Marriage Ban has not even a legitimate or

rational basis is inescapable.

B. The Marriage Ban Cannot Be Justified byan Interest in Deference to the DemocraticProcess.

Finally, Defendants attempt to justify the Marriage

Ban by proclaiming that the Ban seeks to ensure that

fundamental social change occurs by social consensus

21 See Amici Curiae Br. of Family Equality Council and COLAGE inSupport of Plaintiffs-Appellees, De Leon v. Perry , No. 14-50196 (5 th Cir. Sept. 16, 2014).



51/57

41

through democratic processes. Red Br. 62. This is just

another way of saying that the majoritys bare desire to

withhold constitutionally-protected rights from a minority is

itself justification for withholding those rights. That is

circular reasoning, not an independent and rational basis for

lawmaking.

[I]f the constitutional conception of equal protection of

the la ws means anything, it must at the very least mean

that a bare [governmental] desire to harm a politically

unpopular group cannot constitute a legitimate interest.

Moreno , 413 U.S. at 534; see also Cleburne , 473 U.S. at 448.

The Marriage Ban must bear a rational relationship to an

independent and legitimate legislative end, to ensure that it

was not enacted for the purpose of disadvantaging the

group burdened by the law. Romer , 517 U.S. at 633. The

majoritys desire to impose the Marriage Ban on same -sex

couples describes how those Louisiana families came to be



52/57

42

oppressed by it, not an independent and legitimate end that

can justify it.

Moreover, attaining social or democratic consensus

could never justify trampling on Plaintiffs constitutionally -

protected liberties. The rights to marry and to equal

protection would have no value if they could be stripped from

a minority the moment a majority votes to take them away.

Indeed, the Supreme Court has made clear on many

occasions that matters guaranteed by the Bill of Rights . . .

are not to depend on majority vote. Siff v. State Democratic

Exec. Comm. , 500 F.2d 1307, 1308 (5th Cir. 1974).

Without doubt, the Constitution places constraints on

the ability of states and their citizens to regulate marriage.

See Section I, supra ; Blue Br. 21-28, 78- 80. There is no

marriage exception to the Fourteenth Amendments

guarantee of equality under the law. Amicus Br. of CATO

Institute and the Constitutional Accountability Center in



53/57

43

Support of Plaintiffs-Appellants, at 6.

Defendants would have this Court believe that

Windsor declared that states can freely regulate marriage,

no matter their interference with individuals constitutional

rights. Windsor made the contrary clear state laws

defining and regulating marriage must . . . respect the

constitutional rights of persons. Windsor , 133 S. Ct. at

2691; see also Latta , 2014 U.S. App. LEXIS 19620, at *47;

Kitchen , 755 F.3d at 1228-29; Bostic , 760 F.3d at 379. The

Marriage Ban does just the opposite.

CONCLUSION

The judgment of the district court should be reversed

and the case remanded with instructions to enter Judgment

for Plaintiffs-Appellants.



54/57


55/57

45

CERTIFICATE OF SERVICE

I hereby certify that, on November 7, 2014, Ielectronically transmitted the above and foregoing documentto the Clerk of the Court using the ECF System for filing.

Based on the records currently on file, the Clerk of theCourt will transmit a Notice of Electronic Filing to allparticipants in this case, who are all registered CM/ECFusers.

/s/ Camilla B. TaylorC AMILLA B. T AYLOR



56/57

46

ECF FILING STANDARD CERTIFICATION

I hereby certify that pursuant to ECF Filing Standard A(6) (Nov. 16, 2009):

1) All required privacy redactions have been madepursuant to 5th Cir. R. 25.2.13;

2) The electronic submission is an exact copy of thepaper document, in accordance with 5th Cir. R.25.2.1;and

3) The document has been scanned for viruses withthe most recent version of a commercial virus scanningprogram and is free of viruses.




57/57

CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of

F ED . R. A PP . P. 32(a)(7)(B) and F ED . R. A PP . P. 29(d)

because:

This brief contains 6,991 words, excluding theparts of the brief exempted by F ED . R. A PP . P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of

F ED . R. A PP . P. 32(a)(5) and the type style requirements

of F ED . R. A PP . P. 32(a)(6) because:

This brief has been prepared in a proportionallyspaced typeface using Microsoft Office Word

2010 (14.0.7128.5000), MSO Professional Plus, inCentury Schoolbook 14-point font (12-point forfootnotes).



14-31037 - plaintiffs' reply brief

Documents