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14-1167 #86 - Amicus Brief West Virginia

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Doc 86 - Amicus Brief of State of West Virginia in support of Defendants

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Case Nos. 14-1167(L), 14-1169, 14-1173 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT TIMOTHY B. BOSTIC, et al., Plaintiffs-Appellees, CHRISTY BERGHOFF, JOANNE HARRIS, JESSICA DUFF, AND VICTORIA KIDD, on behalf of themselves and all others similarly situated, Intervenors, v. GEORGE E. SCHAEFER, III, in his official capacity as the Clerk of Court for Norfolk Circuit Court, Defendant-Appellant, JANET M. RAINEY, in her official capacity as State Registrar of Vital Records; Defendant-Appellant, and MICHÈLE B. MCQUIGG, in her official capacity as Prince William County Clerk of Circuit Court Intervenor–Defendant-Appellant. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA AT NORFOLK BRIEF OF AMICUS CURIAE STATE OF WEST VIRGINIA SUPPORTING REVERSAL OFFICE OF THE WEST VIRGINIA ATTORNEY GENERAL State Capitol Building 1, Room E-26 Charleston, WV 25305 Telephone: (304) 558-2021 Fax: (304) 558-0140 E-mail: [email protected] PATRICK MORRISEY Attorney General West Virginia ELBERT LIN Solicitor General JULIE MARIE BLAKE Assistant Attorney General

Counsel for Amicus Curiae State of West Virginia

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TABLE OF CONTENTS TABLE OF CONTENTS........................................................................................... i TABLE OF AUTHORITIES ................................................................................... iii STATEMENT OF INTEREST..................................................................................1 INTRODUCTION .....................................................................................................1 ARGUMENT .............................................................................................................3 I. BAKER V. NELSON IS BINDING AND DISPOSITIVE. ...............................3 A. B. II. Baker Has Never Been Expressly Overruled. .......................................4 Baker Has Not Been Implicitly Overruled............................................7

WASHINGTON V. GLUCKSBERG AND VENEY V. WYCHE REQUIRE THAT THIS COURT APPLY RATIONAL BASIS REVIEW TO APPELLEES’ CLAIMS. ...............................................................................12 A. B. Washington v. Glucksberg Establishes That There Is No Fundamental Right At Issue......................................................................................12 Veney v. Wyche Requires The Application Of Rational Basis Review To The Equal Protection Claim...........................................................15

III.

DISTRICT COURTS HAVE SO FAR FAILED TO FAITHFULLY APPLY THE SUPREME COURT’S STANDARDS FOR RATIONAL BASIS REVIEW........................................................................................................19 A. B. Ample Rational Bases Support State Traditional Marriage Laws. .....19 Lower Courts Improperly Ignore The Supreme Court’s Established Standards For Rational Basis Review. ................................................21 1. 2. 3. 4. 5. C. The State is not required to produce evidence..........................21 The State’s interest need only be conceivable..........................22 The State need only explain whether including a group would advance a legitimate state interest. ...........................................23 The State is entitled to precisely formulate its interest.............25 The State may be roughly over-inclusive and under-inclusive. ...................................................................................................27

The Exception For Statutes Motivated By A “Bare Desire To Harm” Is Not Applicable.................................................................................28 i

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CONCLUSION........................................................................................................30 CERTIFICATE OF COMPLIANCE.......................................................................31 CERTIFICATE OF SERVICE ................................................................................32

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TABLE OF AUTHORITIES CASES Agostini v. Felton, 521 U.S. 203 (1997). ..................................................................................... 3, 5–7 Am. Civil Liberties Union of N.C. v. Tata, 742 F.3d 563 (4th Cir. 2014) ................................................................................15 Armour v. City of Indianapolis, 132 S. Ct. 2073 (2012)..........................................................................................25 Attorney Gen. of New York v. Soto-Lopez, 476 U.S. 898 (1986) ...............................................................................................6 August v. Bronstein, 417 U.S. 901 (1974) ...............................................................................................6 Baker v. Nelson, 409 U.S. 810 (1972) ................................................................................ 1–5, 7–12 Bassett v. Snyder, 951 F. Supp. 2d 939 (E.D. Mich. 2013) ...............................................................29 Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305 (4th Cir. 2001) ..................................................................................5 Bishop v. United States, 962 F. Supp. 2d 1252 (N.D. Okla. Jan. 14, 2014)............... 2, 4, 12, 22–23, 26–27 Boddie v. Connecticut, 401 U.S. 371 (1971) .............................................................................................14 Bostic v. Rainey, No. 2:13-395, 2014 WL 561978 (E.D. Va. Feb. 13, 2014)....... 2, 4, 11–13, 22–23 Bourke v. Beshear, No. 13-750, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014) ...................... 12, 22–23 Brooks v. Vassar, 462 F.3d 341 (4th Cir. 2006) ..................................................................................5 City of Cleburne v. Cleburne Living Ctr, Inc., 473 U.S. 432 (1985) .................................................................... 16, 21, 24–25, 29 De Leon v. Perry, No. SA-13-CA-00982-OLG, 2014 WL 715741 (W.D. Tex. Feb. 26, 2014)................................................................. 12, 22–23, 27 iii

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DeBoer v. Snyder, No. 12-10285, 2014 WL 1100794 (E.D. Mich. Mar. 21, 2014) ..........................22 Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973) .......................................................................... 16–17, 24–25 Edelman v. Jordan, 415 U.S. 651 (1974) ...............................................................................................6 FCC v. Beach Communications, Inc., 508 U.S. 307 (1993) .................................................................. 1, 2, 20–21, 23, 28 Goulart v. Meadows, 345 F.3d 239 (4th Cir. 2003) ................................................................................16 Gray v. Orr, No. 13-8449, 2013 WL 6355918 (N.D. Ill. Dec. 5, 2013) ...................................29 Heller v. Doe, 509 U.S. 312 (1993) .................................................................. 1, 2, 21–23, 27–28 Herbert v. Kitchen, 134 S. Ct. 893 (2014)..........................................................................................7–9 Hicks v. Miranda, 422 U.S. 332 (1975) ...........................................................................................4–7 High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) ................................................................................17 Hollingsworth v. Perry, 558 U.S. 183 (2010) ...............................................................................................8 Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (D. Haw. 2012) .................................................................25 Johnson v. Robison, 415 U.S. 361 (1974) .................................................................. 1, 2, 20–21, 24–26 Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah Dec. 20, 2013)......................... 4, 7, 13, 22–23, 27 Lawrence v. Texas, 539 U.S. 558 (2003) ............................................................................ 5, 14, 16, 29 Lee v. Orr, No. 13-8719, 2014 WL 683680 (N.D. Ill. Feb. 21, 2014) ...................................13 Little Sisters of the Poor Home for the Aged v. Sebelius, 134 S. Ct. 1022 (2014)............................................................................................8 iv

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Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004) ..............................................................................14 Loving v. Virginia, 388 U.S. 1 (1967) .................................................................................... 14–15, 19 Mandel v. Bradley, 432 U.S. 173 (1977) ...........................................................................................6–7 McGee v. Cole, No. 3:13-24068, 2014 WL 321122 (S.D. W. Va. Jan. 29, 2014)...........................4 Michael M. v. Superior Court of Sonoma Cnty., 450 U.S. 464 (1981) .............................................................................................28 Muriithi v. Shuttle Exp., Inc., 712 F.3d 173 (4th Cir. 2013) ..................................................................................4 Nordlinger v. Hahn, 505 U.S. 1 (1992) .................................................................................................23 Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010)..................................................................22 Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477 (1989) ...................................................................................... 3, 6–7 Romer v. Evans, 517 U.S. 620 (1996) ................................................................ 9, 10, 15–16, 24, 28 Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012) ............................................................. 18–19 SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014) ......................................................................... 16–18 Tanco v. Haslam, No. 3:13-01159, 2014 WL 997525 (M.D. Tenn. Mar. 14, 2014) ..........................2 Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) ........................................................................... 15–16 Turner v. Safley, 482 U.S. 78 (1987) ...............................................................................................14 United States v. Cheek, 415 F.3d 349 (4th Cir. 2005) ..................................................................................5 United States v. Danielczyk, 683 F.3d 611 (4th Cir. 2012) ..................................................................................4 v

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United States v. Olivera-Hernandez, 328 F. Supp. 2d 1185 (D. Utah 2004) ....................................................................2 United States v. Windsor, 133 S. Ct. 2675 (2013)............................................................. 1, 5, 7, 9–18, 28–29 Veney v. Wyche, 293 F.3d 726 (4th Cir. 2002) ........................................................... 1, 2, 12, 15–17 Vill. of Belle Terre v. Boraas, 416 U.S. 1 (1974) .................................................................................................25 Washington v. Glucksberg, 521 U.S. 702 (1997) .......................................................................... 1, 2–3, 12–14 Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316 (4th Cir. 2001) ..................................................................................5 West v. Anne Arundel Cnty., Md., 137 F.3d 752 (4th Cir. 1998) ..................................................................................5 Wilkins v. Gaddy, 734 F.3d 344 (4th Cir. 2013) ................................................................................17 STATUTES W. Va. Code § 48-2-104 ............................................................................................1 W. Va. Code § 48-2-401 ............................................................................................1 OTHER AUTHORITIES Chris Geidner, Courts In 9 Western States To Review Anti-Gay Laws More Closely, Mar. 8, 2014, http://www.buzzfeed.com/chrisgeidner/courts-in-9western-states-to-review-anti-gay-laws-more-clos ..............................................17 Def. Smith’s Cross-Motion for Summary Judgment, Bishop v. U.S. ex rel. Holder, No. 04-848, Doc. 216 (N.D. Okla. Oct. 19, 2011) ...................................................................27 Fed. R. App. P. 29......................................................................................................1 Herbert v. Kitchen, Application to Stay Judgment Pending Appeal, No. 13A687 (U.S. Dec. 31, 2014) ..........................................................................8 Matt Apuzzo, Holder Sees Way to Curb Bans on Gay Marriage, N.Y. Times, Feb. 24, 2014, http://www.nytimes.com/2014/02/25/us/holder-says-stateattorneys-general-dont-have-to-defend-gay-marriage-bans.html?_r=1 ...............18 vi

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McGee v. Cole, No. 3:13-24068, Jurisdictional Filings Docs. No. 85–86, 92 (S.D. W. Va.)........................................................................1 McGee v. Cole, Pl. Summary Judgment Reply, No. 3:13-24068, Doc. 89 (S.D. W. Va. Feb. 25, 2014)........................................22 McGee v. Cole, State of W. Va.’s Summary Judgment Filings, No. 3:13-24068, Doc. 68 (S.D. W. Va. Feb. 12, 2014)........................................20 McGee v. Cole, State of W. Va.’s Summary Judgment Filings, No. 3:13-24068, Doc. 101 (S.D. W. Va. Mar. 14, 2014). ....................................20 Order, SmithKline Beecham Corp. v. Abbott Laboratories, No. 11-17357 (9th Cir. Mar. 27, 2014) ................................................................17 President Obama Supports Same-Sex Marriage, http://www.whitehouse.gov/blog/ 2012/05/10/obama-supports-same-sex-marriage .................................................18

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STATEMENT OF INTEREST1 The State of West Virginia has a particular interest in the outcome of this appeal because it may govern McGee v. Cole, No. 3:13-24068 (S.D. W. Va. filed Oct. 1, 2013), a challenge to West Virginia’s marriage statutes, W. Va. Code §§ 48-2-104 & 48-2-401. That case is fully briefed on jurisdictional2 and substantive grounds. INTRODUCTION At its core, this case invites the Court to ignore decades of never-overruled precedent—including Baker v. Nelson, 409 U.S. 810 (1972), Washington v. Glucksberg, 521 U.S. 702 (1997), Veney v. Wyche, 293 F.3d 726 (4th Cir. 2002), Heller v. Doe, 509 U.S. 312 (1993), FCC v. Beach Communications, Inc., 508 U.S. 307 (1993), and Johnson v. Robison, 415 U.S. 361 (1974)—and instead to take what several federal district courts believe will be the Supreme Court’s next step after United States v. Windsor, 133 S. Ct. 2675 (2013). In the past year, a number of district courts have struck down state marriage laws, based on their view of where the “long but steady progression” of Supreme Court jurisprudence is
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A State may “file an amicus-curiae brief without the consent of the parties or leave of court.” Fed. R. App. P. 29(a).
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The State of West Virginia has argued that the district court in McGee lacks jurisdiction because the plaintiffs failed to join the state officials responsible for enforcing the challenged laws. No. 3:13-24068, Docs. No. 85–86, 92 (S.D. W. Va.). 1

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supposedly headed. Tanco v. Haslam, No. 3:13-01159, 2014 WL 997525, at *6 (M.D. Tenn. Mar. 14, 2014); Bishop v. United States, 962 F. Supp. 2d 1252, 1275 (N.D. Okla. Jan. 14, 2014). Citing their “constitutionality duty,” these courts have determined to use their “power” to grant “fairness.” Bostic v. Rainey, No. 2:13395, 2014 WL 561978, at *17, *23 (E.D. Va. Feb. 13, 2014). But the “constitutional duty” of this Court, id., is to follow precedent unless it has been expressly overruled—not to “anticipate the direction, or holding, of future Supreme Court cases.” United States v. Olivera-Hernandez, 328

F. Supp. 2d 1185, 1186 (D. Utah 2004). And here, precedent mandates judgment in favor of Appellants. To begin with, Baker v. Nelson is binding and dispositive. In the alternative, the challenged laws are valid under settled principles of constitutional law. First, Appellees’ due process claim is subject to rational basis review under Washington v. Glucksberg. Second, under this Court’s decision in Veney v. Wyche, Appellees’ equal protection claim “on the basis of sexual preference” is also “subject to rational basis review.” 293 F.3d at 732. Third, the challenged laws satisfy rational basis review under the long-established standards of Heller v. Doe, FCC v. Beach Communications, and Johnson v. Robison. Moreover, even if Windsor calls these precedents into question, which it does not, this Court must follow them until the Supreme Court itself overrules them. The Supreme Court has said unequivocally: “If a precedent of this Court has 2

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direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, [lower courts] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989); see also Hohn v. United States, 524 U.S. 236, 252–53 (1998). Thus, although the Supreme Court in Agostini v. Felton ultimately overruled an earlier decision, it praised the lower court for having “recogniz[ed] that the motion [to vacate] had to be denied unless and until this Court reinterpreted the binding precedent.” 521 U.S. 203, 238 (1997). That is especially true here, where the relief requested places an important policy question “outside the arena of public debate and legislative action.” Glucksberg, 521 U.S. at 720. West Virginia’s Legislature has, recently and nearly unanimously, thrice reaffirmed the traditional definition of marriage. This Court should not accept Appellees’ invitation to interfere with these state legislative judgments based solely on a prediction of where the Supreme Court might go next. ARGUMENT I. BAKER V. NELSON IS BINDING AND DISPOSITIVE. Although it is universally accepted that the Supreme Court’s summary dismissal in Baker involved the same issues presented in these types of cases, many district courts have refused to follow the decision. Relying on Hicks v. 3

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Miranda, 422 U.S. 332 (1975), these courts have concluded that Baker has been implicitly overtaken by the law. E.g., Bishop, 962 F. Supp. 2d at 1275; Bostic, 2014 WL 561978, at *9; McGee v. Cole, 2014 WL 321122, at *8–*10 (Jan. 29, 2014); Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1194 (D. Utah Dec. 20, 2013). In Hicks, the Supreme Court explained that until it “instruct[ed] otherwise,” the rule was that summary decisions bind lower courts “except when doctrinal developments indicate” differently. 422 U.S. at 344 (internal quotations omitted). The Supreme Court did not explain what it meant by a “doctrinal development,” but these district courts interpret the term to allow lower courts to decide whether Baker has been implicitly overruled. These courts have erred. Supreme Court precedent—including a summary decision such as Baker—remains binding until expressly overruled by the Supreme Court itself. And in any event, no case supports the conclusion that Baker has even been implicitly overruled. A. Baker Has Never Been Expressly Overruled.

1. As this Court has repeatedly recognized, Supreme Court precedents remain binding unless and until they have been expressly overruled. See supra 2– 3; see also Muriithi v. Shuttle Exp., Inc., 712 F.3d 173, 182 (4th Cir. 2013) (“We will not readily infer that the Supreme Court impliedly has overruled its own precedent.”); United States v. Danielczyk, 683 F.3d 611, 615 (4th Cir. 2012) (“the 4

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Agostini principle requires lower courts to apply Supreme Court precedent that directly controls the case before it despite subsequent Supreme Court case law that may have affected the precedent by implication”); Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305, 411 (4th Cir. 2001) (“[I]f a precedent of the Supreme Court has direct application in a case, inferior courts must follow that precedent even if later cases appear to call it into question, leaving to the Supreme Court the prerogative of overruling its own decisions.”) (internal quotations omitted).3 Baker is thus still binding because it has never been explicitly overruled. Quite the opposite, in fact. The Supreme Court has carefully avoided the Baker issue—whether the Constitution requires States to permit same-sex marriages—in several cases. See Windsor, 133 S. Ct. at 2696 (“confin[ing]” its “opinion and its holding” to the constitutionality of a federal law); Lawrence v. Texas, 539 U.S. 558, 578 (2003) (noting that the case “d[id] not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter”). 2. It has been suggested that Hicks sets forth a different rule for summary decisions, but there is little to support that argument. To begin with, the operative

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See also Brooks v. Vassar, 462 F.3d 341, 360 (4th Cir. 2006); United States v. Cheek, 415 F.3d 349, 352–53 (4th Cir. 2005); Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 330 (4th Cir. 2001); West v. Anne Arundel Cnty., Md., 137 F.3d 752, 760 (4th Cir. 1998). 5

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language in Hicks—“except when doctrinal developments indicate otherwise”— can quite reasonably be read to refer only to a later express overruling. 422 U.S. at 344 (internal quotations omitted). Moreover, the Supreme Court has never suggested that summary decisions are exempt from the Rodriguez/Agostini standard. If anything, its practice has been to expressly overrule summary decisions with which it no longer agrees. E.g., Attorney Gen. of New York v. Soto-Lopez, 476 U.S. 898, 912 (1986) (“Our summary affirmance in August v. Bronstein, 417 U.S. 901 (1974), is hereby overruled.”) (citations omitted); Edelman v. Jordan, 415 U.S. 651, 671 (1974) (expressly “disapprov[ing] the Eleventh Amendment holdings” of several summary affirmances). Finally, there is no reason why a summary decision should be less binding on lower courts than an argued decision. To be sure, because there is no written reasoning, summary decisions are more distinguishable on their facts than argued decisions. Mandel v. Bradley, 432 U.S. 173, 177 (1977). The Supreme Court has also suggested that, for its purposes, a summary decision may have less stare decisis value. Edelman, 415 U.S. at 671. But where a summary decision has “reject[ed] the specific challenges” raised in a subsequent case—as here—the Supreme Court has made clear that the decision “prevent[s] lower courts from coming to opposite conclusions on th[ose] precise issues.” Mandel, 432 U.S. at 6

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176 (emphasis added). For the specific issues raised, a summary decision is no less a decision “on the merits” than an argued decision. Id.4 3. To the extent Hicks at one time set a different standard for summary decisions, however, the Rodriguez/Agostini standard now controls. In Hicks, the Supreme Court noted that it might someday “instruct otherwise.” 422 U.S. at 344 (internal quotations omitted). It did so in Rodriguez, Agostini, and a legion of other cases. B. Baker Has Not Been Implicitly Overruled.

Even if a lower court could unilaterally determine that a Supreme Court precedent has been implicitly overruled—and is therefore no longer binding—the Supreme Court’s cases do not support such a conclusion about Baker. In

particular, the Supreme Court’s recent stay order in Herbert v. Kitchen, 134 S. Ct. 893 (2014), strongly suggests the contrary: that the Court itself does not believe any case, including Windsor, implicitly overruled Baker.

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Some district courts appear to misunderstand the “summary” dismissal in Baker—for “want of a substantial federal question”—as a jurisdictional dismissal for lack of a federal question. E.g., Kitchen, 961 F. Supp. 2d at 1195. It was not. Baker presented a federal question sufficient for jurisdiction, as it involved a federal constitutional challenge to a state law. The “summary” nature of the case refers to the Supreme Court’s decision not to hear oral argument because the merits of that federal question lacked substance. Cf. Hicks, 442 U.S. at 344 (explaining that dismissing an appeal for want of a substantial federal question reflects the Court’s decision “not … to grant the case plenary consideration” because “the constitutional challenge … was not a substantial one”). 7

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1. On January 6, 2014, the Supreme Court stayed a district court’s order enjoining Utah’s traditional definition of marriage. Id. The district court had concluded that Baker no longer controls and that Utah’s definition violated federal due process and equal protection. Utah sought a stay pending appeal. Application to Stay Judgment Pending Appeal, No. 13A687 at 8–13 (U.S. Dec. 31, 2014). The Kitchen stay order is telling because the standards for a stay include a “fair prospect” of success on the merits. Ordinarily, the Supreme Court issues a stay only if an applicant shows: “(1) a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect that a majority of the Court will vote to reverse the judgment below; and (3) a likelihood that irreparable harm will result from the denial of a stay.” Hollingsworth v. Perry, 558 U.S. 183, 190 (2010). In rare cases, the Supreme Court will explain that other factors were considered. Two weeks after the Kitchen order, for example, the Supreme Court granted an injunction in Little Sisters of the Poor Home for the Aged v. Sebelius, stating: “The Court issues this order based on all the circumstances of the case, and this order should not be construed as an expression of the Court’s views on the merits.” 134 S. Ct. 1022 (2014). The Supreme Court made no such statement in Kitchen. The Kitchen order is strong evidence that the Supreme Court disagrees with lower courts that Baker has been implicitly overruled. Baker’s holding is that 8

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Minnesota’s law on same-sex marriage did not violate the Fourteenth Amendment. To overrule Baker, therefore, would be to conclude that the state law did violate the Constitution. But if the Supreme Court agreed with that conclusion, it would not have granted the stay in Kitchen because Utah would have no chance—much less a “fair prospect”—of defending its similar law against the same charges. 2. Furthermore, Windsor did not implicitly overrule Baker. Windsor held that Section 3 of the federal Defense of Marriage Act violated the Fourteenth Amendment because the federal government sought to take away the status of marriage that New York had granted to same-sex couples within its borders. There, New York sought to give a class of persons “dignity” and “further protection,” but the federal government “use[d] th[at] state-defined class for the opposite purpose—to impose restrictions and disabilities.” Windsor, 133 S. Ct. at 2692. What made Section 3 unlawful was that it “injure[d] the very class New York [sought] to protect” by “depriv[ing] [those] same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages.” Id. at 2693. In short, Congress sought to take away where New York sought to give. That is the holding of Windsor. And that is why the Supreme Court found that Section 3 was “motivated by an improper animus or purpose.” Id. Much like the law found unconstitutional in Romer v. Evans, 517 U.S. 620 (1996), this law seemed to the Windsor Court to 9

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intentionally target and strip away deliberately conferred benefits.

Compare

Windsor, 133 S. Ct. at 2695–96 (describing Section 3 of DOMA as “impos[ing] a disability” on the specific “class of persons deemed by a State entitled to recognition and protection”), with Romer, 517 U.S. at 627 (“The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination.”). And thus, just like the law in Romer, this law’s principal purpose could only be to “disapprov[e],” “humiliate[],” and “demean.” Windsor, 133 S. Ct. at 2693, 2694, 2695; cf. Romer, 517 U.S. at 634 (reaching the “inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected”). Consistent with Baker, Windsor never suggested that an individual State’s decision not to endorse same-sex marriage is improper. Instead, the Supreme Court stressed how fair-minded individuals could disagree over the concept. On one hand, “marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.” Windsor, 133 S. Ct. at 2689. On the other hand, some have come to the “new insight” that “[t]he limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, … [is] an unjust exclusion.” Id. The Supreme Court emphasized that New York resolved these disagreements through “a 10

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statewide deliberative process that enabled its citizens to discuss and weigh arguments for and against same-sex marriage.” Id. at 2689. Like other States, New York was entitled to settle on its own “community’s considered perspective.” Id. at 2692; see also id. (noting that “[t]he dynamics of state government in the federal system are to allow the formation of consensus respecting the way the members of a discrete community treat each other”). This is not to say that Windsor shields state marriage laws from constitutional review. Some courts have erected and attacked that strawman with vigor, e.g., Bostic, 2014 WL 561978, at *15–17, but that is not the point. The point is that Windsor, by its own terms, is a narrow decision that neither expressly nor impliedly overrules Baker. 3. The Windsor dissents—on which several district courts place emphasis— are no less consistent with Baker. In dissent, both the Chief Justice and Justice Scalia explained that Windsor can and should be distinguished when it comes to state definitions of marriage—the very issue decided in Baker. Windsor, 133 S. Ct. at 2697 (Roberts, C.J., dissenting) (writing “to highlight the limits of the majority’s holding and reasoning today, lest its opinion be taken to resolve” the constitutionality of state laws); id. at 2709 (Scalia, J., dissenting) (“I do not mean to suggest disagreement with the Chief Justice’s view that lower courts and state courts can distinguish today’s case when the issue before them is state denial of 11

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marital status to same-sex couples. . . . State and lower federal courts should take the Court at its word and distinguish away.”). Some courts have concluded that this “judicial hand-wringing,” Bishop, 962 F. Supp. 2d at 1277, proves that Windsor displaced Baker. But that has it

backwards. If the dissents are correct—as the district courts suggest they are— then Windsor has not decided the constitutionality of States’ traditional definitions of marriage and has not sub silentio revisited Baker. II. WASHINGTON V. GLUCKSBERG AND VENEY V. WYCHE REQUIRE THAT THIS COURT APPLY RATIONAL BASIS REVIEW TO APPELLEES’ CLAIMS. Even assuming that Baker does not control, state marriage laws need only pass rational basis review. Heightened scrutiny applies to laws that implicate either a fundamental right or a suspect (or quasi-suspect) class. Under Washington v. Glucksberg and Veney v. Wyche, neither is present here. A. Washington v. Glucksberg Establishes That There Is No Fundamental Right At Issue.

The controlling precedent on fundamental rights is Washington v. Glucksberg, 521 U.S. 702 (1997), a case most district courts considering this issue have failed to examine. E.g., Bostic, 2014 WL 561978, at *12–13; De Leon v. Perry, No. SA-13-CA-00982-OLG, 2014 WL 715741, at *19–*20 (W.D. Tex. Feb. 26, 2014); Bishop, 962 F. Supp. 2d at 1285 n.33; Bourke v. Beshear, No. 13-750, 2014 WL 556729, at *5 (W.D. Ky. Feb. 12, 2014); Lee v. Orr, No. 13-8719, 2014 12

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WL 683680, at *2 (N.D. Ill. Feb. 21, 2014). Glucksberg teaches that an “asserted fundamental liberty interest” must be “objectively, deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” 521 U.S. at 720–21 (internal quotations omitted). It is beyond dispute that under Glucksberg, there is no fundamental right to same-sex marriage. Until 2003, no State permitted same-sex marriage. As

Windsor explained, “until recent years, many citizens had not even considered the possibility.” 133 S. Ct. at 2689. The real focus by plaintiffs here and elsewhere, therefore, has been on asserting that the existing fundamental “right to marry” includes same-sex marriage. E.g., Bostic, 2014 WL 561978, at *12, Kitchen, 961 F. Supp. 2d at 1203. But Glucksberg disproves that contention, as well. Because fundamental rights are those “deeply rooted in our legal tradition,” 521 U.S. at 722, the scope of the fundamental right to marry cannot be divorced from the historical and traditional understanding of “marriage.” And as the Supreme Court recently recognized, “marriage between a man and a woman no doubt ha[s] been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.” Windsor, 133 S. Ct. at 2689 (emphasis added). The Windsor Court notably did not conclude that the challenged law

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implicated the fundamental right to marry, but rather suggested that same-sex marriage is a “new perspective [and] new insight.” Id. Unable to rebut this historical understanding of marriage, the plaintiffs challenging West Virginia’s marriage laws have sought to evade it by casting doubt on Glucksberg and the relevance of history. They have pointed to several cases in which the Supreme Court extended the fundamental right to marry to people who historically had not been permitted to exercise it. See Loving v. Virginia, 388 U.S. 1 (1967) (interracial couples); Turner v. Safley, 482 U.S. 78 (1987) (incarcerated persons); Boddie v. Connecticut, 401 U.S. 371 (1971) (divorced persons). But these cases do not help them. First, these cases cannot cast doubt on Glucksberg because they pre-date Glucksberg. Indeed, the Supreme Court

expressly considered Loving and the fundamental right to marry in articulating the Glucksberg framework. 521 U.S. at 720 (citing Loving).5 Second, the restrictions on marriage overturned in these cases were not— “throughout the history of civilization”—considered “essential to the very

5

Any suggestion that Lawrence v. Texas altered Glucksberg’s framework is also meritless because Lawrence was not a fundamental-rights case involving heightened scrutiny. See Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804, 817 (11th Cir. 2004) (“We conclude that it is a strained and ultimately incorrect reading of Lawrence to interpret it to announce a new fundamental right.”). 14

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definition of” marriage and “its role and function.” Windsor, 133 S. Ct. at 2689 (emphasis added). The Supreme Court has never found—and nobody contends— that the race,6 incarceration, or previous divorce of an individual has constituted a vital part of marriage for millennia. See id. (noting that “[t]he limitation of lawful marriage to heterosexual couples” has “for centuries” been “deemed both necessary and fundamental” (emphasis added)). B. Veney v. Wyche Requires The Application Of Rational Basis Review To The Equal Protection Claim.

1. Under this Court’s precedent in Veney v. Wyche, sexual orientation is not a classification triggering heightened scrutiny under the Equal Protection Clause. Like many other federal courts of appeals, this Court held in Veney that an equal protection claim “on the basis of sexual preference” is “subject to rational basis review.” 293 F.3d at 732 (4th Cir. 2002) (citing Romer, 517 U.S. at 631–32). Until overturned by the Supreme Court or this Court sitting en banc, Veney controls the level of scrutiny applicable to the equal protection claim in this case. See Am. Civil Liberties Union of N.C. v. Tata, 742 F.3d 563, 569 (4th Cir. 2014). The plaintiffs challenging West Virginia’s marriage laws have focused on a separate decision of this Court—Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996)
6

The Supreme Court’s invalidation of long-standing anti-miscegenation laws in Loving is also inapposite because “[t]he clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.” 388 U.S. at 10. 15

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(en banc)—which they claim Lawrence undermined. Whatever might be said about Thomasson, however, does not apply to Veney. Although Veney cited

Thomasson, it did not rely on that opinion for the decision to apply rational basis review to claims based on “sexual preference.” For that, Veney independently relied on Romer, which no one disputes is still good law. Id. at 732. Moreover, this Court reaffirmed after Lawrence that sexual orientation is a classification subject only to rational basis review. Months after Lawrence was decided, this Court summarized in Goulart v. Meadows that “[c]lassifications based on race, national origin, alienage, sex, and illegitimacy must survive heightened scrutiny,” while “[a]ll other classifications need only be rationally related to a legitimate state interest.” 345 F.3d 239, 260 (4th Cir. 2003) (citing City of Cleburne v. Cleburne Living Ctr, Inc., 473 U.S. 432, 440–41 (1985)). Finally, although one appeals court has concluded that “Windsor requires that heightened scrutiny be applied to equal protection claims involving sexual orientation,” SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 481 (9th Cir. 2014), a close review of Windsor belies that claim. The principle at the heart of Windsor—that “[t]he Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group,” 133 S. Ct. at 2693 (quoting Dep’t of Agric. v. Moreno, 413 U.S. 528, 534–35 (1973))—draws from the 16

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Supreme Court’s rational basis review jurisprudence.

These cases hold that

animus or a bare desire to harm “cannot constitute a legitimate government interest.” Moreno, 413 U.S. at 534. By concluding that “DOMA cannot survive” under this principle, Windsor applied rational basis review. 133 S. Ct. at 2693; see also id. at 2696 (“[N]o legitimate purpose overcomes the purpose and effect to disparage.”); 133 S. Ct. at 2706 (Scalia, J., dissenting) (noting that the majority opinion’s “central propositions are taken from rational-basis cases”).

Unsurprisingly, even though the losing party in SmithKline declined to seek rehearing in order to help gays and lesbians,7 the Ninth Circuit has sua sponte instructed the parties to file briefs on “whether the case should be reheard en banc.” Order, SmithKline Beecham Corp. v. Abbott Laboratories, No. 11-17357 (9th Cir. Mar. 27, 2014). 2. Because Veney controls, this Court need not (and indeed, may not) apply the factors in Wilkins v. Gaddy, 734 F.3d 344 (4th Cir. 2013), to decide the appropriate level of scrutiny for a classification based on sexual orientation. It bears noting, however, that other courts applying these factors have determined that sexual orientation is not a quasi-suspect classification. E.g., High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 573–74 (9th Cir. 1990); Sevcik
7

Chris Geidner, Courts In 9 Western States To Review Anti-Gay Laws More Closely, Mar. 8, 2014, http://www.buzzfeed.com/chrisgeidner/courts-in-9-westernstates-to-review-anti-gay-laws-more-clos. 17

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v. Sandoval, 911 F. Supp. 2d 996, 1007–13 (D. Nev. 2012).8 And since those decisions, gays and lesbians have achieved numerous successes in the political arena. To date, the legislatures or citizens of 13 States have voted to permit samesex marriages. McQuigg Br. Add. 1. The President and the Attorney General of the United States both express support for same-sex marriage, see President Obama Supports Same-Sex Marriage, http://www.whitehouse.gov/blog/

2012/05/10/obama-supports-same-sex-marriage; Matt Apuzzo, Holder Sees Way to Curb Bans on Gay Marriage, N.Y. Times, Feb. 24, 2014,

http://www.nytimes.com/2014/02/25/us/holder-says-state-attorneys-general-donthave-to-defend-gay-marriage-bans.html?_r=1, and a number of state attorneys general have chosen not to defend traditional marriage laws, including the Virginia Attorney General in this case. 3. The suggestion that state traditional marriage laws discriminate on the basis of sex, rather than sexual orientation, is without merit. These laws are gender-neutral: the same standard applies to men as to women. No man can marry a person of the same sex, nor can any woman.

8

Although the Ninth Circuit has concluded (for now) in SmithKline that heightened scrutiny does apply, as discussed above, it based that determination solely on Windsor and did not call into question the reasoning of these cases. 740 F.3d at 484. 18

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Nothing in Loving is to the contrary. There, the Supreme Court rejected a similar “equal application” argument in defense of Virginia’s anti-miscegenation laws, but it did so because the case involved racial discrimination. 388 U.S. at 8 (“The mere fact of equal application does not mean that our analysis of these statutes should follow the approach we have taken in cases involving no racial discrimination.”); id. at 9 (“[W]e deal with statutes containing racial classifications, and the fact of equal application does not immunize . . . statutes drawn according to race.”). Moreover, the law in Loving was not truly of equal application, as it “prohibit[ed] only interracial marriages involving white persons.” Id. at 11. It was therefore clearly a “measure[] designed to maintain White

Supremacy,” id., whereas “there is no indication [here] of any intent to maintain any notion of male or female superiority,” Sevcik, 911 F. Supp. 2d at 1005. III. DISTRICT COURTS HAVE SO FAR FAILED TO FAITHFULLY APPLY THE SUPREME COURT’S STANDARDS FOR RATIONAL BASIS REVIEW. A. Ample Rational Bases Support State Traditional Marriage Laws.

Many conceivable interests support state laws preserving the traditional definition of marriage. West Virginia has argued, for instance, that the laws passed by its legislature further at least two conceivable interests that same-sex marriage would not further at all or to the same degree. State of W. Va.’s Summary

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Judgment Filings, No. 3:13-24068, Doc. 68 at *36–*48 (S.D. W. Va. Feb. 12, 2014); id., Doc. 101 at *13–*29 (Mar. 14, 2014). First, the laws advance a conceivable legislative interest in expanding gay rights incrementally through successive legislation in order to avoid the potential unforeseen or disruptive consequences of an abrupt expansion of marriage to samesex couples. See FCC, 508 U.S. at 316. The West Virginia Legislature could reasonably have believed that an incremental approach would best: (1) avoid unforeseen disruption to other important legislative judgments and to the public fisc; (2) permit evaluation of accommodations for those who conscientiously object to endorsing or facilitating same-sex marriages; and (3) allow the Legislature to learn from the experiences of other States that have expanded their definitions of marriage. Second, the laws further a conceivable interest in ameliorating a unique consequence of opposite-sex intercourse: unplanned children. This is a

“characteristic[] peculiar to only one group [that] rationally explain[s] the [Legislature’s] different treatment of” opposite-sex couples and same-sex couples. Johnson, 415 U.S. at 382–83. Because only one group can have unplanned

pregnancies, that is a legitimate basis for the Legislature’s decision to create for that group an incentive under the law to stay together.

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B.

Lower Courts Improperly Ignore The Supreme Established Standards For Rational Basis Review.

Court’s

The chief error of lower courts scrutinizing marriage laws, however, is their failure to follow the Supreme Court’s standards for rational basis review set forth in Heller v. Doe, FCC v. Beach Communications, and Johnson v. Robison. For purposes of rational basis review, the State is not required to produce evidence, may rely on any conceivable legislative interest, need only justify the inclusion (rather than the exclusion) of a group, is entitled to precisely formulate its interest, and may make rough generalizations drawing lines between groups. To be sure, these standards make rational basis review a low bar, but that is precisely the point. When no suspect (or quasi-suspect) class or fundamental right is affected, courts must be “very reluctant” to “closely scrutinize legislative choices as to whether, how, and to what extent [a State’s] interests should be pursued.” City of Cleburne, 473 U.S. at 441–42. Rational basis review “accord[s]” laws “a strong presumption of validity.” Heller, 509 U.S. at 319. 1. The State is not required to produce evidence.

Under rational basis review, the State “has no obligation to produce evidence to sustain the rationality of a statutory classification.” Id. at 320. It may assert interests “based on rational speculation unsupported by evidence or empirical data,” and its interest must be upheld “if there is any reasonably conceivable state of facts” that could support it. Id. Unlike heightened scrutiny, 21

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rational basis review does not “subject” a State’s interest “to courtroom factfinding.” Id. Many district courts have nevertheless demanded evidence from States. E.g., Kitchen, 961 F. Supp. 2d at 1211–14 (“[T]he State is not able to cite any evidence to justify its fears.”); Bourke, 2014 WL 556729, at *8 (“[N]o one has offered evidence. . . .”); De Leon, 2014 WL 715741, at *14 (“Defendants have not provided any evidentiary support . . .”); Bishop, 962 F. Supp. 2d at 1291 (finding insufficient “evidence [of] a rational link”); cf. Bostic, 2014 WL 561978, at *15 (describing proffered justifications as unproven “fears”). In one case—in direct contravention of Supreme Court precedent—a district court ordered an evidentiary trial to decide if the challenged law passed rational basis review. DeBoer v. Snyder, No. 12-10285, 2014 WL 1100794, at *12–*13 (E.D. Mich. Mar. 21, 2014). 2. The State’s interest need only be conceivable.

A related error, urged by the plaintiffs challenging West Virginia’s laws, is to dismiss a State’s asserted interest as not supported by reality. Pl. Summary Judgment Reply, No. 3:13-24068, Doc. 89 at *29–*30, *37 (S.D. W. Va. Feb. 25, 2014); see also Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1002 (N.D. Cal. 2010) (dismissing the “purported rationales [as] nothing more than post-hoc justifications”). Under rational basis review, however, a decision-maker need not “articulate at any time the purpose or rationale supporting its classification.” 22

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Nordlinger v. Hahn, 505 U.S. 1, 15 (1992). Therefore, “it is entirely irrelevant . . . whether the conceived reason for the challenged [law] actually motivated the legislature.” FCC, 508 U.S. at 315. Instead, “[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it, whether or not the basis has a foundation in the record.” Heller, 509 U.S. at 320–21 (internal quotations omitted). 3. The State need only explain whether including a group would advance a legitimate state interest.

District courts have also insisted that States show a rational relationship between a law’s exclusion of same-sex couples and the legitimate governmental interest, and also demonstrate that any excluded groups will not suffer harm. E.g., De Leon, 2014 WL 715741, at *16, *23 (requiring the State “to establish how banning same-sex marriage . . . furthers” the asserted state interest); Bostic, 2014 WL 561978, at *14 (scrutinizing whether a state interest is “furthered by excluding one segment”); Bourke, 2014 WL 556729, at *8 (requiring the State to justify its “exclusion of same-sex couples”); Bishop, 2014 WL 116013, at *29 (scrutinizing the “link between excluding same-sex couples from marriage” and the asserted state interests); Kitchen, 961 F. Supp. 2d at 1211 (examining “whether the State’s [asserted] interests . . . are furthered by prohibiting same-sex couples from marrying”).

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But the sole focus of rational basis review is whether including or adding a group would further a legitimate interest. As the Supreme Court explained in Johnson v. Robison, a classification survives rational basis review if “the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not.” 415 U.S. 361, 382 (1974) (emphasis added). The State need only identify “characteristics peculiar to [the included] group [that] rationally explain the statute’s different treatment of the two groups.” Id. at 378. It need not show that exclusion of any group is necessary to promote its interests or that an excluded group will suffer no harm from the classification. Romer, 517 U.S. at 632 (holding that rational basis review upholds a law “even if the law seems unwise or works to the disadvantage of a particular group”); Cleburne, 473 U.S. at 440 (noting that, under rational basis review, “the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes”). The plaintiffs challenging West Virginia’s laws have argued that two Supreme Court cases that struck down laws under rational basis review—City of Cleburne and Moreno—are inconsistent with Johnson. They are wrong. In both cases, the Supreme Court found the challenged scheme unconstitutional because there was no characteristic that justified including one group but not another.9

9

City of Cleburne involved a zoning scheme that benefited virtually all property users but burdened the mentally retarded. 473 U.S. at 435–37. The Supreme Court found that the government had no legitimate interest tied to characteristics of 24

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At bottom, the erroneous focus on the groups excluded by a law confuses rational basis review with higher levels of scrutiny, which require a more precise means-ends fit. That sort of tailoring is not required under rational basis review. See Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1106–07 (D. Haw. 2012); see also Vill. of Belle Terre v. Boraas, 416 U.S. 1, 8 (1974) (“[E]very line drawn by a legislature leaves some out that might well have been included.”). 4. The State is entitled to precisely formulate its interest.

Rational basis review also requires a court to evaluate the legitimacy of the interest as asserted by the State, not the interest as reformulated by a plaintiff or the court. Cf. Armour v. City of Indianapolis, 132 S. Ct. 2073, 2083 (2012) (noting that State need not “draw the perfect line nor even . . . draw a line superior to some other line it might have drawn.”). Again, Johnson v. Robison is illustrative. In that case, the Supreme Court reviewed a federal program providing educational benefits to those who served during the Vietnam War. 415 U.S. at 376. A the benefited class that the excluded class did not also share. 473 U.S. at 449–50 (finding that both classes faced “the possibility of a flood,” might not take “legal responsibility for [their] actions,” would concentrate the population if they build multiple-occupant homes, could cause “congestion of the streets,” posed “fire hazards” and “danger to other residents,” and could threaten “the serenity of the neighborhood”). Moreno involved a federal food stamp scheme that similarly benefited one class (households of related family members) but not another class (households of non-related individuals). 413 U.S. at 530. The Supreme Court found that classification unconstitutional because all of the government’s legitimate interests in the program would be furthered by providing food stamps to both classes. Id. at 533–38. 25

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conscientious objector who had performed alternate public service to active military duty sought inclusion in the program, arguing that including him would further the program’s purpose, which he defined as “eliminat[ing] the educational gaps between persons who served their country and those who did not.” Id. at 362–63, 376–77. But as the Supreme Court explained, “the error in this rationale is that it states too broadly the congressional objective.” Id. at 377. The

government had in fact advanced a more limited reason for the program: “to compensate for the disruption that military service causes to civilian lives.” Id. (emphasis added). In short, no one may substitute a straw-man for the State’s actually asserted interest. A court’s failure to examine the precise interests a State asserts is a critical and often outcome-determinative error. Re-defining a State’s interest in a law affects—and sometimes removes—the rational connection between the law and the interest. In particular, restating a State’s interests at a higher level of generality usually weakens the fit between the law and the interest, making the law seem far more under- or over-inclusive. A number of district courts, however, have redefined the State’s interest as something different from what the State has asserted. For example, one district court claimed that the “articulated state goal is to reduce children born outside of a[ny] marital relationship,” Bishop, 962 F. Supp. 2d at 1292, but the State actually 26

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asserted a narrower interest in “channel[ing] naturally procreative sexual relationships into stable, enduring unions for the sake of producing and raising the next generation,” Def. Smith’s Cross-Motion for Summary Judgment, Bishop v. U.S. ex rel. Holder, No. 04-848, Doc. 216, at *27 (N.D. Okla. Oct. 19, 2011 (emphasis added)). See also, e.g., De Leon, 2014 WL 715741, at *14–*15

(characterizing the State’s interest as a generic interest in “the welfare of children” when the State asserted a narrower interest in “increas[ing] the likelihood that a mother and a father will be in charge of childrearing”). 5. The State may be roughly over-inclusive and underinclusive.

Finally, many district courts have refused to allow state laws to be marginally over-inclusive and under-inclusive. In particular, these courts have held state laws unconstitutional because they permit marriage by infertile or sterile opposite-sex couples. E.g., Bishop, 962 F. Supp. 2d at 1293; Kitchen, 961 F. Supp. 2d at 1201. But rational basis review does not require “ mathematical nicety,” as “[t]he problems of government are practical ones and may justify, if they do not require, rough accommodations.” Heller, 509 U.S. at 321 (internal quotations omitted). “[C]ourts are compelled to accept a legislature’s generalizations even when there is an imperfect fit between means and ends.” Id. The Legislature is entitled to “rational[ly] speculate” that the vast majority of opposite-sex couples have at least 27

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some chance of unintentionally conceiving a child, as compared to same-sex couples, which are categorically incapable of unplanned procreation. Id. at 320. Even though “[t]he assumptions underlying these rationales may be erroneous, … the very fact that they are ‘arguable’ is sufficient, on rational-basis review, to ‘immuniz[e]’ the [legislative] choice from constitutional challenge.” FCC, 508 U.S. at 320. C. The Exception For Statutes Motivated By A “Bare Desire To Harm” Is Not Applicable.

The real driver behind many cases, however, is the plaintiffs’ attempt to shoehorn the challenged state laws into the Windsor framework. Ordinarily, a law survives rational basis review even when motivated by an illegitimate purpose—so long as that purpose is not the only basis for the law. Michael M. v. Superior Court of Sonoma Cnty., 450 U.S. 464, 472 n.7 (1981). Windsor and Romer, however, appear to have carved out an exception to that rule: where the illegitimate purpose is a “bare desire to harm,” the challenged law fails rational basis review regardless of any other legitimate interest. That narrow exception is not applicable for at least two reasons. First, the Supreme Court has found laws motivated by a “bare desire to harm” only when the statutes on their face target and take away existing rights. That was the case in Romer, where a state law “with[drew] from homosexuals, but no others, specific legal protection from the injuries caused by discrimination.” 517 U.S. at 627. And 28

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it was also true in Windsor, where the federal government stripped from married same-sex couples rights granted by New York law. See supra at 9–11. But no one has ever contended that state traditional marriage laws, which merely maintain the status quo, target and take away existing rights. Second, even if a “bare . . . desire to harm” could be found outside the limited context of a statute stripping existing rights, Windsor, 133 S. Ct. at 2693, that requires a careful case-by-case analysis. Although some lower courts have found a “bare desire to harm” from an overwhelming legislative record of discrimination at the time of a law’s passage, e.g., Gray v. Orr, No. 13-8449, 2013 WL 6355918, at *4 (N.D. Ill. Dec. 5, 2013); Bassett v. Snyder, 951 F. Supp. 2d 939, 946, 968–69 (E.D. Mich. 2013), no such record exists in West Virginia. In the more than a thousand pages of West Virginia’s official legislative record, there are no animus-based statements. Moreover, it is important not to conflate morality with animus. While the Supreme Court has explained that traditional sexual

morality is not a legitimate state interest, Lawrence, 539 U.S. at 577, it is not the same as the raw malice, “negative attitudes,” “fear,” “irrational prejudice,” or “some instinctive mechanism to guard against people who appear to be different” that constitutes animus, City of Cleburne, 473 U.S. at 448, 450.

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CONCLUSION The judgment of the district court should be reversed. Respectfully submitted, PATRICK MORRISEY ATTORNEY GENERAL OF WEST VIRGINIA s/ Elbert Lin Elbert Lin Solicitor General Julie Marie Blake Assistant Attorney General Office of the West Virginia Attorney General State Capitol Building 1, Room E-26 Charleston, WV 25305 Telephone: (304) 558-2021 Fax: (304) 558-0140 E-mail: [email protected] Counsel for the State of West Virginia Dated: April 4, 2014

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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) because this brief contains 6, 985 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 it has been prepared in a proportionally spaced typeface using Microsoft Word in 14-point Times New Roman. Date: April 4, 2014 /s/ Elbert Lin Elbert Lin Office of the West Virginia Attorney General State Capitol Building 1, Room E-26 Charleston, WV 25305 Telephone: (304) 558-2021 Fax: (304) 558-0140 E-mail: [email protected] Counsel for Amicus Curiae State of West Virginia

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CERTIFICATE OF SERVICE I certify that on April 4, 2014, the foregoing document was served on the counsel of record for all parties through the CM/ECF system. Eight paper copies of this brief have been sent to the Clerk of Court via Federal Express.

/s/ Elbert Lin Elbert Lin

April 4, 2014 Date

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UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

APPEARANCE OF COUNSEL FORM
BAR ADMISSION & ECF REGISTRATION: If you have not been admitted to practice before the Fourth Circuit,
you must complete and return an Application for Admission before filing this form. If you were admitted to practice under a different name than you are now using, you must include your former name when completing this form so that we can locate you on the attorney roll. Electronic filing by counsel is required in all Fourth Circuit cases. If you have not registered as a Fourth Circuit ECF Filer, please complete the required steps at www.ca4.uscourts.gov/cmecftop.htm.

14-1167(L), 14-1169, 14-1173 THE CLERK WILL ENTER MY APPEARANCE IN APPEAL NO. ______________________________ as
[ ]Retained [ ]Court-appointed(CJA) [ ]Court rt-assigned(non-CJA) [ ]Federal Defender [ ]Pro Bono [4]Government

State of West Virginia COUNSEL FOR: _______________________________________________________________________ __________________________________________________________________________________as the
(party name) appellant(s) appellee(s) petitioner(s) respondent(s)

4 amicus curiae

intervenor(s)

/s/ Elbert Lin ______________________________________ (signature) Elbert Lin ________________________________________
Name (printed or typed)

304-558-2021 _______________
Voice Phone

WV Office of the Attorney General ________________________________________
Firm Name (if applicable)

304-558-0140 _______________
Fax Number

State Capitol Bldg. 1, Room 26-E ________________________________________ Charleston, WV 25305 ________________________________________ __
Address

[email protected] _________________________________
E-mail address (print or type)

CERTIFICATE OF SERVICE
04/04/2014 I certify that on _________________ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below:

/s/ Elbert Lin ______________________________ Signature
11/17/2011 SCC

____________________________ 04/04/2014 Date

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