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Robert Crim Amicus Brief

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Nos. 14-562, 14-571
In the

Supreme Court of the United States
October 2014 Term
VALERIA TANCO et al.,
v.

Petitioners,

BILL HASLAM, GOVERNOR OF TENNESSEE, et al.,
Respondents.
_______________________
APRIL DeBOER et al.,
v.

Petitioners,

RICHARD SNYDER, GOVERNOR OF MICHIGAN, et al.
Respondents.

_______________________

On Writ of Certiorari to the United States
Court of Appeals for the Sixth Circuit.
_______________________

Brief Amicus Curiae in Support of Respondents.
_____________________
Robert Brian Crim
Box D-208
1000 Lely Palms Drive,
Naples, Florida 34113.
tel. (239) 263-6004.
[email protected]

_____________________________________________

The school-leaving age is to be raised to fifteen next
year, and to sixteen sometime. An amendment to raise
it to sixteen in 1948 was only just defeated in the
Commons, partly on the ground that there will not be
enough teachers. I am particularly interested in this
question because I am a university professor, and one
of my main jobs ought to be the training of future
teachers. I should like to see every secondary school
teacher educated up to the university honors standard.
For you cannot teach a subject really well unless you
know a good deal more about it than you normally
have to teach. You are then in a position to answer
your pupils questions, and above all, to show them in a
rough way how the subject taught links up with other
branches of knowledge, and with the life of society.
– J.B.S. Haldane
The Nature of Life

i

Questions Presented:

I

Does the Fourteenth Amendment require a
State to license a “marriage” between two people
of the same sex?

II

Does the Fourteenth Amendment require a
State to recognize a “marriage” between two
people of the same sex when their marriage was
lawfully licensed and performed out-of-state.

ii

Table of Contents
Frontspiece......................................................................i
Questions Presented......................................................ii
Statement of Interest.....................................................v
Syllabus...........................................................................x
Tables of Authorities....................................................xix
Constitution and Statutes.......................................xxxiii
Jurisdiction..............................................................xxxiii
Publishing Statement re Font and Word Count....xxxiv
The Case Below........................................................xxxvi
ARGUMENT...................................................................1
The Fourteenth Amendment to the Constitution of the
United States does not Oblige any of the several
States to License a purported “Marriage” between two
People of the same Sex.
A.

Homosexuality, History, and the Law.................1

B.

Public Health and the Bible: Levitical
Degrees.................................................................5

C.

States' Police Power & Standards of Review....11
iii

D.

Legal Incompetence of Same-Sex
“Marriage.”.........................................................13

E.

The Absence of Similarity..................................20

F.

The Fourteenth Amendment: Due
Process and Equal Protection............................25

G.

The Fraud of Same-Sex Marriage.....................29

The Fourteenth Amendment to the Constitution of the
United States does not Oblige any of the several
States to Recognize a purported “Marriage” between
two People of the same Sex when said “Marriage” was
lawfully Licensed and performed Out-of-State.
A.

Fundamentals of the Problem...........................33

B.

The Republican Guarantee Clause...................42

C.

The Full Faith and Credit Clause.....................47

D,

The Fourteenth Amendment, § 5......................51

E.

Reading Law: The Proper Rule of
Construction.......................................................53

Conclusion.....................................................................55

iv

Statement of Interest
Your Friend, Robert Brian Crim, born 14 August 1950
at Washington, Indiana, is a citizen of the United
States by birth and currently resident in the State of
Florida, where he has worked as a substitute teacher
and currently is employed by NewsBank, Inc., a news
archiving service.1 He is registered to vote in Collier
County, Florida, and has served in the past as a minor
official for Collier County's elections under Jennifer
Edwards, Registrar of Voters.
In 2008, at the general election held in that year, and
after carefully considering arguments for and against,
your Friend cast his ballot in favor of proposed
Amendment 2 to – now Article I, § 27 of – the
Constitution of the State of Florida, which amendment
defines marriage in the State of Florida as the legal
union of one man and one woman, to the exclusion of
all other arrangements.
In casting his ballot for passage of the said Amendment-2 proposal, your Friend joined 62 per cent of
Floridians – majorities in 66 of Florida's 67 counties –
in helping to make Article I, § 27 of the Constitution of
the State of Florida law of the land; and, to the extent
your Friend may have had any doubts concerning the
1 The Friend has a degree in history from the University of California (Irvine, 1972) and a minor in physics; for eight years, he
worked as a laboratory technician for a company researching
development of agricultural poisons. He has taught classes in
the high and middle schools of Collier County, Florida, in
almost all subjects including biology, mathematics, English,
history, economics, and law. He remains on the list of district
substitutes but no longer is active.

v

rectitude of his election in the said matter, those
doubts were allayed by the overwhelming majority of
his fellow citizens who, for whatever reasons, came to
the same conclusion.
On 21 August 2014, the Hon. Robert Hinkle, United
States District Judge for the Northern District of Florida, in the case of Brenner v. Scott, No. 4:14-cv-107
(N.D.Fla.), declared Article I, § 27 of the Constitution
of the State of Florida unconstitutional for being in violation of the Equal Protection Clause of the Constitution of the United States; and, as a result of Judge
Hinkle's holding in the said matter, along with his refusal and the refusal of the Eleventh Circuit Court of
Appeals ultimately to stay the mandate therein, samesex marriage was imposed upon your Friend and the
rest of the people of the State of Florida by what
amounted to a royal decree that overruled the
conscientious choice of some ten million people!2
2 On 01 January 2015, Judge Hinkle clarified his order after one
defendant, Washington County's clerk, inquired whether he
was ordering her to issue more than one marriage license specified in his preliminary injunction. Judge Hinkle explained
that his order applied only to the specific circumstances
presented by the plaintiffs seeking relief, but that all of Florida's clerks should understand from his ruling that the U.S.
Constitution required them to issue marriage licenses to
same-sex couples. He warned that he was prepared to add
additional plaintiffs and defendants to the lawsuit, and that
the costs thereof would be borne by the defendants.
Thereafter, most county clerks in Florida began issuing “marriage licenses” to same-sex couples, to avoid incurring further
costs in the matter, even though the issuing of such licenses by
a county clerk in Florida is a state offense. As the Friend
explains in the brief that follows, all these “licenses” are
nullities. Infra at 13-20.

vi

Your Friend, a citizen of the great State of Florida –
increasingly one of the most important States in the
Union – understandably is Personally Outraged by
this action on the part of a single, life-tenured, federal
district judge answerable to no one but himself in the
construing of an element of federal law that says
pretty much whatever Judge Hinkle wants it to say,
even when the precedent of Baker v. Nelson, 291
Minn. 310, 191 N.W.2d 185 (1971), app.dism. 409 U.S.
810 (1972), directed him to rule otherwise. Perhaps
more importantly, your Friend, “and others similarly
situated, are denied the equal protection of the laws
accorded them by the Fourteenth Amendment to the
Constitution of the United States by virtue of the
debasement of their votes.” Baker v. Carr, 369 U.S.
186, 187 (1962). Your Friend reminds this Court of the
role which the State of Florida played, in determining
the outcome of the presidential election of 2000, and of
the contentions by some that all of Florida's votes were
not being counted, but now your Friend is told by a
single man permanently elevated to a high position
that, upon the definition of the single most important
institution in Western civilization, your Friend can
have no say.
Your Friend thereby becomes representative here of
the millions of voters who were disenfranchised by
Judge Hinkle's order, and of a proud tradition in the
State of Florida which would not disenfranchise any
man in an election so important to the continuing
welfare of this great State.
Now the essence of Judge Hinkle's ruling, in the form
of other cases or controversies, has come before this
Court for its review, even as Florida's arguments are
vii

stayed by the Eleventh Circuit Court of Appeals
pending said review's determination. The enemy is at
the gates, and it is unlikely that Florida ever will have
its full day in court.
Your Friend knows why he voted for the provision in
question, and his reasons therefore are set forth in the
brief that is to follow, infra. On inspection of the briefs
of others, including the parties hereto, it appears that
many of your Friend's reasons for supporting
ratification of Article I, § 27 of Florida's constitution
simply are being ignored, while arguments to a lesser
compelling reason (arguments your Friend does not
support and does not recall even being raised in 2008)
are being presented front and center. Your Friend
reminds this Court of Justice Anthony Kennedy's
complaint, voiced in his dissent to the denial of
certiorari in Hollingsworth v. Perry, ___ U.S. ___, 133
S.Ct. 2652 (2013), that standing to advocate heretofore
has been denied to the voters in favor of the standing
of state officials, whose interest is to lose the case.
That, it respectfully is asserted, is not an appropriate
procedure for this Court to employ upon a question of
the magnitude of the one currently before it.
Rule 37.1 of this Court's rules states: “An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the
parties may be of considerable help to the Court. An
amicus curiae brief that does not serve this purpose
burdens the Court, and its filing is not favored.” Your
Friend well is aware that, in the instant matter, the
Court literally has been bombarded with amicus briefs
– so many that it's difficult for your Friend to believe
viii

that the Court even will be able to read them all before
arguments are heard in April.

Your Friend does not seek further to burden the Court.
With that in mind, the arguments your Friend
presents here are designed to be game-changers –
arguments not previously conssidered which well
might require complete re-briefing of Petitioners' cases
given their undenied right to be heard upon a matter
so important to their interests.
Upon that interest, your Friend, as a representative of
the voters of the great State of Florida, comes as the
so-far ignored party to the instant litigation.

ix

Syllabus of the Argument
Human beings do not naturally classify into categories
of “queer” or “unqueer”; rather, there is a continuum of
states ranging from totally heterosexual to totally
homosexual, with many in the middle (which is
normal).
The foregoing
adolescents.

particularly

is

true

of

budding

Although the term, “homosexual,” has no certain
meaning generally, it can be applied to about 5 per
cent of the population who establish permanent
relationships of a sexual nature between two or among
more persons of the same sex.
Religious texts like the Bible do not condemn homosexuality per se but do contain prohibitions against
conduct commonly associated with homosexuality.
The First Amendment to the Constitution of the
United States prohibits federal courts from promoting
or discouraging religious beliefs.
This Court judicially knows that conduct commonly
associated with male homosexuality includes sodomy.
Sodomy (anal intercourse) is prohibited by the Bible in
no uncertain terms; the prohibition is found among the
so-called Levitical degrees.
Stripped of (claimed) divinity, the Levitical degrees are
health measures designed to protect personal as well
x

as public health and to guard public welfare.
Promoting personal and public health, and guarding
public welfare, are part of the police powers of the
States reserved to them by the Tenth Amendment.
The Fourteenth Amendment permits States a wide
scope of discretion in enacting laws which affect some
groups of citizens differently than others.
In promoting personal and public health, and in
guarding public welfare, State legislatures, like Congress, enjoy a choice of means.
Presence in the Bible or other religious tracts of prohibitions does not of itself prevent a State's legislature
from enacting the prohibitions nor from sculpting
associated legislation to discourage the conducts
specified.
Marriage, a basic civil right of man, is within the orbit
of protection afforded by the Fourteenth Amendment.
Although marriage is a basic civil right of man, States,
in the exercise of the police power, can regulate the
form of marriage allowed within their jurisdictions,
insofar as said regulation promotes civilization,
health, and public welfare.
Marriage in the United States is a contract between a
man and a woman in which the rights and obligations
of the parties are sex-specific.
Homosexuals cannot marry a person of the same sex
because they cannot execute requirements of a marixi

age contract. For that reason, licenses to marry issued
them are nullities (regardless of how procured) and
neither due process nor equal protection as required
by the Fourteenth Amendment have any application
here.
Courts are not legislatures, possess none of the lawmaking power, and cannot substitute one form of
marriage for another; nor, if they tried, could they stop
with same-sex marriage.
All of the arguments Petitioners can mount for
imposing same-sex marriage on the States can be
made for any other form of marriage: Muslim forms of
marriage, Hindu forms of marriage, voodoo forms of
marriage, incestuous marriage, pedophilic marriage,
or (as here) a “marriage” that is little more than a
share-the-rent agreement.
The foregoing analysis does not beg the question:
Petitioners are not similarly situated vis-a-vis married
heterosexuals. For one thing, there are significant
additional health risks attendant to anal intercourse,
arising from the structure of the tissues involved,
which are not present in vaginal intercourse. This
makes retroviruses like HIV (which can infect any
human being) more readily transmissible by sodomy.
HIV turned out to be a “nice” virus in that it can be removed from blood supplies by heat treatments and apparently is not transmissible by arthropod. The next
virus to appear in America might not be so “nice.”
Legislatures have inherent power to stop plagues. The
Constitution is not a suicide pact.
xii

Although some of the petitioners are female and therefore not direct object of such concerns, the State still
retains significant interest in proper moral education
of male adolescents which same-sex marriage would
place in their care.
Although it's doubtful that adolescents learn to be homosexual in the same sense they learn geometry, a
shift on the part of the law from opposition to neutrality, insofar as same-sex “marriage” is concerned, makes
homosexuality appear more acceptable as a lifestyle,
particularly to younger persons whose sexual preferences are not yet formed.
Not changing the form of marriage allowed within a
State is one way to discourage alternate forms and,
given the clear interest the State has in moving as
many adolescents as possible away from unsafe sexual
practices, is closely tailored to a legitimate State objective and far less intrusive into genuine “privacy”
rights than, e.g., blocking homosexuals from public
employment, throwing them out of the military, or
having police bust into their bedrooms to ferret out sin
in the night.
Furthermore, not allowing same-sex marriage not only
does not stop homosexuals from marrying but does not
even stop them from marrying other homosexuals –
homosexual males who see themselves as females
always can marry homosexual females who'd prefer to
be male. The State, after all, has no interest in how
homosexuals elect to classify themselves.
The Fourteenth Amendment to the Constitution of the
United States does not oblige any of the several States
xiii

to license a purported “marriage” between two people
of the same sex.
* * *
Marriage is the most important social institution in
Western civilization; its sex-specific language may be
found in state statutes covering myriads of subjects.
Beginning in 2003, some States changed (or had forced
upon them changes in) their marriage laws. Origin of
said changes commonly was judicial construction of
equal-rights amendments or other provision in a
State's constitution.
Other States have made changes to their marriage
laws based upon changes in public sentiment assisted
by such standing institutions as community property.
Many States have neither equal-rights amendments
nor community-property forms of marriage; among
these States are States with defense-of-marriage provisions either in their statutes or their constitutions.
Defense-of-marriage provisions in state constitutions
do not offend the Fourteenth Amendment (supra, q.1).
Requiring one State to honor purported “marriages,”
perhaps legal in another State, merely because the
persons “married” have elected, from personal convenience or ideological perniciousness, to change their
domicile, imposes on a State the sovereignty and
choices of another State. and (given the militancy of
the modern homosexual movement) would make its
citizens, its courts, and its treasury hostage to the ranxiv

kest form of Run-It-up-the-Flagpole-to-See-if-AnyoneSalutes-It” litigation.
States made to accept same-sex marriage also would
have to consider how to handle marriage fraud committed in other states, how to protect local wards from
being kidnapped via a State's adoption process into
unwholesome environments, and how to determine
custody when purported same-sex marriages fail – the
list of escalating problems would be almost endless.
The United States and its courts are required to guarantee to each and every State a republican form of
government.
The Republican Guarantee Clause was inserted in the
Constitution to serve as a barrier to spread of corruption arising in other States.
Although many cases brought under the Republican
Guarantee Clause collapse into non-justiciable political questions, not all of them do.
The Constitution places each State on an equal footing
with other States. The Republican Guarantee Clause
prevents the legislature of one State from legislating
for another.
If the legislature of one State cannot legislate for
another, it is equally obvious that state court decisions
in one State cannot “legislate” for another.
Judicial restraint, in the imposition on States of novel
forms of social organization, especially where enabling
legislation in a foreign State exists on a “trial” basis, is
xv

more than a wise prescription for maintaining an
independent judiciary within the framework of a
democracy. It is a constitutional requirement.
The conclusion on the part of judicial officers, that
their evaluation of the morality of conduct commonly
associated with homosexuality somehow surpasses a
determination made by overwhelming majorities of
millions of people in a general plebiscite, clearly exceeds the authority of courts and, itself, constitutes a
religious opinion.
The First Amendment to the Constitution of the
United States prohibits federal courts from promoting
or discouraging religious beliefs.
The Full Faith and Credit Clause is an amendment of
the Clause originally in the Articles of Confederation.
Under the Full Faith and Credit Clause, Congress has
plenary power to declare the effect in one State of the
acts, records, and judicial proceedings in another.
A central purpose of the Full Faith and Credit Clause,
as amended from the Articles of Confederation, is to
prevent judicial constructions of laws in one State
from being portaged by a person's change of residence
into the statute books of other States.
Congress has plenary power, pursuant to § 5 of the
Fourteenth Amendment, to construe the Amendment's
dimensions or the meaning of its provisions, and
courts are obligated to honor such determinations.
By the Federal Defense of Marriage Act, 28 U.S.C. §
xvi

1738c, Congress interdicted efforts to impose same-sex
marriage on one State by contracting same in another
State, then moving domicile.
Whether the Defense of Marriage Act is considered an
expression of Congress' power under the Republican
Guarantee Clause, the Full Faith and Credit Clause,
section 5 of the Fourteenth Amendment, or all of them
together, its effect remains the same.
Nothing in the Fourteenth Amendment, Ninth Amendment, or Full Faith and Credit Clause, either in their
wording or their history, even suggests that they somehow amend the Tenth Amendment, the First Amendment, Article I, or the Republican Guarantee Clause.
It is a fundamental rule of constitutional and statutory
construction that courts will presume, on the part of
legislators and constitutional draftsmen alike, creation
of a uniform body of law.
No part of the Constitution of the United States can be
construed to be without effect, and every part of an
article is to be taken into view.
The Fourteenth Amendment to the Constitution of the
United States does not oblige any of the several States
to recognize a purported “marriage” between two
people of the same sex, even when said “marriage” was
lawfully licensed and performed out-of-state.
Invocation of a claimed federal right to travel, in
support of forcing same-sex marriage legal in one
State onto another State where it is not legal, is
frivolous.
xvii

Conclusion
For the reasons given above, the answer to each of the
questions posed by the Court in the above-entitled
matter is: NO.

xviii

Table of Authorities
Cases:
Alberty v. United States, 162 U.S. 499 (1896).....20n.48
Anonymous v. Anonymous, 325 N.Y.S.2d
499, 67 Misc.2d 982 (1971)...............................41 & n.83
Ashwander v. T.V.A., 297 U.S. 288 (1936)............45n.91
Baehr v. Lewin, 852 P.2d 44 (Haw., 1993)............37n.77
Baehr v. Miike, 1996 WL 694235 (Haw.Cir.Ct.)...37n.77
Baker v. Carr, 369 U.S. 186 (1962).......................42n.87
Baker v. Nelson, 291 Minn. 310, 191
N.W.2d 185 (1971), app.dism. 409
U.S. 810 (1972).........................................19n.46, 20n.47
Baskin v. Bogan, 766 F.3d 648 (7th Cir., 2014),
cert.den. ___ U.S. ___............................................35n.74
Bonanno v. Bonanno, 4 N.J. 268, 72 A.2d
318 (1950)..............................................................16n.41
Bostic v. Schaefer, 760 F.3d 352 (4th Cir.,
2014), cert.den. ___ U.S. ___,................................36n.76
Boutilier v. INS, 387 U.S. 118 (1967)..........3n.2, 13n,30
Bowers v. Hardwick, 478 U.S. 186
(1986).......................................................13n.33, 25n.55
xix

Bray v. Alexandria Women's Health
Center, 506 U.S. 263 (1993)..................................25n.55
California v. Cabazon Band of Mission
Indians, 480 U.S. 202 (1987)................................20n.48
California v. LaRue, 409 U.S. 109
(1972).......................................................11n.26, 54n.117
Carnegie v. Dept. of Public Safety, 60 So.2d
728 (Fla., 1952)......................................................32n.66
Churchward v. Churchward, 132 Conn. 72,
42 A.2d 659 (1945).................................................16n.41
Cleburne v. Cleburne Living Center,
473 U.S. 432 (1985)..................................12n.28, 12n.29
Cleveland Board of Education v. LaFleur,
414 U.S. 632 (1974)...............................................25n.54
Cohens v. Virginia, 6 Wheat. 264 (1821)...........48n.100,
53n.114,
53n.115
Commonwealth ex rel. Fedor v. Fedor,
157 Pa.Super. 305, 43 A.2d 363 (1945).................16n.41
Conaway v. Deane, 401 Md. 219,
932 A.2d 571 (Md.App., 2007)..................15n.36, 34n.70
Coyle v. Smith, 221 U.S. 559 (1911).....................42n.87
Craig v. Boren, 429 U.S. 190 (1976).....................13n.31
xx

Crandall v. Nevada, 6 Wall. 35 (1868)................54n.118
Davis v. Beason, 133 U.S. 333 (1890)...................14n.34
DeBoer v. Snyder, 772 F.3d 388
(6th Cir., 2014)................................5n.11, 14n.34, 15n.37
16n.40, 29n.61, 29n.62,
34n.72
DeSanto v. Barnsley, 328 Pa.Superior
Ct. 181, 476 A.2d 952 (S.Ct., 1984).........30n.63, 39n.80
Equality Foundation of Greater Cincinnati,
Inc., v. Cincinnati, 54 F.3d 261 (6th Cir.,
1995)......................................................................25n.56
Everson v. Bd. of Education, 330 U.S. 1 (1947)...47n.94
Ewell v. State, 207 Md. 288, 114 A.2d 66
(1955).....................................................................16n.41
F.S. Royster Guano Co. v. Commonwealth
of Virginia, 253 U.S. 412 (1920)............................31n.65
Federal Land Bank of Wichita v. Bd. of
County Commissioners, 368 U.S. 146 (1961).......19n.45
Field v. Clark, 143 U.S. 649 (1892).......................12n.28
Gibbons v. Ogden, 9 Wheat. 1 (1824)....................19n.45
Golden v. Zwickler, 394 U.S. 103 (1969)...............36n.76
Goodridge v. Department of Public Health,
798 N.E.2d 941 (Mass., 2003)...............................34n.72
xxi

Grishaver v. Grishaver, 225 N.Y.S.2d 924
(1961).....................................................................16n.41
Griswold v. Connecticut, 381 U.S.
479 (1965).................................................32n.68, 41n.85
Haddock v. Haddock, 201 U.S. 562 (1906)...........14n.34
Hansberry v. Lee, 311 U.S. 32 (1940)...................39n.79
Harris v. McRae, 448 U.S. 297 (1980)......................3n.6
Heflin v. Heflin, 177 Va. 385, 14 S.E.2d 317
(1941).....................................................................16n.41
Hicks v. Miranda, 422 U.S. 332 (1975)....13n.30, 19n.46
Hollingsworth v. Perry, ___ U.S. ___,
133 S.Ct. 2652 (2013)...............................34n.73, 45n.91
Jacobson v. Jacobson, 314 N.W.2d
78 (N.D., 1981)..........................................30n.64, 41n.85
Jarrett v. Jarrett, 78 Ill.2d 337, 400
N.E.2d 421, 36 Ill.Dec. 1, cert.den.
449 U.S. 927 (1980)...............................................41n.85
Jones v. Hallahan, 501 S.W.2d 588
(Ky.App., 1973).........................................19n.44, 19n.45
Keystone Bituminous Coal Ass'n. v.
DeBenedictus, 480 U.S. 470 (1987).....................25n.56
Kotch v. Bd. of River Port Pilot Commissioners,
Port of New Orleans, 330 U.S. 552 (1947)...........12n.29
xxii

Labine v. Vincent, 401 U.S. 532 (1971)...16n.41, 18n.43
Larkin v. Grendel's Den, Inc., 459 U.S.
116 (1982).....................................................3n.5, 47n.94
Lawrence v. Texas, 539 U.S. 558 (2003)........3n.3, 5n.13
13n.30, 13n.33,
25n.55
Lehr v. Robertson, 463 U.S. 248 (1983)................28n.59
Loving v. Virginia, 388 U.S. 1 (1967).......13n.32, 15n.35
20n.47, 41n.85,
51n.107
Luther v. Borden, 7 How. 1 (1842).......................42n.87
Magnolia Petroleum Co. v. Hunt, 320
U.S. 430 (1943)....................................................49n.101
Maher v. Roe, 432 U.S. 464 (1977).......................28n.59
Manufacturer's Trust Co. v. Gray, 278 N.Y.
380, 16 N.E.2d 373 (1938).....................................16n.41
Martin v. Wilks, 490 U.S. 755 (1989)...................39n.79
Massachusetts Ret. Bd. v. Murgia,
427 U.S. 307 (1976)...............................................12n.29
Maynard v. Hill, 125 U.S. 190 (1888).....11n.26, 33n.69
McConnell v. Nooner, 547 F.2d 54
(8th Cir., 1976)........................................................19n.45
xxiii

McConnell v. United States of America,
Civ.# 04-2711 JNE/JGL (D.Minn., 2004)..............39n.80
McConnell v. United States of America,
# 05-1781 (8th Cir., 17 July 2006)..........................39n.80
McGowan v. Maryland, 366 U.S. 420 (1961)........12n.29
Miller v. Schoene, 276 U.S. 272 (1928).................24n.53
Minnesota Board for Community Colleges
v. Knight, 465 U.S. 271 (1984)............................54n.116
Mississippi University for Women v. Hogan,
458 U.S. 718 (1982).............................................53n.112
Moore v. Charlotte-Mecklenburg Bd. of
Education, 402 U.S. 47 (1971)..............................45n.91
Mullins et al. v. Masterpiece Cake Shop,
Inc., ## 2013 CR 0008, 2013 CR 0009
(Colo.Civ.Rts.Com., 31 May 2013).......................40n.81
Muskrat v. United States, 219 U.S. 346 (1911)...45n.91
Nicchia v. New York, 254 U.S. 228 (1920)............32n.67
Nicketta v. National Tea Co., 338 Ill.App.
159, 87 N.E.2d 30 (1949).......................................11n.25
Olmsted v. Olmsted, 216 U.S. 386 (1910).............48n.99
Orr v. Orr, 440 U.S. 268 (1979), on rem.
374 So.2d 895 (Ala.Civ.App.), writ den.
374 So.2d 898 (Ala., 1979).....................................16n.41
xxiv

Ott v. Hentall, 70 N.H. 231, 47 A. 80 (1900)........16n.41
Padgett v. Dept. of Health & Rehab. Serv.,
577 So.2d 565 (Fla., 1991).....................................29n.62
Pennoyer v. Neff, 95 U.S. 714 (1878)....................14n.34
Pezas v. Pezas, 151 Conn. 611,
201 A.2d 192 (1964)...............................................16n.41
Plyler v. Doe, 457 U.S. 202 (1982)........................12n.27
Poe v. Ullman, 367 U.S. 497 (1961)......................32n.68
Poole v. People, 24 Colo. 510, 52 P. 1025 (1898)...16n.41
Prout v. Starr, 188 U.S. 537 (1903).....................53n.113
Reed v. Reed, 404 U.S. 71 (1971)..........................31n.65
Romer v. Evans, 517 U.S. 620 (1996).....12n.29, 25n.55,
25n.56, 30n.63
Rose v. Locke, 423 U.S. 48 (1975).........................13n.30
Rostker v. Goldberg, 453 U.S. 57
(1981)........................................................12n.28, 16n.41
Schlessinger v. Ballard, 419 U.S. 498 (1975).......16n.41
Schuster v. Schuster, 90 Wash.2d 626,
585 P.2d 130 (1978)...............................................41n.85
Schware v. Board of Bar Examiners, 353
U.S. 232 (1957)......................................................25n.54
xxv

Shapiro v. Thompson, 394 U.S. 618 (1969)........54n.118
Shepherd v. City of Wheeling, 30 W.Va. 479,
4 S.E. 635 (1887)..................................................52n.111
Simms v. Simms, 175 U.S. 162 (1899)..................14n.34
Singer v. Hara, 11 Wash.App.247, 522
P.2d 1187 (1974), rev.den. 84 Wash.2d 1008.......16n.39,
34n.73
Skinner v. Oklahoma ex rel. Williamson,
316 U.S. 535 (1942)...............................................32n.67
Sosna v. Iowa, 419 U.S. 393 (1975)..........11n.26, 39n.78
Stanley v. Illinois, 405 U.S. 645 (1972)................25n.54
State v. Crawford, 478 S.W.2d 314
(S.Ct.Mo., 1972), app.dism.sub nom.
Crawford v. Missouri, 409 U.S. 811......................13n.30
Terminiello v. Chicago, 337 U.S. 1 (1949)............24n.53
Texas v. White, 7 Wall. 700 (1869)........................42n.87
Tigner v. Texas, 310 U.S. 141 (1940)....................32n.67
Trimble v. Gordon, 430 U.S. 762 (1977)...............42n.86
Turner v. Safley, 482 U.S. 78 (1987).....................28n.58
Ulrich v. State, 5 Terry (44 Del.) 400,
59 A.2d 460 (1948).................................................16n.41
xxvi

United States v. Fruehauf, 365 U.S. 146
(1961)....................................................................36n.76
United States v. Guest, 383 U.S. 745 (1966).......32n.66
United States v. Sandoval, 231 U.S.
28 (1914)................................................................20n.48
United States v. Windsor, ___ U.S.
___, 133 S.Ct. 2675 (2013)......................45n.91, 52n.111
United States v. Yazell, 382 U.S. 341 (1966)........18n.43
U.S. Railroad Ret. Bd. v. Fritz, 449 U.S.
166 (1980)..............................................................24n.53
Wainwright v. Stone, 414 U.S. 21 (1973).............25n.55
Williamson v. Lee Optical Co., 348 U.S.
483 (1955)..............................................................12n.29
Yick Wo v. Hopkins, 118 U.S. 356 (1886).............25n.55
Zablocki v. Redhail, 434 U.S. 374
(1978).......................................................13n.30, 14n.34,
15n.35

Constitution, Statutes, & Rules:
U.S.Const., Art. I, § 1......................................18n.43, 53
U,S,Const., Art, IV, § 1..................47n.93, 47-48 & n.96,
50n.106, 52, 53
xxvii

U.S.Const., Art. IV, § 2........................................54n.118
U.S.Const., Art. IV, § 4.........42n.87, 47n.93, 54 & n.118
U.S. Const., Art. VI, ¶ 3........................................12n.28
U.S.Const., Amend. I..........................................3, 47, 53
U.S.Const., Amend. VIII..............................................53
U.S.Const., Amend. IX........................................54n.118
U.S.Const., Amend. X.................................11,11n.26, 52
U.S.Const., Amend. XIV, § 1...........................39n.79, 52
U.S.Const., Amend. XIV, § 5......51n.106, 53-54 & n.118
U.S.Const., Amend. XIX.................................52 & n.109
Art, of Confederation, Art. IV, ¶ 1........48n.98, 49n.103,
54n.118
Art, of Confederation, Art. IV, ¶ 3........................48n.97
Fla.Const., Art. I, § 2..............................37n.77, 49n.102
Fla.Const., Art. I, § 27...............37n.77, 46n.92, 49n.102
Fla.Const., Art. IV, § 1(c).......................................18n.43
Fla.Const., Art. X, § 5............................................16n.40
28 U.S.C. § 453........................................................5n.11
xxviii

28 U.S.C. § 1738c (Federal
Defense of Marriage Act).......................47n.93, 52n.111,
53 & n.116
Colo.R.S. § 24-34-601(2)........................................40n.81
West's Annot.Cal.Civ.Code § 4100 (1977).............16n.39
Fed.R.Evid. Rule 610.............................................29n.60

Legal Treatises and Authorities:
Black's Law Dictionary (5th ed., 1979)..................15n.36
Clark, Homer D., The Law of Domestic
Relations in the United States (West
Student edition, 1988, 1968)........................1n.1, 14n.34
Colb, Sherry F., “Is It Arbitrary to Distinguish Incest from Homosexuality?” Verdict:
Legal Analysis and Commentary from Justia,
17 Sept. 2014.........................................................36n.75
Farrand, Max, Records of the Federal
Convention of 1787, 4 vol. (New Haven,
Conn.: Yale Univ. Press, 1937, 1911)..................45n.90,
49n.104, 54n.118
Fla. Dept. of State, Div. of Elections, 04
Nov. 2008 general election, Amend. 2
(official results)......................................................46n.92
xxix

Hamilton, Alexander, James Madison, & John
Jay, The Federalist (Mod.Lib.ed., 1937)..............44n.88,
51n.105
Scalia, Antonin, & Brian A. Garner, Reading Law: The Interpretation of Legal
Texts (St. Paul, Minn.: West, 2012)......13n.30, 52n.111
West's F.S.A., Const., Art. I, § 2
(Advisory Notes)....................................................37n.77
Wilkinson, J. Harvie III, & G.
Edward White, “Constitutional
Protection for Personal Lifestyles,”
62 Cornell L.Rev. 563 (1977).................................28n.57

Miscellaneous Works:
Berkow, Robert, M.D., edit.in chf.,
The Merck Manual of Diagnosis
and Therapy (15th ed., 1987).........................3n.2, 6n.14,
23n.50, 41n.84
The Bible (RSV)...................3n.3, 3n.4, 4n.7,5n.9, 5n.10
5n.10, 5n.12, 6n.15, 8n.19,
9n.20, 9n.21, 9n.22, 9n.24,
52n.110
Darwin, Charles, Origin of Species &
Descent of Man (Modern Library edition)................1n.1

Des Moines Register, 03 Nov. 2010.......................34n.72
xxx

DeVore, Irven, edit., Primate Behavior:
Field Studies of Monkeys and Apes (New
York: Holt, Rinehart & Winston, 1965)...............30n.64

Encyclopædia Britannica (15th ed.,
1998)...........................................................8n.17, 8n.18,
9n.24, 16n.38, 16n.41
Haldane, J.B.S., The Nature of Life
(New York: Boni & Gaer, 1947).................8n.16, 30n.64
Handel, Georg Friedrich, Israel in
Egypt (New York: Schirmer, 1900)........................9n.24
Higgins, Reynold, Minoan and Mycenaean Art (New York: Praeger, 1967).........8n.19, 9n.24
Hillcourt, William, Official Boy Scout
Handbook (9th ed., 1979)........................................29n.62
______, Boy Scout Handbook (6th ed., 1959).........29n.62
Josephus, Flavius, Antiquities of
the Jews (Wm. Whiston trans., 1867).........9n.23, 9n.24
Kirk, Raymond E., & Donald F. Othmer,
Encyclopedia of Chemical Technology ,
15 vols. + suppl. (New York: Interscience, 1947-57)......................................................9n.24
Lanier, Robert S., mng.edit., The Photographic History of the Civil War, 5/10 vols. (Secaucus, N.J.: Blue & Grey Press, 1987/1911)....51n.108
xxxi

Lorenz, Konrad, Evolution and
Modification of Behavior (Chicago:
Univ. of Chicago Press, 1965)...............................30n.64
Parsons, Paul, 3-Minute Einstein
(Lewes, East Sussex, England: Ivy
Press, 2011)[Metro Books/Sterling ed.]................14n.34
Pope, Alexander, trans., The Iliad of
Homer (1715)...........................................................8n.19
Rand, Ayn, Atlas Shrugged (New York:
Random House, 1957)...............................................4n.8
Sandburg, Carl, Abraham Lincoln: The
War Years, 4 vols. (New York: Harcourt,
Brace & Co., 1939, 1937, 1936).............................44n.89

xxxii

Constitution and Statutes
Article I, § 2 of Florida's Constitution states:
All natural persons, female and male
alike, are equal before the law and have
inalienable rights, among which are the
right to enjoy and defend life and liberty,
to pursue happiness, to be rewarded for industry, and to acquire, possess, and protect
property;...No person shall be deprived of
any right because of race, religion, national origin, or physical disability.3
Article I, § 27 of Florida's Constitution states:
Inasmuch as marriage is the legal union
of only one man and one woman as
husband and wife, no other legal union
that is treated as marriage or the
substantial equivalent thereof shall be
valid or recognized.

Jurisdiction
By memorandum order dated 16 January 2015 in the
matters of Obergefell v. Hodges, # 14-556, Tanco v.
Haslam, # 14-562, DeBoer v. Snyder, # 14-571, and
Bourke v. Beshear, # 14-574, 574 U.S. ___, this Court
granted certiorari to hear two questions related to
construction of section one of the Fourteenth
3 N.B.: Absence of the word, “sex.” See infra at 37n.77 for explanation.

xxxiii

Amendment to the Constitution of the United States.
This Court has jurisdiction pursuant to Title 28,
United States Code § 1254(1).

Publishing Statement re Font and Word Count
By these presents, your Friend certifies that the
instant brief amicus curiae on the merits and for
Respondents is set in Century Font, 14-point type for
titles, 12-point type for all text above the line, and 10point type for all footnotes, per the Court's rules.
Your Friend further relates that the word-processing
program employed to create the instant brief is Open
Office published by Oracle Corporation, and that per
the said program, the Argument in the instant brief
totals 14,998 words, of which 6,794 are above the line
and distributed as follows:
For Question One: 3,657 words above the line;
For Question Two: 2,571 words above the line;
For the Conclusion: 566 words above the line –
...which together total 6,794 words.
Furthermore, that the said Open Office program does
not readily calculate combined totals of words for footnotes; however, it appears to your Friend that the footnotes, consisting of 8,204 words total, are apportioned
proportionally between Question One (c. 4,815) and
Question Two (c. 3,390).
xxxiv

Finally, 3,657 words + 4,815 words = 8,472 words (or ≤
9,000 words for Question One and, for being smaller, ≤
9,000 words for Question Two).

xxxv

Statement of the Case
Rule 37.5 of this Court's rules excuses your Friend
from having to provide a statement of the case; however, the Court is referred to your Friend's statement
of interest, supra at v, for information concerning the
matter of Brenner v. Scott, No. 4:14-cv-107 (N.D.Fla.),
previously before the Hon. Robert Hinkle, United
States District Judge for the Northern District of Florida.
Your Friend adds here that Judge Hinkle, in imposing
same-sex marriage on all of Florida, opined:
The institution of marriage survived
when bans on interracial marriage were
struck down, and the institution will
survive when bans on same-sex marriage
are struck down. Liberty, tolerance, and
respect are not zero-sum concepts. Those
who enter opposite-sex marriages are not
harmed at all when others, including
these plaintiffs, are given the liberty to
choose their own life partners and are
shown the respect that comes with
formal marriage. Tolerating views with
which one disagrees is a hallmark of
civilized society.4
Perhaps, except that forcibly altering the legal charac4 Brenner v. Scott, supra, Order Denyiong Motion to Dismiss,
Granting a Preliminary Injunction, and Temporarily Staying
the Injunction (N.D.Fla., 21 Aug. 1974), PACER doc. # 74.

xxxvi

ter of every marriage in Florida is not expressing a
“view,” and using the federal bench to elevate ones
personal religious sentiments above the expressed will
of 10 million people shows very little “tolerating.”
Judge Hinkle's opinion arbitrarily reached for a “strict
scrutiny” form of analysis to arrive at the conclusion
that Florida's constitutional defense-of-marriage
provision offended the Equal Protection Clause of
Amendment XIV; and, the “marriage” which Judge
Hinkle ordered the State to recognize was contracted
not in a sister State but in the Dominion of Canada!
This Court is informed that an appeal on behalf of the
State of Florida was filed in that case, and that the
cause therein, sub nom. Brenner v. Armstrong, # 1414061 (11th Cir.), currently is parked in the Eleventh
Circuit Court of Appeals pending resolution of the instant matters by this Court. Your friend understands
that all briefings in Brenner were completed in
December 2014, when the State declined its right to
reply to the plaintiffs.
Your Friend, as of 17 March 2015, has not made any
effort to intervene in any way in Brenner v. Armstrong
but does intend to serve a courtesy copy of the instant
brief on Florida's Solicitor General.
He contests all claims that Florida's laws restricting
the form of marriage allowed in Florida in any way
violate federal guarantees.

xxxvii

Brief Amicus Curiae on the Merits
I

The Fourteenth Amendment to the Constitution of the United States does not
Oblige any of the several States to License a purported “Marriage” between
two People of the same Sex.

The Court seeks to determine whether the Fourteenth
Amendment requires States to allow same-sex marriage. For the following reasons, the Friend says: No.
A.

Homosexuality, History, and the Law.

Although the term, “homosexual,” has no certain
meaning generally,1 it can with some precision be applied to individuals who establish long-term relation1 “[A] precise definition of [“homosexual”] has never been formulated and perhaps cannot be, since many people feel attracted
to members of the same sex at one time or another in their
lives and at other times are attracted with greater or lesser intensity to members of the other sex.” Homer D. Clark, The
Law of Domestic Relations in the United States (West Student
ed., 1988, 1968) at 75-76. A fundamental tenet of biology is
that Nature only presents – it does not classify (only human
beings do that). See Charles Darwin, Origin of Species & Descent of Man (Mod.Lib.ed.) at 513-515 (“If man had not been his
own classifier, he would never have thought of founding a separate order for his own reception.”). “The population seems
to be distributed along a continuum at one end of which is the
exclusively heterosexual person and at the other end the
homosexual person, with many falling somewhere in
between.” Clark, id. at 76.

1

ships of a sexual nature between two or among more of
the same sex. What the medical text says is:
Homosexuality is no longer accepted as a
mental disorder by the American Psychiatric Association....Society is slowly accepting homosexuality as a sexual variant, but great hostility and prejudice are
still widely prevalent.
A transient stage of homosexuality in puberty and adolescence is common (1/3 of
male adolescents), but almost all persons
who experience this, even those who engage in some form of physical contact,
later become exclusively heterosexual in
their preferences. Approximately 5% of
males are exclusively homosexual during
their entire lives. A majority report some
heterosexual contact that was soon abandoned after initial experiences. Perhaps
33% of male homosexuals and a larger
percentage of female homosexuals (lesbians) are capable of heterosexual performance and even pleasure, although they
are preferentially homosexual. About
20% of homosexual men and 33% of homosexual women marry, but their heterosexual marriages tend to be unstable.
Preferential or exclusive homosexuality
has to be distinguished from situational
(facultative) homosexuality, frequently
exhibited by males and females confined
for long periods with members of their
2

own sex, as on board ship or in prison.
Usual sexual behavior is resumed on release from such environments.2
Religious texts like the Bible do not condemn homosexuality per se3 but do contain prohibitions against
conduct commonly associated with homosexuality.4 Of
course, the First Amendment to the Constitution of the
United States prohibits government or its courts from
promoting or discouraging religious beliefs.5 However,
the presence in the Bible or other religious tracts of
prohibitions, viz., conduct considered “sinful” to a god
or gods, does not of itself prevent a State's legislature
from enacting the prohibitions nor of sculpting associated legislation to discourage the conducts specified. 6
Indeed, “God's” purported command to make man's

2 Robert Berkow, M.D., edit.in chf., The Merck Manual of Diagnosis and Therapy (15th ed., 1987) at 1500 [italicized passages
original; bolded emphasis added]; see also Boutilier v. INS, 387
U.S. 118, 127 (1967)(Douglas, J., w/Fortas, J., dissenting),
quoting medical sources. N.B.: The continuum of states, note
1, supra, especially among adolescents, Berkow, has been
known to the medical community since at least the mid-1940s.
3 Per Justice Kennedy, “homosexual” and “homosexuality” are
words modern in origin. Lawrence v. Texas, 539 U.S. 558, 568
(2003). To the Friend's knowledge, they are not even in the
Bible, though the word, “dog,” synonymous in original texts
with “sodomite,” is located at Deut. 23:18 (RSV).
4 Lev. 18:22, 20:13. See infra at note 12 for partial text.
5 Larkin v. Grendel's Den, Inc., 459 U.S. 116, 123 (1982).
6 Harris v. McRae, 448 U.S. 297, 319-320 (1980).

3

life on earth a standard of value7 is a proposal
embraced even by atheists.8 The Bible clearly has
been inspiration to legislators throughout our history
– indeed, the Ten Commandments are carved in the
courthouse wall. No one seriously contends that
prohibitions against murder or larceny somehow
“discriminate” against psychopaths or kleptomaniacs
7 What the Bible says is:
And the Lord said to Moses, “Say to the people of
Israel, I am the Lord your God. You shall not do
as they do in the land of Egypt, where you dwelt,
and you shall not do as they do in the land of
Canaan, to which I am bringing you. You shall
not walk in their statutes. You shall do my ordinances and keep my statutes and walk in them. I
am the Lord your God. You shall therefore keep
my statutes and my ordinances, by doing which a
man shall live: I am the Lord.
Lev. 18:1-5 [emph.add.].
8 Thus, Ayn Rand writes:
Man has been called a rational being, but rationality is a matter of choice – and the alternative
his nature offers him is: rational being or suicidal animal. Man has to be man – by choice; he
has to hold his life as a value – by choice; he has
to learn to sustain it – by choice; he has to
discover the values it requires and practice his
virtues – by choice.
A code of values accepted by choice is a code of
morality.
Whoever you are, you who are hearing me now, I
am speaking to whatever living remnant is left
uncorrupted within you, to the remnant of the

4

solely because said prohibitions are in the Bible, and
the Friend dares any justice of this court to read out of
the law the prohibitions against perjury9 or bribery.10
Indeed, the very foundation for the oath Judge
Daughtrey swore “[m]ore than 20 years ago”11 also is
in the Bible.12 It begs credulity to assert that drafting
legislation per a Judeo-Christian model makes such
legislation “discriminatory” against non-believers.
B.

Public Health and the Bible: Levitical Degrees.

This Court judicially knows that conduct commonly
associated with male homosexuality includes anal intercourse.13 What the medical text says is:
human, to your mind, and I say: There is a morality of reason, a morality proper to man, and
Man's Life is its standard of value.
Ayn Rand, Atlas Shrugged (New York: Random House, 1957)
at 1013-14 (from John Galt's speech).
9 Ex. 20:16; Lev. 19:11.
10 Ex. 18:13-23 (which also models the organization of the federal
judiciary and anticipates this Court's certiorari jurisdiction).
11 DeBoer v. Snyder, 772 F.3d 388 (6 th Cir., Nos. 14-1341, &c., 06
Nov. 2014), slip op. at 21 [p.64], citing 28 U.S.C. § 453.
12 Lev. 19:15. Legislators don't always follow Biblical advice: The
Bible commands, “Honor your father and your mother, that
your days may be long in the land which the Lord your God
gives you.” Ex. 20:12 [emph.add.]. We seem to be doing much
less of that these days, having established instead the Social
Security Administration.
13 Lawrence v. Texas, supra, 539 U.S. at 578 (“sexual practices

5

Sexual acts between homosexuals consist
of expressions of tenderness, fondling,
caressing, and kissing that usually culminate in orgasm – achieved through
mutual masturbation, fellatio (taking the
penis in the mouth), or anal intercourse.
It is uncommon for one partner to adopt
an exclusively active or passive role, and
most homosexuals participate in the relationship in a variety of ways.14
Anal intercourse is prohibited by the Bible in no uncertain terms; the prohibition is found among the socalled Levitical degrees (which primarily proscribe incest).15 Stripped of their (claimed) divinity, the Levitical degrees are designed to protect personal and public
health, and to guard public welfare. What the scientist says of one of them is:
The whole subject of human reproduction
common to a homosexual lifestyle”) and throughout.
14 Merck Manual, supra, loc. cit. [emph.add.]
15 Lev., chaps. 18, 20. What the Bible says is:
None of you shall approach any one near of kin to
him to uncover nakedness....You shall not give
any of your children to devote them by fire to Moloch, and so profane the name of your God: I am
the Lord. You shall not lie with a male as with a
woman; it is an abomination. And you shall not
lie with any beast and defile yourself with it,
neither shall any woman give herself to a beast to
lie with it: it is perversion.
Lev. 18:6, 21-23 [emph.add.].

6

is surrounded by superstitions, some of
them disgusting and harmful, and it
might well be that the objection to cousin
marriage was only one of them. However, careful scientific work shows that
children of such marriages are specially
liable to some kinds of abnormalities.
The investigation can be done in two
ways. Sjögren, a Swedish doctor, investigated all blind children in Sweden whose
blindness was associated in a special way
with idiocy. Children afflicted with what
is called juvenile amaurotic idiocy are
normal to about the age of seven years.
They then lose their sight, later become
idiotic, and finally die at an average age
of eighteen. The disease is not hereditary in the ordinary sense, for its victims
never have children. But it frequently
occurs in several brothers or sisters, and
also in cousins. Above all, it is relatively
frequent in the children of blood relations. Out of Sjögren's 120 cases, no less
than 23 were the children of first cousins
who had married, and another 31 were
the children of less closely related
cousins. Since about one marriage per
hundred in Sweden was between first
cousins, this means that such a marriage
is about 35 times as likely to produce an
idiot of this kind as a marriage between
unrelated parents. Very similar results
are obtained for other abnormalities,
including comparatively mild ones such
7

as albinism, and serious disabilities such
as deaf-mutism.16
Haldane's report is all the more compelling for
predating discovery of the double helix by almost four
years.17 In other words, he no more knew the mechanics of the malady than did Moses, but he (and
Sjögren) had eyes to look.18
Ancient peoples had no microscopes and, without
them, no science of genetics or disease theory. They
commonly attributed to divine displeasure this or that
calamity, malady, birth defect, or plague.19 It is error
16 J.B.S. Haldane, The Nature of Life (New York: Boni & Gaer,
1947) at 102.
17 See Encyclopædia Britannica (15th ed., 1998) at 3:734-735.
18 History is replete with examples of men who got the explanation wrong but whose observations were accurate and, occasionally, led subsequent investigators to the truth. Tycho
Brähe perhaps is the most renown example. Encyclopædia
Britannica (15th ed., 1998) at 2:459-460, 6:810.
19 The Bible hardly is unique: The initial event driving the plot
of the Iliad is the refusal on the part of Agamemnon to give up
Chruseïs to stay the wrath of Apollo and stop a plague. The
Iliad of Homer (Pope trans., 1715), bk. i, ll. 9-76; cf. Deut.
23:10-14. Obviously, Mars wasn't chasing Venus around the
battlefield, nor was Diomed spanking her on the arse, id., bk.
v, but the Trojan War really happened – we know that not only
because Heinrich Schliemann found the ruined city but by how
he found it. Schliemann “identified the site of Troy, in spite of
the consensus of scholarly opinion that the city (if it existed at
all) was elsewhere.” Reynold Higgins, Minoan and Mycenaean
Art (New York: Praeger, 1967) at 8. He did this by duplicating
the famous final confrontation between Hector and Achilles,
rejecting the “scholarly” opinion and electing to dig, instead, at

8

of the highest historical degree to dismiss as “fairy
tale” books like the Bible because they attribute highly
unusual phenomena to the intervention of gods or goddesses.20 The Levitical degrees are from the distilled
wisdom of a man raised in the House of Pharaoh, 21
recipient of a first-class Egyptian education (the best
in the world at the time),22 who served his government
with distinction,23 then probably got whipsawed in
palace politics and sought to get even. 24 Ancient
a location he could run around in the specified time. This, of
course, evidences not only the city, itself, but the war, the combat, and the heroes.
20 Common sense tells us that one believing in gods or goddesses,
who fears what they might do if offended, makes a special effort to record, as accurately as possible, strange occurrences he
does not understand – lest he incite by future conduct further
demonstrations of wrath. Cf. e.g., I Kings 18:25-40 (Elijah's
rod apparently was sheathed with copper; he grounded his offering with salt water and jammed the rod into it).
21 Ex. 2:1-10.
22 Acts 7:22.
23 Josephus recounts (Antiquities of the Jews, William Whiston
trans., bk ii, chap. 10) how Moses led the Egyptian army
against the “Ethiopians,” who had invaded the country from
the south as far as Memphis. The account is not in modern
Bibles; Josephus apparently had access to the Nehemiah copy
of the Old Testament (now lost) which his personal friend,
Titus, took when he sacked the temple in 70 A.D.
24 Moses (in addition to all else) apparently was a first-class con
man; many miracles supposedly wrought by him are more
consistent with phenomena occasioned by volcanic eruption:
Ash falls upstream could have made the Nile “the colour of
blood” (Josephus, Antiquities, bk. ii, chap. 14 [emph.add.]) and
so alkaline that humans could not drink it or amphibians live

9

Egyptians undoubtedly had incest taboos (every
society on earth does), and because they would not
have been able to distinguish bacteriological from
genetic maladies, it would have been normal for Moses
to lump all the forbidden practices together – which is
what the Bible does. That does not foreclose the

in it. The dying frogs, driven from an aquatic environment,
then would have attracted flies and lice; additional alkaline
ash falls would have caused the plague of boils, blotches, and
blains (contact dermatitis). It is not clear what “fire mingled
with the hail” means – it could be lightning, cf. Psalms 105:32,
except that the Bible uses a distinctive word for lightning.
But, if the correct account is that used by Handel in his
oratorio [Georg Friedrich Handel, Israel in Egypt (New York:
Schirmer, 1900) at 31-32] – “fire, mingled with the hail, ran
along upon the ground” – what the Bible describes is a sodium
fire [and the only possible source for metallic sodium on the
surface of the earth is a volcano – sodium reacts violently with
liquid water, literally sets it afire, and must originate subsurface where magma sufficiently hot can shatter the molecular
bonds of the salts – see Raymond E. Kirk & Donald F. Othmer,
Encyclopedia of Chemical Technology, 15 vols. + suppl. (New
York: Interscience, 1952, 1947) at i:435, 437, 438]. The “thick
darkness” which “might be felt” was experienced in modern
times by many in the path of Mount St. Helens' plume, and
certainly one way to avoid breathing potentially deadly dust
under such conditions would be to go inside quickly (where it
undoubtedly was hot – ancient Jews had no air conditioning
either), close all the doors and windows, and (for good
measure) spread some granny's tonic over the entrance. Were
a volcanic eruption to trigger a tsunami, that would not divide
the sea the way the Bible describes, but it would make the sea
recede (allowing passage over dry ground), then rush in again
to destroy anyone still in its path. (The Friend knows this
personally – his cousin was in Phuket, Christmas 2004.) At
today's historical distance, we cannot know for certain, but the
best evidence is that Exodus describes the first observation of
a volcano in recorded human history (and it was a whopper).

10

inquiry (the Friend had ham last week),25 but it does
counsel legislative, rather than judicial, resolution.
C.

States' Police Power and Standards of Review.

Whether Biblically inspired or otherwise, promoting
personal and public health, and guarding public
welfare, are part of the police powers of the States
reserved to them by the Tenth Amendment. 26 Furthermore, in promoting personal and public health, and in
guarding public welfare, State legislatures, like ConWhich volcano was it? There are a couple candidates: Sometime between 1620 B.C. and 1450 B.C., the island of Calliste
[Thera, Thira, Santorin Island] blew up, Krakatoa style (and
that definitely caused tsunamis on Crete). Encyclopædia Britannica (15th ed., 1998) at 11:697; Higgins, Minoan and Mycenaean Art, supra at 74 (“In addition, much of East Crete was
apparently rendered temporarily uninhabitable by a fall of
poisonous ash”). This places Moses at the time of the “Moses”
kings (Kamose, Ahmose, Tutmose I, II, III, & IV) – earlier in
history than previously assumed (but not inconsistent with
Biblical time lines). Cf. e.g., Acts 7:17-47, 13:16-22 (c. 400
years of Egyptian bondage and 450 years between the Exodus
and Solomon's building of the temple in 1052). There also are
active volcanoes on the western edge of Saudi Arabia (but, to
date, the Saudi government has not let anyone explore them).
25 And fears not that he'll land in Hell: Nicketta v. National Tea
Co., 338 Ill.App. 159, 87 N.E.2d 30 (1949).
26 Sosna v. Iowa, 419 U.S. 393, 404 (1975); Maynard v. Hill, 125
U.S. 190, 205 (1888); accord: California v. LaRue, 409 U.S. 109,
114 (1972). U.S. Const., Amend. X reads: “The powers not delegated to the United States by the Constitution or prohibited
by it to the States, are reserved to the States respectively, or to
the people.”

11

gress, enjoy a choice of means, even when the expression of that choice results in some inequality. 27 As
Chief Justice Earl Warren once put it:
[T]he Fourteenth Amendment permits
the States a wide scope of discretion in
enacting laws which affect some groups
of citizens differently than others. The
constitutional safeguard is offended only
if the classification rests on grounds
wholly irrelevant to the achievement of
the State's objective. State legislatures
are presumed to have acted within their
constitutional power despite the fact
that, in practice, their laws result in
some inequality.28 A statutory discrimination will not be set aside if any state of
facts reasonably may be conceived to justify it.29
27 Plyler v. Doe, 457 U.S. 202, 216 (1982).
28 U.S.Const., Art. VI, ¶ 3 states: “The senators and representatives before mentioned, and the members of the several State
legislatures, and all executive and judicial officers, both of the
United States and of the several States, shall be bound by oath
or affirmation to support this Constitution; but no religious
test shall ever be required as a qualification to any office or
public trust under the United States.” [emph.add.]. The Court
long has recognized that no oath by any officer or agent can be
higher than another's, Rostker v. Goldberg, 453 U.S. 57, 64
(1981); Field v. Clark, 143 U.S. 649, 672-673, 676-677 (1892) –
origin of the doctrine that a law comes to the Court bearing
the presumption of constitutionality. Cleburne v. Cleburne
Living Center, 473 U.S. 432, 439-440 (1985).
29 McGowan v. Maryland, 366 U.S. 420, 425-426 (1961); also
Romer v. Evans, 517 U.S. 620, 631-632 (1996), citing William-

12

The Court has employed several, more stringent
standards than “rational basis” for review of selected
claims;30 but, as we shall see, our conclusions here remain unaffected regardless of the standard used.31
D.

Legal Incompetence of Same-Sex “Marriage.”

Marriage has been called a basic civil right of man 32 at
least somewhat within the orbit of protection afforded
by the Fourteenth Amendment.33 However, whatever
son v. Lee Optical Co., 348 U.S. 483 (1955), and Kotch v. Board
of River Port Pilot Commissioners, Port of New Orleans , 330
U.S. 552 (1947); Cleburne v. Cleburne Living Center, supra,
473 U.S. at 441-442, quoting Massachusetts Ret. Bd. v.
Murgia, 427 U.S. 307, 313 (1976).
30 See, e.g., Zablocki v. Redhail, 434 U.S. 374, 383 (1978). However, there is no fundamental right to commit sodomy.
Lawrence v. Texas, supra, 539 U.S. at 586 (Scalia, J.,
w/Rehnquist, C.J., & Thomas, J., dissenting); Rose v. Locke,
423 U.S. 48, 50n.3 (1975); accord State v. Crawford, 478
S.W.2d 314 (S.Ct.Mo., 1972), app.dism.sub nom. Crawford v.
Missouri, 409 U.S. 811 [see Hicks v. Miranda, 422 U.S. 332,
343-345 (1975)]. Boutilier v. INS, supra, denounced by none
other than Justice Scalia for its rummaging, Antonin Scalia &
Brian A. Garner, Reading Law: The Interpretation of Legal
Texts (St. Paul, Minn.: Thomson/ West, 2012) at 389-390, at
minimum evidences his contention in Lawrence that the lowest standard of review applies here. See further note 33, infra.
31 “There is only one Equal Protection Clause.” Craig v. Boren,
429 U.S. 190, 211 (1976)(Stevens, J., concurring).
32 Loving v. Virginia, 388 U.S. 1, 12 (1967).
33 Lawrence v. Texas, supra, 539 U.S. at 577-578, quoting
Bowers v. Hardwick, 478 U.S. 186, 216 (1986)(Stewart, J., dis-

13

the status of marriage generally, no one seriously
suggests that States, in the exercise of the police
power, cannot regulate the form of marriage allowed
within their jurisdictions, insofar as said regulation
promotes civilization, health, and public welfare.34

senting).
34 Zablocki v. Redhail, supra, 434 U.S. at 392 (1978)(Stewart, J.,
concurring in the judgment); Simms v. Simms, 175 U.S. 162,
167 (1899); Pennoyer v. Neff, 95 U.S. 714, 734-735 (1878); also
Haddock v. Haddock, 201 U.S. 562 (1906). As the majority
opinion below points out, DeBoer v. Snyder, supra, slip op. at
16-17 [pp. 22-23], petitioners here have no answer to this – all
of the arguments they advance in favor of abolishing marriage
and imposing some other form of contract more to their liking
can be marshaled to support Muslim forms of marriage, Hindu
forms of marriage, voodoo forms of marriage, incestuous
marriage, pedophilic marriage, or (as here) a claim of
“marriage” that is little more than a share-the-rent
agreement. For, as Prof. Clark points out, “These people
[Polygamists] continue to be firmly convinced of the rightness
of their beliefs.” Clark, The Law of Domestic Relations in the
United States, supra at 67.
The Friend has in his possession a photographic copy of a Declaration of Intention to become a citizen of the United States,
# 1442 filed in the United States District Court at Trenton,
New Jersey, on 15 January 1936 by none other than Albert
Einstein, to which is affixed what clearly is his photograph.
His declaration states under oath:
“I am not an anarchist; I am not a polygamist nor
a believer in the practice of polygamy ; and it is
my intention in good faith to become a citizen of
the United States of America and to reside permanently therein; and I certify that the photograph affixed to the duplicate and triplicate here-

14

That includes the definition, itself.35
Marriage in the United States is a contract between a
man and a woman in which the rights and obligations
of the parties are sex-specific.36 Although the dissent
below declares (on no authority) that “[t]here is not
now and never has been a universally accepted definition of marriage,”37 one need go no further than Britannica to learn that marriage is “a legally and socially sanctioned union between one or more husbands
of is a likeness of me: So help me God.”
Paul Parsons, 3-Minute Einstein (Lewes, East Sussex, England: Ivy Press/Metro Books/Sterling, 2011) at 51; accord
Davis v. Beason, 133 U.S. 333 (1890). It would be an absolute
knee-slapper to assert that the United States somehow
violated Einstein's rights by requiring him to swear against
anarchy and polygamy as the two conditions precedent for
giving him and “Jewish physics” sanctuary from Adolf Hitler
and Nazi Germany!
35 A key support for the majority position in Zablocki was the fact
that Redhail's right to procreate could not be exercised outside
“the only relationship in which the State of Wisconsin allows
sexual relations legally to take place.” 434 U.S. at 386.
Petitioners' argument cannot be bootstrapped from Loving or
Zablocki by arguing now that States don't have such power.
36 Black's Law Dictionary (5th ed., 1979) at 876. “Even a quick
glance at the laws of Maryland indicate that this State has
long regarded marriage as a union between a man and a woman....[T]he laws of our State historically, and continue to, employ sex-specific language that reflects Maryland's adherence
to the traditional understanding of marriage as between a
man and a woman.” Conaway v. Deane, 401 Md. 219, 932
A.2d 571, 627 (Md.App., 2007)[emph.add.].
37 DeBoer v. Snyder, supra, slip op. at 15 [p. 57].

15

and one or more wives that accords status to their offspring and is regulated by laws, rules, customs, beliefs, and attitudes that prescribe the rights and duties of the partners.”38 The definition does not include
same-sex partners precisely because of the contractual
infirmities such a couple brings to the table.39
In a same-sex “marriage,” who gets dower, who
curtesy?40 Who has the obligation of domicile, who the
obligation of support?41
If both partners jointly
38 Encyclopaedia Britannica (15th ed., 1998), supra at 7:871.
39 Singer v. Hara, 11 Wash.App. 247, 254n.7, 522 P.2d 1187
(1974), reh.den., rev.den. 84 Wash.2d 1008. California's statute, as it existed in 1977, said: “Marriage is a personal relation arising out of a civil contract between a man and a woman
to which the consent of the parties capable of making that
contract is necessary.”
West's Ann.Cal.Civ.Code § 4100
[emph.add.]. Petitioner DeBoer's contention – that “[n]either
the rights and responsibilities of the partners in a marriage,
nor the furtherance of any legitimate purposes of marriage, is
dependent on the gender of the partners” (Petitioners' brief at
64) – is false both in biology and law. See note 36, supra, and
note 41, infra.
40 The dissent below does contain a useful historical account of
what once was English law, much since abandoned. It also
contains ample evidence of Judge Daughtrey's personal biases
in this matter. But, Florida long ago amended its constitution
to void much of what once was called coverture, retaining as a
matter of constitutional law only dower and curtesy, which it
left to the legislature to determine. Fla.Const., Article X, § 5.
41 E.g., Labine v. Vincent, 401 U.S. 532, 536 n.8 (1971). We
have, with the instant matter, finally reached the bankruptcy
of “feminazi” equality jurisprudence that apparently
commenced with Orr v. Orr, 440 U.S. 268 (1979), on rem. 374
So.2d 895 (Ala.Civ.App.), writ den. 374 So.2d 898 (Ala., 1979).
The institution of Christian marriage (viz., the Christian form

16

commit a minor offense, which enjoys the defense of
coercion?42 Both? Neither? The first hauled before
the judge? The first to think of it? Or, maybe one
jumps up and down before the justice of the peace
while waving his hand in the air and shouting, “I get
to be the mommy!”

of marriage) never was designed to make men and women
“equal.” Rather, it was designed to facilitate division of labor
in family relationships by shifting burdens and survival risks,
to that member of the partnership best equipped by three billion years of evolution to handle them, see e.g., Rostker v.
Goldberg, supra, 453 U.S. at 67 – all to improve chances of
rearing young successfully and insuring continuation of the
species. Encyclopædia Britannica (15th ed., 1998) at 7:871
There was a reason why “women and children first” was the
rule on the Titanic; and, few women are equal even today in
earning power to a man – even in the absence of discrimination, a woman's maternal character will pull her off the seniority ladder, deprive her both of business experience and opportunities for advancement, and inevitably steer her toward becoming a junior partner in the generation of family income.
Accord: Schlessinger v. Ballard, 419 U.S. 498, 508 (1975). The
current ideology, of course, is to declare each partner “equal”
but only to extent of ability – shorthand acknowledgment that
most wives are not “equal” at all as breadwinners and, in the
extreme, making the traditional “occupation” of housewife “illegal” for want of financial contributions.
The correct rule is that a woman of property contributes to her
support because she wants to; a man supports his wife because
he must – it's what he agreed to do as part of the marriage
contract. Poole v. People, 24 Colo. 510, 52 P. 1025 (1898);
Pezas v. Pezas, 151 Conn. 611, 201 A.2d 192 (1964); Churchward v. Churchward, 132 Conn. 72, 42 A.2d 659 (1945); Ewell
v. State, 207 Md. 288, 114 A.2d 66 (1955); Ott v. Hentall, 70
N.H. 231, 47 A. 80 (1900); Bonanno v. Bonanno, 4 N.J. 268,
273-275, 72 A.2d 318 (1950); Manufacturer's Trust Co. v. Gray,
278 N.Y. 380, 16 N.E.2d 373 (1938); Grishaver v. Grishaver,

17

This is not marriage; this is pretense of marriage, and
what petitioners really are presenting to this Court is
a demand that it abolish current marriage contracts
and substitute for them some other form of contract,
more to Petitioners' liking, which homosexuals (but no
one else) then will call “marriage.”
This is something courts simply cannot (and should
not) do.43
225 N.Y.S.2d 924 (1961); Commonwealth ex rel. Fedor v. Fedor,
157 Pa.Super. 305, 43 A.2d 363 (1945); Heflin v. Heflin, 177 Va.
385, 14 S.E.2d 317 (1941); andUlrich v. State, 5 Terry (44 Del.)
400, 59 A.2d 460 (1948), are typical of this older line of
thought. Accord Orr v. Orr, supra, 440 U.S. at 290 (Rehnquist,
J., dissenting).
42 The defense of coercion, seen less today but still recognized in
some jurisdictions, is an important protection for wives who do
have small children, and the social cost attendant to loss of the
defense cannot be overemphasized. A wife deprived of her
breadwinner will suffer anyway, and if both parents are in jail
for, e.g., signing a dangerous tax return, who then will care for
the children?
The defense of coercion serves other social values as well. A
man who opposes some officious action for principled reasons,
should not be subject to blackmail from a zealous prosecutor so
interested in advancing his career that he fogs the propriety of
gaining victory by legally required proof with his ability
merely to threaten the wife.
43 In Labine v. Vincent, supra, the Court stated in no uncertain
terms:
[T]he power to make rules to establish, protect,
and strengthen family life as well as to regulate
the disposition of property left [within a State] by
a man dying there is committed by the
Constitution of the United States and the people

18

Same-sex partners cannot marry because they cannot
execute requirements of a marriage contract, not because they are targets of “discrimination” or denial of
“equal protection.”44
For that reason, “marriage”
licenses issued to them are nullities (regardless of how
procured),45 and neither due process nor equal
protection as required by the Fourteenth Amendment
have any application here.46 Petitioners no more can
procure a marriage license by claiming they are

of [the State] to the legislature of that State.
Absent a specific constitutional guarantee, it is
for the legislature, not the life-tenured judges of
this Court, to select from among possible laws....
[Footnote omitted.] [T]here is nothing in the
vague generalities of the Equal Protection and
Due Process Clauses which empowers this Court
to nullify the deliberate choices of the elected
representatives of the people of Louisiana.

Id. at 538-539, 539-540; cf. also United States v. Yazell, 382
U.S. 341, 352-353 (1966). Article I vests all legislative power
in Congress, not unelected courts, U.S. Const., Art. I, § 1; the
Friend knows of no State where judges are vested with
anything more than the power of advisory revision, e .g.,
Fla.Const., Art. IV, § 1(c).) (power to advise governor re
dimensions of his constitutional duty).
44 Jones v. Hallahan, 501 S.W.2d 588 (Ky.App., 1973).
45 Id. at 589; accord McConnell v. Nooner, 547 F.2d 54 (8th Cir.,
1976); see Federal Land Bank of Wichita v. Bd. of County
Commissioners, 368 U.S. 146, 154n.23 (1961), quoting
Gibbons v. Ogden, 9 Wheat. 1, 213, 214 (1824).
46 Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185, (1971) en
banc, app.dism. 409 U.S. 810 (1972)(see Hicks v. Miranda,
supra, loc. cit.).

19

“married”47 than they can obtain a gambling license by
claiming they are “Indians.”48
E.

The Absence of Similarity.

Does this merely beg the question? Asked another
way: Are intimate relations expressed via sodomy
“similar” to healthy sex? The evidence does not support such a claim. What the medical text says is:
There are 3 groups of retroviruses that
affect humans, and all have a remarkable affinity for lymphocytes, particularly for T4 lymphocytes. HIV preferentially infects the major subset of T cells,
which are then depleted...
Following infection with HIV, a wide
variety of qualitative defects and functional abnormalities of T cells, B cells,
natural killer cells, and monocytes/macrophages may be seen; ie, all limbs of the
immune system are affected. Despite the
fact that cells other than T4 can be affected and regardless of whether the abnormalities seen are of cellular or
humoral immunity, the complete spectrum of immunologic dysfunction in
AIDS can be explained by loss of function
47 Baker v. Nelson, supra, construing Loving v. Virginia, supra.
48 California v. Cabazon Band of Mission Indians, 480 U.S. 202,
219-220 (1987); United States v. Sandoval, 231 U.S. 28, 46
(1914); Alberty v. United States, 162 U.S. 499 (1896).

20

of the critically important T4 helper
lymphocytes....
HIV is not transmitted by casual contact
or even the close, nonsexual contact that
normally occurs at work, in school, or at
home. Transmission to another person
must require transmission of body substances containing infected cells; eg,
blood or plasma and plasma-containing
fluids (such as saliva). Uniquely, HIV
can be expected to be present in any fluid
or exudate that contains lymphocytes; eg,
it has been found in semen, tears, and
vaginal secretions.
However, transmission by tears, saliva, fomites, or air
has not been reported.
Infected cells can reach target cells in a
new host directly (blood transfusion, injection) or after mucous membrane exposure; ie, by close, direct contact that
breeches normal body barriers. For example, chimpanzees have been infected
via vaginal exposure without trauma or
coexisting infection. Presumably, such
mucous membrane transmission would
be even easier in the presence of inflamed or traumatized tissues; eg, anorectal lesions, which are highly prevalent in homosexual men. Among humans, heterosexual transmission from
men to women has been well documented. Transmission from women to
men appears to be more difficult, but
21

such instances are being increasingly reported. While transmission by accidental
needle stick has occurred, transmission
of HIV by this means is much more difficult and much less frequent than is hepatitis B....
In the USA and Europe, statistical data
on persons with AIDS are remarkably
similar. Using data up to the beginning
of 1986 from the USA, 90% of patients
were 20 to 49 years old, 93% were men,
and 94% could be placed in groups that
suggest a possible means of the disease
acquisition:
homosexual or bisexual
men, 73% (8% were also IV drug users);
heterosexual IV drug users, 17%; persons
with hemophilia, 1%; heterosexual sex
partners of persons with AIDS or at risk
of AIDS (eg, spouses of persons with
AIDS, prostitutes), 1%; and recipients of
transfused blood or blood components,
2%. Of the 6% unassigned to a high-risk
group, many could not be fully investigated.49
The proportions of these risk groups
have remained remarkably stable. How49 As in: They're dead. The Friend here stresses that anyone
can get AIDS (that's the point). It is easier to transmit the disease across damaged mucous membranes, which means it
will spread faster among those whose activities damage
mucous membranes.
Re the factor of promiscuous transmission, see infra, note 52.

22

ever, this stability may well change in
the future. For example, while heterosexual spread of AIDS has been much
less rapid than the spread among homosexual men, many experts predict that
an increase in heterosexual transmission
seems inevitable....For example, the lag
between infection with HIV and the appearance of AIDS distorts data....
Among people with hemophilia, AIDS
has now surpassed hemorrhage as the
leading cause of mortality. The risk of
seroposivity with HIV has correlated
with transfusion requirements for Factor
VIII concentrates and the source of
plasma products. The use of commercial
plasma products in the USA resulted in a
very high rate of seroposivity, while in
Europe, where the bulk of clotting factor
material was locally produced from
donors in an area where risk of AIDS
was low, prevalence of seroposivity was
low. Fortunately, HIV can be inactivated
by heating; commercial products now are
heat-treated, which should substantially
reduce the risk of infection.50

50 Merck Manual, supra at 288-290 [all emph.add.; N.B.: Data is
from early 1980s]. The Friend is no doctor and knows not if
currently infected individuals could be cured by heating their
blood, viz., in a heart-lung machine – maybe someone ought to
try it. Inducing high fevers, however, apparently is insufficient.

23

Which is a very long-winded way to say: Don't engage
in anal intercourse, and don't sleep with a monkey!51
The Friend cannot over-emphasize how America
dodged a real bullet in its encounter with the AIDS
virus – it is a constitution we are expounding here,
and there is no guarantee that the next virus of
similar ilk will be treatable with mild heat or will not
be transmissible by arthropod. 52 Intimate homosexual
relations simply are not similar to those of a real
marriage; regardless of the standard of review this
Court prefers, the power of the legislature to define –
and limit – the form of marriage allowable within its
jurisdiction passes the test. Indeed, to deny legislators
critical tools in combating the spread of incurable,
fatal diseases, all to satisfy amorphous desires for
“equality” or absolution on the part of an organized,
militant pressure group, is to make of the Constitution
a suicide pact.53

51 Score another one for Moses (who well may have possessed
what then passed for knowledge of this very virus – there are
monkeys, the suspected original source for the infection, naturally in Egypt and often kept for pets).
52 This disposes of the argument that AIDS primarily is
byproduct of promiscuous sex (see note 49, supra). A virus restricted to transmission via “married” anorectal lesions clearly
becomes even more dangerous than AIDS if it also can be vectored via mosquito. Anyone living in Florida should be quite
wide-eyed over that.
53 Cf. Terminiello v. Chicago, 337 U.S. 1, 37 (1949)(Jackson, J.,
dissenting). The issue before the Court is constitutional
limitations: “Our concern here, as often, is with power, not
with wisdom.” U.S. Railroad Ret. Bd. v. Fritz, 449 U.S. 166,
175-176 (1980); see Miller v. Schoene, 276 U.S. 272 (1928).

24

F.

The Fourteenth Amendment: Due Process and
Equal Protection.

Are we hunting a tsetse fly with a musketoon? That is
a legitimate legal consideration – after all, if anal intercourse be the proper target for suppression rather
than homosexuality per se, laws which target homosexuals generally may deny due process54 and, if they
leave the larger population untouched, could deny
equal protection as well.55 The Court judicially knows
that Petitioners – female registered nurses – are not
likely to engage in known, dangerous conduct, either
in private or before their wards.56 However, what it
54 Stanley v. Illinois, 405 U.S. 645, 649 (1972); Cleveland Board
of Education v. LaFleur, 414 U.S. 632, 644 (1974); see Schware
v. Board of Bar Examiners , 353 U.S. 232, 249 (1957)
(Frankfurter, J., w/Clark & Harlan, JJ, concurring);
55 A tax on yarmulkes (rather than hats) clearly targets only
Jews. Bray v. Alexandria Women's Health Center, 506 U.S.
263, 270 (1993). But compare Yick Wo v. Hopkins, 118 U.S.
356, 374 (1886)(“...complied with every requisite...”). The
correct ground for deciding Lawrence v. Texas, supra, was that
the law proscribed sodomy only when committed by
homosexual men. Compare Bowers v. Hardwick, supra; accord
Wainwright v. Stone, 414 U.S. 21 (1973); and see Romer v.
Evans, supra, 517 U.S. at 632, 634-636.
56 Compare Romer v. Evans, supra, 517 U.S. at 641 (Scalia, J.,
dissenting), citing Equality Foundation of Greater Cincinnati,
Inc., v. Cincinnati, 54 F.3d 261, 267 (6th Cir., 1995). It also judicially knows that not all homosexuals are registered nurses
or paradigms of virtue. The Court needs to beware conspiratorial efforts by lawyers to slip into the building an escalating
cavalcade of gremlins until someone too late finally notices
we've been inundated by a Little Shop of Horrors. Accord:
Keystone Bituminous Coal Ass'n. v. DeBenedictus , 480 U.S.
470, 503-506 (1987)(quoting Stewart, J.)

25

also knows is that they are raising boys – and girls
who probably will raise boys. For that reason, there
are additional, interrelated reasons for States to prohibit same-sex “marriage.”
The most threatening aspect of homosexuality is its potential to become a viable alternative to heterosexual intimacy.
This argument is premised upon the belief that the practice of an alternative
mode of sexual relations will inimically
[sic – inevitably?] affect the dominant
mode. Thus, any recognition of a constitutional right to practice homosexuality
would undermine the value of heterosexuality and the institutions and practices – conventional marriage and child
rearing – associated with it.
The state concern, in our view, should
not be minimized. The nuclear, heterosexual family is charged with several of
society's most essential functions. It has
served as an important means of educating the young; it has often provided economic support and psychological comfort
to family members; and it has operated
as the unit upon which basic governmental policies in such matters as taxation, conscription, and inheritance have
been based. Family life has been a central unifying experience throughout
American society.
Preserving the

26

strength of this basic, organic unit is a
central and legitimate end of the police
power. The state ought to be concerned
that if allegiance to traditional family arrangements declines, society as a whole
may well suffer.
Disapproving sexual conduct that might
threaten traditional family life is arguably a means related to this end....In
seeking to regulate homosexuality, the
state takes as a basic premise that social
and legal attitudes play an important
and interdependent role in the individual's formation of his or her sexual
destiny. A shift on the part of the law
from opposition to neutrality arguably
makes homosexuality appear a more acceptable lifestyle, particularly to younger
persons whose sexual preferences are as
yet unformed. Young people form their
sexual identity partly on the basis of
models they see in society. If homosexual
behavior is legalized, and thus partly legitimized, an adolescent may question
whether he or she should “choose” heterosexuality. At the time their sexual
feelings begin to develop, many young
people have more interests in common
with members of their own sex; sexual
attraction rather than genuine interest
often draws adolescents to members of
the opposite sex. If society accorded
more legitimacy to expressions of homosexual attraction, attraction to the oppo27

site sex might be postponed or diverted
for some time, perhaps until after the
establishment of sexual patterns that
would hamper development of traditional
heterosexual family relationships.57
If the medical evidence here reported be accurate, if
one third of adolescent boys entertain homosexual attractions initially, if there truly be a continuum of
states rather than sharp categories of “queer” and “unqueer,” if for health or welfare reasons it be advantageous to move people in the direction of male-female relationships, then legislators and voters are obliged to
evaluate all potential problems arising from “neutralization” of a State's homosexual policy. 58 Whether to
define “marriage” so expansively that the definition
embraces same-sex couplings is part of such an evaluation, and the Fourteenth Amendment is not affronted
by an adverse determination.59
57 J. Harvie Wilkinson, III, & G. Edward White, “Constitutional
Protection for Personal Lifestyles,” 62 Cornell L.Rev. 563, 595596 (1977).
58 Turner v. Safley, 482 U.S. 78, 90 (1987)(holding “ripple effects”
to be a proper consideration in rule-making).
59 Maher v. Roe, 432 U.S. 464, 478-480 (1977); see Lehr v.
Robertson, 463 U.S. 248, 257-258 (1983)(Education of a child is
both a “liberty” and a “high duty” to “prepare [the child] for
additional obligations”).
It should be emphasized that
Petitioners are not being blocked from executing valid
marriage contracts nor, for that matter, being prevented from
marrying another “homosexual” (see the problem of definition,
supra at note 1). With so many boys wanting to be girls and
girls wanting to be boys, wouldn't it be so much easier for
Petitioners' counsel simply to make the necessary introductions? (In ethology, this is called a “reversal” – what is, in

28

G.

Conclusion: The Fraud of Same-Sex “Marriage.”

In contrast to the above, the dissent below (and the
opinion of the district court) makes great waves over
how the “experts” for the State of Michigan, in their
hearts, all were a bunch of Bible-thumping fools; 60 and,
it lauds the “experts” for Petitioners as erudite
professors and enlightened Ph.Ds.61 But, the one thing
missing from Judge Daughtrey's foray into advocacy is
her failure to acknowledge the three prongs of the Boy
Scout, not two.62 The State has a significant interest
fact, normal behavior among “unequal” partners like the
latrodectan spiders.)
It is true that Petitioner DeBoer
wouldn't be allowed to “marry” her paramour under such an
arrangement. The Friend's ready answer to that is: She cannot “marry” her sister either.
60 cf. Fed.R.Evid. Rule 610.
61 DeBoer v. Snyder, supra, slip op. at 5-9 [pp. 47-51]; see also Petitioners' brief on the merits before this Court at 10-15.
62 A Boy Scout is physically strong, mentally alert, and morally
straight. See William Hillcourt, Official Boy Scout Handbook
(9th ed., 1979) at 497-526; William Hillcourt , Boy Scout Handbook (6th ed., 1959) at 412-436 [emph.add.]. The experience of
the Handbook now is more than 100 years old (so much for
snapshot studies).
It goes without saying that testimony from a professor of history or economics (for all we know, they are communists) adds
little to an evaluation of whether homosexual guardians will
encourage dangerous behaviors in their wards; and, testimony
from a professor of psychology about “social adjustment” offers
little more. As for the “grim picture” of the “plight” of the poor
orphans, dissent at 6 [p. 48], how much more grim would their
plight be were they to be forced into a household teaching unsafe-sex practices that ultimately got them or their children

29

in arresting this fanatical, almost religious movement
that teaches all children it can reach: “Homosexual
behavior is mere appendix to an 'alternative lifestyle,'
a natural condition genetic in origin, harmless in all
its applications, misunderstood by society, and simply
the victim of bigots and 'homophobes' supported by no
more than Bible-thumping mysticism.”63
This brief alone proves all these contentions false.64
infected with an incurable, fatal disease? Cf. Padgett v. Dept.
of Health & Rehab. Serv., 577 So.2d 565, 570 (Fla., 1991).
63 DeSanto v. Barnsley, 328 Pa.Sup.Ct. 181, 187, 476 A.2d 952
(1984); see further Romer v. Evans, supra, 517 U.S. at 645-646
(Scalia, J., w/Rehnquist, C.J., and Thomas, J., dissenting).
64 The Friend really has not covered the etiology of homosexuality much in this brief other than to mention specifically its occasional root in structure, infra at 41 and note 84, and its far
more common root in experience, supra at 2. Obviously, homosexuality can have no real genetic consequences (for the
reasons mentioned by Haldane, supra at 7), and in any event,
the fixed-action patterns posited by such early ethologists as
Nobel laureate Konrad Lorenz [Evolution and Modification of
Behavior (Chicago: Univ. of Chicago Press, 1965)] simply have
no significant application to mammals. As explained by Sherwood Washburn and David Hamburg:
[F]rom an evolutionary point of view selection is
for successful behavior. Structure, physiology, social life, all these are the result of selection, and
the structure-physiology-behavior of populations
of primates are adapted to each other and to a
way of life. Parts of this complex are almost entirely the result of heredity with a minimum dependence on environment, whereas others are
heavily influenced by learning. It is advantageous for behavior to be adaptable, to adjust to a
wide variety of circumstances. What is inherited

30

“'[T]he equal protection of the laws required by the
Fourteenth Amendment does not prevent the states
from resorting to classification for the purposes of legislation” provided that the classification “be reasonable, not arbitrary, and...rest upon some ground of
difference having a fair and substantial relation to the
object of the legislation, so that all persons similarly
circumstanced shall be treated alike.” 65 But, these petitioners cannot even establish themselves as similarly
situated, or that they can be, let alone that they are
being treated “unequally” or even unfairly – possession
of a license to operate a passenger car well might be

is ease of learning, rather than fixed instinctive
patterns. The species easily, almost inevitably,
learns the essential behaviors for its survival.
Sherwood L. Washburn & David A. Hamburg, “The Study of
Primate Behavior,” in Irven DeVore, edit., Primate Behavior:
Field Studies of Monkeys and Apes (New York: Holt, Rinehart
& Winston, 1965) at 5. Homosexuality (a behavior) is not
transmitted by genes (which determine structure only), and
even were that incorrect, Lorenz, supra, there can be no such
thing as genetic transmission of philosophies or ideas.
Bonobos, indeed, are naturally bisexual, and perhaps wild humans too; but, bonobos have evolved resistance, if not immunity, to viruses like HIV. Humans have not, know they
have not, and know they need to take a variety of measures to
protect our societies from the consequences. Those who elect
to defy the law, upon profession that their morals somehow are
superior, are not being driven by their genetics. Jacobson v.
Jacobson, 314 N.W,2d 78, 81 (N.D., 1981).
65 F.S. Royster Guano Company v. Commonwealth of Virginia ,
253 U.S. 412, 415 (1920); Reed v. Reed, 404 U.S. 71, 75-76
(1971).

31

close to a right on a post road; 66 but, that would not
authorize anyone so desiring to drive thereon a
gasoline tanker;67 and, one must assume the
Government could forbid outright wide, horse-drawn
wagons when such interdicted proper and timely
arrival of the mails.
Finally, a clear, legal distinction exists between obliging toleration for improper behavior and ordering (by
the thinnest of judicial margins) overwhelming majorities of voters to acknowledge that behavior's propriety. By refusing to extend the legitimacy attendant to
true marriage to same-sex couplings, the State adopts
a relatively mild measure of disapproval narrowly
tailored to its interest in promoting public health and
far less intrusive than, e.g., denying homosexuals employment, throwing them out of the military, or sending police into their bedrooms to ferret out sin in the
night. Petitioners here are before this Court to perpetrate a fraud, and the Fourteenth Amendment to the
Constitution of the United States does not oblige any
of the several States to license a purported “marriage”
between people of the same sex.68
66 United States v. Guest, 383 U.S. 745, 757-758 (1966); Carnegie
v. Dept. of Public Safety, 60 So.2d 728 (Fla., 1952).
67 Accord: Nicchia v. New York, 254 U.S. 228, 230-231 (1920)(per
McReynolds, J.). As stated in Tigner v. Texas, 310 U.S. 141,
147 (1940), and reiterated in Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 540 (1942), “The Constitution does not
require things which are different in fact or opinion to be
treated in law as though they were the same.”
68 “Adultery, homosexuality, and the like are sexual intimacies
which the State forbids altogether, but the intimacy of husband and wife is necessarily an essential and accepted feature

32

The answer to the first of the Court's questions is: No.

II

The Fourteenth Amendment to the Constitution of the United States does not
Oblige any of the several States to Recognize a purported “Marriage” between
two People of the same Sex when said
“Marriage” was lawfully Licensed and
performed Out-of-State.

The Court seeks to determine whether States must
honor a homosexual “marriage” prohibited by the
State but obtained legally in another State. Says the
Friend also: No.
A.

Fundamentals of the Problem.

“Marriage [creates] the most important relation in
life...having more to do with the morals and
civilization of a people than any other institution”;69 its
of the institution of marriage, an institution which the State
not only must allow, but which always and in every age it has
fostered and protected. It is one thing when the State exerts
its power either to forbid extra-marital sexuality altogether, or
to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it
undertakes to regulate by means of the criminal law the details of that intimacy.” Poe v. Ullman, 367 U.S. 497, 553 (1961)
(Harlan, J., dissenting)[emph.add.]; quoted w/approval in
Griswold v. Connecticut, 381 U.S. 479, 499 (1965)(Goldberg, J.,
w/Burger, C.J., and Brennan, J., concurring).
69 Maynard v. Hill, supra, loc.cit.

33

sex-specific language may be found in state statutes
covering myriads of subjects related to family law. 70
Until very recently, its legal dimensions were confined
in the United States to a union of one man and one
woman.71
Beginning in 2003, some States changed (or had forced
upon them changes in) their marriage laws; origin of
said changes commonly was judicial construction of an
equal-rights amendment (or worse) to a State's
constitution.72 Other States have made changes to
their marriage laws based upon changes in public
sentiment assisted by such standing institutions as
community property.73
70 E.g., Conaway v. Deane, supra, loc.cit.
71 Prior to 2003, only courts in Hawai'i had opined that other
forms of marriage might be legal. See notes 72 and 77, infra.
72 The dissent below mentions nine: Massachusetts, Connecticut, Iowa, New Mexico, Colorado (state supreme court decisions); New Jersey (unappealed superior-court decision);
Oregon, Pennsylvania (unappealed federal district court decisions); and California (federal district-court decision denied
certiorari review for want of standing in the petitioners). See,
e.g., Goodridge v. Department of Public Health , 798 N.E.2d
941 (Mass., 2003). The dissent below apparently missed
Hawai'i (see infra at note 77) and fails to mention that the
justices responsible for Iowa's decision promptly were turned
out of office by an outraged electorate. Des Moines Register,
03 Nov. 2010.
73 Washington is among these States, cf. Singer v. Hara, supra,
11 Wash.App. at 253, 522 P.2d at 1189 (1974), as is California
now that a federal ruling has been obtained against its
Proposition 8 which the State's administrators refused to
appeal. Hollingsworth v. Perry, ___ U.S. ___, 133 S.Ct. 2652
(2013). Although one might expect marriage based on old

34

It's important to understand exactly what was done
here. In a column for the Justia website, Sherry F.
Colb, professor of law and Charles Evans Hughes
Scholar at Cornell University, discussed Judge
Richard Posner's refutation of arguments advanced
against allowing same-sex “marriage” by the States of
the Seventh Circuit.74 Opines Prof. Colb:
Judge Posner's opinion does an excellent
job of refuting the various arguments
that the ban's defenders presented in
their briefs and in court, including the
proposal that the purpose of marriage is
to serve as insurance for accidental
procreation and that because same-sex
couples necessarily cannot “accidentally”
procreate, they have no need for such
insurance....In the course of responding
to the defenders of SSM bans, Judge
Posner's opinion points out a flaw in the
argument that the purpose of marriage
(and, according to the government of
Indiana, its only purpose) is to serve as
accidental procreation insurance. The
flaw emerges in the observation that
Spanish custom rather than English forms to be more hostile
to homosexuality (given the influence of the Church), precisely
the opposite is the case: Community property laws in these
states make it far easier to align all other statutes with a form
of marriage contract permissive of homosexual “marriage.”
[News source]
74 Baskin v. Bogan, 766 F.3d 648 (7 th Cir., 2014), cert.den. ___
U.S. ___.

35

although Indiana and Wisconsin prohibit
incestuous marriage (in particular,
marriage by first cousins), each suspends
its respective prohibition for [sterile]
couples [who] may marry only if they
cannot procreate....The laws governing
incest thus provide a useful means of
testing the sincerity of government
rationales offered in defense of SSM
bans.75
Now, this writer has the highest opinion of Judge Posner and believes he even would be an excellent candidate one day to sit on this very Court, but there is a
curious flaw in his opinion that Prof. Colb did not
catch: Neither Judge Posner nor any other judge can
evaluate arguments never presented to him.
What does this mean in terms of this Court's second
question? Judge Posner, a very competent and honorable judge, has imposed same-sex marriage on Indiana – after Indiana's officials presented him with what
at least Prof. Colb considers to be an incompetent argument. Is homosexual marriage now to be imposed
on Florida, by homosexuals “married” in Indiana, not
just because Judge X (a political appointee) is personally biased for sodomy but because some state official
in Indiana can't tell a good judge why it's wrong?76
75 Sherry F. Colb, “Is It Arbitrary to Distinguish Incest from Homosexuality?” Verdict: Legal Analysis and Commentary from
Justia, 17 Sept. 2014 [emph.add.]; see also Petitioners' brief at
34-45.
76 The flaw revealed is all the worse for having been allowed to
feed upon itself. In physics, for every action, there is an equal

36

Many States have neither equal-rights amendments
nor community-property forms of marriage, and
among these States are States with defense-of-marriage provisions either in their statutes or their constitutions.77 As was demonstrated supra, these provisions do not offend the Fourteenth Amendment, nor
and opposite reaction; to the extent this principle extends into
the law, Bostic v. Schaefer, 760 F.3d 352 (4th Cir., 2014), cert.
den. ___ U.S. ___, without doubt is foil to Judge Posner's reason. More importantly (in terms of that discussed here), Bostic
is a classic example of a contrived decision rendered in what
only can be called a friendly suit. The original, proper opposition of the parties was replaced by a fantasy defendant after
newly elected Democrat Attorney General Mark “The Red”
Herring refused from one corner of his mouth to defend Virginia's marriage laws while, from the other corner of his
mouth, he continued to enforce them. Cf. Note 86, infra, and
cases cited; also Golden v. Zwickler, 394 U.S. 103, 110 (1969);
United States v. Fruehauf, 365 U.S. 146, 157 (1961). Hence
even Judge Nieymeyer's reasoned dissent fails to address any
issue raised by the Friend's brief here, even though these issues are heart of both the Biblical prohibition and its secular
incorporation into statute and state constitutional law.
Florida's laws thus will be judged in light of an adjoining circuit's decision itself little more than a straw-man fraud!
77 E.g., Fla.Const., Art. I, § 27. Florida actually rejected samesex marriage twice – four times if rejection of equal-rights
amendments counts – the previous time being 1998 (when it
amended Fla.Const. Art. I, § 2). That provision now reads:
All natural persons, female and male alike, are
equal before the law and have inalienable rights,
among which are the right to enjoy and defend life
and liberty, to pursue happiness, to be rewarded for
industry, and to acquire, possess, and protect property;...No person shall be deprived of any right be-

37

can they affront the Full Faith and Credit Clause.78
Requiring one State to honor purported “marriages,”
perhaps legal in another State,79 merely because the
persons “married” have elected, from personal convenience or ideological perniciousness, to change their
domicile, imposes on a State the sovereignty and
cause of race, religion, national origin, or physical
disability.
Per the advisory notes:
As initially filed, the proposal would have added
the term 'sex' to the listing of protected classes.
Questions arose as to whether that proposal could
lead Florida courts to require recognition of
same-sex marriages. An opinion of the Supreme
Court of Hawaii, Baehr v. Lewin, 852 P.2d 44
(Haw.,
1993),
had
interpreted
Hawaii's
constitutional prohibition against discrimination
'because of sex' to require strict scrutiny of
Hawaii's marriage statute limiting marriages to
heterosexual unions. On remand, the trial court
struck the statute. Baehr v. Miike, 1996 WL
694235 (Hawai'i Cir.Ct.).
To address these concerns, the following
statement of intent was placed into the Journal of
the Constitution Revision Commission:
“The intent of...[this proposal], as adopted, was to
affirm explicitly that all natural persons, female
and male alike, are equal before the law. The
proposal as adopted is not intended, and should
not be construed, to confer any right to same-sex
marriages in this state. Many in the body were
concerned that the proposal as it was originally
proposed, if adopted by the people, would have
opened the door to same-sex marriages in Flo-

38

choices of another State and (given the militancy of
the modern homosexual movement) would make its
citizens, its courts, and its treasury hostage to the
rankest form of Run-It-up-the-Flagpole-to-See-ifAnyone-Salutes-It” litigation.80 The Court should not
dismiss this contention lightly – already there is talk
on the internet of suing the Catholic Church for “disrida. That was not an acceptable result to many
members of the Commission. Consequently, the
purpose of amending the original proposal and
adopting it in its amended form was to assure
that the proposal would not be deemed in any
way to countenance same-sex marriages.”
West's F.S.A. Const., Art. I, § 2 (Advisory Notes).
78 See Sosna v. Iowa, supra, 419 U.S. at 407-409.
79 See supra at 34-36 and note 76. It goes without saying that if
Florida law cannot be bound by an election in Massachusetts,
see note 87, infra, it cannot be bound by a court decision there
which technically binds the parties only. Martin v. Wilks, 490
U.S. 755, 761-762 (1989); but cf. Hansberry v. Lee, 311 U.S. 32,
41-42 (1940); see U.S.Const., Amend. XIV, §§ 1.
80 In 2004, McConnell and Baker were back in court a third time,
in this round against the Internal Revenue Service, after
amending a tax return and claiming (again) that the
Government owed them money. McConnell v. United States of
America, Civ.# 04-2711 JNE/JGL (D.Minn., 2004). Again, the
couple stated that their action “'raises a different issue from
all prior litigation:...[W]hether...a license lawfully-issued gives
rise to a special relationship, which makes a joint filing
appropriate.” Order of Joan N. Erickson, USDJ, 03 Jan. 2005
at 6. Judge Erickson threw the suit out (again) and, in an
unpublished opinion per curiam, was upheld on appeal.
McConnell v. United States of America, # 05-1781 (8th Cir., 17
July 2006), all in 10 days.

39

crimination” for refusing to perform the ceremonies;
and, if that possibility strikes the Court's members for
being bizarre, consider that, already, a gang of these
Taliban-style thugs has sued a Colorado bakery for
refusing to bake them a cake!81
The people have a right to prevent their judicial systems from becoming vehicles for such frauds, and
States have real interests in preventing consequent
In DeSanto v. Barnsley, supra, two homosexuals staged a fake
marriage, then demanded a fake “divorce” upon contrived
claims designed for no other purpose than to impose
homosexual “marriage” by judicial decree on the entire state of
Pennsylvania. The state's supreme court wisely turned them
down.
81 Mullins et al. v. Masterpiece Cakeshop, Inc., ## 2013 CR 0008,
2013 CR 0009 (Colo.Civ.Rts.Com., 31 May 2013). At the time
of the incident, homosexual “marriage” was not legal in Colorado but was legal in Massachusetts (see note 72, supra); however, Colorado law long had made it illegal to “discriminate”
for the usual categories plus “sexual orientation.” C.R.S. § 2434-601(2). Mullins and his homosexual paramour, Charlie
Craig, dodged Colorado law by traveling to Massachusetts,
“married” in Massachusetts, then returned to Colorado and
claimed they were targets of denial-of-service discrimination;
but, it is clear from the facts they were denied a cake not because they were “queer” but because they were part of an organized conspiracy to impose homosexual “marriage” on the
State of Colorado and intended to use the cake as part of a
political propaganda campaign to perfect the conspiracy. The
baker (who opposed homosexual “marriage” for religious reasons) refused to participate on First Amendment grounds, and
Mullins and Craig then sucked in the Colorado branch of the
American Civil Liberties Union to litigate against the First
Amendment and in favor of government-compelled advocacy.
Needless to say, that took the cake.

40

rank injustices from being imposed on their businessmen or directed against their citizens or their
treasuries.82
Additional considerations are relevant to voters like
the Friend: How, for example, is Florida to handle
fraud committed in another state that allows same-sex
marriage? In Anonymous v. Anonymous,83 the court
was presented with a party who successfully had impersonated a woman, fraudulently had obtained a
“marriage” with a man, then was dumped upon discovery of the hoax. If legal and binding in one State, is
such a “marriage” valid? Void? Or simply voidable in
another? Are there damages? Who must assume
them? Is the balance in any way changed where the
“shemale,” originally a non-functioning male at birth,
was surgically altered by the parents,84 then raised as
a girl?85
82 A typical discrimination claim, litigated to the fullest (as First
Amendment claims often must be) easily can cost a business
half a million dollars in legal fees, even when it prevails – far
more than most small businesses can afford.
83 325 N.Y.S.2d 499, 67 Misc.2d 982 (1971).
84 See Merck Manual, supra at 1962-1963.
85 The complications only get more involved: The right to marry
implies the power to adopt – to drag third persons not consenting to the propriety of homosexual relationships or activities
(or incapable of evaluating the same) into them by force of law.
Indeed, the question which should be asked in the instant litigation is not whether Petitioners should be allowed to adopt
more children but whether they should be allowed to keep the
ones they have. See Jarrett v. Jarrett, 78 Ill.2d 337, 400
N.E.2d 421, 36 Ill.Dec. 1, cert.den. 449 U.S. 927 (1980).

41

Courts are not competent to handle such questions, especially on spacious claims of “equal protection” or
“due process”; legislatures need to address them, and
voters have a right to demand from them presence of
moral standards and absence of unnecessary complexity in the law.86
B.

The Republican Guarantee Clause.

The United States and its courts are required to
guarantee to each and every State a republican form of
government.87 Said James Madison of this provision:
But, ignore for the moment whether this Court could “cure”
such a problem with some expanded “anti-discrimination –
equality” ruling derived from Loving. What happens when
Gray and Rainbow “marry,” have a falling out, seek a divorce,
and fight for the children? If Rainbow be a “pure” homosexual,
per the definition explained in the beginning, supra, and if
Gray be a (far more common) bisexual, id., who has the better
claim to custody? Does Gray improve his position by taking up
with Susan, so that Gray now is “reformed?” How does any
court answer that without falling back upon some judge's own
personal opinion re what constitutes “morality?” Compare
Schuster v. Schuster, 90 Wash.2d 626, 585 P.2d 130 (1978) en
banc with Jacobson v. Jacobson, supra, then see Griswold v.
Connecticut, supra, 381 U.S. at 525-527 (1965)(Black, J.,
w/Stewart, J., dissenting).
86 See Trimble v. Gordon, 430 U.S. 762, 777-786 (1977)(Rehnquist, J., dissenting).
87 U.S.Const., Art. IV, §4. N.B.: Positive invocations of the Republican Guarantee Clause tend to generate cases not justiciable, e.g., Luther v. Borden, 7 How. 1 (1842). But negative
invocations of the Clause generate cases often justiciable, e.g.,
Coyle v. Smith, 221 U.S. 559 (1911). If Congress per the

42

In a confederacy founded on republican
principles, and composed of republican
members, the superintending government ought clearly to possess authority
to defend the system against aristocratic
or monarchical innovations. The more
intimate the nature of such a union may
be, the greater interest have the members in the political institutions of each
other; and the greater right to insist that
the forms of government under which the
compact was entered into should be substantially maintained. But a right implies a remedy; and where else could the
remedy be deposited than where it is deposited by the Constitution?...It may possibly be asked, what need there might be
of such a precaution, and whether it may
not become a pretext for alterations in
the State governments without the concurrence
of
the
States
themselves[?]...But who can say what experiments may be produced by the caprice of
Clause cannot impose restrictions upon a State's admission
which would undercut the Constitutional mandate establishing the States' equal footing, a State protected by the Clause
cannot be made subject to extra-territorial legislation by another State. Luther's holding, “that the Guaranty Clause is
not a repository of judicially manageable standards which a
court could utilize independently in order to identify a State's
lawful government,” Baker v. Carr, 369 U.S. 186, 223 (1962)
[emph.add.], does not prevent this Court from holding that
Florida's lawful government resides not in Boston. Cf. id. at
222n.48, 226n.53; also Texas v. White, 7 Wall. 700 (1869)(“...an
indestructible union of indestructible States”).

43

particular States, by the ambition of enterprising leaders, or by the intrigues
and influence of foreign powers?...
Among the advantages of a confederate
republic enumerated by Montesquieu, an
important one is, “that should a popular
insurrection happen in one of the States,
the others are able to quell it. Should
abuses creep into one part, they are reformed by those that remain sound.”88
It goes without saying that, were it possible for a mere
majority of corrupt, monarchically inclined justices in
Massachusetts to impose novel social experiments on
the entire country by the simple device of binding
private parties in Boston to a perhaps colluded judgment, the liberties of everyone would hang by a fragile
thread indeed.89
The protection envisioned by
88 James Madison, The Federalist, No. 43 (Mod.Lib.ed., 1937) at
282-283, 285 [emph.orig.].
89 Said Abraham Lincoln in his first inaugural address:
I do not forget the position, assumed by some,
that constitutional questions are to be decided by
the Supreme Court; nor do I deny that such decisions must be binding, in any case, upon the
parties to a suit, as to the object of that suit,
while they are also entitled to very high respect
and consideration in all parallel cases by all other
departments of the government....At the same
time, the candid citizen must confess that if the
policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed
by decisions of the Supreme Court, the instant
they are made, in ordinary litigation between

44

Madison actually would operate in reverse, and no
State would have ratified the Constitution had that
been a possibility. Indeed, at the Convention of 1787,
that precise objection was raised on 18 July by
Gouverneur Morris, who was “very unwilling that
such laws as exist in R[hode] Island should be
guaranteid [sic].”90
The actions of so many federal judges in the wake of
this Court's Windsor opinion are outrages.91 Defenseparties in personal actions, the people will have
ceased to be their own rulers...
Carl Sandburg, Abraham Lincoln: The War Years , 4 vols.
(New York: Harcourt, Brace & Co., 1939, 1937, 1936) at i:132.
90 2 Farrand 47. The actual provision finally was suggested by
James Wilson after Nathaniel Gorham and Daniel Carroll
urged the necessity for it. id. at 2:48-49.
91 Lower-court anticipations, in the wake of United States v.
Windsor, ___ U.S. ___, 133 S.Ct. 2675 (1913), of this Court's
eventual disposition here are particularly galling since the
Obama Administration craftily had brought to the Court via
Windsor a contrived case, Moore v. Charlotte-Mecklenburg Bd.
of Education, 402 U.S. 47 (1971), citing Muskrat v. United
States, 219 U.S. 346 (1911); see Ashwander v. T.V.A., 297 U.S.
288, 346-348 (1936)(Brandeis, J., concurring), which it then
refused to defend. Justice Kennedy, in his dissent to the
denial of certiorari in Hollingsworth v. Perry, supra, mocks
such an approach to justiciability:
A prime purpose of justiciability is to ensure vigorous advocacy, yet the Court insists upon litigation conducted by state officials whose preference
is to lose the case. The doctrine is meant to ensure that courts are responsible and constrained
in their power, but the Court's opinion today
means that a single district court can make a de-

45

of-marriage provisions have been passed repeatedly in
this country by overwhelming proportions of the
electorate; in Florida, those for were sixty-two per
cent.92 Had two-thirds of the electorate in 20 States
made driving while intoxicated an offense, would any
federal judge dared to have overturned the result per
claim the Fourteenth Amendment or Full Faith and
Credit Clause enshrined the driving rights of
cision with far-reaching effects that cannot be reviewed. And rather than honor the principle that
justiciability exists to allow disputes of public
policy to be resolved by the political process
rather than the courts [citation omitted], here the
Court refuses to allow a State's authorized representatives to defend the outcome of a democratic election.
133 S.Ct. at ___. He concludes by saying:
If a federal court must rule on a constitutional
point that either confirms or rejects the will of
the people expressed in an initiative, that is when
it is most necessary, not least necessary, to insist
on rules that ensure the most committed and vigorous adversary arguments to inform the
rulings of the courts.
Clearly, that's wanting here, though contours of the most important institution in Western civilization hang in the balance.
92 Fla. Dept. of State, Div. of Elections, 04 Nov. 2008 general election, Amend. 2 (official results). In that election, 75.2 per cent
of the people voted, with totals reaching 85 per cent in Lee and
Leon counties. The proposed amendment, now Fla.Const., Art.
I, § 27, garnered a majority in 66 of Florida's 67 counties. In
Monroe County (the only county voting against), the vote was
18,415 for, 19,995 against – this in a state with 15,000,000
people. Id.

46

alcoholics in Rhode Island? Judicial restraint, in the
imposition on States of novel forms of social organization, is more than a wise prescription for maintaining an independent judiciary within the framework of a democracy: It is a constitutional requirement.93 Furthermore, the conclusion on the part of
judicial officers, that their evaluation of the morality
of conduct commonly associated with homosexuality
somehow surpasses a determination made by overwhelming majorities of millions of people in a general
plebiscite, clearly exceeds the authority of courts and,
itself, constitutes a religious opinion.94

That violates Amendment I!95
C.

The Full Faith and Credit Clause.

The Court restricts the instant matter to construction
of the Fourteenth Amendment, but past efforts to invoke the Full Faith and Credit Clause, as alternate
authority for allowing cross-state transplantation of
same-sex marriage, oblige some consideration of it.
The Clause reads:
Full Faith and Credit shall be given in
93 U,S,Const., Art. IV, § 4; Art. IV, § 1; 28 U.S.C. § 1738c.
94 Larkin v. Grendel's Den, Inc., supra, 459 U.S. at 120n.3; see
Everson v. Bd. of Education, 330 U.S. 1, 17 (1947).
95 If thumping the Bible on its front cover be impermissible,
clearly the same can be said for shooting it in the back.

47

each State to the public Acts, Records,
and judicial Proceedings of every other
State. And the Congress may by general
Laws prescribe the Manner in which
such Acts, Records, and Proceedings shall
be proved, and the Effect thereof.96
The expressed purpose of the Clause, a carryover from
the Articles of Confederation,97 was, “The better to
secure and perpetuate mutual friendship and
intercourse among the people of the different states of
the union.”98
It goes without saying that one does not make friends
by imposing upon them royalist judicial commands
which have the effect of subjecting them to a foreign
sovereignty espousing morals grotesque to their religious predilections, nor has this Court ever interpreted the Clause to require that. 99 Indeed, not even a
local act of Congress was held to invade against penal
laws of a sister State where such construction of the
act was not essential to its force. 100 As Chief Justice
Stone once explained:

96 U.S.Const., Art. IV, § 1 [emph.add.].
97 Art. of Confed., Art. IV, ¶ 3.
98 Art. of Confed., Art. IV, ¶ 1 [emph.add.]. The Constitution,
recall, was an amendment (though a very radical one) of the
Articles.
99 Olmsted v. Olmsted, 216 U.S. 386 (1910).
100Cohens v. Virginia, 6 Wheat. 264 440-447 (1821).

48

In the case of local law, since each of the
States in the union has constitutional authority to make its own law with respect
to persons and events within its borders,
the full faith and credit clause does not
ordinarily require it to substitute for its
own law the conflicting law of another
state, even though that law is of controlling force in the courts of that state
with respect to the same persons and
events.101
Hence, two people of the same sex married in Washington do not thereby become “married” in Florida.102
But, to allay all doubt, examination of changes made
to the Clause by the Framers evidences clear intent on
their part to keep the Clause from being used
perniciously. In the Articles, the Clause reads only:
Full faith and credit shall be given in
each of these states to the records, acts
and judicial proceedings of the courts
and magistrates of every other state.103
In the Constitution, the Framers added the power of
Congress to determine “by general Laws...the Effect
thereof.”104 And, while Publius generally is silent on
101Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 436 (1943).
102Fla.Const., Art. I, §§ 2, 27.
103Art. of Confed., Art. IV, ¶ 3 [emph.add.].
1042 Farrand 447-448, 485, 488-489.

49

the Full Faith and Credit Clause, in the same paper,
Madison has this to say concerning the associated
need for uniformity in naturalization:
[W]ere an exposition of the term, “inhabitants,” to be admitted which would confine the stipulated privileges to citizens
alone, the difficulty is diminished only,
not removed. The very improper power
would still be retained by each State, of
naturalizing aliens in every other
State....An alien...legally incapacitated
for certain rights in [one] may, by previous residence only in [another], elude his
incapacity; and thus the law of one State
be preposterously rendered paramount to
the law of another, within the jurisdiction of the other....By the laws of several
States...aliens,
who
had
rendered
themselves obnoxious, were laid under
interdicts inconsistent not only with the
rights of citizenship but with the
privilege of residence. What would have
been the consequence, if such persons, by
residence or otherwise, had acquired the
character of citizens under the laws of
another State, and then asserted their
rights as such, both to residence and
citizenship, within the State proscribing
them?...The new Constitution has...made
provision against them, and all others
proceeding from the defect of the
Confederation on this head, by authori-

50

zing the general government to establish
a uniform rule of naturalization throughout the United States.105
Does the foregoing not describe the very form of claim
before this Court now? Or the remedy?
D.

The Fourteenth Amendment, § 5.

Relevant to the current inquiry, the Fourteenth
Amendment offers provision similar to that in the Full
Faith and Credit Clause:
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.106
Said amendment was ratified primarily to rectify
racial discrimination fruit of America’s long
association with Negro slavery,107 and upon essentially
Christian concepts of spiritual, rather than material
equality.108 That this legal principle did not blindly
105James Madison, The Federalist, supra, No. 42 at 277.
106U.S.Const., Amend. XIV, § 5.
107Loving v. Virginia, supra, 388 U.S. at 10.
108“It mattered not how humble in the scale of rational existence
the subject of this restraint might be, how dark his skin or
how dense his ignorance. Behind all that lay for [Charles
Sumner] the great principle that liberty is the birthright of all
humanity, and that every individual of every race who has a
soul to save is entitled to the freedom which may enable him
to work out his salvation.” From the Funeral Oration of

51

carry over to distinctions based on sex is evidenced by
the Nineteenth Amendment (which otherwise is mere
surplusage);109 but, such does not negate the Christian
foundations of monogamous marriage in the West.110
Of course, a religious prescription does not become a
legal one for being religious; however, some form of
marriage must be the law, and the plain text of the
Amendment locates the forum for policy choices
necessary to implement it unambiguously in Congress.
In the instant matter, Congress has acted – whether
per its “Effects” power under Full Faith and Credit or
under § 5 is the Court's choice – by passing the
Defense of Marriage Act!111 Since § 5 constitutes a
L.Q.C. Lamar, in Robert S. Lanier, mng.edit., The Photographic History of the Civil War, 5/10 vols. (Secaucus, N.J.: Blue
& Grey Press, 1987/1911) at v/x:296 [emph.add.].
109The Nineteenth Amendment (¶ 1) reads:
The right of citizens of the United States to vote
shall not be denied or abridged by the United
States or by any State on account of sex.
110“Jesus said to them, 'The [children] of this age marry and are
given in marriage; but those who are accounted worthy to
attain to that age and to the resurrection from the dead
neither marry nor are given in marriage, for they cannot die
any more, because they are equal to angels and are the
[children] of God, being [children] of the resurrection.'” Luke
20:34-36. Drafters of the Fourteenth Amendment opposed
polygamy because polygamy degrades the spiritual equality of
women. Compare Mark 10:6-9.
111For those not looking, United States v. Windsor, supra, did not
remove 28 U.S.C. § 1738c from the statute books, for there can
be no judgment against a statute, Shepherd v. City of
Wheeling, 30 W.Va. 479, 4 S.E. 635, 637 (1887); hence (by the

52

plenary grant of power to Congress, Congress'
determination of how best to enforce the provisions of
the Amendment binds the courts.112
E.

Reading Law: The Proper Rule of Construction.

A fundamental rule of constitutional and statutory
construction is that courts presume creation, by legislators and constitutional draftsmen alike, of uniform
bodies of law.113 No part of the Constitution of the
United States can be construed to be without effect,114
and every part of an article is to be taken into view. 115
There is nothing in the Fourteenth Amendment, Ninth
Amendment, Eighth Amendment, First Amendment,
or Full Faith and Credit Clause, either in their wording or their history, to even suggest that they
somehow amend the Tenth Amendment, the First
Amendment, Article I, Full Faith and Credit or the
Clause's expressed terms), DOMA still blocks these crossborder hegiras which Petitioners insist can move same-sex
marriage from one State to another.
112Contra: Mississippi University for Women v. Hogan, 458 U.S.
718, 731-733 (1982); however, the majority opinion in MUW is
shallow in its reasoning, Procrustean in its reach. Compare:
Id. at 738-739 & nn.5 & 6 (Powell, J., w/Rehnquist, J., dissenting).
113Prout v. Starr, 188 U.S. 537, 543 (1903); see Antonin Scalia &
Brian A. Garner, Reading Law: The Interpretation of Legal
Texts, supra at 252-255.
114Cohens v. Virginia, supra, 6 Wheat. at 400-402.
115Id. at 398.

53

Republican Guarantee clauses;116 the authors of the
Fourteenth Amendment “would be astonished to
discover that they had inadvertently enacted a pro
tanto repealer of the rest of the Constitution.”117
In the instant matter, Congress, itself, has intervened
via the Defense of Marriage Act to declare its
opposition to cross-border enforcements of some statesanctioned same-sex “marriages”; and, whether one
considers that intervention to be an exercise of its
power under the Republican Guarantee Clause, the
Full Faith and Credit Clause, or section 5 of the
Amendment, the conclusion remains the same: The
Fourteenth Amendment, or all of them together, does
not oblige any of the several States to recognize a
purported “marriage” between two people of the same
sex, even when said “marriage” was lawfully licensed
and performed out-of-state.118
116Cf. Minnesota Board for Community Colleges v. Knight , 465
U.S. 271, 285 (1984).
117California v. LaRue, supra, 409 U.S. at 134-135 (1972)(Marshall, J, dissenting).
118In light of specific provisions expressed by the Republican
Guarantee Clause and Congress' plenary power under either
the Full Faith and Credit Clause or § 5 of the Fourteenth
Amendment (as manifested in 28 U.S.C. § 1738c), Tennessee's
petitioners' invocation of an unexpressed Ninth Amendment
federal right to travel is frivolous – no one is being denied free
entry to or exit from a State's borders, c f. Crandall v. Nevada,
6 Wall. 35 (1868), or being deprived of a State's benefits in the
process, cf. Shapiro v. Thompson, 394 U.S. 618 (1969). See
further 3 Farrand 121, ¶ 2 (Chas. Pinckney); Art. of Confed.,
Art. IV, ¶ 1; U.S.Const., Art. IV, § 2; U.S.Const., Amend. IX
(rule of construction). Indeed, this is just another example of
Run-It-up-the-Flagpole-to-See-if-Anyone-Salutes-It litigation

54

Conclusion
Petitioners, on behalf of a homosexual community
which arbitrarily pronounces its own moral choices to
be revealed truth and denigrates its critics as “bigots”
or “homophobes” professing “fairy tales,” want the
Court to become a legislature and impose upon the
country a morality offensive to perhaps two-thirds of
the polity and probably destructive of the most important social institution in Western society. To cover
such chutzpah, they parrot propaganda about how
nothing they voluntarily do in any way differs from
those they say are similarly situated and “oppressing”
them; and, they intimate that no reasonable man
possibly could oppose such pretenses – unless that
man really were a fool or otherwise unfit for office.
The judiciary, they insist, including a supreme court
with six Catholics on it, therefore must abjure from all
reference to traditional values and decide the matter
by a moral compass appropriately demagnetized.
Such nihilism, we're told, guarantees rational results.
But, as “fairy tale,” we've seen the Bible to be
curiously wanting in substance, and the relevant
prohibitions therein, despite their origin 3,500 years
ago in pronouncements and “miracles” by the one, true
volcano god, to be supported even today by modern
science.119
militant homosexuals employ repeatedly in their endless efforts to relitigate the same claims – until those to be benefited
thereby get the absolution they want.
119Some Jews and Christians perhaps won't be happy with this
revelation, but the Hawai'ians will be dancing in the streets.

55

Perhaps, then, it is appropriate for the Friend to close
with a real fairy tale that has more punch:
Many years ago there was an emperor so
exceedingly fond of new clothes that he
spent all his money on being well
dressed. He cared nothing about reviewing his soldiers, going to the theatre [sic],
or going for a ride in his carriage, except
to show off his new clothes....
In the great city where he lived, life was
always gay. Every day many strangers
came to town, and among them one day
came two swindlers. They let it be
known they were weavers, and they said
they could weave the most magnificent
fabrics imaginable. Not only were their
colors and patterns uncommonly fine, but
clothes made of this cloth had a wonderful way of becoming invisible to anyone
who was unfit for his office, or who was
unusually stupid.
“Those would be just the clothes for me,”
thought the emperor. If I wore them, I
would be able to discover which men in
my empire are unfit for their posts And I
could tell the wise men from the fools....
Comes the Friend obliged then to be the little child in
the story who asks: “Why are so many judges parading around their courthouses stark naked?

56

Granted electorates can be fickle, and voters don't always get it right. But, judges no more are philosophers or theologians, and no lawyerly manipulation of
language can create a right where none existed. This
voter carefully investigated Florida's proposed constitutional revision and concluded: Marriage is and always has been a contract between a man and a woman in which the rights and obligations of the parties
are sex-specific. Within that framework, which States
have full power to impose, same-sex “marriage” is a
fraud, and if petitioners are to find any relief, it must
come from the polity or its legislature, not from panels
of unelected judges trying to impose their personal, religious views of the world onto everyone else by decree.
For the reasons given above, the answer to each of the
questions posed by the Court in the above-entitled
matter is: NO.
Respectfully submitted this 17th day of March, 2015,
per:

___________________________
Robert Brian Crim, pro se.

57

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