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Fifteen states ask the Supreme Court to review DOMA

DOMA trials Gill/Massachusetts

By Scottie Thomaston

The state of Indiana filed an amicus brief with fourteen other states in the Gill case, challenging Section 3 of the Defense of Marriage Act. The case has reached the Supreme Court through petitions for certiorari by the Bipartisan Legal Advisory Group (BLAG) who is defending the law on behalf of House Republicans after the Justice Department decided it would no longer defend Section 3, and through a petition by the Justice Department itself. The state of Massachusetts, whose case is consolidate with Gill at the appellate level, has also filed a petition for certiorari

Indiana, Alabama, Alaska, Arizona, Colorado, Georgia, Idaho, Kansas, Michigan, Nebraska, Oklahoma, South Carolina, South Dakota, Texas, and Virginia signed onto the brief, which is largely based on the argument that “procreation” is a rational basis for the Act and for state marriage laws as well. Arguing that the Supreme Court has held that “[i]he same equal protection principles have generally applied to state and federal laws,” the attorneys write that “if the federal government has no legitimate reason to define for the purpose of federal programs, considerations of tradition or gradualism are unlikely to save state marriage laws—especially those that differentiate between opposite-sex and same-sex unions in name only.” In their view, a decision nullifying the Congressional definition of marriage would necessarily use logic that would lead to the evisceration of state marriage definitions.

Referring to the First Circuit’s holding that Section 3 of DOMA has no demonstrated link to its purported goals of strengthening heterosexual marriage as a “startling conclusion”, the brief says the First Circuit “answered the wrong questions” to reach its decision, because in the states’ view, “the panel below simply needed to ask why Congress sought to incentivize traditional marriages and whether that rationale extends to same-sex couples.” In their view, the case turns on whether there are important differences between same-sex and opposite-sex couples, and they offer the ability to procreate as one important distinction. To the states, the definition of marriage is “based on an understanding that civil marriage recognition arises from the need to encourage biological parents to remain together for the sake of their children.” The fifteen states argue that there is no government interest in promoting marriage just for the sake of it, without reference to procreative purposes. And they suggest same-sex couples can’t procreate, therefore it’s reasonable to leave the distinction of being “married” solely to opposite-sex couples.

Marriage creates the social norm “that potentially procreative sexual activity should occur in a long-term, cohabitative relationship.” Quoting Maggie Gallagher, the brief suggests that “society” channels people into opposite-sex marriages for procreation, and that Section 3 of the federal Defense of Marriage furthers that channeling, “Through civil recognition of marriage, society channels sexual desires capable of producing children into stable unions that will raise those children in the circumstances that have proven optimal. Maggie Gallagher, What is Marriage For? The Public Purposes of Marriage Law, 62 La. L. Rev. 773, 781-82 (2002). “[M]arriage’s vital purpose in our societies is not to mandate man/woman procreation but to ameliorate its consequences.” Monte Neil Stewart, Judicial Redefinition of Marriage, 21 Can.J. Fam. L. 11, 47 (2004).”

And same-sex relationships are still recognized by arrangements that are not called marriage, that are just “alternatives” to the “model”: “This ideal does not disparage the suitability of alternative arrangements where non-biological parents have legal responsibility for children. But these relationships are exactly that—alternatives to the model.” The states also write that courts have long said that procreation is a rational basis for traditional marriage.

The states argue that Baker v. Nelson controls the outcome of DOMA litigation. In Baker, the Supreme Court dismissed “for want of a substantial federal question” a case involving a gay couple in Minnesota who sought a marriage license but was denied. Since under the (now repealed) law that required mandatory review of the Minnesota Supreme Court’s Baker decision, the Supreme Court’s dismissal is a decision “on the merits” (at least regarding the precise issues at stake in Baker), the states argue that the question of restricting the definition of marriage to opposite-sex couples was already reached and decided on.

The states want the Court to grant the petition and intervene in the dispute because, “The failure of the decision below to [articulate a coherent rationale for government recognition of both same-sex and opposite-sex legal marriages]—and indeed of any of the courts invalidating traditional marriage and its benefits to do so—while abnegating one of the most fundamental and enduring civil institutions in American life, justifies this Court’s intervention.”

h/t Kathleen for the brief


  • 1. Don  |  August 9, 2012 at 12:29 pm

    Encourage biological parents to remain together for the sake of their children.” These state should then make it illegal to get a divorce for the sake of their children.

    I have always wondered that since Gays and Lesbian can't get a Divorce and the courts are funded by taxpayers money Isn't that Taxation without representation??????

  • 2. Leo  |  August 9, 2012 at 12:45 pm

    "while abnegating one of the most fundamental and enduring civil institutions in American life"

    Yes, the "fundamental institution" of Not Giving Marital Benefits to Same-Sex Couples.

  • 3. Scottie Thomaston  |  August 9, 2012 at 12:54 pm

    I was having similar thoughts. They describe marriage as it it's purposely designed to keep gay people from participating. The "it is what it is" defense of heterosexual marriage.

  • 4. davep  |  August 9, 2012 at 12:47 pm

    Wow, just read some stuff from the conclusion and it's chock full of all the tired old bumper sticker rhetoric, including phrases about how the Perrey decision is 'attacking traditional marriage'.

    It also says this: "A constitutional doctrine that requires the same benefits for same-sex and opposite-sex couples must supply a coherent rationale for government recognition of both". Well, let's see – how about the concept of equal protection under the law? Just a thought.

    And regarding that whole 'responsible procreation' argument, the desire or ability to procreate has never been a prerequisite for citizens being entitled to equal protection by our civil laws.

  • 5. Steve  |  August 9, 2012 at 1:41 pm

    Sounds a like a reversal of the burden of proof to me. It's a denial of rights that needs to be justified. Not the other way around.

  • 6. SHOES THROWER  |  August 9, 2012 at 5:55 pm

    Under current Supreme Court precedent, it is the other way around when rational basis scrutiny applies. When strict scrutiny applies, the "denial of rights …needs to be justified".

  • 7. davep  |  August 10, 2012 at 12:34 pm

    But under 'rational basis' the rational basis must still be proven to allow a law to deny equal treatment. When there is no rational relationship between the stated intention of the law and what the law actually does or does not accomplish, it fails rational basis.

    Red haired people are not a suspect class and laws affecting them would thus be subjected to rational basis scrutiny. But if you make a law that says red haired people cannot vote, and say that the law is intended to prevent voter fraud, you'd better be able to prove how such a law accomplishes the stated intention or it will fail rational basis and will be violating the equal protection clause.

  • 8. Steve  |  August 10, 2012 at 2:47 pm

    Exactly. There still has to be a connection between the law and its stated purpose. The judge bought into the nonsense about procreation and even said that denying marriage to gay couples would be an incentive for straight people to get married. That's the anti-thesis of "rational"

  • 9. Jamie  |  August 9, 2012 at 1:04 pm

    Incredibly disappointing to see those same tired and dishonest arguments trotted out again, but it seems like this sets up a great appeal. The 9th circuit will finally have to address Baker v. Nelson and High Tech Gays and likely explicitly overule those cases.

  • 10. SoCal_Dave  |  August 9, 2012 at 1:29 pm

    It's hard for me to believe that in 2012 there are adult people who can put forth the tortured logic of "responsible procreation" with a straight face. Really? That's all you got?
    And yet 15 states have signed up for it. facepalm

  • 11. SHOES THROWER  |  August 9, 2012 at 5:59 pm

    Appellate courts have been using that reasoning since 1971. And in obiter dicta, the Supreme Court noted that families "spring from…the union for life of one man and one woman in the holy estate of matrimony" Murphy v. Ramsey, 114 U.S. 15 at 45 (1885)

    In any event, this is a petition for the Supreme Court to take these marriage cases, and confronting that reasoning is as good a reason as any for them to take the cases.

  • 12. Steve  |  August 9, 2012 at 8:40 pm

    What people thought in the 19th century is completely irrelevant. It's also irrelevant for the 1970s since straight people as a whole have *never* procreated "responsibly". If anything it's gay couples who show responsibility, due the planning required

  • 13. SHOES THROWER  |  August 13, 2012 at 12:13 am

    Yeah, the opinion of people in the 19th century is wholly irrelevant when construing a law passed in the 19th century…

  • 14. jpmassar  |  August 9, 2012 at 1:33 pm

    Let's hope these states are forgetting the adage "Be careful what you ask for."

  • 15. SHOES THROWER  |  August 9, 2012 at 6:08 pm

    For Oklahoma, their marriage laws are already being challenged, and there are four outstanding motions that could be dispositive in that case. If the loser appeals, any of the litigants can seek certiorari before judgment.

  • 16. Steve  |  August 9, 2012 at 1:39 pm

    Fuck no. Marriage is about parenting in part, but not about biological parents. It's about de facto parents. Family law doesn't concern itself much with biology. It really only matters who raises the kids. Non-biological parents are increasingly afforded the same rights as biological ones. Especially when an adoption took place, but in some places even when there was just an intent to parent together.

  • 17. nightshayde  |  August 9, 2012 at 7:38 pm

    I don't think marriage and parenting have anything to do with one another. Yes – they often happen in the same place at the same time — but you don't have to be married to be a parent and you don't have to be a parent to be considered "married."

    Marriage is (or at least should be, IMHO) about being mutually in love with someone else and not being able to imagine living without each other. It's a pledge to love and take care of each other for the rest of your lives (with an escape clause if the whole thing doesn't work out). If you have enough love to share (and the desire to share it) with children, great. If you're happy as a couple without taking on the responsibility of parenting, that's also perfectly fine.

    The marriage cases before the courts have NOTHING to do with procreation or with child-rearing. There are completely different sets of laws about those things (well – more about child-rearing than actual procreation).

    Unless we're going to keep infertile people from marrying, going to forcibly divorce childless-by-choice couples, or somehow mandate procreation as a requirement for marriage, the whole procreation/child-rearing argument is just a shiny little distraction.

  • 18. Steve  |  August 9, 2012 at 8:42 pm

    That's why I said "in part". No, they don't necessarily go together, but parenting is a big part of family law. You can't deny that, but then we need to examine how the law really treats parent-child relations. Which isn't by biology

  • 19. Matt N  |  August 9, 2012 at 2:14 pm

    Why is the ability to procreate never been a requirement of marriage in any state then? Why do we allow those 60+ to get (or even to stay) married once their children have reached the age of 18?

  • 20. Reformed  |  August 9, 2012 at 2:15 pm

    I am sure everyone is happy to learn that these states have no interest in channeling adults into long term manogamous relationships and the mutual support (and exclusivity) that comes from the same. Is this because they want gay people to be non manogamous, catch something, and die?

  • 21. Scott Wooledge  |  August 9, 2012 at 8:28 pm

    That's actually a good line of questioning: ask opponents if they can point to any examples of a fertility requirement to wed in the USA? Ever? Anywhere?

  • 22. Steve  |  August 9, 2012 at 8:44 pm

    What has been grounds for divorce at times (before no fault divorce) was impotence or non-consummation. So marriage has been more about sex than procreation

  • 23. MightyAcorn  |  August 15, 2012 at 8:41 am

    I believe ( but can't find the data right now, sorry) that not revealing that one is infertile before marriage was also grounds for divorce; however, one wasn't *required* to be able to have children, as older couples were also permitted to marry, noted in comments above,

    Marriage has never been exclusively about children. It is, and always has been, primarily about establishing a legal family relationship–next-of-kin status–between two adults. The legal benefits of that status would flow to any children of that union, but having legitimate children was not the sole objective of marriage.

  • 24. B&E  |  August 9, 2012 at 2:21 pm

    IMHO the ones fighting against marriage equality are scared that we will have longer, more stable loving relationships, with children who are more well rounded and better cared for that our hetero counterparts.

  • 25. Eric  |  August 10, 2012 at 8:46 am

    After ten years of same-sex marriage in the Netherlands, what the data showed was the married male same-sex couples had a 50x lower divorce rate that opposite-sex couples. Married female same-sex couples also had a much lower divorce rate than opposite-sex couples.

  • 26. Steve  |  August 10, 2012 at 10:40 am

    To be fair, one reason for that is that many of these couples had already been together for years. With time, the divorce rate should become more equal

  • 27. P Baswell  |  August 10, 2012 at 12:24 pm

    we can not assume divorce rates in the future what would be the bases for your asurion? do you have a study to point to or some sort of evidence support your statement?

  • 28. Josh  |  August 9, 2012 at 3:12 pm

    What I have come to find from reading this ridiculous gesture from these states are this: that they try to use procreation as a basis and say that marriage is solely for this purpose. However, Marriage is as defined: a social union or legal contract between people called spouses that creates kinship. The definition of marriage varies according to different cultures, but is usually an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged. Not really that of having children….So that is flawed and there is so many holes in this argument that many would have to divorce, but wait, marriage as defined by these fifteen states whom have signed onto this Writ of Centori say that the children and providing for the children are that of the consequences of being married (best to abolish divorce). Oh yeah lets count out women who cant give birth, due to genetic reasoning that the got from their (biological) parents, out of being able to get married. Lets also dissolve marriage between those whos children are now grown. Oh plus no old people can remarry (renew vowels) or marry as to the state they now can longer procreate. Well let me leave you with just a little bit of research: Various types of same-sex unions have existed, ranging from informal, unsanctioned relationships to highly ritualized unions. A same-sex union was known in Ancient Greece and Rome,in some regions of China, such as Fujian province, and at certain times in ancient European history. These gay unions continued until Christianity became the official religion of the Roman Empire. Sad to see that because one person loves and honors the other that they cant become married because it goes against a religion. When is it safe to say that we fled from England to escape religious persecution and to be protected equally? Guess its just a thought….who knows maybe our justices will finally see that we too are people…then again we could be living in ENGLAND again…Oh wait….most of England could care less and let those who want to marry be recognized and afforded the same rights as their heterosexual counterparts….sorry now just rambling and stuck in my own thoughts…But figured I would speak out from Kentucky and say that I hope one day we can all be Equal and live in this land that was afforded to all of us not just to some.

  • 29. grod  |  August 10, 2012 at 5:25 am

    Josh, working with your primary assertion, another way to state it would be that these states are saying their sole or primary interest in civil marriage relates to responsible procreation. I find it interesting, if not telling, that only 15 states buy into this assertion. Above, Scott Wooledge says these states – and all others never have had a fertility requirement. Regretfully by making this submission, these states lend credibility to BLAG's position. Under rational basis review, BLAG's position only has to somewhat – a bit plausible.

  • 30. Fr. Bill  |  August 9, 2012 at 3:13 pm

    The States signing onto Indiana's brief are basically BLAG, Jr. They represent the 21st Century Republican Party. I wonder if anyone has done an overlay of a map with those State and the States historically favoring slavery. those with high incidence of lynchings, those who opposed women's suffrage, education/poverty rates, etc.

    With respect to their arguments about "traditional marriage" and "responsible procreation", it would be interesting to see a chart comparing the divorce rates and rates of births to unmarried females between the signatory States and those States that have allowed same sex marriage.

    I think such overlay maps would tell us more about the Republican Party today than the Constitutional merits of their brief.

  • 31. SHOES THROWER  |  August 9, 2012 at 6:04 pm

    Alaska and Kansas never had anti-miscegenation laws.

    Nebraska never had slavery.

    Jon Bruning, the attorney general of Nebraska, had been a defendant in Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006), and his office was successful in defending Nebraska's marriage laws. E. Scott Pruitt is the attorney general of Oklahoma, whose marriage laws are being challenged in a federal court as of today.

  • 32. grod  |  August 12, 2012 at 6:00 pm

    Shoes – can you tell us more about what is happening in Oklahoma, can you provide a link? G

  • 33. SHOES THROWER  |  August 13, 2012 at 12:14 am

    Wedding Bell Blues

  • 34. Mike in Baltimore  |  August 13, 2012 at 1:34 am

    "Nebraska never had slavery."

    Actually, yes it did.

    When the Dred Scott case was ruled on by SCOTUS, it stated that ". . . African Americans, having been considered inferior at the time the Constitution was drafted, were not part of the original community of citizens and could not be considered citizens of the United States." Effectively, that stated that all African-Americans were property, and as property could be taken by the slave owner to any state they wanted. It was an especially important SCOTUS ruling for slave-owning military officers, as they were by that ruling able to take their slaves from post to post, such as Fort Kearny and Fort Atkinson (both located in Nebraska).

  • 35. Mike in Baltimore  |  August 9, 2012 at 9:11 pm

    Indiana was prevented from having slavery because the NW Ordinance prohibited it.

    And Indiana doesn't, as a state, keep stats on divorce, but one county in Eastern Indiana about a decade ago was reported to have one of, if not THE, highest divorce rate in the US (including any and all counties in Nevada) based on informal questioning of appropriate public officials and county residents.

    So Indiana is not the typical state, but it is much closer to the typical Republican state than most states.

  • 36. Straight Ally #3008  |  August 9, 2012 at 3:37 pm

    Please, take this gigantic petard!

  • 37. Shannon  |  August 9, 2012 at 5:26 pm

    I actually feel sad for these people who believe marriage is first and foremost about sex/procreation.

  • 38. Steve  |  August 9, 2012 at 5:51 pm

    It's them who are devaluing and cheapening marriage

  • 39. Paul  |  August 10, 2012 at 12:33 pm

    even biblically speaking that is not the case. what about chattel and property rights inheritance family titles business interest all of thees are traditional mirage rights

  • 40. sfbob  |  August 9, 2012 at 5:37 pm

    All of these tired arguments have been dismissed repeatedly in multiple court jurisdictions. If all that's left is to keep repeating them over and over again then there is simply nothing left to support Section 3 of DOMA. I am actually a bit surprised that none of these AGs could come up with anything new…or perhaps I'm not really all that surprised after all.

  • 41. SHOES THROWER  |  August 9, 2012 at 6:06 pm

    All of these tired arguments have been dismissed repeatedly in multiple court jurisdictions.

    And accepted in multiple court jurisdictions. Both the briefs filed by BLAG and Edie Windsor cite cases where DOMA was upheld, and cases where DOMA was struck down. Indeed, the Windsor cert petition explicitly argues that federal courts "are in disarray" over this issue.

  • 42. Steve  |  August 9, 2012 at 8:48 pm

    You are lying. They are saying that the courts are in disarray of DOMA in general and the specific reasons for why it is unconstitutional, because different courts have used different ways to arrive at that conclusion. That part has nothing whatsoever to do with the procreation crap.

  • 43. Scott Wooledge  |  August 9, 2012 at 8:32 pm

    Right? How many times are they going to claim the only reason to marry is to have your own biological children?

  • 44. David in Houston  |  August 9, 2012 at 7:24 pm

    So why aren't they trying to nullify non-procreative marriages? Game. Set. Match.
    When they nullify Rush Limbaugh's fourth sham-of-a-marriage, then we'll talk. Otherwise, these homophobes are deluding themselves.

  • 45. David Henderson  |  August 9, 2012 at 8:35 pm

    "if the federal government has no legitimate reason to define for the purpose of federal programs, considerations of tradition or gradualism are unlikely to save state marriage laws—especially those that differentiate between opposite-sex and same-sex unions in name only." (pp. 4-5)

    I think they're arguing that if DOMA falls, Prop 8 (and other state laws/constitutional bans) must fall also. From their lips to the Supreme Court's ears! (Rather, from their word processors to the Supreme Court's eyes.)

  • 46. Steve  |  August 9, 2012 at 8:50 pm

    Tradition is a horrible justification for *anything* and any legal system that relies on it is unjust

  • 47. grod  |  August 10, 2012 at 2:28 pm

    David, I thought this assertion by these States to be very telling, particularly the view about those states that differentiate in ‘name only’ . Have you had a chance to read Connecticut District Judge V.L. Bryant’s recent ruling: Perhaps the authors of this brief should have read it before making their submission: “Having considered the purported rational bases proffered by both BLAG and Congress and concluded that such objectives bear no rational relationship to Section 3 of DOMA as a legislative scheme, the Court finds that no conceivable rational basis exists for the provision [DOMA]. The provision therefore violates the equal protection principles incorporated in the Fifth Amendment to the United States Constitution.” It’s an articulate analysis that needs to find its way before the Supreme Court.

  • 48. john  |  August 10, 2012 at 1:47 am

    This information is so educational, its time for a financial contribution to help them keep up the great work.

  • 49. Bruce  |  August 10, 2012 at 4:51 am

    Fairly certain Virginia's name is on that list thanks to our very own favorite Attorney General Cuccinelli, who is setting himself up for a hostile takeover of a historically relatively moderate Republican party. Over the last couple of elections, a really scary group of hard-right reactionaries, including one Bill Bolling (you may remember him from opposing the appointment of a judge because he was gay, and also from the abortion ultrasound debacle) have basically hijacked the party. Cuccinelli now stands to be selected as the Republican nominee for governor instead of the previously-assumed nominee, the relatively moderate lieutenant governor. Ah, politics.

  • 50. Mike in Baltimore  |  August 10, 2012 at 3:13 pm

    "Attorney General Cuccinelli" ??

    Oh! You must mean AG KooK (as some call him), or AG KooKinelli (as others call him).

  • 51. Gay Marriage Watch »&hellip  |  August 10, 2012 at 6:59 am

    […] Authored By Scottie Thomaston – See the Full Story at the Prop 8 Trial Tracker […]

  • 52. fiona64  |  August 10, 2012 at 9:03 am

    I'm not even surprised. I have not lived in every state in the union, but I have lived in Indiana. It is the most ass-backward place I've ever been *to this day* and I could not *wait* to get out of there.

  • 53. Mike in Baltimore  |  August 10, 2012 at 3:22 pm

    I was born and educated in that doG-forsaken state (near Fort Wayne in the NE part of the state). There are a few scattered areas of sanity in the state (Bloomington, Northern Lake county, for example), and scattered sane families throughout the state, but the majority of the state is C-R-A-Z-Y.

    I permanently moved out of the state as soon as I could, and fortunately ended up in Maryland. For just over a year, I tried living in Alexandria, VA, but even that liberal part of Virginia was too conservative for me, so I moved back to Maryland as soon as I could.

  • 54. sharr james  |  August 10, 2012 at 9:54 am

    South carolina sucks balls!

  • 55. Nickey J  |  August 10, 2012 at 11:07 am

    <img src="">Are there gonna be even more states that would be in on this? <img src=""&gt;

  • 56. Mike in Baltimore  |  August 10, 2012 at 7:40 pm

    There are at least 8 states I don't see on that list that I would have expected:
    North Dakota; and

    There are probably others, but those 8 are the most striking to me to be left off the list.

    I'm not saying that they should be on the list, just that the AG and/or Governor of those states are kkkooky enough to join, and I'm wondering why they didn't. (In some cases, it might be that they thought the brief was 'too timid' and didn't bring out the "facts" the tea baggers wanted brought out.)

  • 57. grod  |  August 14, 2012 at 6:15 pm

    Mike are you suggesting that there's a prospect for a brief from this group?

  • 58. Mike in Baltimore  |  August 15, 2012 at 1:57 am

    Um, no, because if you had read the article, you might have read that there already is a brief that has been filed.

    "The state of Indiana filed an amicus brief with fourteen other states in the Gill case. . . ."

    Again, I'm not an attorney, but I try to pay attention to what is written, and try to argue from the basis of knowledge and logic.

    Back to your original question, I'm not sure if 'supporters' to a brief can add new 'signatories' like Congressional bills can add additional 'co-sponsors' or not. But no, I don't expect any of the above 8 to sign on to the existing brief, nor would I expect them to file a new brief. Some, like Utah and Nevada, are already 'busy' with cases in Nevada and elsewhere, so I wouldn't expect them to get involved in more. And some (such as Pennsylvania and Ohio) probably want to 'keep their powder dry' for when the court cases hit them (or so they probably think).

  • 59. Equality On Trial »&hellip  |  February 8, 2013 at 10:09 am

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