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Louisiana Amicus Brief

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No. 14-50196
In the United States Court of Appeals for the Fifth Circuit
CLEOPATRA DE LEON; NICOLE DIMETMAN;
VICTOR HOLMES; MARK PHARISS,
Plaintiffs – Appellees,
v.
RICK PERRY, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF
TEXAS; GREG ABBOTT, IN HIS OFFICIAL CAPACITY AS TEXAS ATTORNEY
GENERAL; DAVID LAKEY, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF
THE DEPARTMENT OF STATE HEALTH SERVICES,
Defendants – Appellants
______________________

On Appeal from the United States District Court
for the Western District of Texas, San Antonio Division
Case No. 5:13-cv-982
______________________

AMICUS CURIAE BRIEF OF LOUISIANA
IN SUPPORT OF APPELLANTS AND REVERSAL
______________________

JAMES D. “BUDDY” CALDWELL
Attorney General of Louisiana
TREY PHILLIPS
First Assistant Attorney General
LOUISIANA DEPARTMENT OF JUSTICE
P.O. Box 94005
Baton Rouge, LA 70804-9005


S. KYLE DUNCAN
DUNCAN PLLC
1629 K Street NW, Suite 300
Washington, DC 20006
202.714.9492
571.730.4429 (fax)
[email protected]

J. Michael Johnson
LAW OFFICES OF MIKE JOHNSON, LLC
2250 Hospital Drive, Suite 248
Bossier City, LA 71111
Counsel for Amicus Curiae State of Louisiana
Case: 14-50196 Document: 00512720328 Page: 1 Date Filed: 08/04/2014
i
CERTIFICATE OF INTERESTED PERSONS
No. 14-50196, Cleopatra De Leon, et al. v. Rick Perry, et al.
The undersigned counsel of record certifies that the following listed
persons and entities as described in the fourth sentence of Rule 28.2.1
have an interest in the outcome of this case. These representations are
made in order that the judges of this Court may evaluate possible
disqualification or recusal.
Counsel for Amicus Curiae State of Louisiana

James D. “Buddy” Caldwell
Trey Phillips
LOUISIANA DEPARTMENT OF JUSTICE

S. Kyle Duncan
DUNCAN PLLC


S. Kyle Duncan
Attorney of record for Louisiana

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ii
INTEREST OF AMICUS

Louisiana’s Constitution and laws are directly implicated in this
appeal. Like Texas, Louisiana defines marriage as the union of a man
and a woman and does not recognize marriages contracted in other
States which are not the union of a man and a woman. LA. CONST. art.
XII, § 15; LA. CIV. CODE art. 3520(B). Moreover, Louisiana is currently
litigating identical challenges to its marriage laws in two cases
consolidated before Judge Martin Feldman in the Eastern District of
Louisiana. See Robicheaux, et al. v. Caldwell, et al. (E.D. La. No. 14-97);
Forum for Equality Louisiana, Inc., et al. v. Barfield, et al. (E.D. La. No.
14-327). As of July 16, 2014, cross-motions for summary judgment have
been fully briefed and argued in those cases, and Louisiana is now
awaiting a decision from Judge Feldman.
Louisiana has authority to file this brief under Federal Rule of
Appellate Procedure 29(a).

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iii
TABLE OF CONTENTS
Certificate of Interested Persons ................................................................. i

Interest of Amicus ...................................................................................... ii

Table of Authorities ................................................................................... iv

Introduction ................................................................................................. 1

I. Windsor emphatically reaffirmed the States’ “historic and
essential authority to define the marital relation” ........................ 2

II. The recent Tenth and Fourth Circuit decisions overlook
Windsor’s grounding in state authority ......................................... 7

III. Windsor demonstrates the reasonableness of a State’s
decision not to alter its basic definition of marriage ................... 13

IV. Schuette reinforces Windsor’s respect for the authority of a
State’s citizens to decide sensitive public policy questions ......... 16

Conclusion ................................................................................................. 19

Certificate of Service ................................................................................. 22

Certificate of Compliance ......................................................................... 23
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iv

TABLE OF AUTHORITIES
Cases
Ankenbrandt v. Richards,
504 U.S. 689 (1992) ................................................................................ 3

Baker v. Nelson,
409 U.S. 810 (1972) .............................................................................. 11

Bishop v. United States ex rel. Holder,
962 F.Supp.2d 1252 (N.D. Okla. 2014) ............................................... 6-7

Bond v. United States,
131 S. Ct. 2355 (2011) ...................................................................... 4, 18

Bostic v. Schaefer,
__ F.3d __, 2014 WL 3702493 (4th Cir. July 28, 2014) ......... 7, 9-10, 11

Bostic v. Rainey,
970 F.Supp.2d 465 (E.D. Va. 2014) ............................................ 7, 10, 19

Bourke v. Beshear,
__ F.Supp.2d. __, 2014 WL 556729 (W.D. Ky. 2014) ............................ 6

City of New Orleans v. Dukes,
427 U.S. 297 (1976) .............................................................................. 16

De Leon v. Perry,
975 F.Supp.2d 632 (W.D. Tex. 2014) .................................................. 5-6

Forum for Equality Louisiana, Inc., et al. v. Barfield, et al.,
E.D. La. (No. 14-327) ............................................................................. ii

Frontiero v. Richardson,
411 U.S. 677 (1973) .............................................................................. 16

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v
Geiger v. Kitzhaber,
__ F.Supp.2d __, 2014 WL 2054264 (D. Ore. May 19, 2014) .............. 19

Hernandez v. Robles,
855 N.E.2d 1 (N.Y. 2006) ...................................................................... 12

In re Burrus,
136 U.S. 586 (1890) ................................................................................ 3

Jackson v. Abercrombie,
884 F.Supp.2d 1065 (D. Hawaii 2012) ........................................... 11-12

Kitchen v. Herbert,
__ F.3d __, 2014 WL 2868044 (10th Cir. June 25, 2014) ............ 7-9, 11

Kitchen v. Herbert,
961 F.Supp.2d 1185 (D. Utah 2013) .......................................... 6, 10, 19

Lochner v. New York,
198 U.S. 45 (1905) ................................................................................ 20

Loving v. Virginia,
388 U.S. 1 (1967) .................................................................... 6, 7, 11-12

Robicheaux, et al. v. Caldwell, et al.,
E.D. La. (No. 14-97) ............................................................................... ii

Romer v Evans,
517 U.S. 620 (1996) ................................................................................ 4

Schuette v. Coalition to Defend Affirmative Action,
134 S. Ct. 1623 (2014) ....................................................... 1-2, 16-18, 20

Sosna v. Iowa,
419 U.S. 393 (1975) ................................................................................ 3

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

Whitewood v. Wolf,
__ F.Supp.2d __, 2014 WL 2058105 (M.D. Pa. May 20, 2014) ........... 19

Williams v. North Carolina,
317 U.S. 287 (1942) ................................................................................ 3

Wolf v. Walker,
__ F.Supp.2d __, 2014 WL 244844 (W.D. Wis. June 6, 2014) ....... 10, 19

Statutes
Defense of Marriage Act,
110 Stat. 2419 ............................................................................... passim

LA. CIV. CODE art. 3520 .............................................................................. ii

Rules
Fed. R. App. Proc. 29 .................................................................................. ii

Constitutional Provisions
U.S. CONST. amend. XIV ................................................................... passim

LA. CONST. art. XII, § 15 ............................................................................ ii
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No. 14-50196
In the United States Court of Appeals for the Fifth Circuit
CLEOPATRA DE LEON, et al.,
Plaintiffs – Appellees,

v.

RICK PERRY, et al.,
Defendants – Appellants
______________________

INTRODUCTION
Texas is correct that the Fourteenth Amendment, properly
understood, does not compel its citizens to adopt same-sex marriage or
to recognize same-sex marriages contracted in other States. See Blue
Br. at 6-21 (discussing equal protection); id. at 21-27 (due process); id.
at 31-34 (Fourteenth Amendment text and history). Rather, the
Fourteenth Amendment leaves Texans free to make up their own minds
about the issue. Over the past year, however, an increasing number of
courts have discovered in the Fourteenth Amendment the power to
override the decisions of state citizens on this controversial matter.
They “insist that [this] difficult question of public policy must be taken
from the reach of the voters, and thus moved from the realm of public
discussion, dialogue, and debate.” Schuette v. Coalition to Defend
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2
Affirmative Action, 134 S. Ct. 1623, 1637 (2014) (plurality op. of
Kennedy, J.). Those decisions are uniformly mistaken. They do not
enforce the Fourteenth Amendment; they “demean[ ] … the democratic
process.” Id. They do not expand freedom; they reduce it.
Louisiana files this brief to provide additional support for Texas’s
argument, grounded in federalism, that the decision to adopt same-sex
marriage should be left to the democratic deliberation of state citizens.
See, e.g., Blue Br. at 34 (judicially decreeing same-sex marriage means
that “sovereignty resides not in the people … but in the federal
judiciary”); id. (adoption of same-sex marriage should occur “through
democratic processes” rather than “through judicial decree”). There is
ample support for Texas’s argument in two recent decisions of the
Supreme Court, United States v. Windsor, 133 S. Ct. 2675 (2013), and
Schuette, 134 S. Ct. 1623. Those decisions answer the fundamental
question of authority at the heart of this case.
I. WINDSOR EMPHATICALLY REAFFIRMED THE STATES’ “HISTORIC
AND ESSENTIAL AUTHORITY TO DEFINE THE MARITAL RELATION.”
Windsor invalidated as a violation of the Fifth Amendment section 3
of the Defense of Marriage Act (DOMA), 110 Stat. 2419, which defined
marriage as a man-woman union for federal purposes. 133 S. Ct. at
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2683. The key to Windsor’s outcome was that DOMA subverted the
principle that the “‘regulation of domestic relations’ is ‘an area that has
long been regarded as a virtually exclusive province of the States.’” Id.
at 2691 (quoting Sosna v. Iowa, 419 U.S. 393, 404 (1975)).
1
“The
definition of marriage,” said the Court, is the “the foundation of the
State’s broader authority to regulate the subject of domestic relations
with respect to the ‘[p]rotection of offspring, property interests, and the
enforcement of marital responsibilities.’” Id. (quoting Williams v. North
Carolina, 317 U.S. 287, 298 (1942)). That historic allocation of domestic
relations authority to the States was central to Windsor’s holding. See
id. at 2692 (stating that “[t]he State’s power in defining the marital
relation [was] of central relevance” to the outcome).
DOMA purported to define marriage as a federal matter in
opposition to state marriage definitions, and it thereby usurped “state
responsibilities for the definition and regulation of marriage.” Id. at
2691. When it adopted same-sex marriage, New York had “used its

1
See also id. (“‘[t]he whole subject of the domestic relations of husband and wife,
parent and child, belongs to the laws of the States and not to the laws of the United
States’” (quoting In re Burrus, 136 U.S. 586, 593-94 (1890)); id. (“‘the virtually
exclusive primacy … of the States in the regulation of domestic relations’”) (quoting
Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992)).
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4
historical and essential authority to define the marital relation,” an
authority “dat[ing] to the Nation’s beginning.” Id. DOMA, however,
“depart[ed] from this history and tradition of reliance on state law to
define marriage,” id., which led to its invalidation. See id. (DOMA’s
“depart[ure]” from federal reliance on state marriage definitions showed
a “[d]iscrimination[ ] of unusual character”) (quoting Romer v Evans,
517 U.S. 620, 633 (1996)); id. at 2693 (“DOMA’s unusual deviation from
the usual tradition of recognizing and accepting state definitions of
marriage” violated rights of same-sex married couples).
As Windsor analyzed the matter, the question of individual rights in
this context is bound up with the States’ traditional allocation of
authority over domestic relations law. In other words, the Supreme
Court vindicated the rights of same-sex married couples by affirming
New York’s authority “to recognize and then to allow same-sex
marriages” in the first place. Id. at 2692; see, e.g., Bond v. United States,
131 S. Ct. 2355, 2364 (2011) (explaining that “[f]ederalism secures the
freedom of the individual” by “allow[ing] States to respond … to the
initiative of those who seek a voice in shaping the destiny of their own
times”). New York’s decision to define marriage was “without doubt a
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5
proper exercise of its sovereign authority within our federal system, all
in the way that the Framers of the Constitution intended.” Windsor,
133 S. Ct. at 2692. DOMA was invalid because it sought to undermine
that sovereign authority by diminishing the rights New York had
granted to same-sex couples. Underlining this point, Windsor’s holding
is expressly limited to persons “joined in same-sex marriages made
lawful by the State.” Id. at 2695.
2

Not only do plaintiffs’ equal protection and due process claims fail on
their own terms, see Blue Br. at 6-27, but those claims cannot possibly
succeed when viewed through the prism of Windsor’s affirmation of
state authority to define marriage. The lower court misunderstood this
aspect of Windsor entirely. In one breath the court cited Windsor for the
proposition that “Texas has the ‘unquestioned authority’ to regulate and
define marriage.” De Leon v. Perry, 975 F.Supp.2d 632, 657 (W.D. Tex.
2014) (quoting Windsor, 133 S. Ct. at 2693). In the next breath,
however, the court cited Windsor to nullify that same authority, ruling
that “Texas cannot define marriage in a way that denies its citizens the

2
See also id. at 2696 (section 3 singles out persons “deemed by a State entitled to
recognition and protection”); id. (“This opinion and its holding are confined to those
lawful marriages.”) (emphases added).
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6
‘freedom of personal choice’ in deciding whom to marry.” De Leon, 975
F.Supp.2d at 659 (citing Windsor, 133 S. Ct. at 2689). The second
statement cancels out the first. Indeed, throughout its opinion, the
district court illogically recruited Windsor to explain why Texas cannot
limit its marriage definition to opposite-sex couples. See, e.g., De Leon,
975 F.Supp.2d at 659 (relying on Windsor for proposition that Texas’
marriage laws deny “the same status and dignity” to same-sex couples).
That reasoning turns Windsor on its head. Windsor was premised on a
state’s “historic and essential authority to define the marital relation in
this way.” Id. at 2692. It cannot be the law that a state validly exercises
this “historic and essential authority” when it elects to adopt same-sex
marriage (as New York did in 2011), but acts unconstitutionally when it
elects not to (as Texas did in 2005 and Louisiana did in 2004).
The recent decisions striking down state marriage laws entirely miss
Windsor’s dependence on the authority of States to define marriage.
Some do not mention it. See, e.g., Bourke v. Beshear, __ F.Supp.2d. __,
2014 WL 556729, at *6-*7 (W.D. Ky. 2014) (explaining “the focus of the
Court’s attention must be upon Justice Kennedy’s majority opinion in
Windsor,” but not discussing Windsor’s affirmation of state authority).
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7
Others misapply it. See Kitchen v. Herbert, 961 F.Supp.2d 1185, 1193-
94 (D. Utah 2013) (Windsor’s “important federalism concerns” are
“insufficient” to overcome plaintiffs’ individual rights). Others speculate
that, by citing Loving v. Virginia, 388 U.S. 1 (1967), see 133 S. Ct. at
2692, Windsor meant to signal the demise of man-woman marriage.
See, e.g., Bishop v. United States ex rel. Holder, 962 F.Supp.2d 1252,
1278-79 (N.D. Okla. 2014) (stating that “the Court’s citation to Loving is
a disclaimer of enormous proportion”); Bostic v. Rainey, 970 F.Supp.2d
465, 476 (E.D. Va. 2014) (same). These courts misread Windsor, which
stated plainly that “[t]he State’s power in defining the marital relation
[was] of central relevance” to its outcome. 133 S. Ct. at 2692 (emphasis
added). And Loving—which involved White Supremacy laws that
violated the “clear and central purpose of the Fourteenth Amendment”
and triggered strict scrutiny, 388 U.S. at 10—has no application to
these cases whatsoever. See infra II (discussing irrelevance of Loving).
II. THE RECENT TENTH AND FOURTH CIRCUIT DECISIONS OVERLOOK
WINDSOR’S GROUNDING IN STATE AUTHORITY.
Recent 2-1 decisions by the Tenth and Fourth Circuits fundamentally
misread Windsor. See Kitchen v. Herbert, __ F.3d __, 2014 WL 2868044
(10th Cir. June 25, 2014); Bostic v. Schaefer, __ F.3d __, 2014 WL
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8
3702493 (4th Cir. July 28, 2014). Like many district courts, Kitchen and
Bostic ignore that Windsor’s outcome depended on the States’ “historic
and essential authority to define the marital relation,” an authority “of
central relevance” to its holding. 133 S. Ct. at 2692; see also id. at 2691
(“In order to assess [DOMA’s] validity … it is necessary to discuss the
extent of the state power and authority over marriage as a matter of
history and tradition.”) (emphasis added). Windsor struck down
DOMA—not, as these courts thought, because it classified by sexual
orientation or burdened a fundamental right to marry someone of the
same sex—but rather because DOMA’s “purpose [was] to influence or
interfere with state sovereign choices about who may be married.” Id. at
2693 (emphasis added).
The two-judge majority in Kitchen v. Herbert reduced Windsor’s
reliance on state sovereignty to a “prudential concern[ ].” Kitchen at
*31. It dismissed arguments appealing to “the value of democratic
decision-making and the benefits of federalism” as “a mere preference
that [plaintiffs’] arguments be settled elsewhere.” Id. And—
remarkably—it said the choice between resolving this issue by federal
decree or by the democratic process was merely a matter of “timing.” Id.
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9
Judge Kelly’s dissent in Kitchen rightly rejected this reasoning as a
basic misreading of Windsor. As Judge Kelly explained, “Windsor did
not create a fundamental right to same-gender marriage. To the
contrary, Windsor recognized the authority of the States to redefine
marriage and stressed the need for popular consensus in making such
change.” Id. at *38 (Kelly, J., dissenting) (citing Windsor, 133 S. Ct. at
2692). Ignoring that “the States are laboratories of democracy” with
respect to this basic issue would “turn[ ] the notion of a limited national
government on its head.” Id. at *33 (Kelly, J., dissenting) (citing Bond v.
United States, 131 S. Ct. 2355, 2364 (2011)).
Like Kitchen, the Fourth Circuit’s decision in Bostic v. Schaefer also
missed the central role Windsor accorded state authority over defining
marriage. The majority initially recognized that Windsor “rested in part
on the Supreme Court’s respect for states’ supremacy in the domestic
relations sphere.” Bostic at *11. But the majority then contradicted
itself by concluding that the “foundation” for Windsor’s holding was
actually the “injury to same-sex couples” caused by DOMA’s federal
marriage definition. Id. That dramatically truncates Windsor. It ignores
that Windsor: (1) spent seven pages tracing the origins of “state
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10
responsibilities for the definition and regulation of marriage … to the
Nation’s beginning” (133 S. Ct. at 2691, 2689-96); (2) praised New
York’s “statewide deliberative process that enabled its citizens to
discuss and weigh arguments for and against same-sex marriage” (id. at
2689); (3) emphasized that DOMA was “unusual” because it “depart[ed]
from [the federal government’s] history and tradition of reliance on
state law to define marriage” (id. at 2692), and (4) limited its “opinion
and holding” to “those persons who are joined in same-sex marriages
made lawful by the State” (id. at 2695-96). In short, Windsor struck
down DOMA—not because it discriminated against same-sex couples,
as the Fourth Circuit thought—but because DOMA’s “purpose [was] to
influence or interfere with state sovereign choices about who may be
married.” Id. at 2693 (emphasis added).
3
To divorce Windsor’s holding

3
The Kitchen and Bostic majorities thus repeated the error of several district
courts, who have also watered down Windsor’s explicit grounding in state authority.
See, e.g., Kitchen, 961 F.Supp.2d at 1193-94 (Windsor’s “important federalism
concerns” are “insufficient” to overcome plaintiffs’ rights); Bostic, 970 F.Supp.2d at
476 (finding federal right to same-sex marriage despite Windsor’s teaching that
“deference [to state domestic relations authority] is appropriate, and even
essential”); Wolf v. Walker, __ F.Supp.2d __, 2014 WL 244844, at *11 (W.D. Wis.
June 6, 2014) (striking down Wisconsin marriage law, despite admitting that
Windsor “noted multiple times … that the regulation of marriage is a traditional
concern of the states”).
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11
about individual rights from its holding about state authority is to
render the decision incoherent.
Finally, both Kitchen and Bostic attempt to minimize Windsor’s
federalism rationale by invoking its statement that state marriage laws
“must respect the constitutional rights of persons.” Kitchen at *31
(quoting Windsor, 133 S. Ct. at 2691); see also Bostic at *11 (noting that
Windsor “reiterates Loving’s admonition that the states must exercise
their authority without trampling constitutional guarantees”). This
again misreads Windsor. The only case Windsor cited to illustrate that
statement was Loving v. Virginia. But it is deeply implausible that this
citation to Loving is, as some courts have said, a “disclaimer of
enormous proportions,” Bishop, 962 F.Supp.2d at 1279, portending the
inevitable demise of man-woman marriage laws. After all, a mere five
years after Loving, the Supreme Court summarily rejected a
constitutional right to same-sex marriage as failing to present “a
substantial federal question.” Baker v. Nelson, 409 U.S. 810 (1972).
Moreover, on its own terms Loving has nothing to do with these
cases. Loving involved anti-miscegenation laws—racist relics of slavery
that violated “the clear and central purpose of the Fourteenth
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12
Amendment” and triggered strict scrutiny. 388 U.S. at 6, 10; see also,
e.g., Jackson v. Abercrombie, 884 F.Supp.2d 1065, 1097 n.22 (D. Hawaii
2012) (analogy to Loving in the same-sex marriage context is
“unpersuasive” because it “involved an invidious discrimination on the
basis of race, a suspect classification”). While the Fourteenth
Amendment outlaws such invidious racial discrimination, Windsor
recognized that the Constitution leaves citizens free “to discuss and
weigh arguments for and against same-sex marriage” because “[t]he
dynamics of state government in our federal system are to allow the
formation of consensus” on this foundational issue. Windsor, 133 S. Ct.
at 2689, 2692. The two issues—racism and same-sex marriage—are
worlds apart. As the New York Court of Appeals eloquently explained in
upholding New York’s man-woman marriage laws in 2006, to equate
the same-sex marriage debate with the racist laws struck down in
Loving is to suffer from historical myopia:
[T]he historical background of Loving is different from the history
underlying this case. Racism has been recognized for centuries—
at first by a few people, and later by many more—as a revolting
moral evil. This country fought a civil war to eliminate racism's
worst manifestation, slavery, and passed three constitutional
amendments to eliminate that curse and its vestiges. Loving was
part of the civil rights revolution of the 1950’s and 1960’s, the
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13
triumph of a cause for which many heroes and many ordinary
people had struggled since our nation began.

Hernandez v. Robles, 855 N.E.2d 1, 8 (N.Y. 2006).
III. WINDSOR DEMONSTRATES THE REASONABLENESS OF A STATE’S
DECISION NOT TO ALTER ITS BASIC DEFINITION OF MARRIAGE.
Windsor also plainly shows why States like Texas and Louisiana may
rationally decline to alter the man-woman definition of marriage and
recognize same-sex marriage, as a minority of states have done. See,
e.g., Windsor, 133 S. Ct. at 2689 (in addition to New York, “11 other
States and the District of Columbia” had adopted same-sex marriage as
of June 2013). In taking this action, Texas and Louisiana acted squarely
within their longstanding authority over domestic relations law, as
Windsor confirmed.
Windsor hinged on the idea that DOMA section 3 usurped the states’
“historic and essential authority to define the marital relation.” 133 S.
Ct. at 2692. But Windsor said more. In discussing New York’s
recognition of same-sex marriage, the Court emphasized that its
“actions were without doubt a proper exercise of [New York’s] sovereign
authority within our federal system.” Id. (emphasis added). Nowhere,
however, did the Court hint that it would not have been an equally
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14
“proper exercise of … sovereign authority” had New York decided to
retain its previous man-woman definition of marriage (as it did until
2011). The notion that New York could not have rationally chosen
either course would contradict Windsor itself, which underscored that
“[t]he dynamics of state government in the federal system are to allow
the formation of consensus” respecting such a far-reaching matter. 133
S. Ct. at 2692; see also id. at 2689 (New York “enlarge[d]” its marriage
definition “[a]fter a statewide deliberative process that enabled its
citizens to discuss and weigh arguments for and against same-sex
marriage”). Windsor, then, did not establish a one-way ratchet that
would allow New York’s citizens to reach one consensus on marriage,
while denying Texas’s citizens the right to reach a different one.
And Windsor said yet more. It described why a state ought to proceed
carefully before recognizing same-sex marriage. States—which have a
“rightful and legitimate concern in the marital status of persons
domiciled within [their] borders,” id. at 2691—rightly “understand[ ]
that marriage is more than a routine classification for purposes of
certain statutory benefits.” Id. at 2692. Enlarging the longstanding
definition, Windsor taught, would involve a “far-reaching legal
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15
acknowledgment” and demand “both the community’s considered
perspective on the historical roots of the institution of marriage and its
evolving understanding of the meaning of equality.” Id. at 2692-93. The
Court was thus keenly aware that “[t]he responsibility of the States for
the regulation of domestic relations is an important indicator of the
substantial societal impact the State’s classifications have in the daily
lives and customs of its people.” Id. at 2693 (emphasis added). DOMA
section 3 was an anomaly because it usurped this traditional state
responsibility. See id. (noting “DOMA’s unusual deviation from the
usual tradition of recognizing and accepting state definitions of
marriage”). Windsor thus plainly teaches that states are authorized to
determine the shape of marriage, and—whether their citizens decide to
shape it as New York did in 2011, as Texas did in 2005, or as Louisiana
did in 2004—they act rationally in doing so.
To rule, as the district court did, that Texas voters acted irrationally
by constitutionalizing the man-woman definition of marriage would
turn Windsor upside down. Windsor confirmed that Texas acted not
only rationally but wisely in elevating that momentous issue above the
ordinary legislative process. Ensuring a genuine “formation of
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16
consensus” on this issue, Windsor explained, is critical to “[t]he
dynamics of state government in the federal system.” Id. at 2692. By
contrast, resolving the issue by court decision—especially by a decision
deeming the man-woman definition irrational—would cripple that
process of consensus. A court would “act[ ] prematurely and
unnecessarily … [by] assum[ing] a decisional responsibility at the very
time when state legislatures, functioning within the traditional
democratic process, are debating” the shape of marriage. Frontiero v.
Richardson, 411 U.S. 677, 692 (1973) (Powell, J., concurring) (brackets
added). Under rational basis review, however, “the judiciary may not sit
as a superlegislature to judge the wisdom or desirability of [those]
legislative policy determinations.” City of New Orleans v. Dukes, 427
U.S. 297, 303 (1976). That is precisely what the district court did here.
IV. SCHUETTE REINFORCES WINDSOR’S RESPECT FOR THE AUTHORITY
OF A STATE’S CITIZENS TO DECIDE SENSITIVE PUBLIC POLICY
QUESTIONS.

Earlier this year, the Supreme Court reinforced Windsor’s respect for
state authority in Schuette v. Coalition to Defend Affirmative Action,
which rejected an equal protection challenge to a Michigan
constitutional amendment forbidding affirmative action in public
Case: 14-50196 Document: 00512720328 Page: 23 Date Filed: 08/04/2014
17
universities. The Court found that “Michigan voters [had] exercised
their privilege to enact [the amendment] as a basic exercise of their
democratic power.” Schuette, 134 S. Ct. at 1636 (plurality op. of
Kennedy, J.). Recognizing the amendment reflected “the national
dialogue regarding the wisdom and practicality of [affirmative action],”
Schuette held that “courts may not disempower the voters from choosing
which path to follow.” Id. at 1631, 1635. To deem affirmative action too
“sensitive,” “complex,” or “delicate” for voters would be “an
unprecedented restriction on the exercise of a fundamental right held
not just by one person but by all in common.” Id. at 1637. “It is
demeaning to the democratic process,” the Court said, “to presume that
the voters are not capable of deciding an issue of this sensitivity on
decent and rational grounds,” and even if debates like these “may shade
into rancor … that does not justify removing [them] from the voters’
reach.” Id. at 1637, 1638.
Schuette speaks directly to the issue of state authority here. As with
affirmative action, there is an ongoing “national dialogue regarding …
[same-sex marriage],” and “courts may not disempower the voters from
choosing which path to follow.” Id. at 1631, 1635. As with affirmative
Case: 14-50196 Document: 00512720328 Page: 24 Date Filed: 08/04/2014
18
action, it would be “demeaning to the democratic process to presume …
voters are not capable of deciding an issue of this sensitivity on decent
and rational grounds.” Id. at 1637. Indeed, it is the responsibility of
voters—not the courts—to decide the issue, because “[f]reedom
embraces the right, indeed the duty, to engage in a rational, civic
discourse in order to determine how best to form a consensus to shape
the destiny of the Nation and its people.” Id; cf. Windsor, 133 S. Ct. at
2692 (“In acting first to recognize and then to allow same sex marriages,
New York was responding ‘to the initiative of those who [sought] a voice
in shaping the destiny of their own times.’”) (quoting Bond, 131 S. Ct. at
2359). Schuette thus reinforces Windsor’s point that a state’s decision to
recognize same-sex marriage, or not to, is “without doubt a proper
exercise of its sovereign authority within our federal system.” Windsor,
133 S. Ct. at 2692. Texas’s voters spoke to the issue in 2005, just as
New York’s voters did in 2011. With respect to the validity of that
sovereign decision, Windsor and Schuette speak in unison: “There is no
authority in the Constitution of the United States or in [the Supreme]
Court’s precedents for the Judiciary to set aside [the] laws that commit
this policy determination to the voters.” Schuette, 134 S. Ct. at 1638.
Case: 14-50196 Document: 00512720328 Page: 25 Date Filed: 08/04/2014
19
CONCLUSION
It is no secret that there has been a recent and remarkable
outpouring of judicial decisions striking down state marriage laws,
including the lower court decision in this case. In these decisions, the
citizens of 34 states—about 200 million people—have been called
“barking crowds” (Geiger v. Kitzhaber, __ F.Supp.2d __, 2014 WL
2054264 at *14 (D. Ore. May 19, 2014)), and have been compared to
those who “believed that racial mixing was just as unnatural and
antithetical to marriage as … homosexuality” (Wolf v. Walker, __
F.Supp.2d __, 2014 WL 2558444 at *18 (W.D. Wis. June 6, 2014)). They
have been told that their views about marriage are “rooted in unlawful
prejudice” (Bostic, 970 F.Supp.2d at 460), and that their state laws
defining marriage as a man-woman union “achieve[ ] the same result”
as laws banning interracial marriage (Kitchen, 961 F.Supp.2d at 1215).
They have been instructed that “[w]e are a better people than what
these laws represent, and it is time to discard them into the ash heap of
history.” Whitewood v. Wolf, __ F.Supp.2d __, 2014 WL 2058105 at *16
(M.D. Pa. May 20, 2014).
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20
The views expressed in those opinions are, no doubt, sincere. But
they forget the principle that our “Constitution … is made for people of
fundamentally differing views.” Lochner v. New York, 198 U.S. 45, 75-
76 (1905) (Holmes, J., dissenting). In recent times, States have engaged
in a “deliberative process that enable[s] [their] citizens to discuss and
weigh arguments for and against same-sex marriage.” Windsor, 133 S.
Ct. at 2689. That process, as it stands today, reflects the differing views
of the American people about the meaning of marriage: a minority of
states have enlarged the definition to include same-sex couples, while
most have not. The recent decisions striking down marriage laws,
however, say that the Constitution itself nullifies that debate. Their
view is not merely wrong: it is “inconsistent with the underlying
premises of a responsible, functioning democracy.” Schuette, 134 S. Ct.
at 1637 (plurality op. of Kennedy, J.). This Court should reject it.
The decision of Texas’s citizens to retain the definition of marriage as
a man-woman union was “without doubt a proper exercise of [their]
sovereign authority within our federal system, all in the way that the
Framers of the Constitution intended.” Windsor, 133 S. Ct. at 2692.
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21
Louisiana—whose citizens made the same decision—urges the Court to
reverse the decision of the district court.
Respectfully submitted,
JAMES D. “BUDDY” CALDWELL
Attorney General of Louisiana
TREY PHILLIPS
First Assistant Attorney General
LOUISIANA DEPARTMENT OF JUSTICE
P.O. Box 94005
Baton Rouge, LA 70804-9005
S. Kyle Duncan
S. Kyle Duncan (La. Bar No. 25038)
DUNCAN PLLC
1629 K Street, N.W., Suite 300
Washington, D.C. 20006
202.714.9492
571.730.4429 (fax)
[email protected]

J. Michael Johnson
LAW OFFICES OF MIKE JOHNSON, LLC
2250 Hospital Drive, Suite 248
Bossier City, LA 71111

Counsel for Amicus Curiae State of Louisiana

Case: 14-50196 Document: 00512720328 Page: 28 Date Filed: 08/04/2014
22
CERTIFICATE OF SERVICE
I certify that on August 4, 2014, I filed the foregoing brief with the
Court’s CM/ECF system, which will automatically send an electronic
notice of filing to all counsel of record. I also certify that on August 4,
2014, I sent by commercial delivery service seven (7) paper copies of the
brief to the Clerk’s Office and two (2) paper copies of the brief to counsel
of record for Appellants and Appellees.


S. Kyle Duncan
S. Kyle Duncan
Attorney for Amicus Curiae


Case: 14-50196 Document: 00512720328 Page: 29 Date Filed: 08/04/2014
23
CERTIFICATE OF COMPLIANCE
Pursuant to Fifth Circuit Rule 32.3, the undersigned certifies that:
1. This brief complies with the type-volume limitations of Federal
Rule of Appellate Procedure 32(a)(7)(B) because it contains 4,147 words,
exclusive of parts of the brief exempted by Federal Rule of Appellate
Procedure 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Federal
Rule of Appellate Procedure 32(a)(5) and the type style requirements of
Federal Rule of Appellate Procedure 32(a)(6) because it has been
prepared in a proportionally spaced typeface using Microsoft Word
2011, Century Schoolbook, 14-point font.

S. Kyle Duncan
S. Kyle Duncan
Attorney for Amicus Curiae
August 4, 2014







Case: 14-50196 Document: 00512720328 Page: 30 Date Filed: 08/04/2014

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