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Case: 14-31037

Document: 00512830785

Page: 1

Date Filed: 11/07/2014

No. 14-31037

In the United States Court of Appeals


for the Fifth Circuit
_________
JONATHAN P. ROBICHEAUX; DEREK PENTON; NADINE BLANCHARD; and
COURTNEY BLANCHARD, Plaintiffs Appellants
v.
JAMES D. CALDWELL, in his official capacity as the Louisiana Attorney
General, also known as Buddy Caldwell, Defendant Appellee
JONATHAN P. ROBICHEAUX; DEREK PENTON; NADINE BLANCHARD;
COURTNEY BLANCHARD; ROBERT WELLES; and GARTH BEAUREGARD,

Plaintiffs Appellants

v.
DEVIN GEORGE, in his official capacity as the State Registrar and Center
Director at Louisiana Department of Health and Hospitals; TIM
BARFIELD, in his official capacity as the Louisiana Secretary of Revenue;
KATHY KLIEBERT, in her official capacity as the Louisiana Secretary of
Health and Hospitals, Defendants Appellees
FORUM FOR EQUALITY LOUISIANA, INCORPORATED; JACQUELINE M.
BRETTNER; M. LAUREN BRETTNER; NICHOLAS J. VAN SICKELS; ANDREW S.
BOND; HENRY LAMBERT; R. CAREY BOND; L. HAVARD SCOTT, III; and
SERGIO MARCH PRIETO, Plaintiffs Appellants
v.
TIM BARFIELD, in his official capacity as Secretary of the Louisiana
Department of Revenue; DEVIN GEORGE, 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-327
The Honorable Martin Leach-Cross Feldman, District Judge

REPLY BRIEF OF APPELLANTS

(Counsel Listed on Inside Cover)

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Document: 00512830785

KENNETH D. UPTON, JR.


Lead Attorney

PAUL D. CASTILLO
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
3500 Oak Lawn Avenue, Suite 500
Dallas, TX 75219
T: 214-219-8585, F: 214-219-4455

kupton@lambdalegal.org
pcastillo@lambdalegal.org
SUSAN L. SOMMER
KAREN L. LOEWY
OMAR GONZALEZ-PAGAN
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
120 Wall Street, 19th Floor
New York, NY 10005
T: 212-809-8585, F: 212-809-0055

ssommer@lambdalegal.org
kloewy@lambdalegal.org
ogonzalez-pagan@lambdalegal.org

CAMILLA B. TAYLOR
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
105 West Adams, Suite 2600
Chicago, Illinois 60603
T: 312-663-4413, F: 312-663-4307

ctaylor@lambdalegal.org

Counsel for All PlaintiffsAppellants

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Date Filed: 11/07/2014

J. DALTON COURSON
LESLI D. HARRIS
STONE PIGMAN WALTHER
WITTMANN, L.L.C.
546 Carondelet Street
New Orleans, LA 70130
T: 504-581-3200, F: 504-581-3361

dcourson@stonepigman.com
lharris@stonepigman.com

Counsel for Plaintiffs-Appellants


Forum for Equality Louisiana,
Inc., Jacqueline Brettner,
Lauren Brettner, Nicholas Van
Sickels, Andrew Bond, Henry
Lambert, Carey Bond, L. Havard
Scott, III, and Sergio March
Prieto
RICHARD G. PERQUE
LAW OFFICE OF RICHARD G.
PERQUE
700 Camp Street
New Orleans, LA 70130
T: 504-524-3306, F: 504-529-4179

richard@perquelaw.com

Counsel for Plaintiffs-Appellants


Jonathan P. Robicheaux, Derek
Penton, Courtney Blanchard,
and Nadine Blanchard
SCOTT J. SPIVEY
LANDRY & SPIVEY
320 N. Carrollton Ave, Suite 101
New Orleans, LA 70119
T: 504-297-1236, F: 888-502-3935

scott@spiveyesq.com

Counsel for Plaintiffs-Appellants


Garth Beauregard and Robert
Welles

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TABLE OF CONTENTS
TABLE OF CONTENTS ..........................................................i
TABLE OF AUTHORITIES .................................................. iii
ARGUMENT IN REPLY ......................................................... 1
I.

BOTH WINDSOR AND SCHUETTE


UNDERSCORE THE CONSTITUTIONAL
LIMITS ON LOUISIANAS POWER TO
REGULATE MARRIAGE. ............................................. 4

II.

THE RIGHT AT ISSUE IN THIS CASE IS THE


FUNDAMENTAL RIGHT TO MARRY, NOT A
NEW RIGHT TO SAME-SEX MARRIAGE. .......... 13

III.

LOUISIANAS MARRIAGE BAN IS SUBJECT


TO HEIGHTENED SCRUTINY UNDER THE
EQUAL PROTECTION GUARANTEE. ...................... 18
A.

This Court Should Apply Heightened


Scrutiny Because Louisianas Marriage
Ban Classifies on the Basis of Sexual
Orientation. ......................................................... 19

B.

Classifications Based on Sexual


Orientation Bear the Hallmarks of Those
Warranting Heightened Scrutiny. ...................... 21

C.

The Marriage Ban Warrants Heightened


Scrutiny Because It Discriminates on the
Basis of Gender. .................................................. 28
i

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IV.

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1.

Louisianas Marriage Ban Facially


Classifies on the Basis of Gender. ............. 28

2.

Louisianas Marriage Ban Also


Discriminates on the Basis of Gender
Because It Requires Adherence To
Gender Stereotypes. ................................... 30

LOUISIANAS PROFFERED JUSTIFICATIONS


CANNOT SURVIVE EVEN RATIONAL BASIS
REVIEW. ...................................................................... 31
A.

Linking Children to Their Biological


Parents Cannot Justify the Ban........................ 32

B.

The Marriage Ban Cannot Be Justified


by an Interest in Deference to the
Democratic Process. ............................................ 40

CONCLUSION ...................................................................... 43
CERTIFICATE OF SERVICE .............................................. 45
ECF FILING STANDARD
CERTIFICATION ................................................................. 46
CERTIFICATE OF COMPLIANCE...................................... 47

ii

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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

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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. LEXIS
21191 (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

iv

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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 of Health & Human


Servs., 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
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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

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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
LA. CONST. art. XII, 15 ........................................................ 28
Statutes
42 U.S.C. 1983 ...................................................................... 5
LA. CIV. CODE art. 86 ............................................................. 28
LA. REV. STAT. ANN. 14:89 (2013) ........................................ 26
Other Authorities
Anjani Chandra, et al., Infertility Service Use in the

United States: Data From the National Survey of


Family Growth, 19822010, National Health

Statistics 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 of
Sodomy, an Apology, N.Y. Times (July 30, 2013),
http://www.nytimes.com/2013/07/30/us/after-arrestson-charges-of-sodomy-an-apology.html. ........................... 27
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House Legis. Servs., 40th Reg. Leg. Sess.,


Digest H.B. 12 (La. 2014) ................................................. 27
Michael Dorf, What's Wrong With the Sixth Circuit
Ruling Against A Constitutional Right to SSM, Dorf
on Law, http://www.dorfonlaw.org/2014/11/whatswrong-with-sixth-circuit-ruling.html (last accessed
Nov. 7, 2014) ..................................................................... 12
Rebekah Allen, Metro Council Rejects Anti-Sodomy
Law Resolution, The Advocate (Feb. 13, 2014),
http://theadvocate.com/home/8362443-125/metrocouncil-rejects-anti-sodomy-law ....................................... 27
U.S. Dept. of Health & Human Services, Childrens
Bureau, How Many Children Are in Foster Care in
the U.S.? In My State? (July 2012), available at
www.acf.hhs.gov/programs/cb/faq/foster-care4
(last accessed Nov. 3, 2014) .............................................. 36

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

See Rainey v. Bostic, No. 14-153, 2014 U.S. LEXIS 6053 (Oct.
2014); Schaefer v. Bostic, No. 14-225, 2014 U.S. LEXIS 6405 (Oct.
2014); McQuigg v. Bostic, No. 14-251, 2014 U.S. LEXIS 6316 (Oct.
2014); Bogan v. Baskin, No. 14-277, 2014 U.S. LEXIS 5797 (Oct.
2014); Walker v. Wolf, No. 14-278, 2014 U.S. LEXIS 6655 (Oct.
2014); Smith v. Bishop, No. 14-136, 2014 U.S. LEXIS 6054 (Oct.
2014); Herbert v. Kitchen, No. 14-124, 2014 U.S. LEXIS 6637 (Oct.
2

2014).

6,
6,
6,
6,
6,
6,
6,

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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

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,
3

2014)
Out of dozens of federal court decisions, the lower court is joined
by rulings from only two courtsthe Sixth Circuit and District of
Puerto Rico. See DeBoer v. Snyder, No. 14-1341, 2014 U.S. App. LEXIS
21191, 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).
4

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(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 great


emphasis on Windsors discussion of federalism and state
power, but Windsors 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

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equal

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protection

framework

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applicable

Date Filed: 11/07/2014

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 UNDERSCORE


THE CONSTITUTIONAL LIMITS ON LOUISIANAS
POWER 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.

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[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 law. 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

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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 samesex couples may not be violated by laws, like Louisianas
Marriage Ban, that serve to demean[] the couple, 133 S. Ct.
at 2692, humiliate[] . . . children now being raised by samesex couples, deprive their families of extensive 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 Windsors supposedly
conflicting messages in tandem. While Windsor recognized
the authority of states to regulate marriage, Windsor itself

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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

Lovings 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. 2223. This ignores Schuettes context and conflicts with

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Schuettes reasoning.5
Schuette
constitutional

found

that

amendment

voter-approved

prohibiting

state

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

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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. 141341, 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

Amendmentnamely, that courts must interpret these


guarantees

by

imagining

what

the

adopters

of

the

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 that
Windsor merely endorsed state control of marriage. Red Br. 3, 10, 17,
26. That reading of Windsor conflicts with nearly every other federal
court to have considered the constitutionality of a marriage ban. See,
e.g., Blue Br. 25-26. Conde-Vidal and DeBoer also were far off the
mark in holding that the Supreme Courts 1972 summary dismissal in
Baker v. Nelson, 409 U.S. 810 (1972), precludes reaching the merits on
marriage claims today. See, e.g., Conde-Vidal, 2014 U.S. Dist. LEXIS
150487, at *13. State Officials themselves do not make this meritless
claim. See Blue Br. 28, 29 n.6.
6

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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

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 Process
Clauses of the Fifth Amendment or the Fourteenth
Amendment known the components of liberty in its
manifold possibilities, they might have been more
specific. 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 thought
necessary and proper in fact serve only to oppress. As
the Constitution endures, persons in every generation
can invoke its principles in their own search for greater
freedom.

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

10

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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 Process
Clause protects only those practices, defined at the
most specific level, that were protected against
government interference by other rules of law when the
Fourteenth Amendment was ratified. But such a view
would be inconsistent with our law. It is a promise of
the Constitution that there is a realm of personal
liberty which the government may not enter. We have
vindicated this principle before. Marriage is mentioned
nowhere in the Bill of Rights and interracial marriage
was illegal in most States in the 19th century, but the
Court was no doubt correct in finding it to be an aspect
of liberty protected against state interference by the
substantive component of the Due Process Clause in
Loving v. Virginia.

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


(citations omitted) (emphasis added).7

The Sixth Circuit also erroneously distinguished Windsors


finding that the federal DOMA was an anomalous exercise[] of power
targeting a single group [that] raise[s] suspicion that bigotry rather
than legitimate policy is afoot by concluding that [o]nly federalism
can supply the answer. DeBoer, No. 14-1341, slip op. at 64. But, as
one scholar has noted, What made DOMA a deprivation of dignity was
not that it substituted a federal for a state definition of some legal
status on a subject traditionally within the primary regulatory
competence of the states. It was the fact that . . . depriving same-sex
couples of the tangible and intangible benefits of marriage based on
their sexual orientation was animusnot in the sense of hatred, which
has never been required, but in the sense of unwarranted prejudice.
Michael Dorf, What's Wrong With the Sixth Circuit Ruling Against A
Constitutional
Right
to
SSM,
Dorf
on
Law,
http://www.dorfonlaw.org/2014/11/whats-wrong-with-sixth-circuitruling.html (last accessed Nov. 7, 2014). Improper animus does not
necessarily mean legislatures or proponents of the law harbored
conscious prejudice or dislike of lesbians and gay men. Instead, the
legislation may reflect mere negative attitudes, or fear,
unsubstantiated by factors which are properly cognizable by
government. Cleburne, 473 U.S. 432, 448 (1985). Such attitudes may
result as well from insensitivity caused by simple want of careful,
rational reflection or from some instinctive mechanism to guard
against people who appear to be different in some respects from
ourselves. Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 374
(2001) (Kennedy, J., concurring).
7

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THE RIGHT AT ISSUE IN THIS CASE IS THE


FUNDAMENTAL 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 3840, 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

new,

narrow

fundamental right . . . or determining whether the class of


people at issue enjoyed the right as it had previously been

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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 choices 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

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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 Plaintiffsand dozens of federal
judgeson 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
See Amicus Br. of NAACP Legal Defense & Educational Fund,
Inc. in Support of Plaintiffs-Appellees, De Leon v. Perry, No. 14-50196
8

(5th Cir. Sept. 16, 2014), at 19-32.

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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

State Officials also claim that the married Plaintiffs marriages


are not entitled to full faith and credit. Red Br. 32-35. However,
Plaintiffs do not argue that Louisiana must recognize their existing
marriages under the Full Faith and Credit Clause; rather, they assert
that the Marriage Ban is an unconstitutional violation of the Equal
Protection and Due Process Clauses of the Fourteenth Amendment.
9

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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.

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Courts silence, as popularly-enacted marriage bans fall


across four different circuits, speaks volumes. 12
III.

LOUISIANAS MARRIAGE BAN IS SUBJECT TO


HEIGHTENED SCRUTINY UNDER THE EQUAL
PROTECTION 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 scrutinya level of scrutiny
Defendants concede cannot be met.

Similarly, in Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), the


Court was presented with the question whether Californias marriage
ban violated the Fourteenth Amendment. The Court dismissed an
appeal from lower court rulings striking down the ban on the ground
that the intervening defendants-appellees lacked standing to appeal.
Significantly, the Supreme Courts disposition permitted the district
court judgment to stand, resulting in invalidation of the marriage ban
in California.
12

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A.

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This Court Should Apply Heightened


Scrutiny Because Louisianas Marriage Ban
Classifies on the Basis of Sexual
Orientation.

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

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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

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


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

The

Classifications Based on Sexual Orientation


Bear the Hallmarks of Those Warranting
Heightened Scrutiny.
traditional

hallmarks

of

classification

warranting heightened scrutiny are whether the class


(1) historically has been subjected to discrimination, and
(2) has a defining characteristic 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

21

important.

See

id.

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(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 decisive.
Citizens born out of wedlock have never been inhibited in
Defendants argue that in Windsor the Supreme Court had
ample incentive to recognize sexual orientation as a quasi-suspect
class, but declined. Red Br. 44. Again, Defendants argument boils
down to making the Courts silence on an issue outcome determinative.
But the Courts alleged silenceor more specifically, the absence of
certain buzzwords in its opiniondoes not mean that heightened
scrutiny should not apply. Indeed, following Defendants logic, the
Courts failure to critique, review or stay circuit court holdings
applying 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, stay
denied, 2014 U.S. App. LEXIS 19828
13

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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
disenfranchisementand,

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

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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

See also Amicus Br. of Historians of Antigay Discrimination in


Support of Plaintiffs-Appellees, De Leon v. Perry, No. 14-50196 (5th
14

Cir. Sept. 16, 2014).

See also Amici Curiae Br. of Family Equality Council and


COLAGE in Support of Plaintiffs-Appellees, De Leon v. Perry, No. 1415

50196 (5th 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 (5th Cir. Sept. 16, 2014), at 5-12.

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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
Indeed, even though [a]lienage and illegitimacy are actually
subject to change, the Supreme Court has applied heightened scrutiny
to classifications based on those characteristics. Windsor, 699 F.3d at
183 n.4; see Nyquist v. Mauclet, 432 U.S. 1, 9 n.11 (1977) (rejecting the
argument that alienage did not deserve strict scrutiny because it was
mutable).
16

17

See also Amicus Br. of the American Psychological Association, et

continued

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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. 4849. 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

continuation

al., in Support of Plaintiffs-Appellants, Robicheaux v. Caldwell, No. 1431037 (5th Cir. Oct. 24, 2014); Amicus Br. of GLMA: Health
Professionals Advancing LGBT Equality in Support of PlaintiffsAppellees, De Leon v. Perry, No. 14-50196 (5th Cir. Sept. 15, 2014).
For example, even though a decade has elapsed since Lawrence v.
Texas, which declared state anti-sodomy laws unconstitutional, 539
U.S. 558, 574 (2003), Louisiana's anti-sodomy statute remains on its
books. See LA. REV. STAT. ANN. 14:89 (2013). As recently as 2013 gay
men in Louisiana were arrested for consensual adult intimacy under
the law. See Campbell Robertson, After Arrests on Charges of Sodomy,
18

continued

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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. See Whitewood, 992 F. Supp. 2d at 430; Pedersen,
continuation

an Apology, N.Y. Times (July 30, 2013),


http://www.nytimes.com/2013/07/30/us/after-arrests-on-charges-ofsodomy-an-apology.html. In February 2014, the Baton Rouge Metro
Councils symbolic resolution to encourage repeal of the
unconstitutional 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-antisodomy-law. On April 15, 2014, by a 27 to 67 vote, the Louisiana House
of Representatives rejected a proposed bill to repeal the portions of the
law that criminalized "consensual, uncompensated activity between
persons of the same sex." House Legis. Servs., 40th Reg. Leg. Sess.,
Digest H.B. 12 (La. 2014).

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


C.

The Marriage Ban Warrants Heightened


Scrutiny Because It Discriminates on the
Basis of Gender.

Defendants argue 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 Facially


Classifies on the Basis of Gender.

The Marriage Ban on its face classifies on the basis of


sex. Robert is precluded from marrying the person he
wishesGarthsolely because Robert is a man rather than
a woman. See, e.g., LA. CIV. CODE art. 86; LA. 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

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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.

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Louisianas Marriage Ban Also


Discriminates on the Basis of Gender
Because It Requires Adherence To
Gender 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 for 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 stereotypesnamely 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]

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competence or predispositions, and serve to ratify and


perpetuate invidious, archaic, and overbroad stereotypes
about the relative abilities of men and women). It
communicate[s] the states view of what is both normal and
preferable

with

regard

to

the

romantic

preferences,

relationship roles, and parenting capacities of men and


women. Latta, 2014 U.S. App. LEXIS 19620, at *78 (Berzon,
J., concurring). Such gender stereotyping is constitutionally
impermissible. See, e.g., United States v. Virginia, 518 U.S.
515, 533 (1996); Hogan, 458 U.S. at 724-25; Califano v.

Webster, 430 U.S. 313, 317 (1977).

IV.

LOUISIANAS PROFFERED JUSTIFICATIONS


CANNOT SURVIVE EVEN RATIONAL BASIS
REVIEW.
Louisianas Marriage Ban is unconstitutional under

any level of scrutiny, including rational basis review. [E]ven


in the ordinary equal protection case calling for the most
deferential of standards, we insist on knowing the relation

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between the classification adopted and the object to be


attained. Romer, 517 U.S. at 632. At 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 Biological


Parents Cannot Justify the Ban.

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 woman. Red Br. 53. Ignoring

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many other family structuressingle parents, couples with


adopted children, unmarried parents, childless married
couplesDefendants 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,

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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.

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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 interestnot 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

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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
U.S. Dept. of Health & Human Services, Childrens Bureau, How
Many Children Are in Foster Care in the U.S.? In My State? (July
2012), available at www.acf.hhs.gov/programs/cb/faq/foster-care4 (last
accessed Nov. 3, 2014) (as of the end of federal fiscal year 2011, there
were 4,531 children in foster care in Louisiana).
19

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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

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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

procreationthat even non-procreative couples benefit from


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

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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

State Officials claim that statistics from the Centers for Disease
Control (CDC) prove that linking marriage laws to procreation is
hardly irrational. Red Br. 60. In fact, according to the CDC report on
which Defendants rely, 22.6% of married different-sex couples use
infertility services, a number that does not even take into account the
percentage of married different-sex couples with no desire to have
children, or who are too elderly to do so, demonstrating the gross
overinclusivity of the Marriage Ban. Anjani Chandra, et al., Infertility
20

Service Use in the United States: Data From the National Survey of
Family Growth, 19822010, National Health Statistics Report, Center
for Disease Control, No. 73 at 13 (2014), available at
http://www.cdc.gov/nchs/data/nhsr/nhsr073.pdf (last visited Nov. 3,
2014).

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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 by


an Interest in Deference to the Democratic
Process.

Finally, Defendants attempt to justify the Marriage


Ban by proclaiming that the Ban seeks to ensure that
fundamental social change occurs by social consensus
See Amici Curiae Br. of Family Equality Council and COLAGE in
Support of Plaintiffs-Appellees, De Leon v. Perry, No. 14-50196 (5th
21

Cir. Sept. 16, 2014).

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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 laws 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

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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 constitutionallyprotected 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

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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 clearstate 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.

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Dated: November 7, 2014.


Respectfully submitted,
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
By: /s/ Camilla B. Taylor
CAMILLA B. TAYLOR

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CERTIFICATE OF SERVICE
I hereby certify that, on November 7, 2014, I
electronically transmitted the above and foregoing document
to the Clerk of the Court using the ECF System for filing.
Based on the records currently on file, the Clerk of the
Court will transmit a Notice of Electronic Filing to all
participants in this case, who are all registered CM/ECF
users.

/s/ Camilla B. Taylor


CAMILLA B. TAYLOR

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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 made
pursuant to 5th Cir. R. 25.2.13;
2)
The electronic submission is an exact copy of the
paper document, in accordance with 5th Cir. R.25.2.1;
and
3)
The document has been scanned for viruses with
the most recent version of a commercial virus scanning
program and is free of viruses.

/s/ Camilla B. Taylor


CAMILLA B. TAYLOR

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CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of
FED. R. APP. P. 32(a)(7)(B) and FED. R. APP. P. 29(d)
because:
This brief contains 6,991 words, excluding the
parts of the brief exempted by FED. R. APP. P.
32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of
FED. R. APP. P. 32(a)(5) and the type style requirements
of FED. R. APP. P. 32(a)(6) because:
This brief has been prepared in a proportionally
spaced typeface using Microsoft Office Word
2010 (14.0.7128.5000), MSO Professional Plus, in
Century Schoolbook 14-point font (12-point for
footnotes).

/s/ Camilla B. Taylor


CAMILLA B. TAYLOR

47

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