Document Type
Brief
Publication Date
3-6-2015
Abstract
Amici Curiae -seventy four scholars of family law- respectfully submit this brief in support of Petitioners. The two questions presented here concern whether the Fourteenth Amendment requires a state to license or recognize a marriage between two people of the same sex. Amici have substantial knowledge of, and experience with, the state family laws that address marriage, parentage, and the wellbeing of children. Our brief demonstrates that the rationales proposed by Respondents for declining to license or recognize same sex marriages fundamentally conflict with basic family laws and policies in every state.
Kentucky, Michigan, Ohio, and Tennessee ban same-sex couples from marriage and deny recognition to marriages that same-sex couples enter into elsewhere ("marriage bans"). In defending the marriage bans, these states and their amici (collectively "ban defenders") rely on two primary arguments: first, that a core, defining element of marriage is the possibility of biological, unassisted procreation; and second, that the "optimal" setting for raising children is a home with their married, biological mothers and fathers. But the family laws that govern marital and parental relationships in these very states, as well as in the rest of the country, tell a different story.
No state has ever limited marriage to couples who can demonstrate that they have procreative capacity and desire. Instead, in these four states and elsewhere, the state family laws that govern marriage recognize that couples marry for many reasons, including public acknowledgement of their private choice to share their lives with someone they love and to enter a legally binding union that confers hundreds of mutual rights and obligations. These rights and obligations help the couple care for each other, as well as their children (if any), regardless of how those children were conceived.
State family laws that govern the parent-child relationship also refute the "optimal parenting" argument. These laws do not privilege parenting by biological parents who parent in "gender differentiated" ways over other forms of parenting. States afford full parental rights to legal parents who have no biological or genetic ties to a child. In many circumstances, a biological or genetic tie is neither necessary nor sufficient to establish a legal parent-child relationship. State family laws also reject once prevalent notions that a parent's sex or gender is legally relevant to determinations of a child's best interests. Moreover, states exclude no other couples from marriage based on a belief that they will provide a suboptimal setting for raising children.
Finally, state family laws recognize that it is unconstitutional to punish children to influence the behavior of adults. Yet the marriage bans do just this. They deprive the children of same-sex couples of valuable governmental, social, and personal benefits in the name of incentivizing others to be "ideal" parents or to have more children.
The marriage bans cannot stand.
Recommended Citation
Duquette, Donald N.; Scarnecchia, Suellyn; and Vandervort, Frank E., "Obergefell v. Hodges, et al.: Brief of Amici Curiae Family Law Scholars in Support of Petitioners" (2015). Appellate Briefs. 97.
https://repository.law.umich.edu/briefs/97
Comments
Amicus: Abramowicz, Sarah; Abrams, Kerry; Banks, Ralph Richard; Blair, Marianne; Abrams, Jamie R.; Aloni, Erez; Bartholet, Elizabeth; Blumberg, Grace Ganz; Boucai, Michael; Bradley, Kathryn Webb; Burt, Robert A.; Cain, Patricia A.; Culhane, John; Bowman, Cynthia Grant; Brito, Tonya L.; Cahn, Naomi R.; Chambers, David L.; Czapanskiy, Karen; Dailey, Anne C.; Drobac, Dr. Jennifer A.; Ellman, Ira Mark; Dowd, Nancy E.; Duquette, Donald N.; Elrod, Linda Henry; Ertman, Martha M.; Fenton, Zanita E.; Godsoe, Cynthia; Guggenheim, Martin; Federle, Katherine Hunt; Forman, Deborah L.; Graham, Louise; Hamilton, Vivian; Harbach, Meredith; Hong, Kari E.; Ikemoto, Lisa C.; Hollinger, Joan Heifetz; Huntington, Clare; Jacobs, Melanie B.; Joslin, Courtney G.; Kessler, Laura T.; Manian, Maya; Matsumura, Kaiponanea; Kelly, Alicia B.; Lau, Holning; Mason, Mary Ann; Maxwell, Nancy G.; Mcclain, Linda C.; Minow, Martha; Nejaime, Douglas; Oren, Laura; Rosky, Clifford J.; Mertus, Jennifer B.; Murray, Melissa; Onwuachi-willig, Angela; Purvis, Dara E.; Ross, Catherine J.; Sampson, John J.; Scharf, Rebecca L.; Shapiro, Julie; Singer, Jana; Scarnecchia, Suellyn; Scott, Elizabeth S.; Silbaugh, Katharine; Stein, Edward; Strasser, Mark; Vandervort, Frank E.; Wallace, Monica Hof; Weithorn, Lois A.; Tindall, Harry L.; Wald, Michael S.; Weisberg, D. Kelly; Widiss, Deborah; Williams, Wendy W.; Woodhouse, Barbara Bennett