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Nos. 14-1167(L), 14-1169, 14-1173 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ______________ TIMOTHY B. BOSTIC, TONY C. LONDON, CAROL SCHALL, and MARY TOWNLEY, PlaintiffsAppellees, JOANNE HARRIS, et al., on behalf of themselves and all others similarly situated, Intervenors, v. JANET M. RAINEY, in her official capacity as State Registrar of Vital Records, GEORGE E. SCHAEFER, III, in his official capacity as the Clerk of Norfolk City Circuit Court, DefendantsAppellants. MICHELE B. MCQUIGG, in her official capacity as the Clerk of Prince William County Circuit Court, IntervenorDefendantAppellant. On Appeal from the United States District Court for the Eastern District of Virginia, Civ. No. 2:13-395 BRIEF OF AMICI CURIAE WILLIAM N. ESKRIDGE JR., REBECCA L. BROWN, DANIEL A. FARBER, MICHAEL GERHARDT, JACK KNIGHT, ANDREW KOPPELMAN, MELISSA LAMB SAUNDERS, NEIL S. SIEGEL, AND JANA B. SINGER IN SUPPORT OF PLAINTIFFS-APPELLEES Kathleen M. OSullivan Mica D. Simpson PERKINS COIE LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101 (206) 359-8000 Counsel for Amici Curiae April 18, 2014

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UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus case, except that a disclosure statement is not required from the United States, from an indigent party, or from a state or local government in a pro se case. In mandamus cases arising from a civil or bankruptcy action, all parties to the action in the district court are considered parties to the mandamus case. Corporate defendants in a criminal or post-conviction case and corporate amici curiae are required to file disclosure statements. If counsel is not a registered ECF filer and does not intend to file documents other than the required disclosure statement, counsel may file the disclosure statement in paper rather than electronic form. Counsel has a continuing duty to update this information. 14-1167 No. __________
Timothy B. Bostic, et al. v. Janet M. Rainey, et al. & Michele McQuigg Caption: __________________________________________________

Pursuant to FRAP 26.1 and Local Rule 26.1,

Professors Rebecca L. Brown, William N. Eskridge Jr., Daniel A. Farber, Michael Gerhardt, Jack Knight, ______________________________________________________________________________ (name of party/amicus) Andrew Koppelman, Melissa Lamb Saunders, Neil S. Siegel, and Jana B. Singer ______________________________________________________________________________ Amici Curiae who is _______________________, makes the following disclosure: (appellant/appellee/petitioner/respondent/amicus/intervenor)

1.

Is party/amicus a publicly held corporation or other publicly held entity?

YES

NO

2.

Does party/amicus have any parent corporations? YES NO If yes, identify all parent corporations, including grandparent and great-grandparent corporations:

3.

Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or other publicly held entity? YES NO If yes, identify all such owners:

10/28/2013 SCC

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4.

Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation (Local Rule 26.1(b))? YES NO If yes, identify entity and nature of interest:

5.

Is party a trade association? (amici curiae do not complete this question) YES NO If yes, identify any publicly held member whose stock or equity value could be affected substantially by the outcome of the proceeding or whose claims the trade association is pursuing in a representative capacity, or state that there is no such member:

6.

Does this case arise out of a bankruptcy proceeding? If yes, identify any trustee and the members of any creditors committee:

YES

NO

s/Kathleen M. O'Sullivan Signature: ____________________________________ Amici Curiae Prof. W. Eskridge, et al. Counsel for: __________________________________

4/18/14 Date: ___________________

CERTIFICATE OF SERVICE
************************** 4/18/14 I certify that on _________________ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below:
David A. Robinson P. O. Box 780 North Haven, CT 06473

s/Kathleen M. O'Sullivan _______________________________ (signature) -2-

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TABLE OF CONTENTS Page INTEREST OF AMICI..............................................................................................1 SUMMARY OF ARGUMENT ................................................................................1 ARGUMENT ............................................................................................................6 I. THE ORIGINAL MEANING OF THE EQUAL PROTECTION CLAUSE BARS LEGAL CASTE REGIMES STIGMATIZING MINORITY GROUPS WITHOUT SERVING GENUINE PUBLIC NEEDS .........................6 VIRGINIAS ANTI-GAY FAMILY LAW REGIME IS CASTE LEGISLATION INCONSISTENT WITH THE EQUAL PROTECTION CLAUSE ....................................................10 APPELLANTS JUSTIFICATIONS FOR VIRGINIAS ANTI-GAY FAMILY LAW REGIME DEEPEN ITS CONFLICT WITH THE EQUAL PROTECTION CLAUSES ANTI-CASTE PRINCIPLE ...........................................17 A. Appellants Justifications Are Inconsistent with Supreme Court Precedent for Applying the Rational Basis Test to Anti-Gay Measures ..............................17 Virginias Traditional Anti-Homosexual Caste System Rests Upon the False Stereotype of Gay People as Anti-Family..............................................................21 Appellants Justifications for Virginias Anti-Gay Family Law Rest Upon the Stereotypes Undergirding the Anti-Homosexual Caste System..................27

II.

III.

B.

C.

CONCLUSION .......................................................................................................30

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TABLE OF AUTHORITIES Page(s) Cases Bostic v. Rainey, No. 2:13-cv-395, 2014 WL 561978 (E.D. Va. Feb. 14, 2014) ............................. 1 Bottoms v. Bottoms, 457 S.E.2d 102 (Va. 1995) ................................................................................. 25 Brown v. Board of Education, 347 U.S. 483 (1954) .............................................................................................. 9 De Boer v. Snyder, No. 12-CV-10285 (E.D. Mich. Mar. 21, 2014) .................................................. 21 Everson v. Bd. of Educ., 330 U.S. 1 (1947) .................................................................................................. 6 J.P. v. P.W., 772 S.W.2d 786 (Mo. Ct. App. 1989) ................................................................ 24 Johnson v. Robison, 415 U.S. 361 (1974) ......................................................................................17, 24 Kirchberg v. Feenstra, 450 U.S. 455 (1981) ............................................................................................ 13 Lawrence v. Texas, 539 U.S. 558 (2003) ................................................................................18, 22, 29 Loving v. Commonwealth, 147 S.E.2d 78 (Va. 1966) ................................................................................... 12 Loving v. Virginia, 388 U.S. 1 (1967) ........................................................................................3, 9, 12 Martin v. Ziherl, 607 S.E.2d 367 (Va. 2005) ................................................................................. 20

iv
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Naim v. Naim, 87 S.E.2d 749 (Va. 1955), vacated, 350 U.S. 891 (1955) .................................. 12 Orr v. Orr, 440 U.S. 268 (1979) ............................................................................................ 13 Pace v. Alabama, 106 U.S. 583 (1883) .............................................................................................. 9 Plessy v. Ferguson, 163 U.S. 537 (1896) .............................................................................................. 9 Roberts v. Roberts, 489 N.E.2d 1067 (Ohio App. 1985) ................................................................... 25 Roe v. Roe, 324 S.E.2d 691 (Va. 1985) ...........................................................................24, 26 Romer v. Evans, 517 U.S. 620 (1996) .....................................................................................passim Ry. Express Agency v. New York, 336 U.S. 106 (1949) ............................................................................................ 30 Turner v. Safley, 482 U.S. 78 (1987) ..............................................................................4, 14, 15, 17 United States v. Virginia, 518 U.S. 515 (1996) ........................................................................................3, 12 United States v. Windsor, 133 S. Ct. 2675 (2013) .................................................................................passim Van Camp v. Bd. of Educ., 9 Ohio St. 406 (1859) ........................................................................................... 8 Zablocki v. Redhail, 434 U.S. 374 (1978) ................................................................................11, 14, 15 Statutes 1924 Va. Acts, ch. 394 ............................................................................................. 23 1950 Va. Acts, ch. 463 ............................................................................................. 23
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1956 Va. Acts, ch. 521 ............................................................................................. 23 1975 Va. Acts, ch. 14 ............................................................................................... 22 1975 Va. Acts, ch. 495 ............................................................................................. 23 2004 Va. Acts, H.B. 751 (Pmbl.) ...................................................................3, 10, 28 2013 Va. Acts, ch. 622 (S.B. 969) ........................................................................... 20 Racial Integrity Act of 1924 .................................................................................... 28 Va. Code 18.2-345 ................................................................................................ 20 Va. Code 18.2-361(a) ............................................................................................ 22 Va. Code 20-45.2 (adopted 1997) ........................................................................... 2 Va. Code 20-45.3 (2004) ......................................................................2, 10, 15, 28 Va. Code 20-91(9)(a) ............................................................................................ 20 Va. Code 63.2-1201 .............................................................................................. 20 Constitutional Provisions OHIO CONST., art. I, 2 (1851) .................................................................................. 8 PA. CONST. pmbl. (1776)............................................................................................ 7 U.S. CONST. amend. I ................................................................................................. 6 U.S. CONST. amend. XIV ..................................................................................passim U.S. CONST. Amendment V ....................................................................................... 6 VA. CONST., art. I, 15-A (2006) ..................................................................2, 15, 28 Other Authorities Timothy J. Biblarz & Judith Stacey, How Does the Gender of Parents Matter?, 72 J. MARRIAGE & FAMILY 3 (2010).................................................... 21 Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 HARV. L. REV. 1 (1955)............................................... 9
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Charles Black, The Lawfulness of the Segregation Decisions, 69 YALE L.J. 421 (1960) ...................................................................................................... 9 Sir William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND (1765) .................................................................................................................. 13 Rebecca L. Brown, Liberty, The New Equality, 77 N.Y.U. L. REV. 1491 (2002) ........................................................................................................... 6 Steven G. Calabresi & Andrea Mathews, Originalism and Loving v. Virginia, 2012 BYU L. REV. 1393 (2012) .......................................................... 11 Steven G. Calabresi & Julia T. Rickert, Originalism and Sex Discrimination, 90 TEX. L. REV. 1 (2011) .......................................................... 10 Chaplains Presentation (WAVE Recruits) (Nov. 1952) ......................................... 25 CONG. GLOBE, 39th Cong., 1st Sess. 2764 (1866) ..................................................... 8 John DEmilio, SEXUAL POLITICS, SEXUAL COMMUNITIES: THE MAKING OF A HOMOSEXUAL MINORITY IN THE UNITED STATES 1940-1970 (1980) ............................................................................................... 22 Employment of Homosexuals and Other Sex Perverts in Government, S. Doc. No. 241, 81st Cong., 2d Sess. 4 (1950) ................................................. 26 William N. Eskridge Jr., DISHONORABLE PASSIONS: SODOMY LAW IN AMERICA, 1861-2003 (2008) .............................................................................. 22 William N. Eskridge Jr., Some Effects of Identity-Based Social Movements on Constitutional Law in the Twentieth Century, 100 MICH. L. REV. 2062 (2002) ................................................................................. 10 Daniel A. Farber & Suzanna Sherry, The Pariah Principle, 13 CONST. COMM. 257 (1996) ................................................................................................ 9 THE FEDERALIST NO. 10 (J. Madison) (E.H. Scott ed., 1898).................................... 6 THE FEDERALIST NO. 78 (A. Hamilton) (E.H. Scott ed., 1898) ................................. 6 Florida Legislative Investigation Commn, Homosexuality and Citizenship in Florida 10 (1964) ........................................................................ 25
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Estelle B. Freedman, Uncontrolled Desires: The Response to the Sexual Psychopath, 1920-1960, 74 J. AM. HIST. 83 (1987) ............................... 22 Jon J. Gallo et al., The Consenting Adult Homosexual and the Law: An Empirical Study of Enforcement and Administration in Los Angeles County, U.C.L.A. L. REV. 643 (1966) ................................................... 22 Gary J. Gates & Abigail M. Cooke, Williams Inst., United States Census Snapshot: 2010 (2011), available at http://williamsinstitute.law.ucla.edu/wpcontent/uploads/Census2010Snapshot-US-v2.pdf (last visited Feb. 21, 2013) ............................................................................................................. 27 Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. REV. 375 (1985) ....................................... 10 John Harrison, Reconstructing the Privileges or Immunities Clause, 101 YALE L.J. 1385 (1992) ................................................................................... 9 Carole Jenny et al., Are Children at Risk for Sexual Abuse by Homosexuals?, 94 PEDIATRICS 41 (1994) .......................................................... 27 Kenneth L. Karst, Paths to Belonging: The Constitution and Cultural Identity, 64 N.C. L. REV. 303 (1986) .................................................................. 10 Richard Kluger, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF EDUCATION AND BLACK AMERICAS STRUGGLE FOR EQUALITY (rev. ed. 2004) ............................................................................................................... 9 Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. REV. 197 (1994) ............................... 24 Anita Kumar, Same-Sex Adoptions Lose Ground After Va. Board Vote, WASH. POST, Apr. 20, 2011 ......................................................................... 2 Laura Langbein & Mark A. Yost, Jr., Same-Sex Marriage and Negative Externalities, 90 SOC. SCI. Q. 292 (2009) ........................................... 21 John LaStala, Atascadero: Dachau for Queers?, THE ADVOCATE, Apr. 26, 1972............................................................................................................... 22 James Madison, MEMORIAL AND REMONSTRANCE AGAINST RELIGIOUS ASSESSMENTS (1785) ............................................................................................ 6
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Robert Matloff, Comment, Idiocy, Lunacy, and Matrimony, 17 AM. U.J. GENDER SOC. POLY L. 497 (2009).............................................................. 14 2 A Compilation of the Messages and Papers of the Presidents: 17891897 (James Richardson ed., 1896) ...................................................................... 7 Rhonda Rivera, Our Straight-Laced Judges: The Legal Position of Homosexual Persons in the United States, 50 HASTINGS L.J. 1015 (1999) (reprinting 1979 article) .......................................................................... 23 Clifford J. Rossky, Fear of the Queer Child, 61 BUFF. L. REV. 607 (2012) .................................................................................................................. 24 Same-Sex Marriage Symposium, George Mason University Law School, 16 GEO. MASON U. C.R. L.J. 329 (2005-2006) ...................................... 28 Melissa L. Saunders, Equal Protection, Class Legislation, and Colorblindness, 96 MICH. L. REV. 245 (1997) ..................................................... 7 James T. Sears, LONELY HUNTERS: AN ORAL HISTORY OF LESBIAN AND GAY SOUTHERN LIFE, 1948-1968 (1997) .................................................... 25 Jeffrey G. Sherman, Undue Influence and the Homosexual Testator, 42 U. PITT. L. REV. 225 (1981) ........................................................................... 24 Neil S. Siegel, Federalism as a Way Station: Windsor as an Exemplar of Doctrine in Motion, J. LEGAL ANALYSIS (forthcoming 2014) ........................ 12 Jana B. Singer, The Privatization of Family Law, 1992 WIS. L. REV. 1443 (1992) ......................................................................................................... 14 Charles Sumner, Argument of Charles Sumner, Esq., Before the Supreme Court of Massachusetts In The Case of Sarah C. Roberts v. City of Boston, (Washington: F. & J. Rives & Geo. A. Bailey, 1870) ..................................................................................................................... 8 Cass R. Sunstein, The Anticaste Principle, 92 MICH. L. REV. 2410 (1994) .................................................................................................................... 9 Mark G. Yudof, Equal Protection, Class Legislation, and Sex Discrimination, 88 MICH L. REV. 1366 (1990) ..................................................... 8

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INTEREST OF AMICI1 Amici are law professors who have studied and written on the history of constitutional equal protection and the evolution of family law. Based upon our research and reflection, we urge this Court to affirm Judge Wright Allens decision in Bostic v. Rainey, No. 2:13-cv-395, 2014 WL 561978 (E.D. Va. Feb. 14, 2014). Specifically, we maintain that Virginias exclusion of lesbian and gay couples from civil marriage, domestic partnerships, and any other form of family recognition is a core violation of the Equal Protection Clause because it reaffirms and amplifies an anti-gay caste regime. SUMMARY OF ARGUMENT The text and original meaning of the Equal Protection Clause bar class or caste legislation, including laws that discriminate against minorities, not to further a proper legislative end but to make them unequal to everyone else. Romer v. Evans, 517 U.S. 620, 635 (1996). Part I of our amicus brief argues that a law gratuitously excluding a minority from important institutions of state law derogates from the group-neutrality baseline of the Equal Protection Clause.

All parties consent to the filing of this brief. No counsel for a party authored this brief in whole or in part or made a monetary contribution intended to fund the preparation or submission of this brief, nor has any other person made a monetary contribution intended to fund preparing or submitting this brief. 1

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In the last two decades, Virginia has created an exclusionary family law regime that epitomizes this kind of caste legislation. Expanding beyond previous anti-gay measures, the Commonwealth has adopted a statute limiting civil marriage to one man, one woman, Va. Code 20-45.2 (adopted 1997); a statute barring state recognition of any civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage, Va. Code 20-45.3 (2004); and a constitutional amendment barring the Commonwealth or its political subdivisions from recognizing lesbian and gay marriages, civil unions, partnerships, or any other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage. Va. Const., art. I, 15-A (2006). In 2011, the Commonwealth confirmed that lesbian and gay couples cannot adopt children, even though single adults may do so.2 In Romer, the Supreme Court struck down an initiative amending the Colorado Constitution to deny lesbian and gay citizens anti-discrimination protections. Invalidating the initiative as class legislation, Romer invoked features of Colorados initiative similar to features of Virginias exclusionary family law regime. Like Virginias recent legal directives, the Colorado initiative withdr[ew]
2

See Anita Kumar, Same-Sex Adoptions Lose Ground After Va. Board Vote, WASH. POST, Apr. 20, 2011, http://www.washingtonpost.com/blogs/post_now/post/same-sex-adoptionslose-ground-after-va-board-vote/2011/04/20/AF5T8xDE_blog.html (reporting that the Virginia Board of Social Services voted 7-2 against allowing lesbian and gay couples to adopt children jointly). 2

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from homosexuals, but no others, specific legal rights, Romer, 517 U.S. at 627, and impose[d] a special disability upon those persons alone. Id. at 631. Romer emphasized that the rights denied to this unpopular minority were protections taken for granted by most people either because they already have them or do not need them, id., and that the sweeping nature of the initiatives discrimination was unprecedented in our jurisprudence, id. at 627, 633. Much the same can be said for Virginias recent measures. The differences between this case and the Colorado case are that Virginia has deprived Plaintiffs-Appellees of fundamental marriage rights and that Virginias legal measures, on their face, denigrate lesbian and gay marriages as relationships that devalue the institution of marriage and the status of children. 2004 Va. Acts, H.B. 751 (Pmbl.) (McQuigg Br., Addendum 2). Appellants respond that this exclusionary regime simply reaffirms Virginias longstanding understanding of marriage. But the recent measures reach beyond marriage, to deny lesbian and gay couples civil union[s], partnership contract[s] or other arrangement[s]. These are novel discriminations, unprecedented in

Virginia law. Nor should antiquity save Virginias exclusionary regime. As we demonstrate in Part II, the Supreme Court has repeatedly invalidated longstanding classifications whose unjustified discrimination becomes clear over time. E.g., Loving v. Virginia, 388 U.S. 1 (1967); United States v. Virginia, 518 U.S. 515 3
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(1996). Especially when states exclude a class of citizens from basic family law rights and duties, the Equal Protection Clause requires a rigorous demonstration that the exclusion serves a neutral public interest. United States v. Windsor, 133 S. Ct. 2675 (2013) (striking down federal legislation pervasively excluding lesbian and gay couples from marriage recognition); Turner v. Safley, 482 U.S. 78, 97-99 (1987) (applying the reasonable relationship standard to strike down a state bar to prisoner marriages). Part III demonstrates that Virginias broad exclusion of lesbian and gay couples from its family law is discontinuous with the reasons offered for it by Appellants, a conclusion that seals the unconstitutionality of this discriminatory regime. Romer, 517 U.S. at 632. Appellants claim that the discrimination

advances societys interest in responsible procreation and childrearing. Schaefer Br. 46-47; McQuigg Br. 41-44. But discriminating against lesbian and gay couples does not plausibly advance such a state interest. It undermines that state interest by denying protections to couples who bear and raise children and scapegoats gay persons for problems they are not responsible for. Virginias sweeping exclusion is at once too narrow and too broad, Romer, 517 U.S. at 633, if its purpose is to encourage responsible child-rearing. Cf. Turner, 482 U.S. at 98-99 (finding

illegitimate a state policy allowing inmate marriages only in cases of procreation and child-rearing). 4
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Part III also addresses Appellants rationale that marriage equality presents a significant risk of negatively affecting children, by entrenching an adultcentered view of marriage. McQuigg Br. 53-60. On the one hand, Virginia family law is already adult-centered; on the other hand, many lesbian and gay couples, including two Plaintiffs-Appellees, are rearing children within their marriages who would benefit from marriage equality. As before, this line of justification does not fit Virginias sweeping discrimination and suggests that the Commonwealths exclusionary regimes rests upon the same animus that was fatal to the Colorado initiative in Romer. 517 U.S. at 632. We close with an examination of the anti-homosexual caste regime entrenched in twentieth-century Virginia. The regime rested upon inaccurate and invidious beliefs that homosexuals are sterile, selfish, predatory against children, and anti-family. With an opportunity to put the best face on the Commonwealths exclusionary regime, Appellants justifications repeatedly fall back on the core stereotype of homosexuals as predatory and anti-family. In short, Appellants briefs confirm the irrationality of Virginias broadly exclusionary family law regime, and the anti-gay animus that it reflects.

5
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ARGUMENT I. THE ORIGINAL MEANING OF THE EQUAL PROTECTION CLAUSE BARS LEGAL CASTE REGIMES STIGMATIZING MINORITY GROUPS WITHOUT SERVING GENUINE PUBLIC NEEDS As the Declaration of Independence suggests, Americas constitutional democracy is premised upon the notion that all men are created equal. The Framers of the Constitution believed that equality . . . ought to be the basis of every law, and the law should not subject some persons to peculiar burdens or grant others peculiar exemptions. JAMES MADISON, MEMORIAL
AND

REMONSTRANCE AGAINST RELIGIOUS ASSESSMENTS 4 (1785), reprinted in Everson v. Bd. of Educ., 330 U.S. 1, 63-72 (1947) (Rutledge, J., dissenting).3 The Framers sought to create a governmental structure that would protect particular classes of citizens against unjust and partial laws, THE FEDERALIST NO. 78 at 429 (A. Hamilton) (E.H. Scott ed., 1898), imposed by majority faction[s], THE FEDERALIST NO. 10 at 57 (J. Madison) (E.H. Scott ed., 1898). The Bill of Rights implemented the equality principle more directly, through specific protections for property owners, U.S. CONST. amend. V, and religious minorities, id. amend. I. The Due Process Clause of the Fifth Amendment and analogous provisions in state constitutions were interpreted to bar government
3

See Rebecca L. Brown, Liberty, The New Equality, 77 N.Y.U. L. REV. 1491, 1512-20 (2002) (discussing survival of the pre-Constitution equality-based understanding of the properly neutral role of government). 6

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from enacting class legislation, namely, laws burdening or advantaging a minority without advancing a general public purpose.4 As the Pennsylvania

Constitution of 1776 put it, government ought to be instituted * * * for the security and protection of the community as such, and to enable the individuals who compose it to enjoy their natural rights * * * without partiality for, or prejudice against, any particular class, sect, or denomination of men.5 Pa. Const. pmbl. (1776). In an 1832 veto message, President Jackson announced that every man is equally entitled to protection by law. 2 A Compilation of the Messages and Papers of the Presidents: 1789-1897, at 590 (James Richardson ed., 1896). If [law] would confine itself to equal protection, and, as Heaven does its rains, shower its favors alike on the high and the low, the rich and the poor, it would be an unqualified blessing. Id. Although the Jacksonian understanding of equal protection trained its attention on legislation profiting the rich, the abolitionist critics of slaveryConscience Democrats, Free Soilers, and Republicans expanded the equal protection idea to target laws excluding despised social

See RODNEY L. MOTT, DUE PROCESS OF LAW: A HISTORICAL AND ANALYTICAL TREATISE OF THE PRINCIPLES AND METHODS FOLLOWED BY THE COURTS IN THE APPLICATION OF THE CONCEPT OF THE LAW OF THE LAND 256-74 (1926); Melissa L. Saunders, Equal Protection, Class Legislation, and Colorblindness, 96 MICH. L. REV. 245, 251-68 (1997). See also Saunders, supra note 4, at 253-54 & n.34 (reporting other state constitutional provisions and court decisions). 7

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groups from normal legal privileges and benefits.6 New state constitutions added equal protection to their catalogue of rights. E.g., Ohio Const., art. I, 2 (1851); see Van Camp v. Bd. of Educ., 9 Ohio St. 406, 415-16 (1859) (Sutliff, J., dissenting) (broad understanding of Ohios rule against caste legislation). In 1849, abolitionist leader Charles Sumner explained the anti-caste norm: No citizen can have civil or political privileges not enjoyed equally by all his fellowcitizens.7 Equality before the law means that all citizens, whatever their race, religion, physiology, or wealth, are children of the State, which, like an impartial parent, regards all its offspring with an equal care.8 The Reconstruction Amendments codified and expanded the abolitionists rule against caste legislation. Introducing the proposed Fourteenth Amendment, Senator Howard said that its purpose was to abolish all class legislation in the States and [do] away with the injustice of subjecting one caste of persons to a code not applicable to another.9 As this statement suggests, the amendment followed

8 9

See JONATHAN H. EARLE, JACKSONIAN ANTI-SLAVERY & THE POLITICS OF FREE SOIL, 1824-1854 (2004); Mark G. Yudof, Equal Protection, Class Legislation, and Sex Discrimination, 88 MICH L. REV. 1366, 1380 (1990) (book review). Charles Sumner, Argument of Charles Sumner, Esq., Before the Supreme Court of Massachusetts In The Case of Sarah C. Roberts v. City of Boston (Washington: F. & J. Rives & Geo. A. Bailey, 1870), 7. Id. CONG. GLOBE, 39th Cong., 1st Sess. 2764, 2766 (1866). Like Congress, the state ratifying conventions understood the Fourteenth Amendment to entail a rule against class or caste legislation. WILLIAM E. NELSON, THE FOURTEENTH 8

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Sumners expansive reading of equality before the law to protect stigmatized social castes as well as economic classes against discriminatory legal regimes.10 The aspiration of the Equal Protection Clause was grand, its immediate application less so. Judges were reluctant to find discrimination in laws barring miscegenation, Pace v. Alabama, 106 U.S. 583, 585 (1883), or segregating the races, Plessy v. Ferguson, 163 U.S. 537, 544 (1896). But the Supreme Court came to realize that race-based apartheid was a legal regime creating a caste system, and it thus invalidated the discriminatory laws, starting with Brown v. Board of Education, 347 U.S. 483 (1954) and culminating with Loving v. Virginia, 388 U.S. 1 (1967).11 The same process of public deliberation has persuaded the Supreme Court to apply the Fourteenth Amendments anti-caste principle to forbid the state from elevating social stereotypes regarding disparaged social groups into legal

10

11

AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE 176-78 (1988); Saunders, supra note 4, at 271-93. Daniel A. Farber & Suzanna Sherry, The Pariah Principle, 13 CONST. COMM. 257, 265-71 (1996); Cass R. Sunstein, The Anticaste Principle, 92 MICH. L. REV. 2410, 2428-39 (1994); cf. John Harrison, Reconstructing the Privileges or Immunities Clause, 101 YALE L.J. 1385, 1413 (1992) (grounding the anti-caste principle in the Privileges or Immunities Clause). Richard Kluger, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF EDUCATION AND BLACK AMERICAS STRUGGLE FOR EQUALITY (rev. ed. 2004); Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 HARV. L. REV. 1, 65 (1955); Charles Black, The Lawfulness of the Segregation Decisions, 69 YALE L.J. 421, 421-24 (1960). 9

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regimes that treat members of those groups as second-class citizens.12 See Romer, 517 U.S. at 632. II. VIRGINIAS ANTI-GAY FAMILY LAW REGIME IS CASTE LEGISLATION INCONSISTENT WITH THE EQUAL PROTECTION CLAUSE No one disputes that there are lesbian and gay couples in the Commonwealth who are committed to one another, rearing children within their relationships, and who would like to enjoy the protections of civil marriage. The Commonwealth tells these couples, and these couples alone, that it will neither give them marriage licenses nor recognize any otherwise lawful marriage, civil union, partnership contract, or other arrangement they might enter. Va. Code 20-45.3. The official reasons, stated in the 2004 legislation, are that homosexuals are intolerant of their opponents, and are only interested in weakening the institution of marriage not in enjoying its benefits themselves. 2004 Va. Acts, H.B. 751 (Pmbl.), Va. Code 20-45.3 (McQuigg Br., Addendum 2). Demonizing and excluding a minority group from an array of family law rights is caste legislation and, hence, a violation of the Equal Protection Clause.
12

Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. REV. 375, 377-79 (1985); William N. Eskridge Jr., Some Effects of Identity-Based Social Movements on Constitutional Law in the Twentieth Century, 100 MICH. L. REV. 2062, 2087-89 (2002); Kenneth L. Karst, Paths to Belonging: The Constitution and Cultural Identity, 64 N.C. L. REV. 303 (1986). See also Steven G. Calabresi & Julia T. Rickert, Originalism and Sex Discrimination, 90 TEX. L. REV. 1, 15-41 (2011) (sex discrimination jurisprudence is consistent with original meaning). 10

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Such a regime is especially problematic when the excluded class is denied fundamental rights such as marriage. Zablocki v. Redhail, 434 U.S. 374, 390-91 (1978) (striking down a law barring remarriage for persons defaulting on spousal support obligations).13 Appellants respond that Virginias exclusionary regime represents a traditional approach to families,14 and urge this Court to defer to the Commonwealths judgment that marriage equality for lesbian and gay partners will undermine the institution for everyone else. Schaefer Br. 50; McQuigg Br. 11-15. This contention is without merit. Appellants rely on Windsor v. United States, 133 S. Ct. 2675 (2013), which struck down part of the federal Defense of Marriage Act (DOMA), and which included a discussion of the role state law plays in defining marriage rights. Windsor, however, repeatedly cautioned that [s]tate laws defining and regulating marriage, of course, must respect the constitutional rights of persons. Id. at

13

14

For an argument that marriage is a fundamental right protected by the original meaning of the Fourteenth Amendment, see Steven G. Calabresi & Andrea Mathews, Originalism and Loving v. Virginia, 2012 BYU L. REV. 1393 (2012). The claim by amici historians supporting Appellants that marriage is limited to one man, one woman in nearly all cultures through time, Brief of Amici Curiae Scholars of History and Related Disciplines and American Leadership Fund (American Leadership Fund Br.) 4-9, is false. See WILLIAM N. ESKRIDGE JR., THE CASE FOR SAME-SEX MARRIAGE 15-50 (1996) (examples of same-sex marriages or unions recognized in dozens of cultures); id. at 95-96 (debate among anthropologists, recognizing same-sex unions as marriages). 11

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2691.15 The Court cited Loving, which had invalidated, on Fourteenth Amendment grounds, Virginias refusal to recognize marriages between persons of different races. Echoing Appellants arguments here, Virginia defended its anti-

miscegenation law based upon its consistency with established tradition and culture and upon the Commonwealths judgment that the marriage exclusion met the physical, moral and spiritual well-being of its citizens. Naim v. Naim, 87 S.E.2d 749, 756 (Va. 1955), vacated, 350 U.S. 891 (1955), and followed in Loving v. Commonwealth, 147 S.E.2d 78 (Va. 1966). A unanimous Supreme

Court rejected Virginias arguments and swept away centuries of discrimination in the definition of marriage. Loving, 388 U.S. at 8-11. Loving involved a race-based classificationbut the Equal Protection Clause reaches further, to monitor any legal regime perpetuating a caste system. Hence, the Supreme Court has closely interrogated state sex discriminations that reinforce the stereotype of women as dependents and has invalidated sex-based rules that create or perpetuate the legal, social, or economic inferiority of women. United States v. Virginia, 518 U.S. 515, 534 (1996). In the process, the Court has nullified longstanding state policies, including the Virginia Military Institutes 150-year exclusion of women. Id. at 520-23, 536-46.

15

Neil S. Siegel, Federalism as a Way Station: Windsor as an Exemplar of Doctrine in Motion, J. LEGAL ANALYSIS 17-19 (forthcoming 2014). 12

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Gender discrimination in marriage has a more impressive pedigree than apartheid had, for it was grounded in the common law of marriage, as articulated by Sir William Blackstones COMMENTARIES
ON THE

LAWS

OF

ENGLAND (1765),

the intellectual mainstay of Appellants understanding of family law (McQuigg Br. 33-35; American Leadership Fund Br. 12-13). Blackstonian marriage was

centrally concerned with responsible procreation and child-rearing by two biological parents, enforced through legal rules barring extramarital sexual activities, ensuring marriage-for-life by foreclosing divorce, and vesting contract and property rights with the husband.16 In the face of challenges by the womens rights movement, most of the Blackstonian regime has been revoked by state legislatures,17 and federal courts have invalidated remaining discriminations based upon the public understanding that the Blackstonian family rests upon unjust gender stereotypes. E.g.,

Kirchberg v. Feenstra, 450 U.S. 455, 461 (1981) (invalidating law vesting husbands with authority to dispose of community property without wives consent); Orr v. Orr, 440 U.S. 268, 283 (1979) (invalidating state law limiting alimony rights to wives).

16 17

See HENDRIK HARTOG, MAN AND WIFE IN AMERICA 64-76, 103-22 (2000). NANCY F. COTT, PUBLIC VOWS: A HISTORY OF MARRIAGE AND THE NATION (2000). 13

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The Fourteenth Amendments hostility to caste regimes extends beyond laws creating racial or gendered castes, especially when important or fundamental rights, such as marriage, are at stake. E.g., Zablocki, 434 U.S. at 390-91. For most of our history, states did not allow people with intellectual or some physical disabilities to marry,18 in order to limit marriage to persons who could responsibly procreate and raise children.19 Because these marriage exclusions rested upon discredited stereotypes about persons with mental disabilities, they have all but vanished.20 If a state revived a law barring all people with mental disabilities from marrying because they could not engage in what the state considered responsible procreation and childrearing, would that not be presumptively unconstitutional as a revival of a discredited caste regime? 21 The Supreme Court has also recognized that the value of marriage is not limited to procreation and childrearing. In Turner v. Safley, , the Supreme Court struck down a state rule barring prisoners from marrying, unless there was a pregnancy or biological child who would benefit from the marriage. 482 U.S. at
18

19

20

21

Jana B. Singer, The Privatization of Family Law, 1992 WIS. L. REV. 1443, 1465 & n.92 (1992) (34 states excluding persons with mental disabilities from marrying in 1968). Robert Matloff, Comment, Idiocy, Lunacy, and Matrimony, 17 AM. U.J. GENDER SOC. POLY L. 497, 510-12 (2009). ALLISON C. CAREY, ON THE MARGINS OF CITIZENSHIP: INTELLECTUAL DISABILITY AND CIVIL RIGHTS IN TWENTIETH-CENTURY AMERICA 157-59, 172-73, 188 (2009). For an argument that such laws cannot pass the rational basis test, see Matloff, supra note 19, at 507-13. 14

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81-82, 96-97. Applying the special rule for evaluating prisoners rights, the Court found no reasonable relationship between a legitimate governmental interest and a denial of the right to marry for inmates who were not engaged in procreative or child-rearing activities. Id. at 97-99. Such a broad exclusion was an exaggerated response to legitimate security concerns; the Court held that the existence of easy alternatives rendered the denial of marriage rights unconstitutional. Id. at 98. The equal protection case against Virginias anti-gay family law regime is stronger than the claims in Zablocki and Turner, and not just because committed gay and lesbian couples rearing children (such as Plaintiffs-Appellees Carol Schall and Mary Townley) epitomize the virtues of marriage more than deadbeat dads (Zablocki) and convicted felons (Turner). Virginia has been obsessed with the issue of lesbian and gay families and has gone out of its way to exclude and repudiate them repeatedly. The exclusion has been sweeping, reaching not only marriage, but also civil unions and partnership contract[s] or other arrangement[s] entered into by same-sex couples. Va. Code 20-45.3; see Va. Const. art. I, 15-A (barring official creation or recognition of any legal status for lesbian and gay relationships that intends to approximate the design, qualities, significance, or effects of marriage). The reach of Virginias new regime is unclear, but frightening to committed couples. In the wake of the 2004 statute, for 15
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example, a lesbian couple left Virginia, after forty years in Fredericksburg, because they feared that the Commonwealth would not honor their powers of attorney and other relationship-respecting documents.22 On point is Romer v. Evans, which held that a Colorado constitutional initiative barring government from adopting affirmative protections against discrimination for gay people was unconstitutional class legislation. Like

Colorados exclusionary initiative, Virginias exclusionary family law regime is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. Romer, 517 U.S. at 635. Like Colorados initiative, Virginias family law imposes a special disability upon those persons alone, id. at 631; takes away from an unpopular minority family law rights that are taken for granted by most people either because they already have them or do not need them, id.; and is unprecedented in our jurisprudence, id. at 633. The main difference between Romer and this case is that Colorado did not deny lesbian and gay persons constitutionally fundamental rights, such as the

22

See ANDREW KOPPELMAN, SAME SEX, DIFFERENT STATES: WHEN SAME-SEX MARRIAGES CROSS STATE LINES 144 (2006) (account of the couples flight). 16

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right to marry implicated here.23 That difference makes this an easier case under the Fourteenth Amendmentunless Appellants can demonstrate a much more cogent state justification for the discrimination than the state was able to show in Romer. III. APPELLANTS JUSTIFICATIONS FOR VIRGINIAS ANTI-GAY FAMILY LAW REGIME DEEPEN ITS CONFLICT WITH THE EQUAL PROTECTION CLAUSES ANTI-CASTE PRINCIPLE A. Appellants Justifications Are Inconsistent with Supreme Court Precedent for Applying the Rational Basis Test to Anti-Gay Measures

Appellants cite Romer for the proposition that anti-gay discriminations must be rationally related to a legitimate state interest, Schaefer Br. 45, but ignore Romers application of that approach. Thus, Appellants say that an anti-gay

classification must be upheld when the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not[.] McQuigg Br. 3, 13, 41-44 (quoting Johnson v. Robison, 415 U.S. 361, 383 (1974)). Appellants claim that Virginias marriage law reflects the Commonwealths interest in steering potentially procreative sexual relationships into committed

23

Appellants argue that lesbian and gay couples have no fundamental right to marry, because that right is limited to procreative relationships. This is not the holding of any of the right to marry precedents and is inconsistent with Turner v. Safley, where the prison regime struck down by the Supreme Court allowed procreative inmate marriages but not nonprocreative ones. 482 U.S. at 81-82, 97-99; see also id. at 95-96 (relying on the many benefits of marriage for couples who do not procreate). 17

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unions.

McQuigg Br. 12.

Because straight couples produce children

unintentionally, those couples implicate the state interest in steering potentially procreative relationships into committed unions more directly than lesbian and gay couples do. Id. at 13. Appellants misstate the standard of review applied to anti-gay exclusions, for the Supreme Court requires a more searching form of rational basis review to strike down such laws under the Equal Protection Clause. Lawrence v. Texas, 539 U.S. 558, 580 (2003) (OConnor, J., concurring); accord, Romer, 517 U.S. at 633. Under Appellants approach, Romer was wrongly decided. The Romer

defendants justified the exclusion of gay citizens from anti-discrimination laws as a means to conserve enforcement resources by limiting those laws to traits courts had found to be suspect classifications. Petitioners Brief, at 41-43, Romer (No. 94-1039). Because lesbian and gay citizens were differently situated than citizens of color, the former could rationally be excluded from the protection of such laws. The Supreme Court rejected that argument out of hand. Romer, 517 U.S. at 635. The proper inquiry is this one: How does the exclusion of lesbian and gay persons rationally advance a legitimate state goal, such as steering potentially procreating straight couples into marriage? Thus, Windsor (applying Romer) considered and rejected the same argument advanced by Appellants here, namely, that excluding same-sex couples from civil 18
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marriage is justified by the alleged focus of family law on the goal of steering potentially procreative relationships into stable long-term marriages. See Brief for Respondent the Bipartisan Legal Advisory Group, at 44-47, Windsor (No. 12-307), making this argument, which was rejected in Windsor, 133 S. Ct. at 2694; see id. at 2709-10 (Scalia, J., dissenting) (observing that the Courts reasoning is applicable to state exclusions of lesbian and gay unions from civil marriage). Perhaps because Windsor dictates that their responsible procreation argument cannot save Virginias exclusionary regime, Appellants make the additional argument that redefining marriage presents a substantial risk of negatively affecting children and society, McQuigg Br. 53. Specifically, marriage equality, Appellants maintain, would harm children (1) by conveying the idea that marriage is not needed for childbearing and childrearing, id. at 53-55; (2) by undermining the importance of both mothers and fathers, id. at 55-57; and (3) by entrenching an adult-centered view of marriage. Id. at 57-60. This line of argument also fails the Romer-Windsor test for evaluating anti-gay measures. To begin with, Appellants asserted state interest is inconsistent with Virginias family law regime, which (like that in other states) already separates marriage from childbearing.24 The Commonwealth has never imposed

24

See Singer, supra note 18, at 1527-31 (describing the rise of a family law regime grounded in adult-choice), 1550-56 (discussing the costs that no-fault divorce imposes on children). 19

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childbearing as a prerequisite to civil marriage and offers marriage licenses to couples who are either unable or unwilling to procreate. Nor does Virginia assure children that their parents will remain married, for couples with children can divorce after a year of living apart. Va. Code 20-91(9)(a). The

Commonwealths positive law also provides that marriage is not needed for childrearing. Unmarried Virginians may adopt children, Va. Code 63.2-1201,

and may bear and raise children in nonmarital relationships. See Martin v. Ziherl, 607 S.E.2d 367 (Va. 2005) (procreative sex outside of marriage is legal); 2013 Va. Acts, ch. 622 (S.B. 969) (legalizing sexual cohabitation by repealing Va. Code 18.2-345). Even if Appellants accurately describe state policy, Virginias exclusion of committed lesbian and gay couples from marriage does not encourage accidentally procreating straight couples to marry. Instead, precluding lesbian and gay couples from marrying undermines state interests protecting children. Plaintiffs-Appellees Schall and Townley are raising a daughter. Virginias refusal to recognize their legal (California) marriage harms the interests of Schall and Townleys daughter. One reason the Supreme Court rejected the federal marriage discrimination in Windsor was that it humiliates the children now being raised by same-sex couples. 133 S. Ct. at 2694. As in Windsor, the discriminatory regime here makes it even more difficult for the children to understand the integrity and 20
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closeness of their own family and its concord with other families in their community and in their daily lives. Id. Appellants are left with their belief that every child needs to be raised by a mother and a father. Virginias positive law does not require that every child have a mother and a father, and the social science consensus is that same-sex parents do just as good a job rearing children as different-sex parents.25 Most important, any holding by this Court that the state can impose upon its citizens a gendered parenting regime not only runs up against the Supreme Courts sex discrimination jurisprudence, but also mobilizes the anti-caste legislation purpose of the Fourteenth Amendment, as applied to sexual minorities. As we now show,

Virginias entrenched anti-homosexual caste system is centrally grounded in the vicious stereotype that gay people are sterile, selfish, and anti-familythe same tropes invoked by Appellants to defend the Commonwealths exclusionary family law regime. B. Virginias Traditional Anti-Homosexual Caste System Rests Upon the False Stereotype of Gay People as Anti-Family

There was great social anxiety about same-sex intimacy in the late nineteenth century, when the concept of the homosexual as a distinct category of
25

De Boer v. Snyder, No. 12-CV-10285, slip op. at 4-18 (E.D. Mich. Mar. 21, 2014) (detailed findings of fact); Laura Langbein & Mark A. Yost, Jr., Same-Sex Marriage and Negative Externalities, 90 SOC. SCI. Q. 292 (2009); Timothy J. Biblarz & Judith Stacey, How Does the Gender of Parents Matter?, 72 J. MARRIAGE & FAMILY 3 (2010). 21

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person emerged. Lawrence, 539 U.S. at 568. In the twentieth century, that anxiety morphed into a nationwide panic, which motivated public officials in Virginia and elsewhere to create a caste regime, entrenching homosexuals as social pariahs and outlaws (literally, outside the law).26 As late as 1961, homosexual activities with a consenting adult partner were criminal in every state of the union.27 In Virginia, a lesbian engaged in consensual private activities with another woman could be charged with the crime against nature, a felony, and, if convicted, spend up to three years in prison, a maximum expanded to five years by 1975 Va. Acts, ch. 14. See Va. Code 18.2-361(a) (still codified). In most states, the accused homosexual might be committed to a mental institution as a sexual psychopath, where they were subjected to experimental medical treatments.28 The Commonwealth used evidence of sexual

26

27

28

See generally JOHN DEMILIO, SEXUAL POLITICS, SEXUAL COMMUNITIES: THE MAKING OF A HOMOSEXUAL MINORITY IN THE UNITED STATES 19401970, at 121 (1980); WILLIAM N. ESKRIDGE JR., DISHONORABLE PASSIONS: SODOMY LAW IN AMERICA, 1861-2003, at 73-108 (2008); Estelle B. Freedman, Uncontrolled Desires: The Response to the Sexual Psychopath, 1920-1960, 74 J. AM. HIST. 83-106 (1987). ESKRIDGE, supra note 26, at 388-407 (state-by-state account of sodomy laws and their consequences); Jon J. Gallo et al., The Consenting Adult Homosexual and the Law: An Empirical Study of Enforcement and Administration in Los Angeles County, U.C.L.A. L. REV. 643 (1966) (enforcement of this regime). JONATHAN NED KATZ, GAY AMERICAN HISTORY 134-207 (1976); John LaStala, Atascadero: Dachau for Queers?, THE ADVOCATE, Apr. 26, 1972, at 11, 13 (first person account of medicalized torture of homosexuals at state mental health facility). 22

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psychopathy for sentencing purposes, see 1950 Va. Acts, ch. 463; 1975 Va. Acts, ch. 495, and homosexual sex offenders sent to one of the state mental health facilities were subject to sterilization if the doctors found them mentally defective, pursuant to 1924 Va. Acts, ch. 394.29 Even without a criminal conviction, the homosexual was a presumptive outlaw who could lose her or his professional license and job in the public or private sector, could not have a security clearance, could not serve in the armed forces or in local police forces, and might be deported from this country (if an immigrant).30 If a person dared associate with other homosexuals for social purposes or to advocate for better treatment, she or he could expect police or regulatory surveillance and harassment.31 See 1956 Va. Acts, ch. 521 (liquor licenses revoked for bars that were a meeting place for homosexuals).

29

30

31

On the sterilization of degenerates, see MARGOT CANADAY, THE STRAIGHT STATE: SEXUALITY AND CITIZENSHIP IN TWENTIETH-CENTURY AMERICA 30 (2009). See LILLIAN FADERMAN, ODD GIRLS AND TWILIGHT LOVERS: A HISTORY OF LESBIAN LIFE IN TWENTIETH-CENTURY AMERICA (1991); DAVID K. JOHNSON, THE LAVENDER SCARE: THE COLD WAR PERSECUTION OF GAYS AND LESBIANS IN THE FEDERAL GOVERNMENT (2004); Rhonda Rivera, Our Straight-Laced Judges: The Legal Position of Homosexual Persons in the United States, 50 HASTINGS L.J. 1015 (1999) (reprinting 1979 article). See NAN ALAMILLA BOYD, WIDE OPEN TOWN: A HISTORY OF QUEER SAN FRANCISCO TO 1965, 108-47 (2003); WILLIAM N. ESKRIDGE JR., GAYLAW: CHALLENGING THE APARTHEID OF THE CLOSET 74-76 (1999); GEORGE CHAUNCEY, GAY NEW YORK: GENDER, URBAN CULTURE, AND THE MAKING OF THE GAY MALE WORLD, 1890-1940, 131-50, 331-51 (1994). 23

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The law disrespected and sought to disrupt the lives of those homosexuals who were involved in committed relationships and families. Lesbian and gay couples faced judicial refusal to enforce their contracts, wills, and trust documents.32 If either partner had children, Virginia and other states took them away or restricted visitation, based upon the notion, unsupported by expert evidence, that even exposure to homosexuality is destructive for children.33 E.g., J.P. v. P.W., 772 S.W.2d 786, 792-94 (Mo. Ct. App. 1989) (citing cases); Roe v. Roe, 324 S.E.2d 691, 694 (Va. 1985). The anti-homosexual caste regime was created in an era of increasing anxiety about nonmarital sexuality and the decline of traditional gender roles.34 The rhetoric that justified the pervasive discrimination was the view that lesbians and gay men are sex-obsessed predators who are a threat to the American family.35 In justifying its denial of visitation to a homosexual parent, an Ohio court explained: [G]iven its concern for perpetuating the values associated with conventional marriage and the family as the basic unit of society, the state has a
32

33

34

35

Jeffrey G. Sherman, Undue Influence and the Homosexual Testator, 42 U. PITT. L. REV. 225, 232-48 (1981). Rivera, supra note 30, at 1102-23 (discussing cases). On contagious homosexuality, see JOHN DEMILIO, supra note 26, at 42-43; Clifford J. Rossky, Fear of the Queer Child, 61 BUFF. L. REV. 607, 630-31 (2012). Cf. Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. REV. 197, 284-85 (1994) (anti-gay prejudice is centrally a revulsion based on gender role). ESKRIDGE, supra note 26, at 76-84; FADERMAN, supra note 30, at 130-50; JOHNSON, supra note 30, at 55-64. 24

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substantial interest in viewing homosexuality as errant sexual behavior which threatens the social fabric, and in endeavoring to protect minors from being influenced by those who advocate homosexual lifestyles. Roberts v. Roberts, 489 N.E.2d 1067, 1070 (Ohio App. 1985); accord, Bottoms v. Bottoms, 457 S.E.2d 102, 108 (Va. 1995). A few examples will illustrate our point. The Navys educational materials for recruits warned: By [homosexual] conduct, a Navy woman may ruin her chances for a happy marriage and poison relationships with her family. Chaplains Presentation (WAVE Recruits) (Nov. 1952).36 Homosexuality was the antithesis of monogamous marriage devoted to the well-being of children. Instead, homosexuals have an insatiable appetite for sexual activities and find special gratification in the recruitment to their ranks of youth. Florida Legislative

Investigation Commn, Homosexuality and Citizenship in Florida 10 (1964).37 [H]omosexuality is unique among the sexual assaults . . . in that the person affected by the practicing homosexual is first a victim, then an accomplice, and finally himself a perpetrator of homosexual acts. Id.

36

37

See Allan Brub & John DEmilio, The Military and Lesbians During the McCarthy Years, 9 Signs 759-75 (1984) (reproducing this and other antihomosexual indoctrination and education materials). See JAMES T. SEARS, LONELY HUNTERS: AN ORAL HISTORY OF LESBIAN AND GAY SOUTHERN LIFE, 1948-1968, at 48-108 (1997) (account of the Florida Legislative Investigation Committees activities and reports). 25

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Congress accepted these pernicious stereotypes: [P]erverts will frequently attempt to entice normal individuals to engage in perverted practices. This is particularly true of young and impressionable people who come under the influence of a pervert. Subcomm. on Investigations of the Senate Comm. on Expenditures in the Executive Depts, Interim Report, Employment of Homosexuals and Other Sex Perverts in Government, S. Doc. No. 241, 81st Cong., 2d Sess. 4 (1950).38 Federal officials maintained that homosexuals were antiAmerican. According to the Senate Minority Leader, You cant hardly separate homosexuals from subversives, including Communists.39 In short, the classic stereotype about homosexualsthe notion that inspired the caste regimeis that they are promiscuous recruiters and corrupters of children, who cannot have committed relationships.40 Thus, in 1985, the

Virginia Supreme Court treated a committed relationship between two gay men as an intolerable burden on one mans biological daughter, a burden worse and more abhorrent than adultery. Roe, 324 S.E.2d at 693. The father's unfitness [to retain parental rights] is manifested by his willingness to impose this burden upon her in exchange for his own gratification. Id.
38

39 40

See Johnson, supra note 30, at 101-18 (account of the Hoey Committee deliberations). Id. at 30-38 (quotations linking homosexuality and Communism). ANGELA SIMON, THE RELATIONSHIP BETWEEN STEREOTYPES AND ATTITUDES TOWARD LESBIANS AND GAYS, IN GREGORY HEREK, ED., STIGMA AND SEXUAL ORIENTATION 62-63 (1998). 26

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As we know today, the foregoing anti-homosexual caste regime was grounded in inaccurate stereotypes and prejudice. For example, gay men are no more likely than straight men to molest children, and lesbians are much less likely to do so.41 And lesbians and gay men form committed relationships and raise children. Indeed, more than 100,000 lesbian and gay couples are now legally married in this country; 31% of them are raising children within their marital households.42 C. Appellants Justifications for Virginias Anti-Gay Family Law Rest Upon the Stereotypes Undergirding the Anti-Homosexual Caste System

This litigation unfolds in the shadow of Virginias anti-homosexual caste system, whose capstone is the new family law exclusions adopted between 1997 and 2011. These exclusions are as sweeping as they are unprecedentedand these features confirm our argument that they reflect prejudice and stereotyping, the talismans of caste legislation invalid under the Equal Protection Clause. Romer, 517 U.S. at 627-633. It is unprecedented for Virginia to adopt three overlapping legal measures to exclude couples from its family law. It is unprecedented for Virginia to extend the
41

42

E.g., Carole Jenny et al., Are Children at Risk for Sexual Abuse by Homosexuals?, 94 PEDIATRICS 41, 42-43 (1994) (no). Gary J. Gates & Abigail M. Cooke, Williams Inst., United States Census Snapshot: 2010 (2011), available at http://williamsinstitute.law.ucla.edu/wpcontent/uploads/Census2010Snapshot-US-v2.pdf (last visited Feb. 21, 2013). 27

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exclusion beyond marriage, to include civil union[s], partnership contract[s] or other arrangement[s] purporting to bestow any of the privileges or obligations of marriage, Va. Code. 20-45.3; accord, Va. Const. art. I, 15-A (barring recognition of any union, partnership, or other legal status assigned the rights etc. of marriage). It is unprecedented, since the Racial Integrity Act of 1924, for Virginia to denigrate a class of citizens in the way Virginia officially denigrates homosexuals as interested only in seeking to devalue the institution of marriage and the status of children, and not in actually getting married themselves. 2004 Va. Acts, H.B. 751 (Pmbl.) (McQuigg Br., Addendum 2).43 In a further affront, the 2004 Act sought to add to the Virginia Code a legislative finding regarding the life-shortening and health compromising consequences of homosexual behavior. Id. Romer reasoned from Colorados sweeping, unprecedented, and unjustified discrimination that its anti-gay amendment was inspired by animosity toward the class of persons affected. 517 U.S. at 634. Virginias anti-gay family law regime is just as sweeping, unprecedented, and unjustifiedand in this case the evidence of animus is evident on the face of the legislation and constitutional amendment. Also in contrast to Romer, Virginias anti-gay family law regime is justified on
43

For similar anti-gay slurs by Delegate Marshall, the sponsor of the 2006 constitutional amendment, see Same-Sex Marriage Symposium, George Mason University Law School, 16 GEO. MASON U. C.R. L.J. 329, 333, 336, 346 (2005-2006). 28

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appeal by the precise anti-gay stereotypes that undergird the Commonwealths anti-homosexual caste system. Even worse than the discrimination invalidated in Romer, the exclusion here is blatant scapegoating. Virginia has decriminalized procreative sex outside of marriage, allows sexual cohabitation and childrearing outside of marriage, and has accepted adult decisions to end marriages without fault. On the heels of Virginias expansion of the adult-centered features of its family law regime to satisfy the preferences of straight Virginians (even at the expense of childrens interests), Appellants accuse Carol Schall and Mary Townley, a committed married couple devoted to their daughter, of undermining marriage by making it adult-centered. McQuigg Br. 51. Such scapegoating is not only unfairbut also unconstitutional. Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be drawn for the purpose of disadvantaging the group burdened by the law. Lawrence, 539 U.S. at 583 (OConnor, J., concurring) (quoting Romer, 517 U.S. at 633). Scapegoating minorities corrupts the majority as well. [T]here is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom 29
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they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Ry. Express Agency v. New York, 336 U.S. 106, 112-13 (1949) (Jackson, J., concurring). CONCLUSION The original meaning of the Fourteenth Amendment and the Supreme Courts precedents do not tolerate Virginias exclusionary family law regime, which is tightly linked to the discredited anti-gay caste regime and is not plausibly supported by a neutral public interest. For the foregoing reasons, this Court should affirm the decision below. Respectfully submitted,

/s/ Kathleen M. OSullivan Kathleen M. OSullivan Mica D. Simpson PERKINS COIE LLP 1201 Third Avenue Suite 4900 Seattle, WA 98101 (206) 359-8000 Counsel for Amici Curiae April 18, 2014

30
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CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 6,961 words, as determined by the wordcount function of Microsoft Word 2007, excluding the parts of the brief exempt by Fed. R. App. Proc. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App.

Proc. 32(a)(5) and the type-style requirements of Fed. R. App. Proc. 32(a)(6) because it has been prepared in a proportionally-spaced typeface using Microsoft Word 2007 in 14-point Times New Roman font.

/s/ Kathleen M. OSullivan Attorney for Amici Curiae

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CERTIFICATE OF SERVICE
I hereby certify that on this 18th day of April, 2014, I electronically filed the foregoing Amici Curiae Brief through the Court's CM/ECF system. Service on all counsel of record will be accomplished by operation of the Court's CM/ECF system. The following counsel of record is not a registered user of the Court's CM/ECF system. Service will be accomplished by serving a true and correct copy at the address listed below by U.S. Mail: David A. Robinson P. 0. Box 780 Nm1h Haven, CT 064 73
J ne Starr, Legal Secretary

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UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

APPEARANCE OF COUNSEL FORM

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

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

PROFESSORS WILLIAM N. ESKRIDGE JR., REBECCA L. BROWN, BRUCE COUNSEL FOR: _______________________________________________________________________ A. ACKERMAN, DANIEL A. FARBER, KENNETH L. KARST, AND ANDREW KOPPELMAN as the __________________________________________________________________________________
(party name) appellant(s) appellee(s) petitioner(s) respondent(s) amicus curiae intervenor(s)

s/Kathleen O'Sullivan ______________________________________ (signature) Kathleen O'Sullivan ________________________________________

Name (printed or typed)

206-359-6375 _______________
Voice Phone

Perkins Coie LLP ________________________________________

Firm Name (if applicable)

206-359-7375 _______________
Fax Number

1201 Third Ave., Ste. 4900 ________________________________________ Seattle, WA 98101 ________________________________________

Address

kosullivan@perkinscoie.com _________________________________
E-mail address (print or type)

CERTIFICATE OF SERVICE
4/18/14 I certify that on _________________ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below: David A. Robinson P. O. Box 780 North Haven, CT 06473

______________________________ s/Kathleen M. O'Sullivan Signature

11/17/2011 SCC

____________________________ 4/18/14 Date

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UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

APPEARANCE OF COUNSEL FORM

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

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

PROFESSORS WILLIAM N. ESKRIDGE JR., REBECCA L. BROWN, BRUCE COUNSEL FOR: _______________________________________________________________________
A. ACKERMAN, DANIEL A. FARBER, KENNETH L. KARST, AND ANDREW KOPPELMAN as the __________________________________________________________________________________
(party name) appellant(s) appellee(s) petitioner(s) respondent(s)  amicus curiae intervenor(s)

s/Mica D. Simpson ______________________________________ (signature)

Mica D. Simpson ________________________________________

Name (printed or typed)

206-359-6023 _______________
Voice Phone

Perkins Coie LLP ________________________________________

Firm Name (if applicable)

206-359-7023 _______________
Fax Number

1201 Third Ave., Ste. 4900 ________________________________________

Seattle, WA 98101 ________________________________________

Address

msimpson@perkinscoie.com _________________________________
E-mail address (print or type)

CERTIFICATE OF SERVICE
4/18/14 I certify that on _________________ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below:
David A. Robinson P. O. Box 780 North Haven, CT 06473

______________________________ s/Mica D. Simpson Signature

11/17/2011 SCC

____________________________ 4/18/14 Date

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