Ada Conde Amicus Brief ACLU Filed 2-2-2015

Case: 14-2184
Document: 00116793783
Page: 1
Date Filed: 02/02/2015
Entry ID: 5883597
No. 14-2184
UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
ADA MERCEDES CONDE-VIDAL, et al.,

Plaintiffs - Appellants,
v.
DR. ANA RIUS-ARMENDARIZ,
in her official capacity as Secretary of the Health Department
of the Commonwealth of Puerto Rico, et al.,
Defendants - Appellees.
On Appeal from the United States District Court
for the District of Puerto Rico, No. 3:14-cv-01253-PG
The Honorable Juan M. Prez-Gimnez, Presiding
BRIEF OF AMICI CURIAE
THE LEADERSHIP CONFERENCE ON CIVIL AND HUMAN RIGHTS,
PUBLIC INTEREST ORGANIZATIONS, AND BAR ASSOCIATIONS
IN SUPPORT OF PLAINTIFFS-APPELLANTS
Rose A. Saxe
First Circuit Bar No. 1121399
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street, 18th Floor
New York, New York 10004
(212) 549-2627
rsaxe@aclu.org
William Ramirez
Counsel of Record
ACLU OF PUERTO RICO
Union Plaza Building, Suite 1105
416 Avenida Ponce de Leon
San Juan, Puerto Rico 00918
(787) 753-8493
wramirez@aclu.org
Counsel for Amici Curiae
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This brief is filed on behalf of the following organizations:

The Leadership Conference on Civil and Human Rights
American Civil Liberties Union
ACLU of Puerto Rico
API Equality-LA
Asian Americans Advancing Justice | AAJC
Asian Americans Advancing Justice | Asian Law Caucus
Asian Americans Advancing Justice | Los Angeles
Colegio de Abogados y Abogadas de Puerto Rico (Puerto Rico Bar
Association)
Human Rights Campaign
National Black Justice Coalition
National Center for Lesbian Rights
National LGBT Bar Association
National LGBTQ Task Force
Wide Committee for the Search of Equality (CABE)
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CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, the undersigned
counsel of record certifies that none of the amici curiae is a nongovernmental
entity with a parent corporation or a publicly held corporation that owns 10% or
more of its stock. This representation is made in order that the judges of this court
may evaluate possible disqualification or recusal.
Dated: February 2, 2015
s/ William Ramirez
William Ramirez
ACLU OF PUERTO RICO
(787) 753-8493
wramirez@aclu.org
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TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ........................................................ ii
TABLE OF AUTHORITIES ................................................................................... iv
INTEREST OF AMICI CURIAE ...............................................................................1
SUMMARY OF THE ARGUMENT ........................................................................2
ARGUMENT .............................................................................................................2
I. UNDER THE TRADITIONAL FRAMEWORK FOR IDENTIFYING
SUSPECT OR QUASI-SUSPECT CLASSIFICATIONS, SEXUAL
ORIENTATION CLASSIFICATIONS MUST BE SUBJECTED TO
HEIGHTENED SCRUTINY. ..........................................................................2
A. Lesbian, Gay, and Bisexual People Have Suffered a Long History of
Discrimination. ...........................................................................................6
B. Sexual Orientation Has No Bearing on a Persons Ability to Perform
in or Contribute to Society. ........................................................................6
C. Sexual Orientation Is an Obvious, Immutable, or Distinguishing
Characteristic. .............................................................................................8
D. Lesbian, Gay, and Bisexual People Lack Sufficient Political Power to
Protect Themselves Against Invidious Discrimination. ...........................11
II. THIS COURT HAS NEVER APPLIED THE TRADITIONAL
FRAMEWORK, AND THE CONSIDERATIONS THAT CONSTRAINED
THIS COURT FROM DOING SO IN MASSACHUSETTS V. U.S.
DEPARTMENT OF HEALTH & HUMAN SERVICES NO LONGER
APPLY. ..........................................................................................................13
CONCLUSION ........................................................................................................17
CERTIFICATE OF COMPLIANCE .......................................................................18
CERTIFICATE OF SERVICE FOR ELECTRONIC FILINGS .............................19
APPENDIX ........................................................................................................... A-1
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TABLE OF AUTHORITIES
Cases
Armstrong v. Brenner,
135 S. Ct. 890 (Dec. 19, 2014) ...........................................................................15
Baker v. Nelson,
409 U.S. 810 (1972) ............................................................................................13
Baskin v. Bogan,
766 F.3d 648 (7th Cir. 2014) ....................................................................... passim
Bishop v. Smith,
760 F.3d 1070 (10th Cir. 2014) ..........................................................................14
Bostic v. Schaefer,
760 F.3d 352 (4th Cir. 2014) ..............................................................................14
Bowen v. Gilliard,
483 U.S. 587 (1987) ..............................................................................................8
City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432 (1985) ................................................................................. 3, 4, 7, 8
Clark v. Jeter,
486 U.S. 456 (1988) ..........................................................................................2, 3
Cook v. Gates,
528 F.3d 42 (1st Cir. 2008) .................................................................................15
DeBoer v. Snyder,
772 F.3d 388 (6th Cir. 2014) ..............................................................................15
Frontiero v. Richardson,
411 U.S. 677 (1973) ............................................................................. 7, 8, 12, 13
Golinski v. U.S. Office of Pers. Mgmt.,
824 F. Supp. 2d 968 (N.D. Cal. 2012) ................................................. 5, 8, 10, 12
Griego v. Oliver,
316 P.3d 865 (N.M. 2013) ..............................................................................5, 12
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Grutter v. Bollinger,
539 U.S. 306 (2003) ..............................................................................................4
Hernandez-Montiel v. Immigration & Naturalization Serv.,
225 F.3d 1084 (9th Cir. 2000) ............................................................................10
In re Marriage Cases,
183 P.3d 384 (Cal. 2008) ..................................................................................5, 9
J.E.B. v. Ala. ex rel. T.B.,
511 U.S. 127 (1994) ..............................................................................................4
Kerrigan v. Commr of Pub. Health,
957 A.2d 407 (Conn. 2008) ..............................................................................5, 9
Kitchen v. Herbert,
755 F.3d 1193 (10th Cir. 2014) ..........................................................................14
Massachusetts v. U.S. Department of Health & Human Services,
682 F.3d 1 (1st Cir. 2012) ........................................................................... passim
Moser v. Marie,
135 S. Ct. 511 (Nov. 12, 2014) ...........................................................................15
Nyquist v. Mauclet,
432 U.S. 1 (1977) ..................................................................................................9
Otter v. Latta,
135 S. Ct. 345 (Oct. 10, 2014) ............................................................................15
Parnell v. Hamby,
135 S. Ct. 399 (Oct. 17, 2014) ............................................................................15
Pedersen v. Office of Pers. Mgmt.,
881 F. Supp. 2d 294 (D. Conn. 2012)......................................................... passim
Perry v. Brown,
671 F.3d 1052 (9th Cir. 2012) ............................................................................14
Plyler v. Doe,
457 U.S. 202 (1982) ..............................................................................................8
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Rice v. Cayetano,
528 U.S. 495 (2000) ..............................................................................................4
SmithKline Beecham Corp. v. Abbott Labs.,
740 F.3d 471 (9th Cir. 2014) ............................................................................3, 5
United States v. Windsor,
133 S. Ct. 2675 (2013) ........................................................................................14
Varnum v. Brien,
763 N.W.2d 862 (Iowa 2009) ...............................................................................5
Whitewood v. Wolf,
992 F. Supp. 2d 410 (M.D. Pa. 2014) ...................................................................5
Windsor v. United States,
699 F.3d 169 (2d Cir. 2012) ....................................................................... passim
Wolf v. Walker,
986 F. Supp. 2d 982 (W.D. Wis. 2014) ..................................................... 5, 9, 11
Rules
Fed. R. App. P. 29 ......................................................................................................1
Other Authorities
Am. Psychiatric Assn, Position Statement On Homosexuality and Civil Rights,
131 Am. J. Psychiatry 436 (1974) ........................................................................7
Am. Psychiatric Assn, Resolution
(Dec. 15, 1973), reprinted in 131 Am. J. Psychiatry 497 (1974) .........................7
Barbara S. Gamble, Putting Civil Rights to a Popular Vote,
41 Am. J. Pol. Sci. 245 (1997) ............................................................................12
Br. of Amicus Curiae GLMA: Health Professionals Advancing LGBT Equality
(Gay & Lesbian Med. Assn) Concerning the Immutability of Sexual
Orientation in Support of Affirmance on the Merits, United States v.
Windsor, 133 S. Ct. 2675 (2013), No. 12-307, 2013 WL 860299 (Feb. 26,
2013) ...................................................................................................................10
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Br. of Org. of Am. Historians & Am. Studies Assn as Amici Curiae
in Support of Respondent Edith Windsor, United States v. Windsor,
133 S. Ct. 2675 (2013), No. 12-307, 2013 WL 838150 (Feb. 28, 2013) .............6
Donald P. Haider-Markel, et al., Lose, Win, or Draw?: A Reexamination of
Direct Democracy and Minority Rights, 60 Pol. Res. Q. 304 (2007) ................12
Gregory M. Herek, et al., Demographic, Psychological, and Social
Characteristics of Self-Identified Lesbian, Gay, and Bisexual Adults in a US
Probability Sample, 7 Sex Res. Soc. Policy 176 (2010) ....................................10
Minutes of the Annual Meeting of the Council of Representatives,
30 Am. Psychologist 620 (1975) ..........................................................................7
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INTEREST OF AMICI CURIAE1

Amici are a coalition of fourteen civil and human rights groups, public
interest organizations, and bar associations committed to preventing, combating,
and redressing discrimination and protecting the equal rights of women and
minorities in the United States, including African Americans, Latinos, Asian
Americans and Pacific Islanders, and lesbian, gay, bisexual, and transgender
persons.2
Amici have a vital interest in ensuring that the Constitutions guarantee of
equal protection effectively protects all people from invidious discrimination and
have filed this brief to address an issue of overriding importance in this case: the
proper standard for reviewing governmental action that discriminates on the basis
of sexual orientation. All amici have given their authorization to have this brief
filed on their behalf.
All parties have consented to the filing of this brief. Substantially similar
briefs were submitted by amicus the American Civil Liberties Union and other
legal organizations, including Lambda Legal, in cases challenging the
constitutionality of the federal Defense of Marriage Act and state laws excluding
same-sex couples from marriage. Neither the parties nor their counsel have
contributed money that was intended to fund preparing or submitting this brief. No
person other than amici, their members, or their counsel contributed money that
was intended to fund preparing or submitting the brief. See Fed. R. App. P. 29.
2
A brief description of each amicus is set forth in the Appendix.
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SUMMARY OF THE ARGUMENT

Plaintiffs-Appellants challenge the constitutionality of Puerto Rico statutes
that prohibit same-sex couples from marrying under Puerto Rico law and deny
recognition to the legally valid marriages of same-sex couples performed in other
jurisdictions (collectively, Puerto Rico marriage bans). Although amici agree
with Plaintiffs-Appellants that the Puerto Rico marriage bans are unconstitutional
under any standard of review, amici submit this brief to explain that (i) under the
controlling framework established by the Supreme Court, laws that discriminate
based on sexual orientation, such as the Puerto Rico marriage bans, should be
subjected to heightened scrutiny and (ii) the considerations that constrained this
Court from applying the traditional equal protection framework in Massachusetts
v. U.S. Department of Health & Human Services, 682 F.3d 1 (1st Cir. 2012), no
longer apply.
ARGUMENT
I.
UNDER THE TRADITIONAL FRAMEWORK FOR IDENTIFYING

SUSPECT OR QUASI-SUSPECT CLASSIFICATIONS, SEXUAL
ORIENTATION CLASSIFICATIONS MUST BE SUBJECTED TO
HEIGHTENED SCRUTINY.
In considering whether state legislation violates the Equal Protection
Clause, courts must apply different levels of scrutiny to different types of

classifications. Clark v. Jeter, 486 U.S. 456, 461 (1988). At a minimum, nonsuspect classifications are subject to rational-basis review and must be rationally
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related to a legitimate governmental purpose. Id. On the other end of the

spectrum, [c]lassifications based on race or national origin are suspect
classifications and are given the most exacting scrutiny. Id. Between these
extremes of rational basis review and strict scrutiny lies a level of intermediate
scrutiny, which generally has been applied to discriminatory classifications based
on sex or illegitimacy. Id. Classifications receiving this intermediate level of
scrutiny are quasi-suspect classifications that can be sustained only if they are
substantially related to an important governmental objective. Id.
The Second, Seventh, and Ninth Circuits have all held that discrimination
based on sexual orientation must be subjected to heightened scrutiny. Baskin v.
Bogan, 766 F.3d 648, 655-56 (7th Cir. 2014), cert. denied, 135 S. Ct. 316 (Oct. 6,
2014); SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 484 (9th Cir.
2014); Windsor v. United States, 699 F.3d 169, 181-85 (2d Cir. 2012), affd, 133 S.
Ct. 2675 (2013). Heightened scrutiny is essentially a determination that a
particular classification should not be presumed constitutional because it
generally provides no sensible ground for differential treatment. City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). Even when not
consciously motivated by prejudice, reliance on these suspect or quasi-suspect
classifications is more likely to be the product of [h]abit, rather than analysis. Id.
at 453 n.6 (Stevens, J., concurring) (internal quotation marks omitted). By
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classifying people on the basis of stereotyped characteristics not truly indicative

of their abilities, id. at 441 (majority opinion) (internal quotation marks omitted),
these classifications demean[] the dignity and worth of a person to be judged . . .
by his or her own merit and essential qualities, Rice v. Cayetano, 528 U.S. 495,
517 (2000); accord J.E.B. v. Ala. ex rel. T.B., 511 U.S. 127, 153 (1994) (Kennedy,
J., concurring). Such classifications are not always forbidden, but they must be
approached with skepticism and subjected to heightened scrutiny in order to
smoke out improper discrimination and assur[e] that [government] is pursuing a
goal important enough to warrant use of a highly suspect tool. Grutter v.
Bollinger, 539 U.S. 306, 326 (2003) (internal quotation marks and alterations
omitted).
In a long line of cases, the Supreme Court has established a framework for
determining whether a classification should be treated with suspicion and, thus,
subjected to heightened scrutiny.
The Supreme Court uses certain factors to decide whether a new
classification qualifies as a [suspect or] quasi-suspect class. They include: A)
whether the class has been historically subjected to discrimination, B)
whether the class has a defining characteristic that frequently bears [a]
relation to ability to perform or contribute to society, C) whether the class
exhibits obvious, immutable, or distinguishing characteristics that define
them as a discrete group; and D) whether the class is a minority or
politically powerless.
Windsor, 699 F.3d at 181 (quotation marks and citations omitted; bracket in
original). Of these considerations, the first two are the most important. See id.
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(Immutability and lack of political power are not strictly necessary factors to
identify a suspect class.); see also Baskin, 766 F.3d at 654 (Discrimination by a
state or the federal government against a minority, when based on an immutable
characteristic of the members of that minority (most familiarly skin color and
gender), and occurring against an historical background of discrimination against
the persons who have that characteristic, makes the discriminatory law or policy
constitutionally suspect.).
As numerous federal and state courts have recently recognized, any faithful
application of those factors leads to the inescapable conclusion that sexual
orientation classifications must be recognized as at least quasi-suspect and
subjected to heightened scrutiny. See Baskin, 766 F.3d at 655-56; Windsor, 699
F.3d at 181-85; Wolf v. Walker, 986 F. Supp. 2d 982, 1014 (W.D. Wis. 2014), affd
sub nom. Baskin, 766 F.3d 648; Whitewood v. Wolf, 992 F. Supp. 2d 410, 425-30
(M.D. Pa. 2014); Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294, 310-33
(D. Conn. 2012); Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 98590 (N.D. Cal. 2012); Griego v. Oliver, 316 P.3d 865, 879-84 (N.M. 2013); Varnum
v. Brien, 763 N.W.2d 862, 885-96 (Iowa 2009); Kerrigan v. Commr of Pub.
Health, 957 A.2d 407, 425-32 (Conn. 2008); In re Marriage Cases, 183 P.3d 384,
441-44 (Cal. 2008); see also SmithKline, 740 F.3d at 480-84 (finding heightened
scrutiny applicable to sexual orientation without examining the four factors).
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A. Lesbian, Gay, and Bisexual People Have Suffered a Long History of

Discrimination.
As this Court has recognized, gays and lesbians have long been the subject
of discrimination. Massachusetts, 682 F.3d at 11; see also Windsor, 699 F.3d at
182 (It is easy to conclude that homosexuals have suffered a history of
discrimination.). [T]he long history of anti-gay discrimination which evolved
from conduct-based proscriptions to status or identity-based proscriptions
perpetrated by federal, state and local governments as well as private parties amply
demonstrates that homosexuals have suffered a long history of invidious
discrimination. Pedersen, 881 F. Supp. 2d at 318; Br. of Org. of Am. Historians
& Am. Studies Assn as Amici Curiae in Support of Respondent Edith Windsor,
United States v. Windsor, 133 S. Ct. 2675 (2013), No. 12-307, 2013 WL 838150
(Feb. 28, 2013) (summarizing history of discrimination against gay, lesbian, and
bisexual people in America). Indeed, homosexuals are among the most
stigmatized, misunderstood, and discriminated-against minorities in the history of
the world. Baskin, 766 F.3d 658.
B. Sexual Orientation Has No Bearing on a Persons Ability to Perform
in or Contribute to Society.
The other essential factor in the Supreme Courts heightened scrutiny
analysis is whether the group in question is distinctively different from other
groups in a way that frequently bears [a] relation to ability to perform or
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contribute to society. Cleburne, 473 U.S. at 441 (citation omitted); see also
Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality) ([W]hat
differentiates sex from such nonsuspect statuses as intelligence or physical
disability, and aligns it with the recognized suspect criteria, is that the sex
characteristic frequently bears no relation to ability to perform or contribute to
society.).
Sexual orientation has no bearing on an individuals ability to perform in or
contribute to society. More than forty years ago, the American Psychiatric
Association and the American Psychological Association recognized that
homosexuality is not correlated with any impairment in judgment, stability,
reliability or general social and vocational capabilities. Am. Psychiatric Assn,
Resolution (Dec. 15, 1973), reprinted in 131 Am. J. Psychiatry 497 (1974);
Minutes of the Annual Meeting of the Council of Representatives, 30 Am.
Psychologist 620, 633 (1975); see also Am. Psychiatric Assn, Position Statement
On Homosexuality and Civil Rights, 131 Am. J. Psychiatry 436, 497 (1974).
Numerous courts have agreed that a persons sexual orientation is irrelevant
to ones ability to perform or contribute to society. There are some distinguishing
characteristics, such as age or mental handicap, that may arguably inhibit an
individuals ability to contribute to society, at least in some respect. But
homosexuality is not one of them. Windsor, 699 F.3d at 182; accord Pedersen,
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881 F. Supp. 2d at 320 (Sexual orientation is not a distinguishing characteristic

like mental retardation or age which undeniably impacts an individuals capacity
and ability to contribute to society.); Golinski, 824 F. Supp. 2d at 986 ([T]here is
no dispute in the record or the law that sexual orientation has no relevance to a
persons ability to contribute to society.).
Like race, alienage, sex, and legitimacy, a persons sexual orientation is
thus not a characteristic the government may legitimately take into account in a
wide range of decisions. Cleburne, 473 U.S. at 446. These characteristics are so
seldom relevant to the achievement of any legitimate state interest that
discrimination based on such characteristics does not warrant a presumption of
constitutionality. Id. at 440.
C. Sexual Orientation Is an Obvious, Immutable, or Distinguishing
Characteristic.
The heightened scrutiny inquiry sometimes also considers whether laws
discriminate on the basis of obvious, immutable, or distinguishing characteristics
that define [persons] as a discrete group. Bowen v. Gilliard, 483 U.S. 587, 602
(1987) (internal quotation marks and citation omitted). This consideration derives
from the basic concept of our system that legal burdens should bear some
relationship to individual responsibility. Frontiero, 411 U.S. at 686; see also
Plyler v. Doe, 457 U.S. 202, 220 (1982). But there is no requirement that a
characteristic be immutable in order to trigger heightened scrutiny. Heightened
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scrutiny applies to classifications based on alienage and legitimacy even though

[a]lienage and illegitimacy are actually subject to change. Windsor, 699 F.3d at
183 n.4; see Nyquist v. Mauclet, 432 U.S. 1, 9 n.11 (1977) (rejecting the argument
that alienage did not deserve strict scrutiny because it is mutable).
To the extent that immutability is relevant to the inquiry of whether to
apply heightened scrutiny, the question is not whether a characteristic is strictly
unchangeableit is whether the characteristic is a core trait or condition that one
cannot or should not be required to abandon even if that were possible. As courts
have recognized, sexual orientation is so fundamental to a persons identity that
one ought not be forced to choose between ones sexual orientation and ones
rights as an individualeven if such a choice could be made. See Wolf, 986 F.
Supp. 2d at 1013 ([R]egardless whether sexual orientation is immutable, it is
fundamental to a persons identity, which is sufficient to meet this factor. (internal
quotation marks and citations omitted)); In re Marriage Cases, 183 P.3d at 442
(Because a persons sexual orientation is so integral an aspect of ones identity, it
is not appropriate to require a person to repudiate or change his or her sexual
orientation in order to avoid discriminatory treatment.); Kerrigan, 957 A.2d at
438 (In view of the central role that sexual orientation plays in a persons
fundamental right to self-determination, we fully agree with the plaintiffs that their
sexual orientation represents the kind of distinguishing characteristic that defines
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them as a discrete group for purposes of determining whether that group should be
afforded heightened protection under the equal protection provisions of the state
constitution.); cf. Hernandez-Montiel v. Immigration & Naturalization Serv., 225
F.3d 1084, 1093 (9th Cir. 2000) (Sexual orientation and sexual identity are
immutable; they are so fundamental to ones identity that a person should not be
required to abandon them.), overruled on other grounds, Thomas v. Gonzales, 409
F.3d 1177 (9th Cir. 2005).
Under any definition of immutability, sexual orientation clearly qualifies.
There is now broad medical and scientific consensus that sexual orientation is an
immutable (and probably an innate, in the sense of in-born) characteristic rather
than a choice. Baskin, 766 F.3d at 657; accord Pedersen, 881 F. Supp. 2d at 32024; Golinski, 824 F. Supp. 2d at 986; see also Gregory M. Herek, et al.,
Demographic, Psychological, and Social Characteristics of Self-Identified
Lesbian, Gay, and Bisexual Adults in a US Probability Sample, 7 Sex Res. Soc.
Policy 176 (2010); Br. of Amicus Curiae GLMA: Health Professionals Advancing
LGBT Equality (Gay & Lesbian Med. Assn) Concerning the Immutability of
Sexual Orientation in Support of Affirmance on the Merits, United States v.
Windsor, 133 S. Ct. 2675 (2013), No. 12-307, 2013 WL 860299 (Feb. 26, 2013).
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D. Lesbian, Gay, and Bisexual People Lack Sufficient Political Power to

Protect Themselves Against Invidious Discrimination.
Lack of political power is not essential for recognition as a suspect or quasisuspect class. See Windsor, 699 F.3d at 184; Wolf, 986 F. Supp. 2d at 1013 (With
respect to political powerlessness, it seems questionable whether it is really a
relevant factor.). But, as this Court has recognized, the limited ability of lesbian,
gay, and bisexual people as a group to protect themselves in the political process
also weighs in favor of heightened scrutiny of laws that discriminate based on
sexual orientation. See Massachusetts, 682 F.3d at 14 (equal protection analysis
requires skepticism of distinctions drawn against a historically disadvantaged
group . . . [that] has historically been less able to protect itself through the political
process). In analyzing this factor, [t]he question is not whether homosexuals
have achieved political successes over the years; they clearly have. The question is
whether they have the strength to politically protect themselves from wrongful
discrimination. Windsor, 699 F.3d at 184.
Recent advances for lesbian, gay, and bisexual people are far less substantial
than the political progress of women at the time that classifications based on sex
were first recognized as quasi-suspect. In 1973, when a plurality of the Supreme
Court concluded in Frontiero that sex-based classifications required heightened
scrutiny, Congress had already passed Title VII of the Civil Rights Act of 1964 and
the Equal Pay Act of 1963, both of which protect women from discrimination in
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the workplace. See Frontiero, 411 U.S. at 687-88. In contrast, there is still no
express federal ban on sexual orientation discrimination in employment or housing,
and twenty-nine states have no such protections either. See Pedersen, 881 F. Supp.
2d at 326-27; Golinski, 824 F. Supp. 2d at 988-89. The existence of such
protections did not prevent sex from being recognized as a classification requiring
heightened scrutiny; it follows that the limited success gay people have had in
fighting back discriminatory policies can hardly qualify as political power.
While there have been recent successes in securing antidiscrimination and
marriage equality legislation in some parts of the nation, those limited successes do
not alter the conclusion that lesbians and gay men are not in a position to
adequately protect themselves from the discriminatory wishes of the majoritarian
public. Windsor, 699 F.3d at 185. Gay people have seen their civil rights put to
a popular vote more often than any other group. Barbara S. Gamble, Putting Civil
Rights to a Popular Vote, 41 Am. J. Pol. Sci. 245, 257 (1997); see also Donald P.
Haider-Markel, et al., Lose, Win, or Draw?: A Reexamination of Direct
Democracy and Minority Rights, 60 Pol. Res. Q. 304 (2007). This history of
popular referenda to roll back or prevent legal protections for lesbians and gay men
demonstrates that the members of the LGBT community do not have sufficient
political strength to protect themselves from purposeful discrimination. Griego,
316 P.3d at 884.
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As Judge Posner concluded, [a]lthough discrimination against homosexuals

has diminished greatly, it remains widespread and persists in state constitutional
amendments excluding same-sex couples from marriage. Baskin, 766 F.3d at 665;
cf. Frontiero, 411 U.S. at 685-86 (applying heightened scrutiny to classifications
based on sex even though the position of women in America has improved
markedly in recent decades). To the extent that political powerlessness is a
relevant factor, this factor also confirms that sexual orientation classifications
should be subjected to heightened scrutiny.
II.
THIS COURT HAS NEVER APPLIED THE TRADITIONAL

FRAMEWORK, AND THE CONSIDERATIONS THAT
CONSTRAINED THIS COURT FROM DOING SO IN
MASSACHUSETTS V. U.S. DEPARTMENT OF HEALTH & HUMAN
SERVICES NO LONGER APPLY.
As discussed above, classifications based on sexual orientation have all the
indicia of suspectness identified by the Supreme Court. But this Court has never
had the opportunity to analyze those traditional factors. Instead, in Massachusetts
v. Health & Human Services, this Court did not engage in that analysis because it
concluded that recognizing sexual orientation classifications as suspect was
foreclosed by the Supreme Courts summary dismissal of the appeal in Baker v.
Nelson, 409 U.S. 810 (1972), for want of a substantial federal question. See 682
F.3d at 9.
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The Court reasoned in Massachusetts that recognizing sexual orientation

classifications as suspect would have been untenable because it would imply an
overruling of Baker. Actions of the Supreme Court since May 2012, when
Massachusetts was decided, make clear that constitutional challenges to marriage
bans present a substantial federal question. First, in December 2012, the Supreme
Court granted certiorari on the question of whether the Equal Protection Clause
prohibits the State of California from defining marriage as the union of a man and
a woman. See Perry v. Brown, 671 F.3d 1052 (9th Cir.), cert. granted sub nom.
Hollingsworth v. Perry, 133 S. Ct. 786 (Dec. 7, 2012). Second, in June 2013, the
Supreme Court invalidated the federal Defense of Marriage Act, which prohibited
the federal government from recognizing the marriages of same-sex couples as a
violation of due process and equal protection. See United States v. Windsor, 133 S.
Ct. 2675, 2693 (2013). Third, in October 2014, the Supreme Court denied
petitions for certiorari in marriage cases, allowing to stand decisions from three
circuit courts of appealsthe Fourth, Seventh, and Tenth Circuitsconcluding
that Baker no longer has precedential effect and that marriage bans for same-sex
couples violate the federal Constitution. See Baskin, 766 F.3d at 659-60; Bishop v.
Smith, 760 F.3d 1070, 1079-82 (10th Cir.), cert. denied, 135 S. Ct. 271 (Oct. 6,
2014); Bostic v. Schaefer, 760 F.3d 352, 372-75 (4th Cir.), cert. denied, 135 S. Ct.
308 (Oct. 6, 2014); Kitchen v. Herbert, 755 F.3d 1193, 1204-08 (10th Cir.), cert.
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denied, 135 S. Ct. 265 (Oct. 6, 2014). Finally, in January 2015, the Supreme Court
granted certiorari on the question of whether the Fourteenth Amendment requires a
state to license a marriage between two people of the same sex. See DeBoer v.
Snyder, 772 F.3d 388 (6th Cir. 2014), cert. granted, --- S. Ct. ---, 83 U.S.L.W.
3315 (Jan. 16, 2015) (Nos. 14-556, 14-562, 14-571, 14-574). These actions show
that the Supreme Court no longer considers the question presented in Baker to be
insubstantial and, thus, Baker is no longer good law.3
Cook v. Gates, 528 F.3d 42 (1st Cir. 2008), also should not prevent this
Court from conducting a full analysis of the equal protection factors. The Court in
Cook held only that Romer and Lawrence did not mandate that courts apply
heightened scrutiny to sexual orientation classifications. See id. at 61. Although
Moreover, that the application of heightened scrutiny to sexual orientation

classifications could result in overturning marriage bans, see Massachusetts, 682
F.3d at 9, is no longer a reason to reject it. The effect of the Courts denials of
certiorari in the marriage cases in October 2014 was to allow same-sex couples to
marry and to have their marriages recognized in the five states involved as well as
in six others in the three circuits whose decisions became final then, allowing
previously existing marriage bans to be overturned in a total of eleven new states.
Subsequent orders denying stays in other marriage cases, see Armstrong v.
Brenner, 135 S. Ct. 890 (Dec. 19, 2014); Moser v. Marie, 135 S. Ct. 511 (Nov. 12,
2014); Parnell v. Hamby, 135 S. Ct. 399 (Oct. 17, 2014); Otter v. Latta, 135 S. Ct.
345 (Oct. 10, 2014), have allowed marriages to proceed in seventeen states,
bringing the total number of states in which same-sex couples may marry to thirtysix. A majority of states now allow same-sex couples to marryan outcome that
follows faithfully the Supreme Courts decision in Windsor.
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Lawrence did not dictate a heightened form of equal protection scrutiny, as

discussed above, the ruling cleared the way for courts to conduct a fresh analysis of
the traditional equal protection factors as applied to sexual orientation
classifications. This Court has never done so.
Instead, in Massachusetts, the Court conducted a case-specific analysis.
While the Court concluded correctly that the burdens imposed by DOMA on
legally married same-sex couples warranted a more careful assessment than
traditional rational basis review, see 682 F.3d at 11, the Court stopped short of
recognizing that sexual orientation classifications categorically should receive
heightened scrutiny.
Now that recent developments have swept away the considerations that
constrained this Court in Massachusetts, this Court should apply the criteria
mandated by the Supreme Court to determine whether sexual orientation
classifications are suspect. For the reasons discussed above, applying those criteria
leads to the inevitable conclusion that heightened scrutiny is warranted.
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CONCLUSION
The Court can and should hold that sexual orientation discrimination must
be subjected to heightened scrutiny. For this reason, as well as those outlined by
Plaintiffs-Appellants, the Court should reverse the judgment of the District Court.
Respectfully submitted,
s/ William Ramirez
William Ramirez
Counsel of Record
ACLU OF PUERTO RICO
(787) 753-8493
wramirez@aclu.org
Rose A. Saxe
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street, 18th Floor
(212) 549-2627
rsaxe@aclu.org
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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 it contains 3,769 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2.
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has
been prepared in a proportionally spaced typeface using Microsoft Word 2010 in
14-point Times New Roman type style.
s/ William Ramirez
William Ramirez
ACLU OF PUERTO RICO
(787) 753-8493
wramirez@aclu.org
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CERTIFICATE OF SERVICE FOR ELECTRONIC FILINGS

I hereby certify that on February 2, 2015, I electronically filed the foregoing
Brief of Amici Curiae The Leadership Conference on Civil and Human Rights,
Public Interest Organizations, and Bar Associations in Support of PlaintiffsAppellees with the United States Court of Appeals for the First Circuit by using the
appellate CM/ECF system. I certify that the following counsel of record are
registered as ECF Filers and that they will be served by the CM/ECF system:
Omar Gonzalez-Pagan
Hayley J. Gorenberg
Karen L. Loewy
Jael Humphrey-Skomer
Lambda Legal Defense & Education Fund, Inc.
120 Wall Street, 19th Floor
Gary W. Kubek
Harriet M. Antczak
Jing Kang
Debevoise & Plimpton LLP
919 Third Avenue
Ryan M. Kusmin
Debevoise & Plimpton LLP
555 13th Street NW
Washington, District of Columbia 20004
Felicia H. Ellsworth
Mark C. Fleming
Rachel I. Gurvich
WilmerHale LLP
60 State Street
Boston, Massachusetts 02109
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Paul R.Q. Wolfson

Wilmer Cutler Pickering Hale and Dorr LLP
1875 Pennsylvania Avenue NW
Washington, District of Columbia 20006
Alan E. Schoenfeld
Wilmer Cutler Pickering Hale and Dorr LLP
7 World Trade Center
250 Greenwich Street
Celina Romany-Siaca
Celina Romany Law Offices
268 Munoz Rivera Avenue, Suite 1500
Ada M. Conde Vidal
Conde Attorney at Law, PSC
P.O. Box 13268
San Juan, Puerto Rico 00908-3268
Jos L. Nieto
Nieto Law Officers
District View Plaza, Suite 301
644 Fernndez Juncos Avenue
Idza Diaz-Rivera
Andres Gonzalez-Berdecia
Margarita Luisa Mercado-Echegaray
Tanaira Padilla-Rodriguez
Puerto Rico Department of Justice
Federal Litigation Division
P.O. Box 9010192
s/ William Ramirez
William Ramirez
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ACLU OF PUERTO RICO
(787) 753-8493
wramirez@aclu.org
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APPENDIX
The Leadership Conference on Civil and Human Rights (The
Leadership Conference) is a coalition of more than 200 organizations committed
to the protection of civil and human rights in the United States. * It is the nations
oldest, largest, and most diverse civil and human rights coalition. The Leadership
Conference was founded in 1950 by three legendary leaders of the civil rights
movementA. Philip Randolph of the Brotherhood of Sleeping Car Porters; Roy
Wilkins of the NAACP; and Arnold Aronson of the National Jewish Community
Relations Advisory Council. Its member organizations represent people of all
races, ethnicities, and sexual orientations. The Leadership Conference works to
build an America that is inclusive and as good as its ideals, and toward this end,
urges the Court to hold that sexual orientation classifications should be subject to
heightened scrutiny. The Leadership Conference believes that every person in the
United States deserves to be free from discrimination based on race, ethnicity,
gender, or sexual orientation.
The American Civil Liberties Union (ACLU) is a nationwide, nonprofit,
nonpartisan organization with over 500,000 members dedicated to defending the
principles embodied in the Constitution and our nations civil rights laws. The
ACLU of Puerto Rico is one of its chapters. The ACLU and the ACLU of Puerto
Rico advocate for equal rights of lesbian, gay, bisexual and transgender (LGBT)
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people and the freedom to marry for same-sex couples in Puerto Rico and across
the country.
API Equality-LA is a coalition of organizations and individuals who are
committed to working in the Asian/Pacific Islander (API) community in the
greater Los Angeles area for equal marriage rights and the recognition and fair
treatment of LGBT families through community education and advocacy.
API Equality-LA recognizes that the long history of discrimination against
the API community, especially Californias history of anti-miscegenation laws and
exclusionary efforts targeted at Asian immigrants, parallels the contemporary
exclusion of gays and lesbians from marriage.
Asian Americans Advancing Justice | AAJC (Advancing JusticeAAJC) is a national non-profit, non-partisan organization in Washington, D.C.
whose mission is to advance the civil and human rights of Asian Americans and
build and promote a fair and equitable society for all. Founded in 1991, Advancing
Justice-AAJC engages in litigation, public policy advocacy, and community
education and outreach on a range of issues, including anti-discrimination.
Advancing Justice-AAJC is committed to challenging barriers to equality for all
sectors of our society and has supported same-sex marriage rights in numerous
amicus briefs.
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Asian Americans Advancing Justice | Asian Law Caucus (Advancing

Justice-ALC) was founded in 1972 with a mission to promote, advance, and
represent the legal and civil rights of Asian and Pacific Islanders, with a particular
focus on low-income members of those communities. Recognizing that social,
economic, political, and racial inequalities continue to exist in the United States,
Advancing Justice-ALC is committed to the pursuit of equality and justice for all
sectors of our society.
Asian Americans Advancing Justice | Los Angeles (Advancing JusticeLA) is the nations largest legal and civil rights organization for Asian Americans,
Native Hawaiians, and Pacific Islanders (NHPI). As part of its mission to advance
civil rights, Advancing Justice-LA is committed to challenging discrimination and
has championed equal rights for the LGBT community, including supporting
marriage equality for same-sex couples and opposing Californias Proposition 8.
The Colegio de Abogados y Abogadas de Puerto Rico (also known as the
Puerto Rico Bar Association) (the Colegio), founded in 1840, is the oldest
professional organization in Puerto Rico and the Caribbean. At the present time,
the Colegio represents about five thousand two hundred and eighty (5,280) active
attorneys in Puerto Rico.
Since its foundation, the protection of Civil Rights has been one of the main
areas of interest of the Colegio. During all of these years, the Colegio has
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appeared consistently before the Commonwealth of Puerto Ricos Legislature and

other public institutions to advocate in favor of gender equality, and in favor of the
protection of the rights and liberties of the LGBTQ community.
The Colegio as part of its purposes maintains multiple work
commissions that handle different affairs involving Civil and Human Rights. In
that matter, the following commissions are currently active: Commission on Civil
Rights, the Commission Against Discrimination by Sexual Orientation,
Commission of Womens Affairs, Commission Against the Death Penalty, and the
Commission to Propitiate Racial Equality, among others.
Human Rights Campaign (HRC), the largest national lesbian, gay,
bisexual and transgender political organization, envisions an America where
lesbian, gay, bisexual and transgender people are ensured of their basic equal
rights, and can be open, honest and safe at home, at work and in the community.
Among those basic rights is equal access for same-sex couples to marriage and the
related protections, rights, benefits and responsibilities.
The National Black Justice Coalition (NBJC) is a civil rights
organization dedicated to empowering Black lesbian, gay, bisexual and transgender
(LGBT) people. NBJCs mission is to end racism and homophobia. As
Americas leading national Black LGBT civil rights organization focused on
federal public policy, NBJC has accepted the charge to lead Black families in
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strengthening the bonds and bridging the gaps between the movements for racial
justice and LGBT equality.
The National Center for Lesbian Rights (NCLR) is a national nonprofit
legal organization dedicated to protecting and advancing the civil rights of lesbian,
gay, bisexual, and transgender people and their families through litigation, public
policy advocacy, and public education. Since its founding in 1977, NCLR has
played a leading role in securing fair and equal treatment for LGBT people and
their families in cases across the country involving constitutional and civil rights.
NCLR has an interest in ensuring that laws that treat people differently based on
their sexual orientation are subject to heightened scrutiny, as equal protection
requires.
The National LGBT Bar Association (LGBT Bar) is a non-partisan,
membership-based professional association of lawyers, judges, legal academics,
law students and affiliated lesbian, gay, bisexual and transgender legal
organizations. The LGBT Bar promotes justice in and through the legal profession
for the LGBT community in all its diversity. This case stands to impact our
membership both professionally and personally. A ruling in favor of marriage
equality would greatly increase our attorneys ability to safeguard the families and
relationships they have formed in their own lives. We believe that marriage
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equality is a profound step in the right direction towards equitable treatment under
the law for all citizens.
The National LGBTQ Task Force (the Task Force), founded in 1973, is
the oldest national LGBT civil rights and advocacy organization. As part of a
broader social justice movement, the Task Force works to create a world in which
all people may fully participate in society, including the full and equal participation
of same-sex couples in the institution of civil marriage.
The Wide Committee for the Search of Equality (CABE for its Spanish
acronym) is a Puerto Rican non-governmental, non-profit organization composed
of the Rainbow Pride Coalition, Coa, Inc., Bears Community of Puerto Rico,
Matria Project, Amnesty International, the Psychology Association of Puerto Rico,
the Social Workers Professional Association, the Committee Against Homophobia
and Discrimination, the Special Clinic on Discrimination by Sexual Orientation
and Human Rights of the University of Puerto Rico School of Law, the Wide
Womens Movement, the Puerto Rican Organization of Working Women, the
Community Network for Clinical Research on AIDS (PR CoNCRA), American
Civil Liberties Union (ACLU), Cristo Sanador Church, CLADEM of Puerto Rico,
Fundacin Gaviota, and individuals in their personal capacity. CABE works to
guarantee LGBT communities human rights and to propose actions to recognize
those rights. CABE believes that every person in Puerto Rico deserves to be free
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from discrimination of any kind, including but not limited to discrimination based
on gender, gender identity, or sexual orientation.
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The participating members of The Leadership Conference on Civil and
Human Rights include:

A. Philip Randolph Institute
AARP
Advancement Project
African Methodist Episcopal Church
Alaska Federation of Natives
Alliance for Retired Americans
Alpha Kappa Alpha Sorority, Inc.
Alpha Phi Alpha Fraternity, Inc.
American-Arab Anti-Discrimination Committee
American Association for Affirmative Action
American Association of College for Teacher Education
American Association of People with Disabilities
AAUW
American Baptist Churches, U.S.A.-National Ministries
American Civil Liberties Union
American Council of the Blind
American Ethical Union
American Federation of Government Employees
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American Federation of Labor-Congress of Industrial Organizations

American Federation of State, County & Municipal Employees, AFL-CIO
American Federation of Teachers, AFL-CIO
American Friends Service Committee
American Islamic Congress (AIC)
American Jewish Committee
American Nurses Association
American Postal Workers Union, AFL-CIO
American Society for Public Administration
American Speech-Language-Hearing Association
Americans for Democratic Action
Americans United for Separation of Church and State
Amnesty International USA
Anti-Defamation League
Appleseed
Asian Americans Advancing Justice | AAJC
Asian Pacific American Labor Alliance
Association for Education and Rehabilitation of the Blind and Visually Impaired
Bnai Brith International
Bend the Arc
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Brennan Center for Justice at New York University School of Law

Building & Construction Trades Department, AFL-CIO
Center for Community Change
Center for Responsible Lending
Center for Social Inclusion
Center for Women Policy Studies
Childrens Defense Fund
Church of the Brethren-World Ministries Commission
Church Women United
Coalition of Black Trade Unionists
Coalition on Human Needs
Common Cause
Communications Workers of America
Community Action Partnership
Community Transportation Association of America
Compassion & Choices
DC Vote
Delta Sigma Theta Sorority
DEMOS: A Network for Ideas & Action
Disability Rights Education and Defense Fund
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Disability Rights Legal Center

Division of Homeland Ministries-Christian Church (Disciples of Christ)
Epilepsy Foundation of America
Episcopal Church-Public Affairs Office
Equal Justice Society
Evangelical Lutheran Church in America
FairVote: The Center for Voting and Democracy
Families USA
Federally Employed Women
Feminist Majority
Friends Committee on National Legislation
Gay, Lesbian and Straight Education Network (GLSEN)
General Board of Church & Society of the United Methodist Church
Global Rights: Partners for Justice
GMP International Union
Hip Hop Caucus
Human Rights Campaign
Human Rights First
Immigration Equality
Improved Benevolent & Protective Order of Elks of the World
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International Association of Machinists and Aerospace Workers

International Association of Official Human Rights Agencies
International Brotherhood of Teamsters
International Union, United Automobile, Aerospace and Agricultural Implement
Workers of America (UAW)
Iota Phi Lambda Sorority, Inc.
Japanese American Citizens League
Jewish Council for Public Affairs
Jewish Labor Committee
Jewish Women International
Judge David L. Bazelon Center for Mental Health Law
Kappa Alpha Psi Fraternity
Labor Council for Latin American Advancement
Laborers International Union of North America
Lambda Legal
LatinoJustice PRLDEF
Lawyers Committee for Civil Rights Under Law
League of United Latin American Citizens
League of Women Voters of the United States
Legal Aid Society Employment Law Center
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Legal Momentum
Mashantucket Pequot Tribal Nation
Matthew Shepard Foundation
Mexican American Legal Defense and Educational Fund
Muslim Advocates
NaAmat USA
NAACP
NAACP Legal Defense and Educational Fund, Inc.
NALEO Educational Fund
National Alliance of Postal & Federal Employees
National Association for Equal Opportunity in Higher Education
National Association of Colored Womens Clubs, Inc.
National Association of Community Health Centers
National Association of Consumer Advocates (NACA)
National Association of Human Rights Workers
National Association of Negro Business & Professional Womens Clubs, Inc.
National Association of Neighborhoods
National Association of Social Workers
9 to 5 National Association of Working Women
National Bar Association
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National Black Caucus of State Legislators

National Black Justice Coalition
National CAPACD National Coalition For Asian Pacific American Community
Development
National Center for Lesbian Rights
National Center for Transgender Equality
National Center on Time & Learning
National Coalition for the Homeless
National Coalition on Black Civic Participation
National Coalition to Abolish the Death Penalty
National Committee on Pay Equity
National Committee to Preserve Social Security & Medicare
National Community Reinvestment Coalition
National Conference of Black Mayors, Inc.
National Congress for Puerto Rican Rights
National Congress of American Indians
National Consumer Law Center
National Council of Churches of Christ in the U.S.
National Council of Jewish Women
National Council of La Raza
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National Council of Negro Women

National Council on Independent Living
National Disability Rights Network
National Education Association
National Employment Lawyers Association
National Fair Housing Alliance
National Farmers Union
National Federation of Filipino American Associations
National Gay & Lesbian Task Force
National Health Law Program
National Hispanic Media Coalition
National Immigration Forum
National Immigration Law Center
National Korean American Service and Education Consortium, Inc. (NAKASEC)
National Latina Institute for Reproductive Health
National Lawyers Guild
National Legal Aid & Defender Association
National Low Income Housing Coalition
National Organization for Women
National Partnership for Women & Families
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National Senior Citizens Law Center

National Sorority of Phi Delta Kappa, Inc.
National Urban League
National Womens Law Center
National Womens Political Caucus
Native American Rights Fund
Newspaper Guild
OCA
Office of Communications of the United Church of Christ, Inc.
Omega Psi Phi Fraternity, Inc.
Open Society Policy Center
ORT America
Outserve-SLDN
Paralyzed Veterans of America
Parents, Families, Friends of Lesbians and Gays
People for the American Way
Phi Beta Sigma Fraternity, Inc.
Planned Parenthood Federation of America, Inc.
PolicyLink
Poverty & Race Research Action Council (PRRAC)
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Presbyterian Church (USA)

Pride at Work
Prison Policy Initiative
Progressive National Baptist Convention
Project Vote
Public Advocates
Religious Action Center of Reform Judaism
Retail Wholesale & Department Store Union, AFL-CIO
SAALT (South Asian Americans Leading Together)
Secular Coalition for America
Service Employees International Union
Outserve-SLDN
Sierra Club
Sigma Gamma Rho Sorority, Inc.
Sikh American Legal Defense and Education Fund
Sikh Coalition
Southeast Asia Resource Action Center (SEARAC)
Southern Christian Leadership Conference
Southern Poverty Law Center
TASH
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Teach For America

The Andrew Goodman Foundation
The Arc
The Association of Junior Leagues International, Inc.
The Association of University Centers on Disabilities
The National Conference for Community and Justice
The National PTA
The Voter Participation Center
TransAfrica Forum
Transportation Learning Center
Union for Reform Judaism
Unitarian Universalist Association
UNITE HERE!
United Brotherhood of Carpenters and Joiners of America
United Church of Christ-Justice and Witness Ministries
United Farm Workers of America (UFW)
United Food and Commercial Workers International Union
United Mine Workers of America
United States International Council on Disabilities
United States Students Association
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United Steelworkers of America

United Synagogue of Conservative Judaism
Wider Opportunities for Women
Workers Defense League
Workmens Circle
YMCA of the USA, National Board
YWCA USA
Zeta Phi Beta Sorority, Inc.
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Case: 14-2184

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UNITED STATES COURT OF APPEALS

ADA MERCEDES CONDE-VIDAL, et al.,

Counsel for Amici Curiae

Date Filed: 02/02/2015

This brief is filed on behalf of the following organizations:

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CORPORATE DISCLOSURE STATEMENT

Dated: February 2, 2015

Counsel for Amici Curiae

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INTEREST OF AMICI CURIAE1

A brief description of each amicus is set forth in the Appendix.

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SUMMARY OF THE ARGUMENT

UNDER THE TRADITIONAL FRAMEWORK FOR IDENTIFYING

Clause, courts must apply different levels of scrutiny to different types of

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related to a legitimate governmental purpose. Id. On the other end of the

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classifying people on the basis of stereotyped characteristics not truly indicative

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A. Lesbian, Gay, and Bisexual People Have Suffered a Long History of

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881 F. Supp. 2d at 320 (Sexual orientation is not a distinguishing characteristic

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scrutiny applies to classifications based on alienage and legitimacy even though

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D. Lesbian, Gay, and Bisexual People Lack Sufficient Political Power to

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As Judge Posner concluded, [a]lthough discrimination against homosexuals

THIS COURT HAS NEVER APPLIED THE TRADITIONAL

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