No. 14-278 In the Supreme Court of the United States SCOTT WALKER, ET AL., Petitioners, v. VIRGINIA WOLF, ET AL., Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit RESPONDENTS’ BRIEF IN SUPPORT OF CERTIORARI STEVEN R. SHAPIRO JAMES D. ESSEKS American Civil Liberties Un- ion Foundation 125 Broad Street New York, NY 10004 (212) 549-2500 TIMOTHY S. BISHOP HANS J. GERMANN FRANK M. DICKERSON Mayer Brown LLP 71 South Wacker Drive Chicago, IL 60606 (312) 782-0600 JOHN A. KNIGHT Counsel of Record American Civil Liberties Un- ion Foundation 180 North Michigan Chicago, IL 60601 (312) 201-9740 [email protected]GRETCHEN HELFRICH Loevy & Loevy 312 North May Street Chicago, IL 60607 (312) 243-5900 Additional counsel listed on inside cover
Transcript
No. 14-278
In the Supreme Court of the United States
SCOTT WALKER, ET AL.,
Petitioners,
v.
VIRGINIA WOLF, ET AL.,
Respondents.
On Petition for a Writ of Certiorari to the UnitedStates Court of Appeals for the Seventh Circuit
RESPONDENTS’ BRIEF INSUPPORT OF CERTIORARI
STEVEN R. SHAPIRO
JAMES D. ESSEKS
American Civil Liberties Un-ion Foundation
125 Broad StreetNew York, NY 10004(212) 549-2500
TIMOTHY S. BISHOP
HANS J. GERMANN
FRANK M. DICKERSON
Mayer Brown LLP71 South Wacker DriveChicago, IL 60606(312) 782-0600
JOHN A. KNIGHT
Counsel of RecordAmerican Civil Liberties Un-
ion Foundation180 North MichiganChicago, IL 60601(312) [email protected]
GRETCHEN HELFRICH
Loevy & Loevy312 North May StreetChicago, IL 60607(312) 243-5900
Additional counsel listed on inside cover
REBECCA M. KLEIN
LINDA X. SHI
Mayer Brown LLP71 South Wacker DriveChicago, IL 60606(312) 782-0600
LAURENCE J. DUPUIS
American Civil Liberties Un-ion of Wisconsin Founda-tion
207 E. Buffalo StreetMilwaukee, WI 53202(414) 272-4032
Counsel for Respondents Virginia Wolf, et al.
i
QUESTIONS PRESENTED
1. Whether a state violates the Equal ProtectionClause of the Fourteenth Amendment to the UnitedStates Constitution when it treats same-sex and dif-ferent-sex couples unequally with respect to mar-riage.
2. Whether a state violates the Due ProcessClause of the Fourteenth Amendment to the UnitedStates Constitution when it prohibits same-sex cou-ples from marrying and refuses to recognize same-sex couples’ lawful, out-of-state marriages.
ii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ....................................... i
TABLE OF AUTHORITIES.......................................iv
I. This Case Provides an Excellent Vehicle forCertiorari..............................................................10
A. The Factual and Legal Context of ThisCase Warrants Granting the Petition. ..........11
B. The State Has Consistently andVigorously Defended Its MarriageLaws. ...............................................................13
C. The Seventh Circuit’s Opinion MostFully Develops the Reasons Why theEqual Protection Clause Bars StateMarriage Bans. ...............................................14
D. This Case Presents the Full Range ofLegal Issues and Arguments RegardingMarriage of Same-Sex couples. ......................14
II. Although Certiorari Is Warranted, theSeventh Circuit’s Judgment Should BeAffirmed................................................................15
iii
TABLE OF CONTENTS—continued
Page
A. The Seventh Circuit CorrectlyConcluded That Heightened ScrutinyApplies to Classifications Based OnSexual Orientation. ........................................15
B. The Seventh Circuit CorrectlyConcluded That Wisconsin’s MarriageBan Failed to Satisfy HeightenedScrutiny, or, in the Alternative, Failedto Satisfy Rational Basis Review. ..................17
U.S. Social Security Administration ProgramOperations Manual, GN 00210.100 (“Wind-sor Same-Sex Marriage Claims”) ....................... 12
U.S. Social Security Administration ProgramOperations Manual System, GN 00210.400(“Same-Sex Marriage—Benefits for Surviv-ing Spouses”) ....................................................... 12
INTRODUCTION
The Seventh Circuit correctly held thatWisconsin’s marriage ban is violates the Equal Pro-tection Clause of the Fourteenth Amendment to theUnited States Constitution. The court of appeals’ rul-ing is consistent with more than two dozen rulings ofother federal courts, including the Fourth and TenthCircuits, that have been issued since this Court’s de-cision in United States v. Windsor, 133 S. Ct. 2675(2013).
Despite the correctness of the Seventh Circuit’sopinion, plaintiffs agree that this Court should grantcertiorari in this case because the issues it presentsare of fundamental importance to plaintiffs and thecountry as a whole, because this Court and othercourts have granted stays of similar lower courtjudgments pending review by this Court, and be-cause final relief for plaintiffs is not likely to comeuntil this Court decides these constitutional issues.This case provides an ideal vehicle for resolving theconstitutional questions presented by state bans onmarriage of same-sex couples because the factualand legal background of this case squarely presentsthe relevant issues without raising procedural or ju-risdictional concerns, because Wisconsin has consist-ently defended its laws in the lower courts and inthis Court, because the opinion in this case is the on-ly court of appeals opinion to rely exclusively on theEqual Protection Clause to conclude that state mar-riage bans are unconstitutional, and because thiscase presents the opportunity for the Court to clarifythat lesser forms of relationship protection for same-sex couples, such as Wisconsin’s domestic partner-ship registry, do not resolve the equal protectionproblems. .
2
STATEMENT
A. The Plaintiffs-Respondents
Plaintiffs are eight same-sex couples who wish tomarry or have their marriages recognized by theState of Wisconsin. All are in loving, committed rela-tionships. Five plaintiff couples have been unable tomarry the partner of their choosing in Wisconsinsolely because that person is of the same sex. Threeplaintiff couples have already been lawfully marriedunder the laws of other jurisdictions, yet Wisconsinrefuses to recognize their marriages. One of thosecouples lived for four years as a married couple inCalifornia, where their marriage was recognized andrespected. They then had that recognition and re-spect stripped away when they moved to Wisconsinto accept a new job.
Plaintiffs wish to marry for a wide variety of rea-sons. They are all routinely denied the full range ofstate and federal benefits to which married different-sex couples are entitled. They are denied legal pro-tection for their parental relationships with theirchildren, the right to make health care decisions ontheir partner’s behalf, and access to family medicalleave. And every day the couples and their familiessuffer the indignity of having the State of Wisconsindeclare that their loving relationships are less thanequal.
B. Wisconsin’s Marriage Ban
In 2006 Wisconsin voters amended its constitu-tion to ban the licensing and recognition of marriagesof same-sex couples. Article XIII, § 13 of the Wiscon-sin Constitution provides: “Only a marriage betweenone man and one woman shall be valid or recognizedas a marriage in this state. A legal status identical or
3
substantially similar to that of marriage for unmar-ried individuals shall not be valid or recognized inthis state.” Wis. Cons. art. XIII, § 13.
This case arises from a facial federal constitu-tional challenge to Article XIII, § 13, along with anyother Wisconsin law preventing the celebration orrecognition of marriage by same-sex couples (“themarriage ban”), brought by plaintiffs in Wolf v.Walker.
C. Procedural History
1. The District Court Decision
Plaintiffs challenged Wisconsin’s marriage banas a violation of the Due Process and Equal Protec-tion Clauses of the Fourteenth Amendment to theUnited States Constitution. On June 6, 2014, the dis-trict court granted summary judgment for plaintiffson both due process and equal protection grounds ina thorough opinion. See Wolf v. Walker, 986 F. Supp.2d 982 (W.D. Wis. 2014).
The district court first found that the Wisconsinmarriage ban violated plaintiffs’ due process rights.Pet. App. 73a-93a. It concluded that the right tomarry is a clearly established fundamental right thatincludes same-sex couples and that Wisconsin’s mar-riage laws significantly interfere with that right.Ibid. The district court concluded that the “commonthread” connecting the Supreme Court’s marriageand family rights decisions is that “they all relate todecisions that are central to the individual’s sense ofidentity and ability to control his or her own desti-ny.” Id. at 78a. The court also rejected the State’s ar-gument that the plaintiffs’ right to marry was notsufficiently “deeply rooted” in the Nation’s history toqualify for due process protection, finding that
4
“[p]ast practices cannot control the scope of a consti-tutional right.” Id. at 86a. Finally, the district courtrejected the State’s attempts to distinguish Loving v.Virginia, 388 U.S 1 (1967), on the grounds that sex,unlike race, goes to the core of what marriage means.Pet. App. 86a-90a. Having concluded that the rightto marry includes same-sex couples, the district courtthen found that Wisconsin’s marriage ban clearlyconstituted “significant interference” with that right,including the right of the already-married couples tohave their marriages recognized. Id. at 90a-93a.
The district court additionally found that Wis-consin’s marriage ban unconstitutionally discrimi-nates on the basis of sexual orientation, violatingplaintiffs’ equal protection rights. Pet. App. 93a-138a.1 The district court concluded that sexual orien-tation is a suspect classification and thus subject toheightened scrutiny. Id. at 99a-111a. Applying theintermediate scrutiny standard,2 the district courtrejected all of the State’s asserted interests, includ-ing tradition, responsible procreation, “optimal childrearing,” “protecting the institution of marriage,”“proceeding with caution,” and the “slippery slope.”Id. at 115a-138a.
1 The district court also considered the argument that the mar-riage ban unconstitutionally discriminates on the basis of sex,but declined to “wade into the jurisprudential thicket” on thattopic “[b]ecause of the uncertainty in the law and because [itwas] deciding the case in plaintiffs’ favor on other grounds.”Pet. App. 99a.
2 The district court assumed that intermediate scrutiny appliedbecause the difference between intermediate and strict scrutinywould not be dispositive in the case. Pet. App. 111a-115a.
5
The district court also dismissed a variety of oth-er arguments from the State. It rejected the State’sargument that a distinction between “positive rights”and “negative rights” protected the marriage ban.Pet. App. 59a-64a. The State labeled marriage as a“positive right” and argued that the Constitutionprotects the rights of individuals to be free from gov-ernment interference (i.e., “negative rights”), butthat it does not give individuals a right to receivegovernment benefits (i.e., “positive rights”). The courtrejected this theory, finding that “the Supreme Courthas held on numerous occasions that marriage is afundamental right protected by the Constitution”and that Wisconsin had clearly not abolished the in-stitution of marriage; rather it had “limited the classof persons who are entitled to marry.” Id. at 60a. Thecourt concluded that “[e]ven in cases in which an in-dividual does not have a substantive right to a par-ticular benefit or privilege, once the state extendsthat benefit to some of its citizens, it is not free todeny the benefit to other citizens for any or no reasonon the ground that a ‘positive right’ is at issue.” Id.at 60a-61a.
The district court also rejected the State’s feder-alism-based argument that the marriage ban is de-fensible because regulation of marriage is a mattertraditionally left to the states. The State argued thatthe “federal courts should not question a state’s dem-ocratic determination regarding whether and whento extend marriage to same-sex couples” and shouldrather “allow states to serve as ‘laboratories of de-mocracy.’” Pet. App. 64a-65a. The court acknowl-edged “the important role that federalism plays inthis country,” but held that “a general interest infederalism [does not] trum[p] the due process andequal protection clauses. States may not ‘experiment’
6
with different social policies by violating constitu-tional rights.” Id. at 66a.
2. The Seventh Circuit Decision
On September 4, 2014, the Seventh Circuit unan-imously affirmed the decision of the district court.3
Baskin v. Bogan, 2014 WL 4359059 (7th Cir. Sept. 4,2014). The Seventh Circuit concluded that Wiscon-sin’s marriage ban violates the Equal ProtectionClause and therefore concluded that it need notreach the due process challenge. It found that nei-ther State had provided any “reason to think thatthey have a ‘reasonable basis’ for forbidding same-sex marriage” and that more than a “reasonable ba-sis” was required because the challenged discrimina-tion is “along suspect lines.” Pet. App. 4a (internalquotation marks omitted).
The Seventh Circuit found that “[d]iscriminationby a state or the federal government against a minor-ity, when based on an immutable characteristic ofthe members of that minority (most familiarly, skincolor and gender), and occurring against an historicalbackground of discrimination against the personswho have that characteristic, makes the discrimina-tory law or policy constitutionally suspect.” Pet. App.4a. It held that these circumstances create a pre-sumption that the law violates the Equal ProtectionClause, rebuttable only by “a compelling showingthat the benefits of the discrimination to society as awhole clearly outweigh the harms to its victims.” Id.at 4a-5a. The court focused its analysis on four fac-
3 On appeal, this case was consolidated solely for argument anddisposition with Baskin v. Bogan (Nos. 14-2386 to 14-2388), andthe Seventh Circuit also struck down the Indiana marriage ban.
7
tors: 1) whether the challenged classification target-ed a group of persons who had experienced a historyof discrimination; 2) whether the unequal treatmentwas based on an “immutable or at least tenaciouscharacteristic” unrelated to a person’s ability to par-ticipate in society; 3) whether the discrimination con-fers an important benefit on society as a whole thatoffsets the harm imposed; and 4) whether the dis-criminatory policy is overinclusive because it couldbe achieved in a way less harmful to the discriminat-ed-against group, or underinclusive because the gov-ernment’s purported rationale for the policy impliesthat it should apply equally to other groups as well.Id. at 5a-7a.
The Seventh Circuit analyzed and rejected mul-tiple purported justifications for the laws propound-ed by Indiana and Wisconsin. It thoroughly rejectedthe argument advanced by both States that the mar-riage bans “enhance child welfare” and that the statehas no interest in protecting marriage for same-sexcouples “because homosexual sex cannot result in un-intended births.” Pet. App. 16a-28a. The SeventhCircuit reasoned that this argument fails because itignores the children of same-sex couples, who “wouldbe better off both emotionally and economically iftheir adoptive parents were married.” Id. at 3a.
It then analyzed and rejected each of the fourother arguments advanced by Wisconsin. It first re-jected the argument that “limiting marriage to het-erosexuals is traditional and tradition is a valid basisfor limiting legal rights.” Pet. App. 30a. The courtstated that the argument “runs head on into Lovingv. Virginia” and that “[i]f no social benefit is con-ferred by a tradition and it is written into law and itdiscriminates against a number of people and does
8
them harm beyond just offending them, it is not justa harmless anachronism; it is a violation of the equalprotection clause.” Id. at 31a-33a.
The court next rejected Wisconsin’s argumentthat “the consequences of allowing same-sex mar-riage cannot be foreseen and therefore a state shouldbe permitted to move cautiously.” Pet. App. 30a. Thecourt found that there was no evidence to supportthe contention that allowing same-sex couples tomarry “will or may ‘transform’ marriage,” nor thatheterosexuals are “harmed” when same-sex couplesmarry. Id. at 34a-39a.4 It also rejected Wisconsin’sargument that its domestic partnership laws some-how ameliorated the unconstitutionality of its mar-riage ban because the Wisconsin domestic partner-ship status is inherently unequal to being married.Id. at 39a-41a.
The court also rejected Wisconsin’s argumentthat “the decision whether to permit or forbid same-sex marriage should be left to the democratic pro-cess, that is, to the legislature and the electorate.”Pet. App. 30a. Though it is true that the marriageban was enacted through democratic processes, thecourt found that “[m]inorities trampled on by thedemocratic process have recourse to the courts; therecourse is called constitutional law.” Id. at 41a. Thecourt noted that neither state provided any supportfor the contention that lesbians and gay men are “po-litically powerful out of proportion to their numbers.”Id. at 41a (internal quotation marks omitted).
4 The Seventh Circuit also rejected Wisconsin’s argument that“same-sex marriage is analogous in its effects to no-fault di-vorce.” Pet. App. 30a.
9
The court found that “[t]he states’ concern withthe problem of unwanted children is valid and im-portant, but their solution is not ‘tailored’ to theproblem because by denying marital rights to same-sex couples it reduces the incentive of such couples toadopt unwanted children and impairs the welfare ofthose children who are adopted by such couples. Thestates’ solution is thus, in the familiar terminology ofconstitutional discrimination law, ‘overinclusive.’ Itis also underinclusive, in allowing infertile hetero-sexual couples to marry, but not same-sex couples.”Pet. App. 43a.
Finally, and for “completeness,” the Seventh Cir-cuit noted the “convergence of our four-step analysiswith the more familiar, but also more complex, ap-proach [to equal protection analysis] found in manycases,” Pet. App. 42a, noting that the difference be-tween the two approaches “is semantic rather thansubstantive.” Id. at 7a. The Seventh Circuit foundthat the marriage ban’s “discrimination againstsame-sex couples is irrational, and therefore uncon-stitutional even if the discrimination is not subjectedto heightened scrutiny.” Id. at 9a.
ARGUMENT
Plaintiffs and all other committed same-sex cou-ples in Wisconsin are harmed by the State’s denial tothem of the freedom to marry. Under the Wisconsinmarriage laws, plaintiffs are denied all state andfederal spousal protections and obligations. Wiscon-sin withholds from all plaintiffs access to the statusof marriage and the state law protections and obliga-tions that marriage brings. Wisconsin’s marriage banthus “demeans [same-sex] couple[s], whose moraland sexual choices the Constitution protects,” and“humiliates [thousands] of children now being raised
10
by same-sex couples.” United States v. Windsor, 133S. Ct. 2675, 2683 (2013). This Court should grantcertiorari and affirm the Seventh Circuit’s judgment.
I. This Case Provides an Excellent Vehicle forCertiorari.
This case presents an excellent vehicle for reviewby this Court. Wisconsin’s marriage laws are excep-tionally severe, combining a constitutional ban onmarriage and statuses substantially similar to mar-riage for same-sex couples and a domestic partner-ship law. This case also encompasses plaintiffs whoseek to marry and plaintiffs who seek recognition oftheir out-of-state marriages. Moreover, the State ofWisconsin, through its Department of Justice, hasvigorously defended this action in all stages of thelitigation, and continues to defend it in front of thisCourt. In addition, this case is an excellent vehiclefor certiorari because the Seventh Circuit’s opinion,more fully than any other appellate court, sets forththe reasons why the Equal Protection Clause re-quires striking down a marriage ban. Finally, thiscase is an ideal vehicle for certiorari because the par-ties have presented the full range of arguments forand against the constitutionality of state marriagebans.
In addition, granting certiorari would provide theCourt with briefing and oral argument reflecting theexperience of counsel for the plaintiffs, who have liti-gated seminal cases involving the rights of lesbianand gay men decided by this Court, including as par-ty counsel in Romer v. Evans, 517 U.S. 620 (1996),and Windsor.
11
A. The Factual and Legal Context of ThisCase Warrants Granting the Petition.
Among the states seeking certiorari review of theconstitutionality of their marriage laws, Wisconsinalone provides domestic partnerships for same-sexcouples. Two other states, Colorado and Nevada, alsoprovide domestic partnership or civil union systemsfor same-sex couples. Colo. Rev. Stat. § 14-15-101, etseq. (civil unions); Nev. Rev. Stat. § 122A.010, et seq.(domestic partnerships). Those systems provide someprotections for couples who register, but a different,and lesser, status for their relationships. Grantingreview in this case will provide the Court an oppor-tunity to clarify that such lesser relationship status-es are inconsistent with the Constitution. Grantingreview in this case, potentially in addition to othercases, will provide the greatest guidance for statelegislatures, for lower courts, and for same-sex cou-ples going forward.
But even plaintiffs with domestic partnershipsare denied the full benefit of state and federal protec-tions and obligations that come with marriage. Arti-cle XIII, § 13 of the Wisconsin Constitution statesthat “[o]nly a marriage between one man and onewoman shall be valid or recognized as a marriage inthis state,” and that “[a] legal status identical or sub-stantially similar to that of marriage for unmarriedindividuals shall not be valid or recognized in thisstate.” Plaintiffs with domestic partnerships, for ex-ample, are excluded from the spousal obligation ofmutual responsibility and support, and they are de-nied the protections that come from the treatment oftheir property as marital property. See Wis. Stat.§§ 765.001(1), 766.15, 766.55(2), 766.31(2), 860.01(1).
12
The unmarried plaintiffs are also denied all fed-eral spousal protections and obligations, and themarried plaintiffs are denied those federal spousalprotections and obligations that are reserved to cou-ples whose marriages are recognized in their state ofresidence. See Windsor, 133 S. Ct. at 2683 (morethan “1,000 federal laws in which marital or spousalstatus is addressed as a matter of federal law”); withrespect to benefits tied to state of residence, see also29 C.F.R. § 825.122(b) (ability to take time off ofwork to care for a sick spouse under the Family &Medical Leave Act); 42 U.S.C. § 416(h)(1)(A)(i) (ac-cess to a spouse’s social security benefits); U.S. SocialSecurity Administration Program Operations Manu-al System, GN 00210.100 (“Windsor Same-Sex Mar-riage Claims”), GN 00210.400 (“Same-Sex Mar-riage—Benefits for Surviving Spouses”), athttp://tinyurl. com/m4b4q8v.
In addition to the denial of state and federalspousal protections, the Wisconsin marriage lawscontain additional provisions that harm the plain-tiffs. Article XIII, § 13 of the Constitution of Wiscon-sin bars the recognition of any legal status substan-tially similar to marriage for same-sex couples.plaintiffs Virginia Wolf and Carol Schumacher, aswell as plaintiffs Kami Young and Karina Willes,were legally married in Minnesota but cannot havetheir marriages recognized in Wisconsin. Pet. App.52a. Similarly, plaintiffs Johannes Wallmann andKeith Borden were married in Canada in 2007, livedas a married couple for four years in California, butcannot have their marriage recognized in Wisconsin.Ibid.
And under Wisconsin’s marriage laws, plaintiffsare prevented from securing legal recognition of their
13
parental rights. For example, plaintiffs Kami Youngand Karina Willes are unable to secure recognition ofWilles’ parental rights with regard to their daughter,to whom Kami gave birth last April. If Kami and Ka-rina’s Minnesota marriage were recognized in Wis-consin, Karina would automatically be deemed thebaby’s parent pursuant to Wisconsin law’s presump-tion of parenthood for children born to married cou-ples. See Wis. Stat. §§ 891.40(1), 891.41(1). Withoutmarriage, Wisconsin law prevents Karina from evenobtaining a stepparent or second-parent adoption (asother states provide). Plaintiffs Bill Hurtubise andDean Palmer are likewise prohibited from jointlyadopting their three children because they are un-married. Wis. Stat. § 48.82(1)(a).
B. The State Has Consistently and Vigor-ously Defended Its Marriage Laws.
High-ranking Wisconsin state officials—Governor Scott Walker, J.B. Van Hollen, the Attor-ney General, and Oskar Anderson, the State Regis-trar of Vital Statistics—continue to vigorously defendWisconsin’s marriage ban. The Attorney Generalrepresented Governor Walker, State Registrar An-derson, and other State officials in the district courtproceedings (including briefing the State Defendants’motion to dismiss and the State Defendants’ motionfor summary judgment) and represented Petitionersin their appeal of the district court’s decision to theSeventh Circuit. The Attorney General continues torepresent Governor Walker and State Registrar An-derson in the instant petition for a writ of certiorari.
14
C. The Seventh Circuit’s Opinion Most Ful-ly Develops the Reasons Why the EqualProtection Clause Bars State MarriageBans.
This petition provides a particularly strong vehi-cle because the Seventh Circuit’s decision so fully de-velops why the Equal Protection Clause prohibitsmarriage bans. Other opinions addressing the issuethat have touched on the Equal Protection Clausehave done so after concluding that bans on marriageof same-sex couples violate the fundamental right tomarry as protected by the Due Process Clause. As aconsequence, other opinions, to the extent that theyhave addressed equal protection issues, have appliedthis Court’s precedents requiring strict scrutiny forclassifications that abridge a fundamental right.
The Seventh Circuit, by contrast, analyzes theappropriate standard of review for an Equal Protec-tion challenge to a sexual orientation classification.The opinion provides an excellent vehicle for thisCourt to address the appropriate level of review forsexual orientation classifications.
D. This Case Presents the Full Range ofLegal Issues and Arguments RegardingMarriage of Same-Sex couples.
The parties in this case briefed and argued thefull range of legal issues regarding marriage of same-sex couples. In their briefs before the Seventh Cir-cuit, the parties addressed claims based in both theDue Process and Equal Protection Clauses.
With respect to the claim that the marriage banburdened the fundamental right of marriage forsame-sex couples, the State Defendants argued boththat the fundamental right of marriage does not ap-
15
ply to same-sex couples, and that, even if the funda-mental right of marriage applies to same-sex couples,it merely confers negative rights, and not positivebenefits. The positive and negative rights analysis isthus far unique to the Wisconsin State Defendants.
With respect to the claim that the marriage banviolates the Equal Protection Clause, the State De-fendants argued that rational basis review shouldapply, and advanced a wide range of purportedly ra-tional bases, including tradition, proceeding cau-tiously and maintaining the status quo, protectingthe democratic process, and promoting responsibleprocreation by different-sex couples.
Finally, the parties addressed the question ofrecognition of out-of-state marriages, and whetherthe State’s denial of such recognition is an independ-ent harm.
II. Although Certiorari Is Warranted, the Sev-enth Circuit’s Judgment Should Be Af-firmed
The Seventh Circuit’s opinion provides an excel-lent foundation for review by this Court, given theexceptional importance of the issues addressed andthe quality of the case as a vehicle for certiorari. Al-though review of this case is warranted for the rea-sons discussed above, the Seventh Circuit’s judgmentshould be affirmed.
A. The Seventh Circuit Correctly Conclud-ed That Heightened Scrutiny Applies toClassifications Based On Sexual Orien-tation.
The Seventh Circuit concluded heightened scru-tiny applies to classifications based on sexual orien-
16
tation through applying principles that “go to theheart of equal protection doctrine.” Pet. App. 7a. TheSeventh Circuit concluded that the marriage banwas a classification based on sexual orientation thattargeted “homosexuals [who] are among the moststigmatized, misunderstood, and discriminated-against minorities in the history of the world.” Id. at12a. The court further recognized that “there is littledoubt that sexual orientation, the ground of the dis-crimination, is an immutable (and probably an in-nate, in the sense of in-born) characteristic ratherthan a choice,” and noted that “neither Indiana norWisconsin argues otherwise.” Id. at 10a.
Petitioners claim that the Seventh Circuit’s ap-proach is unprecedented because it “presume[s] thata state is engaged in baseless discrimination when itfavors traditional marriage.” Pet. 16. In fact, theSeventh Circuit’s approach to determining whether aclassification is entitled to heightened scrutiny isconsistent with this Court’s precedents. See general-ly Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987).
Once heightened scrutiny is applied, this Court’sprecedents require the State to make “a compellingshowing that the benefits of the discrimination to so-ciety as a whole clearly outweigh the harms to itsvictims.” Pet. App. 4a-5a, citing Grutter v. Bollinger,539 U.S. 306, 326–27 (2003) and United States v.Virginia, 518 U.S. 515, 531–33 (1996). The SeventhCircuit addressed this Court’s requirement that clas-sifications subject to heightened scrutiny “serv[e]important governmental objectives and that the dis-criminatory means employed” be “substantially re-lated to the achievement of those objectives”(Virginia, 518 U.S. at 524) by addressing whetherthe discriminatory policy conferred any offsetting
17
benefit and, if so, whether the policy was“overinclusive because the benefit it confers on socie-ty could be achieved in a way less harmful to the dis-criminated-against group, or underinclusive becausethe government’s purported rationale for the policyimplies that it should equally apply to other groupsas well.” Pet. App. 6a.
Petitioners contend that this approach does not“fairly determine whether a state’s law is sufficiently‘tailored’ to meet a state’s proffered interests.” Pet.17. That can’t be right. A law that conveys a benefiton society but is drawn so as to be overinclusive, thusinflicting unnecessary harm on a protected class, isby definition not “tailored to meet a state’s profferedinterest.” Likewise, a law that excludes a disfavoredclass from protection is not sufficiently tailored whenthe disfavored class’s exclusion does not advance theasserted policy objectives.
B. The Seventh Circuit Correctly Conclud-ed That Wisconsin’s Marriage BanFailed to Satisfy Heightened Scrutiny,or, in the Alternative, Failed to SatisfyRational Basis Review.
The Seventh Circuit correctly concluded thatWisconsin’s marriage ban failed both heightenedscrutiny and rational basis review, holding that “thegrounds advanced by Indiana and Wisconsin fortheir discriminatory policies are not only conjectural;they are totally implausible.” Pet. App. 42a. The Sev-enth Circuit did not find, and Wisconsin failed toidentify, any reason why excluding same-sex couplesfrom marriage furthered the State’s interest in en-hancing child welfare through regulating procrea-tion. Id. at 16a-22a. Petitioner’s argument from tra-dition was properly rejected because tradition alone
18
cannot provide a rational basis for discrimination. Id.at 31a-34a. The Seventh Circuit likewise properly re-jected Petitioner’s argument that the State had aninterest in “proceeding with caution” with regard topermitting same-sex couples to marry, as the Stateoffered no reasoning identifying any negative conse-quences to permitting such marriages. Id. at 34a-37a. Finally, the Seventh Circuit properly rejectedthe State’s contention that the marriage ban was jus-tified because it was the result of a democratic pro-cess, concluding that “[m]inorities trampled on bythe democratic process have recourse to the courts;the recourse is called constitutional law.” Id. at 41a.
CONCLUSION
The State’s petition for a writ of certiorari shouldbe granted and the judgment of the court of appealsshould be affirmed.
Respectfully submitted.
STEVEN R. SHAPIRO
JAMES D. ESSEKS
American Civil LibertiesUnion Foundation
125 Broad StreetNew York, NY 10004(212) 549-2500
TIMOTHY S. BISHOP
HANS J. GERMANN
FRANK M. DICKERSON
REBECCA M. KLEIN
LINDA X. SHI
Mayer Brown LLP71 South Wacker DriveChicago, IL 60606(312) 782-0600
GRETCHEN HELFRICH
Loevy & Loevy312 North May StreetChicago, IL 60607(312) 243-5900
JOHN A. KNIGHT
Counsel of RecordAmerican Civil Liberties
Union Foundation180 North MichiganChicago, IL 60601(312) [email protected]
LAURENCE J. DUPUIS
American Civil LibertiesUnion of WisconsinFoundation
207 E. Buffalo StreetMilwaukee, WI 53202(414) 272-4032
