Nos. 14-556, 14-562, 14-571, 14-574 Supreme Court of …. 14-556, 14-562, 14-571, 14-574 Supreme...

Nos 14-556 14-562 14-571 14-574

Supreme Court of the United StatesdNo 14-556

JAMES OBERGEFELL et al and BRITTANI HENRY et al

Petitioners mdashvmdash

RICHARD HODGES Director Ohio Department of Health et al

Respondents

(Caption continued on inside cover)

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF OF AMICI CURIAE CARLOS A BALL DISTINGUISHED PROFESSOR OF LAW RUTGERS

UNIVERSITY ALFRED BROPHY JUDGE JOHN J PARKER DISTINGUISHED PROFESSOR OF LAW UNIVERSITY OF

NORTH CAROLINA SCHOOL OF LAW JULIE NOVKOV PROFESSOR AND CHAIR DEPARTMENT OF POLITICAL

SCIENCE UNIVERSITY AT ALBANY SUNY SCOTT SKINNER-THOMPSON ACTING ASSISTANT

PROFESSOR NYU SCHOOL OF LAW RICHARD F STORROW PROFESSOR OF LAW CITY UNIVERSITY

OF NEW YORK IN SUPPORT OF PETITIONERS

CARLOS A BALL PAUL J HALL

Distinguished Professor

of Law

Counsel of Record

JEFF DEGROOT

RUTGERS UNIVERSITY GEORGE GIGOUNAS

SCHOOL OF LAW JESSE MEDLONG

123 Washington Street Newark NJ 07102

DLA PIPER LLP (US) 555 Mission Street Suite 2400 San Francisco CA 94105-2933 (415) 836-2500 paulhalldlapipercom

Attorneys for Amici Curiae

No 14-562

VALERIA TANCO et al Petitioners

mdashvmdash

BILL HASLAM Governor of Tennessee et al

Respondents

No 14-571

APRIL DEBOER et al Petitioners

mdashvmdash

RICK SNYDER Governor of Michigan et al

Respondents

No 14-574

GREGORY BOURKE et al and TIMOTHY LOVE et al


STEVE BESHEAR Governor of Kentucky et al

Respondents

64746 bull DLA Piper bull TCA -- Obergfell v Hodges bull 3rd Proof 3 5-15

i

TABLE OF CONTENTS PAGE

INTEREST OF AMICI CURIAE 1

SUMMARY OF ARGUMENT 2

ARGUMENT 4

I ANTIMISCEGENATION LAWS WERE JUSTIFIED BY PSEUDOSCIENTIFIC AND PSEUDOEMPIRICAL CLAIMS ABOUT SOCIAL AND CHILD WELFARE 4

II LAWS PROHIBITING DISABLED INDIVIDUALS FROM MARRYING WERE JUSTIFIED BY PSEUDOSCIENTIFIC AND PSEUDOEMPIRICAL CLAIMS ABOUT SOCIAL AND CHILD WELFARE 13

III LEGAL DISCRIMINATION AGAINST NONMARITAL CHILDREN WAS JUSTIFIED BY PSEUDOSCIENTIFIC AND PSEUDOEMPIRICAL CLAIMS ABOUT SOCIAL AND CHILD WELFARE 17

-


ii PAGE

IV OPPONENTS OF SAME-SEX MARRIAGE CONTINUE TO MAKE PSEUDOSCIENTIFIC AND PSEUDOEMPIRICAL CLAIMS ABOUT SOCIAL AND CHILD WELFARE 23

CONCLUSION 26

-


iii

TABLE OF AUTHORITIES Cases PAGE(S)

Bowlin v Commonwealth 65 Ky 5 (1867) 6

Brown v Board of Education 347 US 483 (1954) 12

Clark v Jeter 486 US 456 (1988) 23

Cleburne v Cleburne Living Center473 US 432 (1985) 16

DeBoer v Snyder772 F3d 388 (6th Cir 2014) 23 24 25

Dodson v State 31 SW 977 (Ark 1895) 5

Ellis v State 42 Ala 525 (1868) 5

Gomez v Perez 409 US 535 (1973) 23

Gould v Gould 61 A 604 (Conn 1905) 16

Green v State 58 Ala 190 (1877) 5

Jimenez v Weinberger417 US 628 (1974) 22

Labine v Vincent 401 US 532 (1971) 21 22

-


iv PAGE(S)

Lalli v Lalli 439 US 259 (1978) 22

Levy v Louisiana391 US 68 (1968) 20 21

Lonas v State 50 Tenn 287 (1871) 6

Loving v Virginia388 US 1 (1967) 4 11 12 13

McLaughlin v Florida

198 P2d 17 (Ca 1948) 8 9 23

379 US 184 (1964) 10 New Jersey Welfare Rights Org v Cahill

411 US 619 (1973) 23 Olmstead v LC ex rel Zimring

527 US 581 (1999) 16 Perez v Sharp

Scott v Georgia39 Ga 321 (1869) 6

Skinner v Oklahoma 316 US 535 (1942) 16

State v Brown 108 So 2d 233 (La 1959) 12

State v Gibson 36 Ind 389 (1871) 5

State v Hairston 63 NC 451 (1869) 5

-


v PAGE(S)

State v Jackson 80 Mo 175 (1883) 7

Weber v Aetna Casualty amp Surety Co406 US 164 (1972) 22

Statutes

Civil Rights Act of 1866 5

Other Authorities

A Leon Higginbotham Jr amp Barbara KKopytoff Racial Purity and Interracial Sex in the Law of Colonial and Antebellum Virginia 77 Geo LJ 1967 1994 n127 (1989) 4

Albert I Gordon Inter-Marriage Interfaith Interracial Interethnic (1964) 11

An Act for Suppressing Outlying Slaves in The Statutes at Large Being a Collection of All the Laws of Virginia Vol 3 pp 86-87 (William Waller Heninged 1823) 4

Carlos A Ball Same-Sex Marriage and Children A Tale of History Social Science and Law (2014) 24

Christopher Tiedeman A Treatise on the Limitations of the Police Power in the United States 536 (1886) 14

-


vi PAGE(S)

David Popenoe Life Without Father Compelling New Evidence That Fatherhood amp Marriage Are Indispensable For The Good Of Children amp Society146 (1996) 23

Edward J Larson Sex Race and Science Eugenics in the Deep South 22 (1995) 15

Edward W Spencer Some Phases of Marriage Law and Legislation from a Sanitary and Eugenic Standpoint25 Yale L J 58 64 (1915) 15

Emma O Lundberg Children of Illegitimate Birth and Measures for Their Protection (Childrenrsquos Bureau US Deprsquot of LaborBureau Publication No 166 1926) 19

Gregory Michael Dorr Principled Expediency Eugenics Naim v Naim and the Supreme Court 42 Am J Legal Hist 119 124(1998) 8

Harry D Krause Equal Protection for the Illegitimate 65 Mich L Rev 477 (1967) 20

JP Chamberlain Eugenics and Limitations of Marriage 9 ABA J 429 429 (1923) 15

John Witte Jr The Sins of the Fathers The Law and Theology of Illegitimacy Reconsidered 139 (2009) 18

-


vii PAGE(S)

Kingsley Davis Illegitimacy and the SocialStructure 45 Am J Soc 215 219 (1939) 19 20

Kristin Anderson Moore et al Child Trends Marriage From a Childrsquos Perspective How Does Family Structure Affect Children and What Can We Do About It 1ndash2 (2002) available at httpwwwchildtrendsorgfilesMarriageRB602pdf 23

Madison Grant The Passing of The Great Race Or the Racial Basis of European History 47 (1916) 8

Matthew B OrsquoBrien Why Liberal Neutrality Prohibits Same-Sex Marriage Rawls Political Liberalism and the Family2012 Brit J Am Leg Stud 411) 24

Michael Grossberg Governing The Hearth Law and the Family in Nineteenth-Century America 197ndash98 (1988) 18

Michael Grossberg Guarding the Altar Physiological Restrictions and the Rise of State Intervention in Matrimony 26 Am J Legal Hist 197 219 (1982) 13 14

Negro Womens Children to Serve According to the Condition of the Mother in The Statutes at Large Being a Collection of All the Laws of Virginia Vol 2 p 170 (William Waller Hening ed1823) 4

-


viii PAGE(S)

Peggy Pascoe What Comes Naturally Miscegenation Law and the Making of Race in America 115ndash23 (2009) 7

Percy Gamble Kammerer The Unmarried Mother A Study of Five Hundred Cases (1918) 19

Robert J Cynkar Buck v Bell ldquoFelt Necessitiesrdquo v Fundamental Values 81 Colum L Rev 1418 1432 (1981) 14

Thomas A Foster Sex and the Eighteenth-Century Man Massachusetts and the History of Sexuality in America129 (2007) 5

US Const amend XIV 5

-

INTEREST OF AMICI CURIAE

Amici1 consist of a group of scholars who havetaught and written on the history of family lawand policy This brief aims to provide the Courtwith an explanation of the ways in whichpurportedly scientific evidence and claims havebeen used historically to justify discriminatorypolicies in family law The amici scholars2 are Carlos A Ball Distinguished Professor of LawRutgers University Alfred Brophy Judge John JParker Distinguished Professor of Law Universityof North Carolina School of Law Julie Novkov Professor and Chair Department of PoliticalScience University at Albany SUNY ScottSkinner-Thompson Acting Assistant ProfessorNYU School of Law Richard F Storrow Professor of Law City University of New York

1 Pursuant to Sup Ct R 376 amici certify that nocounsel for a party authored this brief in whole or in partand no party or counsel for a party made a monetarycontribution intended to fund the preparation or submissionof this brief No person other than amici their employees ortheir counsel made a monetary contribution to the preparationor submission of this brief Letters from Respondents conshysenting to the filing of amicus curiae briefs in support ofeither party or of neither party have been filed with theClerk of the Court Amici have received written consent to the filing of this brief from each Petitioner

2 Amici appear in their individual capacitiesinstitutional affiliations are listed for identification purposes only

2

SUMMARY OF ARGUMENT

The history of past c lass-based maritalexclusions has clear implications for the presentappeal That history teaches us that theempirical-sounding pseudoscientific assertions ofone erarsquos jurists and counsel often are revealed asinvidious and indefensible discrimination over time Such empirical-sounding pseudoscientificassertions have been advanced in underlyingbriefs including amici briefs filed in the US Court of Appeals for the Sixth Circuit by marriageequality opponents which argue that denyingmarriage to same-sex couples promotes the wellshybeing of society and children These briefs andproponents of s imilar arguments describehouseholds headed by married heterosexuals whoare biologically related to their children as theldquooptimalrdquo setting for rearing children They arguethat other family structuresmdashincluding ones ledby same-sex couplesmdashundermine the well-being ofsociety and children

How class-based marital exclusions were defended in the pastmdashand how those justificationslater were exposed as falsemdashshould influence thisCourt rsquos assessment of s imilar defenses and justifications here Exclusionary policies aimed atdenying entire c lasses of individuals theopportunity to marry have been rare in Americanhistory Most have involved attempts to rely onsupposedly ldquoscienti f icrdquo evidence to justi fyinvidious discrimination by contending thatcertain family structures were bad for society andchildren These ef forts included laws (1)prohibit ing couples of di f ferent races frommarrying (2) restricting people with mental

3

disabilities from marrying and (3) denying rightsand benefits to nonmarital children

Proponents of these historical c lass-basedmarital exclusions defended the use of state authority to define marriage and its accompanyingbenefits to promote what they believed weresocial ly optimal goals in matters related toprocreation family formation and child welfareSupporters frequently justified these laws withpseudoscientific claims about the well-being ofsociety and children which they claimed wereself-evidently true For instance the GeorgiaSupreme Court upheld Georgiarsquos antimiscegenationstatute based on the Courtrsquos ldquodaily observationrdquothat children of mixed-race couples are ldquosickly andinferiorrdquo In upholding Connecticutrsquos law banningmarriage by disabled persons the ConnecticutSupreme Court relied on pseudoscientific claims itdescribed as ldquocommon knowledgerdquo subject tojudicial notice

It is now clear that these earlier defenses of class-based marital exclusions though they had aveneer of empiricism were grounded in deeplyheld prejudices and biases The passage of timehas shown that these earlier justifications wereconstitutionally impermissible morally unacceptshyable and empirically indefensible This Courtshould reject arguments attempting similarjustifications for denying same-sex couples theopportunity to marry

4

ARGUMENT

I ANTIMISCEGENATION LAWS WERE JUSTIFIED BY PSEUDOSCIENTIFIC AND PSEUDOEMPIRICAL CLAIMS ABOUT SOCIAL AND CHILD WELFARE

Virginia implemented the earliest and mostcomprehensive regulation of interracial relationships in the American colonies Initiallythose efforts focused not on marriage but on thelegal status of interracial children

Three decades before Virginia banned marriageacross color lines it addressed the birth of a growing number of interracial children by makingthe legal status of interracial children dependenton the mothersrsquo status Negro Womens Children to Serve According to the Condition of the Mother in 2 The Statutes at Large Being a Collection of All the Laws of Virginia 170 (William Waller Heninged 1823) The statutersquos purpose was to make surethe law considered the interracial children of female slaves also to be slaves See A Leon Higginbotham Jr amp Barbara K Kopytoff Racial Purity and Interracial Sex in the Law of Colonial and Antebellum Virginia 77 Geo LJ 1967 1994 n127 (1989)

Virginiarsquos first statute banning interracialmarriages enacted in 1691 reflected this focus onchildren That law whose progeny this Courtstruck down almost three hundred years later in Loving v Virginia 388 US 1 (1967) was enactedto ldquoprevent that abominable mixture and spurious issue which hereafter may encrease inthis dominion rdquo An Act for Suppressing Outlying Slaves in 3 The Statutes at Large Being

5

a Collection of All the Laws of Virginia 86-87 (William Waller Hening ed 1823) The lawrsquoslanguage shows the legislatorsrsquo motivation incondemning marriages that crossed racial lineswas rooted in an objection to the offspring ofinterracial relationships

Virginia was not alone in enacting anti -miscegenation laws Other colonies both in thesouth and the north did the same several usingthe statutory model adopted by Virginia Forexample Massachusettsrsquos antimiscegenation lawof 1705 called for the prevention of ldquoa Spuriousand Mixt Issuerdquo Thomas A Foster Sex and the Eighteenth-Century Man Massachusetts and the History of Sexuality in America 129 (2007)

The validity of these laws was not challenged inthe courts until after the Civil War the enactment of the Civil Rights Act of 1866 and the adoption ofthe Fourteenth Amendment Courts in the second half of the nineteenth century consistently upheldantimiscegenation laws by contending thatmarriage was a question of societal well-being notindividual r ights implicating the US Constitution See eg Dodson v State 31 SW 977 (Ark 1895) State v Gibson 36 Ind 389 (1871) State v Hairston 63 NC 451 (1869)Some state high courts also held that theFourteenth Amendmentrsquos equality protections andthe Civil Rights Act of 1866 were not implicatedby marriage restrictions that applied equally towhites and blacks See eg Ellis v State 42 Ala 525 (1868) Green v State 58 Ala 190 (1877)

These rulings ref lected a growing pseudo-scienti f ic and eugenic understanding of antimiscegenation laws The Kentucky Court of

6

Appeals in 1867 worried that the legalization ofmarriages by mixed-race couples would lead to theldquodeteriorat[ion of] the Caucasian bloodrdquo Bowlin v Commonwealth 65 Ky 5 9 (1867) Two yearslater the Georgia Supreme Court in upholdingthe criminal conviction of a black woman for marrying a white man proclaimed

the amalgamation of the races is not onlyunnatural but is always productive ofdeplorable results Our daily observationshows us that the of fspring of these unnatural connections are generally sickly and effeminate and that they are inferior in physical development and strength to the ful l -blood of e i ther race I t is sometimes urged that such marriagesshould be encouraged for the purpose ofelevating the inferior race The reply isthat such connections never elevate the inferior race to the posit ion of thesuperior but they bring down the superiorto that of the inferior They are productiveof evi l and evi l only without anycorresponding good

Scott v Georgia 39 Ga 321 324 (1869) (emphasisadded) The Tennessee Attorney Generalexpressed a s imilar view in 1871 when heanalogized antimiscegenation laws to ancientldquoMosaic lawsrdquo that forbade Jews from inter shybreeding different animals such as horses withdonkeys to create mules According to the stateofficial a law against ldquobreeding mulattoesrdquo wasnot any more problematic since it was also aimedat ldquoprevent[ing] the production of [a] hybrid racerdquo Lonas v State 50 Tenn 287 299 (1871)

7

The Missouri Supreme Court in 1883 wastroubled by the purported inability of biracialindividuals to procreatemdashin its view a sufficientbasis to find antimiscegenation laws constitushytional As the court explained in a prejudice-driven misunderstanding of biology ldquoit is a well authenticated fact that if the issue of a black man and a white woman and a white man and a black woman intermarry they cannot possiblyhave any progeny and such a fact sufficientlyjustifies those laws which forbid the intermarriageof blacks and whitesrdquo State v Jackson 80 Mo 175 179 (1883)

Since colonial days many Americans understoodinterracial procreation to be unnatural But theviews of these postbellum courts and officialsref lected new concerns related to supposedreproductive barrenness hereditary deteriorationand physical and psychological deficiencies ofinterracial offspring Arguments to keep marriagewithin color lines grew to include sociobiologicalconsiderations grounded in supposedly empiricalclaims about procreation and the well-being ofchildren We now know such claims had no bases in fact and were driven by racist viewsantithetical to the notion that all Americans are entitled to equal treatment under law

Defenders of antimiscegenation laws legitimizedthat ideology by turning to the ldquosciencerdquo ofeugenics Peggy Pascoe What Comes Naturally Miscegenation Law and the Making of Race in America 115ndash23 (2009) Many proponents of ldquoraceregenerationrdquo and avoidance of ldquorace suiciderdquo sawantimiscegenation laws as important tools topromote lsquoprocreative optimality rsquo See e g

8

Madison Grant The Passing Of The Great Race Or the Racial Basis of European History 47 60 (1916) (contending interracial marriages promotedldquorace suiciderdquo and insist ing ldquo laws againstmiscegenation must be greatly extended if thehigher races are to be maintainedrdquo) see also Gregory Michael Dorr Principled Expediency Eugenics Naim v Naim and the Supreme Court 42 Am J Legal Hist 119 124 (1998) (ldquoAmericaneugenicists generally argued for the scientificdefense of civilization through racial purity usingtheir theories about race mixing to shape publicpolicyrdquo)

Even after eugenics was discredited for itsuntenable moral positions and unsupportablescientific claims defenders of antimiscegenationlaws invoked eugenics and procreative optimalitywhen defending race-based marital bans in courtFor example in defending the constitutionality ofits antimiscegenation law before the CaliforniaSupreme Court in 1948 see Perez v Sharp 198 P2d 17 (Ca 1948) the State raised eugenic andsociological arguments centered on procreationand child welfare

In Perez the State first claimed whites were superior to other races and the progeny of raciallymixed couples were inferior to the progeny ofwhite couples According to the State themarriage ban ldquoprevent[ed] the Caucasian racefrom being contaminated by races whose membersare by nature physically and mentally inferior toCaucasiansrdquo Id at 23 California also contended the biological data showed ldquothe crossing of widelydifferent races has undesirable biological resultsrdquoand ldquothe parties who enter into miscegenetic [sic]

9

marriages have proved generally to be the dregs ofboth racesrdquo making it likely ldquothe offspring of suchmarriages will turn out to be inferior to both oftheir parentsrdquo Respondentrsquos Supplemental Briefin Opposition to Writ of Mandate at 62 78 Perez v Sharp 198 P2d 17 (Ca 1948)

Besides relying on racist eugenic c laimsCalifornia defended its antimiscegenation law onsupposedly sociological grounds The Statecontended interracial marriages led to greatersocial tension because most people disapproved ofthem Perez 198 P2d at 25 The State claimed blacks were ldquosocially inferiorrdquo and ldquothe progeny ofa marriage between a Negro and a Caucasiansuffer not only the stigma of such inferiority butthe fear of rejection by members of both racesrdquo Id at 26 According to the State antimiscegenationlaws promoted child welfare by protecting childrenfrom the social inferiority and st igma thataccompanied their parentsrsquo marriages

The court in Perez rejected the contention thatchildren of interracial unions were defective or deficient Id at 23ndash24 That court explainedwhitesrsquo greater societal success resulted not frommental superiority but from the social advantagesof their skin color Id at 24 The California Supreme Court rejected the Statersquos argument thatthe stigma suffered by racially mixed childrenjustified the marriage ban reasoning ldquothe faultlies not with their parents but with the prejudicesin the community and the laws that perpetuatethose prejudices by giving legal force to the beliefthat certain races are inferiorrdquo Id at 26 The Court further explained ldquo[t]he effect of raceprejudice upon any community is unquestionably

10

detrimental both to the minority that is singledout for discrimination and to the dominant groupthat would perpetuate the prejudice It is noanswer to say that race tension can be eradicatedthrough the perpetuation by law of the prejudicesthat give rise to the tensionrdquo Id at 25

The Cali fornia Supreme Court rsquos opinioninvalidating the antimiscegenation law under thefederal Constitution rejected the Statersquos purportedchild-based justifications for that law But Floridarelied on those justifications fifteen years later todefend a statute criminalizing mixed-racecohabitation See McLaughlin v Florida 379 US 184 (1964) The State c laimed the statuteprevented psychological and social harm tochildren born from interracial relationships Briefof Appellee McLaughlin v Florida at 41ndash42 379 US 184 (1964) Florida argued that its interest inavoiding such harm justified the enactment ofantimiscegenation laws and the interracialcohabitation ban The Statersquos brief explained

it is well known that both the white and the negro race tend to shun the offspringof interracial marriages The need of offspring to identify with others is awell understood psychological factor inpresent times The interracial offspringare not fully accepted by either raceThere is therefore a clear psychologicalhandicap problem among interracialoffspring

Id at 42 According to the State theldquopsychological handicaps of children born ofnegrondashwhite parentagerdquo were enough to upholdthe constitutionality of its statute Id at 44

11

Virginia raised the same concerns aboutprocreation and chi ld welfare to defend itsantimiscegenation law in Loving v Virginia 388 US 1 (1967) Its brief to this Court in Lovingquoted extensively from a book by Albert I Gordon a rabbi trained as a sociologist Albert IGordon Inter-Marriage Interfaith Interracial Interethnic (1964) Claiming the marriages ofmixed-race couples were more likely to end indivorce than same-race ones Gordon arguedinterracial unions should be avoided because theyharmed children Gordon explained

[p]ersons anticipating cross-marriageshowever much in love they may be havean important obl igation to unbornchildren It is not enough to say that suchchildren will have to solve their own problems lsquowhen the t ime comes rsquo Intermarriage frequently produces majorpsychological problems that are notreadily solvable for the children of theintermarried [I]t is not likely thatthe child will come through the maze ofroad blocks without doing some damage tohimself

Id at 354 (quoted in Brief of Appellee Loving v Virginia US Supreme Court 388 US 1 (1967)at Appendix B) Gordon added that the children ofinterracial marriages often were ldquodisturbedfrustrated and unable to believe that they can livenormal happy livesrdquo Id at 370 (quoted in Brief ofAppellee Loving v Virginia 388 US 1 (1967) atAppendix B)

Virginia in a deeply ironic move also defendedits antimiscegenation law by analogizing the

12

purported psychological harm to children from thesocial stigma of mixed-race marriages to the wayssegregated schools harmed black children asrecognized by this Court in Brown v Board of Education 347 US 483 (1954) By claiming topromote chi ldrenrsquos best interests Virginiaimplausibly relied on this Courtrsquos landmark racialequality ruling to defend a law grounded in theperceived racial inferiority of blacks Brief ofAppellee Loving v Virginia at 35 388 US 1 (1967)

Finally Virginia also raised eugenic justi shyfications for its antimiscegenation law Its brief in Loving quoting a 1959 opinion by the LouisianaSupreme Court claimed ldquoa state statute whichprohibits intermarriage or cohabitation betweenmembers of different races falls squarelywithin the police power of the state which has aninterest in maintaining the purity of the races andin preventing the propagation of half -breedchildrenrdquo Id (quoting State v Brown 108 So 2d 233 234 (La 1959))

In sum the history of antimiscegenation laws inthis country is littered with efforts to defend thoselaws as benefic ial to society because theypurportedly advanced the well-being of childrenThose ef forts were frequently supported bypseudoscientific claims in an effort to give thepolicies a veneer of empiricism

To assess the justifications advanced to supportthe class-based marital exclusion at issue on this appeal this Court should note that efforts todefend antimiscegenation laws have failed the testof time Indeed this Court in Loving saw throughsuch efforts Antimiscegenation laws this Court

13

concluded were patently unconstitutionalbecausemdashrather than promoting the welfare ofsociety or of childrenmdashthey were ldquomeasuresdesigned to maintain White Supremacyrdquo Loving 388 US at 11 (footnote omitted)

II LAWS PROHIBITING DISABLED INDIVI-DUALS FROM MARRYING WERE JUSTI-FIED BY PSEUDOSCIENTIFIC AND PSEUDOEMPIRICAL CLAIMS ABOUT SOCIAL AND CHILD WELFARE

Statutes prohibit ing cognit ively disabledindividuals from marrying were first enacted atthe end of the nineteenth century Supportersdefended them by claiming they optimized humanreproduction and minimized the chances childrenwould develop physical and psychologicaldeficiencies

During the first half of the nineteenth centurythere was a prevai l ing understanding thatmentally disabled individuals could lead happyand productive lives through treatment and carein specialized institutions (ie asylums) MichaelGrossberg Guarding the Altar Physiological Restrictions and the Rise of State Intervention in Matrimony 26 Am J Legal Hist 197 219 (1982)But in the second half of the nineteenth centurythe eugenic notion of improving the human raceby discouraging procreation among certain classesof individuals took hold among a growing numberof policymakers and experts This drove a shiftfrom treating mental illness to preventing thebirth of chi ldren with cognit ive and otherdisabilities Id

14

One way to achieve this goal was by forciblysterilizing those deemed ldquofeeblemindedrdquo See generally Paul A Lombardo Three Generations No Imbeciles Eugenics The Supreme Court andBuck v Bell (2008) Those who embraced eugenicsalso came to see marriage bans as a way ofavoiding the social costs associated with the birthof mentally disabled children Michael Grossberg Guarding the Altar at 219 (ldquoStringent and well-enforced marriage standards for conjugal fitnessbecame one widely advocated method ofintervening in the reproductive process to preventthe birth of feebleminded childrenrdquo) Put starklyby one constitutional scholar in 1886 ldquoif the bloodof either of the parties to a marriage is taintedwith insanity there is imminent danger of itstransmission to the offspring and through theprocreation of imbecile children the welfare of thestate is more or less threatenedrdquo Id (quotingChristopher Tiedeman A Treatise on the Limitations of the Police Power in the United States 536 (1886))

The first law specifically aimed at excluding theso-called feebleminded from marriage was acriminal statute enacted by the Connecticutlegislature in 1896 That law prohibited themarriages of epileptics ldquoimbecilesrdquo and theldquofeeblemindedrdquo Robert J Cynkar Buck v Bell ldquoFelt Necessitiesrdquo v Fundamental Values 81 Colum L Rev 1418 1432 (1981) The legislationonly applied if the female partner was youngerthan forty-five making clear its procreative concerns See id Several states including KansasMichigan New Jersey and Ohio soon adoptedsimilar statutes Grossberg Guarding the Altar at 221 Two states South Dakota and Nebraska

15

were even more draconian they required allmentally disabled people to register with the Stateand prohibited them from marrying unless one ofthe wedding partners was infertile Edward JLarson Sex Race and Science Eugenics in the Deep South 22 (1995)

As with race-based marital restrict ions supporters of the disability marriage bans tried tolegitimate them by pointing to ldquoscientificrdquo claimsthat were actual ly expressions of invidiousprejudice against the disabled For instance asupporter of these bans wrote in the ABA Journal in 1923 that they were ldquobased not on historicalrules but on scientific facts [They are]directed against two evils the bringing into theworld of children with hereditary taints and theprotection of the public health by preventing thespread of disease through marriagerdquo J PChamberlain Eugenics and Limitations of Marriage 9 ABA J 429 429 (1923)

Many legal commentators in the first decades ofthe twentieth century agreed that the statepossessed an expansive authority to imposemarital restrictions to promote the publicrsquos safetyand health As one author explained in the Yale Law Journal in 1915 marriage is ldquoa matter ofgeneral or common right [and as such] is so firmlybound up with the very life of the state and withits social moral and economic welfare as to be distinctively and preeumlminently within the policepowerrdquo Edward W Spencer Some Phases of Marriage Law and Legislation from a Sanitary and Eugenic Standpoint 25 Yale L J 58 64 (1915) This power the author added unquesshytionably permitted the government to legislate for

16

ldquothe protection of the public or posterity through theprevention of diseased or degenerate offspringrdquo Id

Some courts in the early twentieth centuryaccepted the c laims made by supporters ofdisabi l i ty marriage bans For example theConnecticut Supreme Court in a 1905 caseinvolving the application of the ban to an epilepticman who attempted to marry explained ldquothatepilepsy is a disease of a peculiarly serious andrevolting character tending to weaken mentalforce and often descending from parent to childor entailing upon the offspring of the sufferersome other grave form of nervous malady is amatter of common knowledge of which courts willtake judicial noticerdquo Gould v Gould 61 A 604 604ndash05 (Conn 1905) The court concluded thestatutersquos objectives were reasonable because thelaw applied to ldquoa class [of people] capable ofendangering the health of families and addinggreatly to the sum of human sufferingrdquo Id at 605

This reasoning of course has been entirely repushydiated today Not only does forced sterilizationraise constitutional issues see Skinner v Oklahoma 316 US 535 (1942) but this Court hasmade clear that people with disabilities haveconstitutional and statutory rights that protectthem from invidious discrimination See eg Olmstead v LC ex rel Zimring 527 US 581 600 (1999) (holding the unjustified segregation ofthe mentally disabled in government facilitiesviolates the American with Disabilities Act) Cleburne v Cleburne Living Center 473 US 432 448ndash49 (1985) (holding that treating the disabledon the basis of prejudice and fear violates theEqual Protection Clause) Courts today would

17

reject the pseudoscientific arguments about thewell-being of society and children used in the pastby defenders of disability marriage bans

The disability marriage bans are another exampleof the rare but deeply troubling ef forts inAmerican history to deny an entire class of peoplethe opportunity to marry based on pseudoscienshytific claims about how best to promote familyoptimality child welfare and the social good

Like the history of race-based maritalrestrictions this history should influence theCourtrsquos assessment of the arguments advanced tosupport the class-based marital exclusion at issuehere With passing time we see what should havebeen clear when the disability marriage bans wereenacted the effort to prevent cognitively disabledindividuals from marrying reflected invidiousprejudices and a fai lure to accept the equaldignity of a class of citizens The effort was not assupporters claimed about promoting the welfareof society and children

III LEGAL DISCRIMINATION AGAINST NONMARITAL CHILDREN WAS JUS-TIFIED BY PSEUDOSCIENTIFIC AND PSEUDOEMPIRICAL CLAIMS ABOUT SOCIAL AND CHILD WELFARE

Marital laws that have purportedly sought topromote the social good by addressing procreativeand child welfare considerations have not been limited to outright bans Those considerations alsoplayed crucial roles in defending laws disadvantaging children born outside marriage

The American colonies followed English law indistinguishing between children born in wedlock

18

who were ldquolegitimaterdquo and could inherit propertyfrom their parents and children born outsidemarriage who were ldquoillegitimaterdquo and could notinherit from anyone Michael Grossberg Governing The Hearth Law and the Family in Nineteenth-Century America 197ndash98 (1988) Achild born out of wedlock was considered ldquofilius nulliusrdquo the child and the heir of no one Id In colonial America as in England the parents ofldquoillegitimaterdquo children (mothers in particular)were subject to punishment including finesimprisonment and even public whippings forwhat society deemed their sexual sins John WitteJr The Sins of the Fathers The Law and Theology of Illegitimacy Reconsidered 139 (2009)

The nineteenth century saw legal reforms aimedat reducing the number of so-called illegitimate(hereafter ldquononmaritalrdquo ) chi ldren and atmitigating some of their legal disabi l i t ies Although English law did not al low for thelegitimation of children through the parentsrsquo subshysequent marriage or the fathersrsquo acknowledgmentof paternity some American states beginning inthe early 1800s enacted laws providing one or bothavenues to legitimation Grossberg Governing the Hearth 200ndash07 The advent of common law marriages and the judicial application of a strongpresumption that children of married women werealso the chi ldren of their husbands further reduced the number of nonmarital children Id Some states also began allowing nonmaritalchildren to inherit from their mothers (but nottheir fathers) Id

The push to reform laws affecting nonmaritalchildren stalled however during the second halfof the nineteenth century As the legal historian

19

Michael Grossberg explains ldquothe post-1850American obsession with improving family lifereinvigorated the use of the law to separateillegitimate from legitimate offspring Thebel ief that discriminatory laws reinforcedlegitimate families and deterred spurious birthinhibited [additional] reform effortsrdquo Id at 228ndash29

By the turn of the twentieth century prevailingunderstandings of ldquoillegitimacyrdquo began to reflecteugenic ideas in particular the notion that thephenomenon was largely caused by the mentalldquodefective[ness]rdquo and ldquofeeblemindednessrdquo of singlemothers See eg Percy Gamble Kammerer The Unmarried Mother A Study of Five Hundred Cases (1918) Emma O Lundberg Children of I l legit imate Birth and Measures for Their Protection (Childrenrsquos Bureau US Deprsquot of LaborBureau Publication No 166 1926)

Many supporters of treating nonmaritalchildren differently also claimed the discriminashytion was necessary to promote social welfare andfamily optimality The prominent sociologistKingsley Davis articulated this view in 1939 whenhe wrote

[T]he function of reproduction can becarried out in a socially useful manneronly if it is performed in conformity withinstitutional patterns because only bymeans of an institutional system canindividuals be organized and taught to coshyoperate in the performance of this long-range function and the function beintegrated with other social functionsThe reproductive or familial institutionsconstitute the social machinery in terms

20

of which the creation of new members is supposed to take place The birth ofchildren in ways that do not fit into thismachinery must necessarily receive thedisapproval of society else the institushytional system itself which depends uponfavorable attitudes in individuals would not be approved or sustained

Kingsley Davis Il legit imacy and the Social Structure 45 Am J Soc 215 219 (1939) Davisand many others defended the unequal legaltreatment of nonmarital children as a necessarymeans to promote what they considered best forsociety and for children

Although some states around the middle of thetwentieth century enacted additional reforms toreduce the number and impact of legal disabilitieson nonmarital chi ldren (by for examplepermitt ing them to inherit from both theirmothers and fathers) many laws that deniedbenefits to children born outside of marriage werestill on the books by the 1960s See generallyHarry D Krause Equal Protect ion for the Illegitimate 65 Mich L Rev 477 (1967) In 1967this Court agreed to hear a challenge to one ofthose laws Louisianarsquos refusal to allow nonmarishytal children to sue in tort for the wrongful deathsof their mothers a right the State provided to marishytal children Levy v Louisiana 391 US 68 (1968)

In its brief to this Court in Levy the State claimed it was appropriate to impose unequalburdens on nonmarital children to achieve its understanding of what constituted family optimalshyity ldquosuperior rights of legitimate offspring areinducements or incentives to parties to contract

21

marriage which is preferred by Louisiana as thesetting for producing offspringrdquo Brief of AttorneyGeneral State of Louisiana Levy v Louisiana at 4ndash5 391 US 68 (1968)

This Court in Levy rejected the State rsquosreasoning concluding that treating nonmaritalchildren dif ferently was a form of invidiousdiscrimination Levy 391 US at 71ndash72 The Court pointed out that those children when theybecame adults had the same legal obligations aseveryone else and yet the State denied themrights and benefits enjoyed by their fe l lowcit izens Such di f ferential treatment was prohibited by the constitutional mandaterequiring equal protection for all Id

Three years after Levy the constitutionality ofanother Louisiana statute one that precludednonmarital children from inheriting from theirfathers if ldquolegitimaterdquo children also claimed aninheritance reached this Court in Labine v Vincent 401 US 532 (1971) Louisiana once againargued the differential treatment of nonmaritalchildren was necessary to promote marriage andthe nuclear family Brief of Attorney General forthe State of Louisiana at 3 Labine v Vincent 401 US 532 (1971) (c laiming laws that ldquo favorlegitimate children over illegitimate children strengthen the idea of a family unit to discouragethe promiscuous bearing of chi ldren out ofwedlock Whether this is good or bad it seems is asociological question and not a legal onerdquo) Lawsthat denied benefits to nonmarital children the State explained ldquoare based on the propositionthat the family is a critical unit of societyrdquo Id at

22

4 The government added such statutes ldquoencourshyage marriage and family tiesrdquo Id

The year after Labine this Court in Weber v Aetna Casualty amp Surety Company addressed the constitutionality of a statute that denied workersrsquocompensation benefits to the nonmarital childrenof employees Weber v Aetna Casualty amp Surety Co 406 US 164 (1972) In Weber this Court held that whatever interests the government mighthave in promoting marriage and discouraging thebirth of nonmarital children those interests were not advanced by denying workersrsquo compensationbenefits to those children The Court found it irrational to believe people would ldquoshun illicitrelationsrdquo because their children might somedaybe denied access to particular benefits Id at 173

After Weber governments ceased defending thedifferential treatment of nonmarital children based on the asserted need to encourage pro shycreation within marital families and to discourageother family forms Instead government defenshydants focused on narrower justifications for thedifferential treatment including the adminis shytrative diff iculties of establishing paternityoutside of marriage and the need to discouragespurious claims for government benefits See eg Lalli v Lalli 439 US 259 268 (1978) (notingthat the State has a considerable interest arisingfrom the ldquopeculiar problems of proofrdquo in paternalinheritance cases involving nonmarital children) Jimenez v Weinberger 417 US 628 633ndash34 (1974) (rejecting government defense that denyingbenefits to nonmarital chi ldren of disabled parents born after the onset of disability wasjustified to prevent spurious claims) Government

23

defendants had to narrow their justifications forthe differential treatment of nonmarital children because this Court grew increasingly skeptical ofefforts to deny benefits to people because of thecircumstances of their birth See eg Clark v Jeter 486 US 456 (1988) New Jersey Welfare Rights Org v Cahill 411 US 619 (1973) Gomez v Perez 409 US 535 (1973)

IV OPPONENTS OF MARRIAGES BY SAME-SEX COUPLES CONTINUE TO MAKE PSEUDOSCIENTIFIC AND PSEUDO-EMPIRICAL CLAIMS ABOUT SOCIAL AND CHILD WELFARE

Although efforts to justify exclusionary maritalpolicies with pseudoscientific claims have longbeen discredited such efforts are not a thing ofthe past Several opponents of marriage equalityin the case below adopted precisely this approachThe Catholic Conference of Ohio for instance suggested that ldquoa large and growing body ofresearchrdquo shows how children need both a male and a female parent Brief for the Cathol icConference of Ohio as Amici Curiae SupportingAppellants at 9 DeBoer v Snyder 772 F3d 388 (6th Cir 2014) (No 14-3464) In support of thisclaim the marriage equality opponents quoted a1996 study that did not study families headed bysame-sex couples ( id David Popenoe Life Without Father Compelling New Evidence That Fatherhood amp Marriage Are Indispensable For The Good Of Children amp Society 146 (1996)) a 2002study whose authors deny that conclusions onmarriage equality can be drawn from its findings(id Kristin Anderson Moore et al Child Trends Marriage From a Childrsquos Perspective How Does

24

Family Structure Affect Children and What Can We Do About I t 1ndash2 (2002) available at httpwwwchildtrendsorgfilesMarriageRB602pdf) and a 2012 article by a political philosopherconcerned with marriage equality in the context ofldquoJohn Rawlsrsquos political liberalism and its ideal ofpublic reasonrdquo (id Matthew B OrsquoBrien Why Liberal Neutrality Prohibits Same-Sex Marriage Rawls Political Liberalism and the Family 2012 Brit J Am Leg Stud 411)) Marriage equalityopponents presented these as exemplars of theldquolarge and growing body of researchrdquo on thesubject id when in fact the research shows the precise opposite of their conclusions See generallyCarlos A Ball Same-Sex Marriage and Children A Tale of History Social Science and Law (2014)

The Michigan Catholic Conference also invokedscience to justify banning marital unions by same-sex couples But its brief cited the same 2002study on which its Ohio counterparts relied againcontrary to its authorsrsquo insistence that the studytells us nothing about outcomes for children ofsame-sex couples Brief for Michigan CatholicConference as Amici Curiae SupportingAppellants at 15 DeBoer v Snyder 772 F3d 388 (6th Cir 2014) (No 14-1341) The brief furthercited a century-old pamphlet titled Marriage and Divorce Id This textmdashwhose primary aim is towarn against the evils of divorce even in cases ofadulterymdashdescribes how a ldquochi ld needs thefatherrsquos masculine influence and the motherrsquos feminine influence always together the twostreams uniting to pour their fructifying influencethrough the childrsquos life into the life of humanityrdquo Id But the quoted author (an ethicist andreligious leader) cites no sources leaving this

25

ldquofructifying influencerdquo no better grounded than ajudgersquos ldquodaily observationsrdquo of the supposeddeficiencies of interracial children

Marriage equality opponents repeat historicalpseudoscientific assumptions of social welfare andfamily optimality to justi fy an exclusionarymarital policy Such opponents denigrate relianceon the ldquoshifting sands of social sciencerdquo where itsuits them but invite this Court to uncriticallyaccept ldquoscientificrdquo postulates analogous to thosediscredited in modern legal contexts such as thoseinvolving marriage bans across racial lines lawsprohibiting individuals with disabilities frommarrying and the imposition of legal burdens onnonmarital children Brief for Public Advocate of the United States et al as Amici Curiae Supporting Appellants at 5 DeBoer v Snyder 772 F3d 388 (6th Cir 2014) (No 14-1341) This Courtshould reject them here as well

26

CONCLUSION

In the cases of both race-based marital restricshytions and the differential treatment of nonmarital children this Court eventually rejected efforts todefend discriminatory marriage laws and policiesbased on the supposed pursuit of social welfareand family optimality Those efforts frequentlywere grounded in purported ldquoscientificrdquo facts relatshying to the well-being of society and children Butthis Court ultimately saw them for what they wereconstitutionally impermissible ways of privilegingthe rights and interests of some over those ofothers

Although class-based marital exclusions havebeen relatively rare in American history theyusually have shared one characteristic Pro shyponents of those laws have attempted to justifythem by making pseudoscientific claims about howbest to maximize social welfare and child well shybeing The courts and the broader society eventushyally came to understand that such efforts wereconstitutionally impermissible morally unacceptshyable and empirically indefensible

The same likely will be true when the judgmentof history regards the pseudoempirical claimsmade by those who today defend the categoricalexclusion of same-sex couples from the institutionof marriage based on the alleged need to protectsociety and children from harm The troublingways class-based marital policies and restrictionswere defended in the past should make this Courthighly skeptical of the effort to deny same-sexcouples the opportunity to marry purportedly topromote the well-being of society and children

27

The lesson of the history explored in this brief isthat the empirical-sounding pseudoscientificassertions of jurists and counsel in defendingmarital bans in one era often are revealed as invidious and indefensible discrimination over time The decisions below should be reversed

Respectfully submitted

PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015

No 14-562

VALERIA TANCO et al Petitioners

mdashvmdash

BILL HASLAM Governor of Tennessee et al

Respondents

No 14-571

APRIL DEBOER et al Petitioners

mdashvmdash

RICK SNYDER Governor of Michigan et al

Respondents

No 14-574

GREGORY BOURKE et al and TIMOTHY LOVE et al


STEVE BESHEAR Governor of Kentucky et al

Respondents


i




ARGUMENT 4




-


ii PAGE


CONCLUSION 26

-


iii




Clark v Jeter 486 US 456 (1988) 23





Gomez v Perez 409 US 535 (1973) 23





-


iv PAGE(S)

Lalli v Lalli 439 US 259 (1978) 22





198 P2d 17 (Ca 1948) 8 9 23



527 US 581 (1999) 16 Perez v Sharp






-


v PAGE(S)



Statutes


Other Authorities






-


vi PAGE(S)









-


vii PAGE(S)








-


viii PAGE(S)






-





2

SUMMARY OF ARGUMENT



3




4

ARGUMENT





5





6




7




8




9




10





11





12





13





14



15




16




17







18




19





20





21




22




23




24



25



26

CONCLUSION




27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015


i




ARGUMENT 4




-


ii PAGE


CONCLUSION 26

-


iii




Clark v Jeter 486 US 456 (1988) 23





Gomez v Perez 409 US 535 (1973) 23





-


iv PAGE(S)

Lalli v Lalli 439 US 259 (1978) 22





198 P2d 17 (Ca 1948) 8 9 23



527 US 581 (1999) 16 Perez v Sharp






-


v PAGE(S)



Statutes


Other Authorities






-


vi PAGE(S)









-


vii PAGE(S)








-


viii PAGE(S)






-





2

SUMMARY OF ARGUMENT



3




4

ARGUMENT





5





6




7




8




9




10





11





12





13





14



15




16




17







18




19





20





21




22




23




24



25



26

CONCLUSION




27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015


ii PAGE


CONCLUSION 26

-


iii




Clark v Jeter 486 US 456 (1988) 23





Gomez v Perez 409 US 535 (1973) 23





-


iv PAGE(S)

Lalli v Lalli 439 US 259 (1978) 22





198 P2d 17 (Ca 1948) 8 9 23



527 US 581 (1999) 16 Perez v Sharp






-


v PAGE(S)



Statutes


Other Authorities






-


vi PAGE(S)









-


vii PAGE(S)








-


viii PAGE(S)






-





2

SUMMARY OF ARGUMENT



3




4

ARGUMENT





5





6




7




8




9




10





11





12





13





14



15




16




17







18




19





20





21




22




23




24



25



26

CONCLUSION




27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015


iii




Clark v Jeter 486 US 456 (1988) 23





Gomez v Perez 409 US 535 (1973) 23





-


iv PAGE(S)

Lalli v Lalli 439 US 259 (1978) 22





198 P2d 17 (Ca 1948) 8 9 23



527 US 581 (1999) 16 Perez v Sharp






-


v PAGE(S)



Statutes


Other Authorities






-


vi PAGE(S)









-


vii PAGE(S)








-


viii PAGE(S)






-





2

SUMMARY OF ARGUMENT



3




4

ARGUMENT





5





6




7




8




9




10





11





12





13





14



15




16




17







18




19





20





21




22




23




24



25



26

CONCLUSION




27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015


iv PAGE(S)

Lalli v Lalli 439 US 259 (1978) 22





198 P2d 17 (Ca 1948) 8 9 23



527 US 581 (1999) 16 Perez v Sharp






-


v PAGE(S)



Statutes


Other Authorities






-


vi PAGE(S)









-


vii PAGE(S)








-


viii PAGE(S)






-





2

SUMMARY OF ARGUMENT



3




4

ARGUMENT





5





6




7




8




9




10





11





12





13





14



15




16




17







18




19





20





21




22




23




24



25



26

CONCLUSION




27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015


v PAGE(S)



Statutes


Other Authorities






-


vi PAGE(S)









-


vii PAGE(S)








-


viii PAGE(S)






-





2

SUMMARY OF ARGUMENT



3




4

ARGUMENT





5





6




7




8




9




10





11





12





13





14



15




16




17







18




19





20





21




22




23




24



25



26

CONCLUSION




27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015


vi PAGE(S)









-


vii PAGE(S)








-


viii PAGE(S)






-





2

SUMMARY OF ARGUMENT



3




4

ARGUMENT





5





6




7




8




9




10





11





12





13





14



15




16




17







18




19





20





21




22




23




24



25



26

CONCLUSION




27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015


vii PAGE(S)








-


viii PAGE(S)






-





2

SUMMARY OF ARGUMENT



3




4

ARGUMENT





5





6




7




8




9




10





11





12





13





14



15




16




17







18




19





20





21




22




23




24



25



26

CONCLUSION




27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015


viii PAGE(S)






-





2

SUMMARY OF ARGUMENT



3




4

ARGUMENT





5





6




7




8




9




10





11





12





13





14



15




16




17







18




19





20





21




22




23




24



25



26

CONCLUSION




27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015





2

SUMMARY OF ARGUMENT



3




4

ARGUMENT





5





6




7




8




9




10





11





12





13





14



15




16




17







18




19





20





21




22




23




24



25



26

CONCLUSION




27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015

2

SUMMARY OF ARGUMENT



3




4

ARGUMENT





5





6




7




8




9




10





11





12





13





14



15




16




17







18




19





20





21




22




23




24



25



26

CONCLUSION




27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015

3




4

ARGUMENT





5





6




7




8




9




10





11





12





13





14



15




16




17







18




19





20





21




22




23




24



25



26

CONCLUSION




27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015

4

ARGUMENT





5





6




7




8




9




10





11





12





13





14



15




16




17







18




19





20





21




22




23




24



25



26

CONCLUSION




27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015

5





6




7




8




9




10





11





12





13





14



15




16




17







18




19





20





21




22




23




24



25



26

CONCLUSION




27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015

6




7




8




9




10





11





12





13





14



15




16




17







18




19





20





21




22




23




24



25



26

CONCLUSION




27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015

7




8




9




10





11





12





13





14



15




16




17







18




19





20





21




22




23




24



25



26

CONCLUSION




27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015

8




9




10





11





12





13





14



15




16




17







18




19





20





21




22




23




24



25



26

CONCLUSION




27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015

9




10





11





12





13





14



15




16




17







18




19





20





21




22




23




24



25



26

CONCLUSION




27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015

10





11





12





13





14



15




16




17







18




19





20





21




22




23




24



25



26

CONCLUSION




27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015

11





12





13





14



15




16




17







18




19





20





21




22




23




24



25



26

CONCLUSION




27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015

12





13





14



15




16




17







18




19





20





21




22




23




24



25



26

CONCLUSION




27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015

13





14



15




16




17







18




19





20





21




22




23




24



25



26

CONCLUSION




27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015

14



15




16




17







18




19





20





21




22




23




24



25



26

CONCLUSION




27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015

15




16




17







18




19





20





21




22




23




24



25



26

CONCLUSION




27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015

16




17







18




19





20





21




22




23




24



25



26

CONCLUSION




27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015

17







18




19





20





21




22




23




24



25



26

CONCLUSION




27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015

18




19





20





21




22




23




24



25



26

CONCLUSION




27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015

19





20





21




22




23




24



25



26

CONCLUSION




27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015

20





21




22




23




24



25



26

CONCLUSION




27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015

21




22




23




24



25



26

CONCLUSION




27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015

22




23




24



25



26

CONCLUSION




27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015

23




24



25



26

CONCLUSION




27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015

24



25



26

CONCLUSION




27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015

25



26

CONCLUSION




27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015

26

CONCLUSION




27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015

27



PAUL J HALL

Counsel of Record

JEFF DEGROOT

GEORGE GIGOUNAS

JESSE MEDLONG



March 6 2015

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Nos. 14-556, 14-562, 14-571, 14-574 Supreme Court of …. 14-556, 14-562, 14-571, 14-574 Supreme...

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