Nos. 14-556, 14-562, 14-571, 14-574

In the Supreme Court of the United States
JAMES OBERGEFELL, et al.,
Petitioners,
V.

RICHARD HODGES, DIRECTOR,
OHIO DEPARTMENT OF HEALTH, et al.,
Respondents.
On Writs of Certiorari to the United States
Court of Appeals for the Sixth Circuit
BRIEF OF 167 MEMBERS OF THE U.S. HOUSE OF
REPRESENTATIVES AND 44 U.S. SENATORS AS
AMICI CURIAE IN SUPPORT OF PETITIONERS
JOSEPH F. TRINGALI
Counsel of Record
JOSHUA C. POLSTER
ELISA Y. LEE
A IDAN T. GRANO
Simpson Thacher
& Bartlett LLP
425 Lexington Avenue
New York, NY 10017
(212) 455-2000
jtringali@stblaw.com

HEATHER C. SAWYER
House Committee on
the Judiciary
Minority Counsel to
Ranking Members
John Conyers, Jr.
and Jerrold Nadler
B-336 Rayburn Bldg.
Washington, DC 20515
(202) 225-6906

Counsel for Amici Curiae

258055

A
(800) 274-3321 • (800) 359-6859

 A complete list of the 167 Members of the House of
Representatives and 44 U.S. Senators participating as
amici is provided in an appendix to this brief.
Among them are:
NANCY PELOSI
House Democratic Leader

HARRY REID
Senate Democratic Leader

REP. JERROLD NADLER
SEN. DIANNE FEINSTEIN
Lead Sponsors, Respect for Marriage Act
STENY H. HOYER
House Democratic Whip
JAMES E. CLYBURN
House Assistant
Democratic Leader

RICHARD J. DURBIN
Senate Assistant
Democratic Leader
CHARLES E. SCHUMER
Vice Chair, Senate
Democratic Conference

PATTY MURRAY
Secretary, Senate Democratic Conference
JOHN CONYERS, JR.
Ranking Member, House
Committee on the Judiciary

PATRICK LEAHY
Ranking Member,
Senate Committee
on the Judiciary

JARED POLIS, DAVID N. CICILLINE, SEAN PATRICK MALONEY,
MARK POCAN, KYRSTEN SINEMA, and MARK TAKANO
House LGBT Equality Caucus Co-Chairs

 i
TABLE OF CONTENTS
Page
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii
INTEREST OF THE AMICI CURIAE . . . . . . . . . . . . .1
INTRODUCTION AND SUMMARY OF THE
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
I.

The Constitution Applies with Equal
Force to State Regulation of Marriage. . . . . . . . .4

II. State Marriage Bans Should Be Subject
to Heightened Scrutiny. . . . . . . . . . . . . . . . . . . . . .7
III. No Matter the Standard, State Marriage Bans
Violate the Equal Protection Clause and
Impair Federal Interests. . . . . . . . . . . . . . . . . . .12
A. State Marriage Bans Deny Equal
Protection. . . . . . . . . . . . . . . . . . . . . . . . . . . .13
B. Like DOMA, State Marriage Bans
Have a Profound Federal Impact
on Same-Sex Couples. . . . . . . . . . . . . . . . . .14
C. State Marriage Bans Undermine
Federal Programs. . . . . . . . . . . . . . . . . . . . .15

 ii
Table of Contents
Page
1.

Social Security . . . . . . . . . . . . . . . . . . . .16

2. Military and Veterans’ Benefits . . . . . .19
3. Domestic Support Obligations . . . . . . .24
4. Federal Employee Protections. . . . . . .25
IV. States’ Refusals to Respect Lawful Marriages
Place Our Constituents at Risk. . . . . . . . . . . . . .27
A. Like DOM A, States that Refuse
t o R e c og n i z e Va l id M a r r i a g e s
Deny Equal Protection . . . . . . . . . . . . . . . .27
B. States that Refuse to Recognize
Valid Marriages Deprive Many of
O u r Const it uent s of Impor t a nt
Rights Essential to Family Stability. . . . . .30
C. States that Refuse to Recognize
Valid Marriages Divest Many of Our
Constituents of the “Dignity and Status
of Immense Import” of Marriage . . . . . . . .35
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38
Appendix. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1a

 iii
TABLE OF CITED AUTHORITIES
Page
Cases
Arizona v. Gant,
556 U.S. 332 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Baskin v. Bogan,
766 F.3d 648 (7th Cir. 2014). . . . . . . . . . . . . . . . 7, 13, 15
Borman v. Pyles-Borman,
No. 2014CV36, 2014 WL 4251133
(Tenn. Cir. Ct. Aug. 5, 2014) . . . . . . . . . . . . . . . . . . . .25
Bostick v. CBOCS, Inc.,
No. 8:13-cv-1319-T-30TGW, 2014 WL 3809169
(M.D. Fla. Aug. 1, 2014) . . . . . . . . . . . . . . . . . . . . . . . .10
Brown v. Bd. of Educ.,
347 U.S. 483 (1954). . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Campaign for S. Equal. v. Bryant,
No. 3:14-CV-818-CWR-LRA, 2014 WL 6680570
(S.D. Miss. Nov. 25, 2014) . . . . . . . . . . . . . . . . . . . . . .34
City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . .6, 8
Crawford v. Washington,
541 U.S. 36 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Dandridge v. Williams,
397 U.S. 471 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

 iv
Cited Authorities
Page
De Sylva v. Ballentine,
351 U.S. 570 (1956) . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
DeBoer v. Snyder,
772 F.3d 388 (6th Cir. 2014). . . . . . . . . . . . . . . . . . . . . .9
Frontiero v. Richardson,
411 U.S. 677 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Graham v. Richardson,
403 U.S. 365 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
Grutter v. Bollinger,
539 U.S. 306 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Henry v. Himes,
14 F. Supp. 3d 1036 (S.D. Ohio 2014), rev’d sub nom.
DeBoer, 772 F.3d 388 (6th Cir. 2014) . . . . . . .28, 31, 37
Howe v. Haslam,
No. N2013-01790-COA-R3-CV, 2014 WL 5698877
(Tenn. Ct. App. Nov. 4, 2014) . . . . . . . . . . . . . . . . . . .10
In re Golinski,
587 F.3d 901 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . .25
In re Miller’s Estate,
214 N.W. 428 (Mich. 1927) . . . . . . . . . . . . . . . . . . .28, 37
In re Neagle,
135 U.S. 1 (1890) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26

 v
Cited Authorities
Page
Inskeep v. W. Reserve Transit Auth.,
No. 12 MA 72, 2013 WL 979054 (Ohio Ct. App.
Mar. 8, 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
J.E.B. v. Alabama ex rel. T.B.,
511 U.S. 127 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Keith v. Pack,
187 S.W.2d 618 (Tenn. 1945) . . . . . . . . . . . . . . . . .28, 37
Kirchberg v. Feenstra,
450 U.S. 455 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Kitchen v. Herbert,
755 F.3d 1193 (10th Cir. 2014) . . . . . . . . . . . . . . . . . . .30
Kolender v. Lawson,
461 U.S. 352 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Langbehn v.
Pub. Health Trust of Miami-Dade Cnty.,
661 F. Supp. 2d 1326 (S.D. Fla. 2009) . . . . . . . . . . . .33
Latta v. Otter,
771 F.3d 456 (9th Cir. 2014). . . . . . . . . . . . . . . . . . . . .13
Lawrence v. Texas,
539 U.S. 558 (2003). . . . . . . . . . . . . . . . . . . . . . . passim
Loving v. Virginia,
388 U.S. 1 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

 vi
Cited Authorities
Page
Mathews v. De Castro,
429 U.S. 181 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
Mazzolini v. Mazzolini,
155 N.E.2d 206 (Ohio 1958). . . . . . . . . . . . . . . . . .28, 37
Obergefell v. Kasich,
No. 1:13-cv-501, 2013 WL 38142627 (S.D.
Ohio July 22, 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
Obergefell v. Wymyslo,
962 F. Supp. 2d 968 (S.D. Ohio 2013), rev’d sub nom.
DeBoer, 772 F.3d 388 (6th Cir. 2014) . . . 13, 28, 32, 37
Perry v. Brown,
671 F.3d 1052 (9th Cir. 2012), vacated sub
nom. Hollingsworth v. Perry, 133 S. Ct.
2652 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29-30
Plessy v. Ferguson,
163 U.S. 537 (1896) . . . . . . . . . . . . . . . . . . . . . . . . . .3, 13
Romer v. Evans,
517 U.S. 620 (1996) . . . . . . . . . . . . . . . . . . . . . . . passim
Saenz v. Roe,
526 U.S. 489 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . .29
SmithKline Beecham Corp. v. Abbott Labs.,
740 F.3d 471 (9th Cir. 2014) . . . . . . . . . . . . . . . . . . . . . .7

 vii
Cited Authorities
Page
Sunday Lake Iron Co. v. Wakefield Twp.,
247 U.S. 350 (1918) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Tanco v. Haslam,
7 F. Supp. 3d 759 (M.D. Tenn. 2014), rev’d sub
nom. DeBoer, 772 F.3d 388 (6th Cir. 2014) . . . . .35, 36
U.S. Dep’t of Agric. v. Moreno,
413 U.S. 528 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
United States v. Morrison,
529 U.S. 598 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
United States v. Virginia,
518 U.S. 515 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
United States v. Windsor,
133 S. Ct. 2675 (2013) . . . . . . . . . . . . . . . . . . . . . passim
Windsor v. United States,
699 F.3d 169 (2d Cir. 2012), aff’d, 133 S. Ct.
2675 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7, 29
Zablocki v. Redhail,
434 U.S. 374 (1978) . . . . . . . . . . . . . . . . . . . . . . . . .27, 33
Constitutional Provisions
U.S. Const. art. VI, cl. 3 . . . . . . . . . . . . . . . . . . . . . . . . . .25

 viii
Cited Authorities
Page
Statutes & Regulations
5 U.S.C. §§ 8101 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . .25
5 U.S.C. § 8901 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
5 U.S.C. § 8905. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
5 U.S.C. § 9001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
5 U.S.C. § 9002. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
10 U.S.C. § 1072 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
10 U.S.C. § 1076 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
10 U.S.C. § 1077 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
10 U.S.C. § 1097a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
10 U.S.C. § 1448 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
10 U.S.C. § 1450 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
11 U.S.C. § 101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
11 U.S.C. § 507 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
11 U.S.C. § 523 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26

 ix
Cited Authorities
Page
18 U.S.C. § 115 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
28 U.S.C. § 1738C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
32 U.S.C. § 714 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
37 U.S.C. § 402a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
37 U.S.C. § 403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
37 U.S.C. § 403b. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
37 U.S.C. § 427 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
38 U.S.C. § 103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
38 U.S.C. § 1115 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
38 U.S.C. § 1135 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
38 U.S.C. § 1311 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
38 U.S.C. § 1541 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
38 U.S.C. § 1781 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
38 U.S.C. § 3311 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
38 U.S.C. § 3501 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

 x
Cited Authorities
Page
38 U.S.C. § 3710 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
38 U.S.C. § 5121 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
38 U.S.C. § 5121A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
42 U.S.C. § 402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17
42 U.S.C. § 416 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
50 App. U.S.C. § 538 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
42 C.F.R. § 482.13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
42 C.F.R. § 485.635 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
Ky. Rev. Stat. Ann. § 311.631 . . . . . . . . . . . . . . . . . . . . . .34
Ohio Rev. Code Ann. § 2133.08 . . . . . . . . . . . . . . . . . . . .34
Tenn. Code Ann. § 7-64-201 . . . . . . . . . . . . . . . . . . . . . . .36
Tenn. Code Ann. § 31-2-104 . . . . . . . . . . . . . . . . . . . . . . .35
Tenn. Code Ann. § 66-1-109 . . . . . . . . . . . . . . . . . . . . . . .36
Tenn. Code Ann. § 68-11-1806 . . . . . . . . . . . . . . . . . . . . .34
Other Authorities
127 Cong. Rec. 21,378 (1981). . . . . . . . . . . . . . . . . . . . . . .19

 xi
Cited Authorities
Page
Abo ut Us, TRICA RE, http: //t i ny u rl.com /
obergefell12-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
Admin. on Ag ing, U.S. Dep’t of Health &
Human Servs., A Profile of Older Americans:
2013, http://tinyurl.com/obergefell08 . . . . . . . . . . . . .16
Associated Press, LGBT Baby Boomers Face
Tough Retirement Hurdles, Dec. 2, 2014 . . . . . . . . .19
Blake Boldt, Woman Denied Visitation of Partner
at Local Hospital, Out & About Nashville, Dec.
19, 2011, http://tinyurl.com/obergefell19 . . . . . . . . . .34
Brief of 172 Members of the U.S. House of
Representatives and 40 U.S. Senators as
Amici Curiae in Support of Respondent
Edith Schlain Windsor, Urging Affirmance
on the Merits, Windsor v. United States,
133 S. Ct. 2675 (2013) (No. 12-307) . . . . . . . . . . . . . . .7
Brief on the Merits for Respondent The Bipartisan
Legal Advisory Group of The U.S. House of
Representatives, Windsor v. United States,
133 S. Ct. 2675 (2013) (No. 12-307) . . . . . . . . . . . . . .11
Declaration of James Obergefell, Obergefell v. Kasich,
No. 1:13-cv-501 (S.D. Ohio July 22, 2013) . . . . . .31, 32
Fi n a l Vo t e R e s u l t s f o r R o l l C a l l 378 ,
U.S. House of Representatives (July 18,
2006), http://tinyurl.com/obergefell05 . . . . . . . . . . . .12

 xii
Cited Authorities
Page
G a r y J. G at e s , T he W i l l i a m s I n st it ut e ,
UCLA School of Law, LGBT Parenting
in the United States (Feb. 2013). . . . . . . . . . . . . . .4, 35
Gay and Lesbian Rights, Gallup, http://tinyurl.com/
obergefell02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Jeff Guo, That Anti-Gay Bill in Arkansas
A c t u a l l y B e c a m e L a w To d a y . W h y
Couldn’t Activists Stop It?, Wash. Post, Feb.
23, 2015, http://tinyurl.com/obergefell01 . . . . . . . . . . .8
H.J. Res. 51, 113th Cong. (2013). . . . . . . . . . . . . . . . . . . .12
H.R. 824, 114th Cong. (2015) . . . . . . . . . . . . . . . . . . . . . .11
H.R. 2523, 113th Cong. (2013) . . . . . . . . . . . . . . . . . . . . .11
H.R. 3829, 113th Cong. (2014) . . . . . . . . . . . . . . . . . . . . .11
H.R. 5326, 112th Cong. § 561 (2011) . . . . . . . . . . . . . . . .10
H.R. 8269, 95th Cong. (1977) . . . . . . . . . . . . . . . . . . . . . . .9
H.R. Res. 5, 113th Cong. § 4(a)(1) (2013). . . . . . . . . . . . .10
H.R.J. Res. 88, 109th Cong. (2006) . . . . . . . . . . . . . . . . .12
D o n J. Ja n s e n , C o n g. R e s e a r c h S e r v. ,
R L 3 3 5 3 7 , Mi l i t a r y Me d i c a l C a r e :
Questions and Answers (2009) . . . . . . . . . . . . . . . . .19

 xiii
Cited Authorities
Page
Carolyn Lochhead, Federal Ban on SameS e x Ma r r i a g e S t i l l C a s t s S h a d o w
o n Ma n y L i v e s , S . F. C h r o n . , J a n .
12, 2015, http://tinyurl.com/obergefell13 . . . . . . . . . .24
Maps of State Laws & Policies, Human Rights
Campaign, http://tinyurl.com/obergefell03. . . . . . . .10
Ma r r i a ge Ru lin gs in t h e Co u r t s,
F r e e d o m t o M a r r y (u p d a t e d M a r.
2, 2015), http://tinyurl.com/obergefell07-1. . . . . . . . .14
Memorandum from the Att’y Gen. to the
P r e s ident , I mplement at ion of Uni t e d
States v. Windsor (June 20, 2014), available
at http://tinyurl.com/obergefell04 . . . . . . . . .11, 18, 22
Memorandum from the Under Sec’y of Def. to
Secretaries of the Military Dep’ts and Chiefs
of the Military Servs., Further Guidance on
Extending Benefits to Same-Sex Spouses of
Military Members (Aug. 13, 2013), available
at http://tinyurl.com/obergefell17. . . . . . . . . . . . . . . .33
Petition for Review, Am. Military Partner
Ass’n v. McDonald, No. 14-7121(Fed. Cir.
Aug. 21, 2014), ECF No. 1 . . . . . . . . . . . . . . . . . . . . . .23
Press Release, Ctrs. for Medicare & Medicaid
Servs., Medicare Steps Up Enforcement
of Equal Visitation and Representation
Rights in Hospitals (Sept. 8, 2011), available
at http://tinyurl.com/obergefell18. . . . . . . . . . . . . . . .34

 xiv
Cited Authorities
Page
Press Release, Lambda Legal, Lambda Legal
Sues Social Security Administration on
Behalf of Texas Lesbian Widow and National
Committee to Preser ve Social Security
& Med ica re (Oct . 2 2 , 2 014), avail abl e
at http://tinyurl.com/obergefell10. . . . . . . . . . . . . . . .19
Press Release, Soc. Sec. Admin., Social Security
Basic Facts (Apr. 2, 2014), available at http://
tinyurl.com/obergefell09 . . . . . . . . . . . . . . . . . . . . . . .16
Road Trip: The Blues Highway, Tennessee and
Mississippi, Nat’l Geographic, http://tinyurl.
com/obergefell20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
Roll Call Votes 109th Cong., U.S. Senate (June
7, 2006), http://tinyurl.com/obergefell06 . . . . . . . . . .12
S. 435, 114th Cong. (2015) . . . . . . . . . . . . . . . . . . . . . . . . .11
S. 1236, 113th Cong. (2013). . . . . . . . . . . . . . . . . . . . . . . .11
S. 2024, 113th Cong. (2014) . . . . . . . . . . . . . . . . . . . . . . . .11
S. Rep. No. 93-235 (1973) . . . . . . . . . . . . . . . . . . . . . . . . .19
S.B. 202, 90th Gen. Assemb., Reg. Sess. (Ark. 2015) . . .8
S.J. Res. 1, 109th Cong. (2006). . . . . . . . . . . . . . . . . . . . .12

 xv
Cited Authorities
Page
Same-Sex Marriage State-by-State, Pew Research
Center (Feb. 9, 2015), http://tinyurl.com
/obergefell15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
Paula Span, Spouses Denied Social Security
Sur v ivo rs’ Ben ef its, N.Y. T i mes, Nov.
11, 2014, http://tinyurl.com/obergefell11 . . . . . . . . . .19
Transcript of Oral Argument, Hollingsworth v. Perry,
133 S. Ct. 2652 (2013) (No. 12-144) . . . . . . . . . . . . .8, 17
U.S. Census Bureau, American Community Survey:
Characteristics of Same-Sex Couple Households
(2013), http://tinyurl.com/obergefell14 . . . . . . . . . .2, 30
U.S. Gov’t Accountability Office, GAO/OGC-97-16,
Defense of Marriage Act, Enclosure I (1997). . . . . .25
What Is ALS?, ALS Association, http://tinyurl.
com/obergefell16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31

 1
INTEREST OF THE AMICI CURIAE1
Amici are 167 Members of the U.S. House of
Representatives and 44 U.S. Senators. 2 Through Social
Security and other federal programs, we partner with
States to safeguard families, and we routinely rely
upon state decisions about marriage to determine
who qualifies for or is subject to more than a thousand
federal responsibilities and rights. We therefore have a
strong interest in ensuring that state definitions comply
with constitutional guarantees and do not wrongfully
discriminate against classes of citizens.
Members of Congress and our state counterparts
must afford all persons the basic protections of our
Constitution. This Court’s interpretation of the
Fourteenth Amendment’s eq ual protection and due
process guarantees directly affects how legislators
draft, consider, and enact laws. While we believe that
heightened review is warranted for laws that distinguish
among individuals based on sexual orientation, we also
wish to explain that, regardless of the standard applied,
the refusal to license or recognize the marriages of samesex couples is unconstitutional.

1. Amici affi rm that no counsel for a party authored this
brief in whole or in part and that no person other than amici or
their counsel made a monetary contribution to its preparation or
submission. The parties’ letters consenting to the fi ling of amicus
briefs are on fi le with the Clerk.
2. A list of the Members of Congress participating as amici
appears in an appendix to this brief.

 2
INTRODUCTION AND SUMMARY
OF THE ARGUMENT
In thirty-seven States and the District of Columbia,
gay and lesbian couples can marry. Over 250,000 such
couples—representing more than half a million people—
have done so. 3 Many amici hail from these States; others
come from States that have yet to include same-sex couples
in their marriage laws. Regardless of where we come
from in this nation, we all recognize the importance of
the federal-state partnership in safeguarding American
families.
This partnership is strongest when families are not
wrongly excluded from the vast array of marriage-based
rights and responsibilities. That is why many of us argued
against the Defense of Marriage Act (DOMA) as amici
in United States v. Windsor and why we participate as
amici here.
As many of us stated in Windsor, heightened judicial
scrutiny is appropriate for laws that distinguish among
our citizens based on sexual orientation. We offer our
unique perspective on why gay men and lesbians lack
the meaningful political power that the Sixth Circuit
indicated justifies denial of heightened review, and we
urge the Court to clarify that the presumption of validity
appropriately afforded to most legislation does not apply
to laws that discriminate based on sexual orientation.

3. See U.S. Census Bureau, American Community Survey:
Characteristics of Same-Sex Couple Households tbl.2 (2013),
http://tinyurl.com/obergefell14.

 3
But no matter the standard applied, the state bans
are unconstitutional and impair federal interests and the
interests of our constituents. Nearly all of the state bans
on marriages of same-sex couples were enacted between
1998 and 2012—during the same political environment
that led to Congress’s enactment in 1996 of DOMA, a law
that the Court already has held had the “principal purpose
[of] impos[ing] inequality.” United States v. Windsor, 133
S. Ct. 2675, 2694 (2013); see also id. at 2693 (describing
“[t]he history of DOMA’s enactment and its own text”).
The Constitution “neither knows nor tolerates classes
among citizens.” Plessy v. Ferguson, 163 U.S. 537, 559
(1896) (Harlan, J., dissenting). As the Court concluded
with respect to DOMA, state bans on marriages of samesex couples fail this basic test. Like DOMA, these state
bans apply across the board. They limit marriage rights
and the right to remain married when crossing state
lines. They impose countless burdens and indignities
on an identifiable and disfavored class—gay and lesbian
couples and their children. And they serve no legitimate
governmental objective.
More than 1,000 federal statutes operate in a way
that depends on marital status. See Windsor, 133 S. Ct.
at 2690. By refusing to marry same-sex couples, States
can prevent couples and their children from qualifying
for federal programs intended to protect and support
families and federal officers. For couples lawfully married
elsewhere, a State’s refusal to recognize the marriage can
similarly jeopardize that family’s eligibility for federal
programs.

 4
These bans impair family stability and mobility and
harm children, an estimated 220,000 of whom are being
raised by same-sex couples.4 See Windsor, 133 S. Ct.
at 2694. While Respondents argue that the state bans
somehow encourage family stability, denying same-sex
couples and their children the vast array of rights and
responsibilities that flow from marriage under state and
federal law has the opposite effect.
As federal legislators who represent families across
this nation, we believe that—like DOMA—state marriage
bans deny our citizens the equal protection that the
Constitution guarantees. We urge the Court to make
the Constitution’s promise of equality a reality for gay
and lesbian couples throughout the nation and reverse
the judgments below.
ARGUMENT
I.

The Constitution Applies with Equal Force to State
Regulation of Marriage.

As legislators, we must legislate within constitutional
bounds, a duty that applies to Members of Congress and
state legislators alike. U.S. Const. art. VI, cl. 3. We
do have different legislative spheres. Congressional
powers are enumerated in the Constitution, whereas state
legislative powers generally are not. See United States v.
Morrison, 529 U.S. 598, 607 (2000). But the exercise of
4. See Gary J. Gates, The Williams Institute, UCLA School
of Law, LGBT Parenting in the United States 1 (Feb. 2013)
(estimating more than 125,000 same-sex couples are raising nearly
220,000 children).

 5
legislative power by the States and Congress is subject to
constitutional constraints. See, e.g., Windsor, 133 S. Ct.
at 2681; Loving v. Virginia, 388 U.S. 1, 12 (1967); Brown
v. Bd. of Educ., 347 U.S. 483 (1954).
The Court has long recognized that state laws
that infringe on fundamental rights or make invidious
distinctions are subject to constitutional restraints. This is
so even when those laws regulate areas within traditional
state authority, such as state courts,5 property,6 crime and
criminal procedure,7 and education. 8
The same is true for marriage. The Court’s
jurisprudence has been crystal clear since Loving that
invidious discrimination by States in the area of marriage
is unconstitutional. 9 Indeed, applying constitutional
protections like the Equal Protection Clause in areas
where the States enjoy primary or exclusive legislative
responsibility is all the more important, because the
Constitution may be the only effective means of redress.
See Brown, 347 U.S. 483; cf. Sunday Lake Iron Co. v.
Wakefield Twp., 247 U.S. 350, 352 (1918).
5. See, e.g., J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 135
(1994).
6. See, e.g., Kirchberg v. Feenstra, 450 U.S. 455, 459–60
(1981).
7. See, e.g., Arizona v. Gant, 556 U.S. 332 (2009); Crawford
v. Washington, 541 U.S. 36 (2004); Lawrence v. Texas, 539 U.S.
558 (2003); Kolender v. Lawson, 461 U.S. 352, 358 (1983).
8. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 326 (2003);
United States v. Virginia, 518 U.S. 515, 533–34 (1996).
9. See, e.g., Loving, 388 U.S. at 11.

 6
Nothing in this Court’s decisions—certainly not
Windsor—suggests a State may employ otherwiseinvidious discrimination simply because the discrimination
occurs in family law. The Court’s opinion in Windsor was
clear: “State laws defining and regulating marriage, of
course, must respect the constitutional rights of persons.”10
In Windsor, the Court invoked Congress’s “unusual
deviation” from its historical role of deferring to state
marriage determinations as “strong evidence” that
the federal DOMA was “a law having the purpose and
effect of disapproval of” married same-sex couples, not
as an indicator that States are permitted to deny equal
protection in marriage.11 In fact, the Court has invoked
the Equal Protection Clause to invalidate local, state, and
federal laws alike.12
Laws discriminating based on sexual orientation
should not be entitled to the deference that ordinarily
applies to legislative enactments. As we explain further
below, we are uniquely attuned to the need for heightened
scrutiny here.

10. Windsor, 133 S. Ct. at 2691.
11. Id. at 2693.
12. See, e.g., Lawrence, 539 U.S. 558; Romer v. Evans, 517
U.S. 620, 635 (1996); City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432, 450 (1985); U.S. Dep’t of Agric. v. Moreno, 413 U.S.
528, 534 (1973).

 7
II. State Marriage Bans Should Be Subject to
Heightened Scrutiny.
As demonstrated in the amicus brief submitted by
many of us in Windsor, laws that discriminate based on
sexual orientation must be reviewed with heightened
scrutiny under the Equal Protection Clause.13
Most legislative enactments are presumptively valid,
which we fully understand and appreciate. But this
Court’s decisions from Romer to Lawrence to Windsor
show that this presumption does not accurately capture
the Court’s approach to laws that classify based on sexual
orientation. As the Ninth Circuit has explained:
Windsor review is not rational basis review.
In its words and its deed, Windsor established
a level of scrutiny for classifications based on
sexual orientation that is unquestionably higher
than rational basis review. In other words,
Windsor requires that heightened scrutiny be
applied to equal protection claims involving
sexual orientation.
SmithKline Beecham, 740 F.3d at 481.
13. See Brief of 172 Members of the U.S. House of
Representatives and 40 U.S. Senators as Amici Curiae in Support
of Respondent Edith Schlain Windsor, Urging Affi rmance on the
Merits at 4–12, Windsor, 133 S. Ct. 2675 (No. 12-307) (“Windsor
Amicus”), available at http://tinyurl.com/obergefell00; see also
SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th
Cir. 2014); Windsor v. United States, 699 F.3d 169 (2d Cir. 2012),
aff’d, 133 S. Ct. 2675; cf. Baskin v. Bogan, 766 F.3d 648, 671 (7th
Cir. 2014).

 8
When asked to identify an instance “outside of the
marriage context” where there would be a “rational basis,
reason, for a State using sexual orientation as a factor in
denying homosexuals benefits or imposing burdens on
them,” the petitioners’ counsel in Hollingsworth v. Perry
answered: “Your honor, I cannot. I do not have anything
to offer you in that regard.”14 We believe that such a
distinction is equally illegitimate within the marriage
context. This is the essence of why heightened scrutiny
is required. See Cleburne, 473 U.S. at 440 (classifications
triggering heightened scrutiny “are so seldom relevant to
the achievement of any legitimate state interest . . . .”);
Frontiero v. Richardson, 411 U.S. 677, 686–87 (1973).
As many of us explained as amici in Windsor,
heightened scrutiny is particularly appropriate because
gay men and lesbians lack the political power to safeguard
their rights through the legislative process.15 To the extent
that the political strength of gay men and lesbians “has
improved markedly in recent years” in some places, as it
did for women a generation ago, see Frontiero, 411 U.S. at
685, this is a welcome and long-overdue development. But
this progress has not been universal. For example, some
States continue to enact measures purporting to block
local efforts to protect this group.16 “The question is not
14. Transcript of Oral Argument at 14, Hollingsworth v.
Perry, 133 S. Ct. 2652 (2013) (No. 12-144).
15. See Windsor Amicus, supra note 13, at 4–12.
16. See, e.g., S.B. 202, 90th Gen. Assemb., Reg. Sess.
(Ark. 2015) (prohibiting local governments from adopting nondiscrimination policies protecting more than what state law
protects); Jeff Guo, That Anti-Gay Bill in Arkansas Actually
Became Law Today. Why Couldn’t Activists Stop It?, Wash. Post,
Feb. 23, 2015, http://tinyurl.com/obergefell01.

 9
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.
The unfortunate answer to this question remains “no.”
As legislators, we have worked for years to enact bills
that would extend basic protections against discrimination
to lesbian, gay, bisexual, and transgender Americans.
Despite the fact that a vast majority of Americans support
these measures, they have not been enacted.17 Since the
1970s, Members have introduced without success bills to
amend the Civil Rights Act of 1964 and the Fair Housing
Act to prohibit discrimination based on sexual orientation.
See, e.g., H.R. 8269, 95th Cong. (1977).
A more targeted measure designed to ensure workplace
protections—the Employment Non-Discrimination Act
(ENDA)—has been introduced in every Congress but one
since 1994. The bill passed the Senate last Congress, but
the House did not bring it up for a vote—even though up
to 89 percent of Americans supported such protections in
2008.18 Thus, there still is no federal statute to protect
17. The Sixth Circuit suggests that the repeal of “Don’t Ask
Don’t Tell” shows that gay men and lesbians are an “eminently
successful, interest group[]” that needs no protection from the
courts. DeBoer v. Snyder, 772 F.3d 388, 415 (6th Cir. 2014).
But, as many of us explained in Windsor, “[e]limination of a
costly, discriminatory policy that resulted in the discharge of
valuable servicemembers during wartime hardly illustrates
political power.” Windsor Amicus, supra note 13, at 11. Indeed,
congressional action occurred “only after two federal courts had
already declared [Don’t Ask, Don’t Tell] unconstitutional.” Id.
18. See, e.g., Gay and Lesbian Rights, Gallup, http://tinyurl.
com/obergefell02 (last visited Mar. 5, 2015).

 10
LGBT employees from workplace discrimination. The
majority of States have no such law either,19 leaving these
employees at risk of discrimination. 20
While legislatures often have proven unwilling to
protect gay and lesbian Americans, the courts have done
so. In 1996, Congress enacted DOMA, which prevented
same-sex married couples from having their marriages
recognized under over 1,100 federal laws and countless
other regulations. In subsequent years, the House acted
repeatedly to reaffi rm DOMA 21 and to authorize the
defense of DOMA in court.22 Just two years ago, the House
majority leadership urged the Court to uphold DOMA
as rationally related to purported interests advanced by
the States here, such as “providing a stable structure to
raise unintended and unplanned offspring”; “encouraging
the rearing of children by their biological parents”; and

19. See Maps of State Laws & Policies, Human Rights
Campaign, http://tinyurl.com/obergefell03 (last visited Mar. 5,
2015).
20. See, e.g., Bostick v. CBOCS, Inc., No. 8:13-cv-1319-T30TGW, 2014 WL 3809169, at *4 (M.D. Fla. Aug. 1, 2014) (“[C]laims
of harassment and retaliation premised on an employee’s sexual
orientation are not cognizable under Title VII and the [Florida
Civil Rights Act]”); see also Howe v. Haslam, No. N2013-01790COA-R3-CV, 2014 WL 5698877, at *18 (Tenn. Ct. App. Nov. 4,
2014); Inskeep v. W. Reserve Transit Auth., No. 12 MA 72, 2013
WL 979054, at *2–3 (Ohio Ct. App. Mar. 8, 2013).
21. See, e.g., H.R. 5326, 112th Cong. § 561 (2011) (provision
adopted on vote of 245–171 as an amendment offered by Rep. Tim
Huelskamp (R-Kan.)).
22. See H.R. Res. 5, 113th Cong. § 4(a)(1) (2013).

 11
“promoting childrearing by both a mother and a father.”23
Many of us argued against these claims, and the Court
rejected them—finding that DOMA was enacted “for no
legitimate purpose.” Windsor, 133 S. Ct. at 2696.
Since Windsor, some Members have attempted to
deprive same-sex couples of federal protections. Sixtynine House Members and eleven Senators co-sponsored
bills to strip federal protections from legally married,
same-sex couples domiciled in States that do not recognize
their marriages. See State Marriage Defense Act, H.R.
3829, 113th Cong. (2014); S. 2024, 113th Cong. (2014); see
also H.R. 824, 114th Cong. (2015); S. 435, 114th Cong.
(2015). These bills would reverse the “longstanding
policies” of federal agencies that look to the place of
celebration when determining marital status for federal
purposes. 24 Cf. Windsor, 133 S. Ct. at 2693.
Some Members have also tried to amend the
Constitution to prohibit the marriages of same-sex
couples—abrogating the actions of voters, legislatures,
and state and federal courts that have recognized that
these couples should not be excluded from civil marriage.
23. See Brief on the Merits for Respondent The Bipartisan
Legal Advisory Group of The U.S. House of Representatives at
30–32, 44–49, Windsor, 133 S. Ct. 2675 (No. 12-307) (“Windsor
BLAG Brief”).
24. See Memorandum from the Att’y Gen. to the President,
Implementation of United States v. Windsor 2 (June 20, 2014),
available at http://tinyurl.com/obergefell04 (“Attorney General
Memorandum”). Bills to repeal DOMA, which the Court already
has found was enacted for an improper purpose and with
unconstitutional effects, still have not achieved majority support
in the House or Senate. See S. 1236, 113th Cong. (2013); H.R.
2523, 113th Cong. (2013).

 12
Fifty-nine House Members co-sponsored a constitutional
amendment defining “Marriage in the United States” as
“consist[ing] only of the union of a man and a woman”
and prohibiting the interpretation of the federal or state
constitutions to provide a right to marry for same-sex
couples. See H.J. Res. 51, 113th Cong. (2013). A similar
amendment garnered a 236-vote majority in the House in
2006, see H.J. Res. 88, 109th Cong. (2006), 25 and the Senate
failed to invoke cloture on the motion to proceed by a vote
of 49–48. See S.J. Res. 1, 109th Cong. (2006). 26 These
efforts to eliminate marriages, along with Congress’s
inability to enact protections for gay men and lesbians,
are indicative of this group’s relative inability to secure
protections legislatively.
We urge the Court to confi rm what is clear from
Romer through Windsor: sexual orientation is not a
presumptively valid ground for state or federal authorities
to classify citizens. Heightened scrutiny is the appropriate
standard.
III. No Matter the Standard, State Marriage Bans
Violate the Equal Protection Clause and Impair
Federal Interests.
As federal legislators, we believe the state bans at
issue violate the Equal Protection Clause, impair national
interests, and impose significant pecuniary and dignitary
harm on same-sex couples and their children throughout
the nation.
25. See Final Vote Results for Roll Call 378, U.S. House of
Representatives (July 18, 2006), http://tinyurl.com/obergefell05.
26. See Roll Call Votes 109th Cong., U.S. Senate (June 7,
2006), http://tinyurl.com/obergefell06.

 13
A.

State Marriage Bans Deny Equal Protection.

The Constitution “neither knows nor tolerates classes
among citizens.” Plessy, 163 U.S. at 559 (Harlan, J.,
dissenting). “[E]ven in the ordinary equal protection case
calling for the most deferential of standards, [the Court]
insist[s] on knowing the relation between the classification
adopted and the object to be attained.” Romer, 517 U.S.
at 632.
As the Court concluded with respect to DOMA, the
state marriage bans fail this basic test. The bans apply
across the board, limiting couples’ marriage rights and
even the right to remain married when crossing state
lines. 27 They impose countless burdens and indignities
on an identifiable and disfavored class—gay and lesbian
couples, and their children. 28 And they serve no legitimate
governmental objective. 29
27. See, e.g., Latta v. Otter, 771 F.3d 456, 476 (9th Cir. 2014)
(“Idaho and Nevada’s marriage laws, by preventing same-sex
couples from marrying and refusing to recognize same-sex
marriages celebrated elsewhere, impose profound legal, fi nancial,
social and psychic harms on numerous citizens of those states.”);
cf. Windsor, 699 F.3d at 186.
28. See, e.g., Baskin, 766 F.3d at 658 (“The harm to
homosexuals (and, as we’ll emphasize, to their adopted children) of
being denied the right to marry is considerable. Marriage confers
respectability on a sexual relationship; to exclude a couple from
marriage is thus to deny it a coveted status.”).
29. See, e.g., id. at 656; Obergefell v. Wymyslo, 962 F. Supp.
2d 968, 994–95 (S.D. Ohio 2013) (“The only effect the bans have on
children’s well-being is harming the children of same-sex couples
who are denied the protection and stability of having parents who
are legally married.”), rev’d sub nom. DeBoer, 772 F.3d 388.

 14
Though more Americans are coming to understand
that the love and commitment of same-sex couples should
be accorded equal dignity under the law, there are
some with deep and abiding convictions to the contrary.
Nevertheless, this Court in Lawrence made clear that
“[t]hese considerations do not answer the question before”
the Court. 539 U.S. at 571. Opposition to a particular
group is not a valid basis for legislation—certainly not
for enacting “a classification of persons undertaken for
its own sake” and “den[ying] them protection across the
board.” Romer, 517 U.S. at 633, 635; see also Lawrence,
539 U.S. at 571.
We agree with the dozens of federal and state court
decisions concluding that state bans on marriages of samesex couples are unconstitutional. 30
B. Like DOMA, State Marriage Bans Have
a Profound Federal Impact on Same-Sex
Couples.
We have a strong interest in ensuring that Congress
is not coopted into enforcing, enabling, or abiding by
state discrimination in connection with the allocation of
federal responsibilities and protections. 31 The state bans
do exactly that.

30. See Marriage Rulings in the Courts, Freedom to
Marry (updated Mar. 2, 2015) (listing cases), http://tinyurl.com/
obergefell07-1.
31. See, e.g., Dandridge v. Williams, 397 U.S. 471 (1970)
(applying equal protection analysis to state criteria for eligibility
under the Aid to Families with Dependent Children program).

 15
More than 1,000 federal statutes operate in a way
that depends on marital status. See Windsor, 133 S.
Ct. at 2683. Those include “laws pertaining to Social
Security, housing, taxes, criminal sanctions, copyright,
and veterans’ benefits.” Id. at 2694. As the Court knows,
federal statutes typically defer to state enactments
concerning domestic relations, provided that those
enactments are constitutional. See, e.g., De Sylva v.
Ballentine, 351 U. S. 570, 580–81 (1956).
Thus, if a couple cannot marry because of state
law, that couple will be excluded from federal programs
intended to protect and support families. Windsor
enumerated many examples of DOMA’s impact that
apply equally here to couples prevented from marrying
by state bans. Indeed, just as “DOMA touche[d] many
aspects of married and family life, from the mundane to
the profound,” a state ban that prevents a couple from
marrying has the same federal effect, Windsor, 133 S.
Ct. at 2694–95, and imposes significant harms at the state
level as well.
C.

State Marriage Bans Undermine Federal
Programs.

Bans that exclude same-sex couples from civil
marriage undermine several federal safeguards for
families that advance important national interests. 32
There is no legitimate basis to deny these protections to
same-sex couples who wish to marry but are barred from
doing so.
32. See Baskin, 766 F.3d at 658–59 (analyzing harm from
denial of federal benefits and finding no “clearly offsetting
government interest”).

 16
1.

Social Security

Social Security is Congress’s commitment to provide
for elderly and disabled Americans and their families.
Congress affi rmed couples’ legal commitments to live
together and sacrifice for each other in marriage by
securing and stabilizing their shared lives through periods
of difficulty and death. 33
As the Court explained in Windsor, benefits provided
under Social Security, particularly those “allowed to
families upon the loss of a spouse and parent, . . . are an
integral part of family security.” Windsor, 133 S. Ct. at
2695. For example, the Social Security program provides
benefits to the spouse of a disabled worker, spousal
retirement benefits, survivor benefits for spouses, and
one-time payments to offset funeral costs to surviving
spouses.34 More than 85 percent of elder households in the
United States receive Social Security payments, and 35
percent of all beneficiaries receive 90 percent or more of
their total income from Social Security. 35 Over one in four
twenty-year-olds will suffer a disability before reaching
retirement age. 36
Family stability is thus undermined, rather than
33. See Mathews v. De Castro, 429 U.S. 181, 185–86 (1976).
34. See 42 U.S.C. § 402(b), (c), (e), (f), (i).
35. See Admin. on Aging, U.S. Dep’t of Health & Human
Servs., A Profile of Older Americans: 2013, at 1, http://tinyurl.
com/obergefell08.
36. See Press Release, Soc. Sec. Admin., Social Security Basic
Facts (Apr. 2, 2014), available at http://tinyurl.com/obergefell09.

 17
supported, by a State’s denial of marital status to samesex couples and any consequent denial of spousal status
under Social Security. As many of us stated in Windsor,
“the purposes of the Social Security program are not
served when denial of survivor benefits to a lesbian’s or
a gay man’s surviving spouse leaves the spouse destitute
even though both spouses paid into the Social Security
system on the same terms as other citizens.” 37
Moreover, the statutory framework makes clear that
the program is not about procreation—it is about the
security of individuals and families, including during the
twilight of their lives. Most Social Security retirement and
spousal benefits begin at age 62 or age 65 38 —long after a
couple is physically capable of procreation.39 Congress has
even extended benefits to the divorced spouse of a retiree
or worker facing a disability—provided the marriage
lasted for ten years.40 Securing the fi nancial benefits
and security stemming from the family relationship, even
after a marriage is over or unlikely to produce children, is
the primary purpose of Social Security (as the program’s
name implies).
37. Windsor Amicus, supra note 13, at 18.
38. See 42 U.S.C. § 402.
39. See Transcript of Oral Argument at 25, Hollingsworth,
133 S. Ct. 2652 (No. 12-144) (statement of Kagan, J.) (“I can just
assure you, if both the woman and the man are over the age of
55, there are not a lot of children coming out of that marriage.”);
Lawrence, 539 U.S. at 605 (Scalia, J., dissenting) (“Surely not the
encouragement of procreation, since the sterile and the elderly
are allowed to marry.”).
40. See 42 U.S.C. § 416(d)(1), (2), (4), (5).

 18
Yet even today, on the basis of state bans, the Social
Security Administration continues to deny federal
benefits to same-sex couples who are legally married.41 In
particular, the Social Security Administration processes
“surviving spouses’ claims and appeals involving samesex couples, including Medicare-only claims, when the
individual who paid into Social Security was domiciled at
the time of his or her death in a state that recognized his
or her marriage.”42 A core federal benefit thus may be
denied to a surviving spouse at the time of greatest need
because a State forbade that couple from marrying or
deemed that couple’s marriage unworthy of recognition.
This scenario is not hypothetical. It is a real-life
situation that has unfolded for families across our nation
since Windsor. For example:
[f]or more than 30 years, Texas residents
Kathy Murphy, 62, and Sara Barker shared
their lives together. Three decades after they
fi rst met, Kathy and Sara legally married in
Massachusetts in 2010. Like other married
couples, they hoped to grow old together and
to live out their retirement years in safety,
security, and dignity.
Tragically, Sara lost her battle with cancer in
March 2012 at age 62, leaving Kathy a widow.
Because the couple lived in Texas, which refuses
to recognize their marriage, SSA also won’t
recognize the marriage, denying Kathy spousal
41. See Attorney General Memorandum, supra note 24, at 13.
42. Id.

 19
survivor’s benefits earned by Sara over a lifetime of work.43
The state bans fundamentally interfere with Social
Security, a bedrock protection for the elderly and those
with disabilities. This indignity is reinforced each
month—when the couple or surviving spouse receives
lesser or no benefits because of a state ban.
2.

Military and Veterans’ Benefits

Our nation also has a system of military and veterans’
benefits that provides substantial support and care to
servicemembers and veterans, to whom we owe a great
debt. A strong system to provide for veterans is critical
to ensuring that those fighting overseas can focus on the
fight without concern for the security of their families at
home. “No soldier can be and remain at his best with the
constant realization that his family and loved ones are in
dire need of financial assistance.”44
43. Press Release , Lambda Legal, Lambda Legal Sues
Social Security Administration on Behalf of Texas Lesbian Widow
and National Committee to Preserve Social Security & Medicare
(Oct. 22, 2014), available at http://tinyurl.com/obergefell10; see
also Paula Span, Spouses Denied Social Security Survivors’
Benefits, N.Y. Times, Nov. 11, 2014, http://tinyurl.com/obergefell11;
Associated Press, LGBT Baby Boomers Face Tough Retirement
Hurdles, Dec. 2, 2014.
44. S. Rep. No. 93-235, at 7 (1973); see also 127 Cong. Rec.
21,378 (1981) (statement of Sen. Dennis DeConcini) (“Longrange benefits which insure the future financial security of
both partners in a military marriage will improve morale and
increase reenlistment.”); Don J. Jansen, Cong. Research Serv.,
RL33537, Military Medical Care: Questions and Answers 2 (2009)
(“[R]ecruitment and retention are supported by the provision of

 20
Benefits accrue to same-sex couples under Title 10 (for
active-duty servicemembers), Title 32 (for the National
Guard), and Title 38 (for veterans). A large number of
these benefits are vital to military readiness. Examples
include:
• Retirement benefits;45
• Disability benefits;46
• Survivorship and death benefits;47
• The VA home loan program;48
• VA education benefits (i.e., GI Bill);49
health benefits to military retirees and their dependents.”).
45. See, e.g., 10 U.S.C. §§ 1448, 1450(a) (providing for annuities
to spouses of deceased servicemembers entitled to retirement
benefits).
46. See 38 U.S.C. §§ 1115, 1135 (providing increased
compensation to disabled veterans with dependents, including
spouses).
47. See, e.g., 32 U.S.C. § 714, 38 U.S.C. §§ 1311, 1541, 5121,
5121A (providing survivor compensation to spouses of veterans of
wartime and peacetime, along with other benefits).
48. See 38 U.S.C. § 3710 (automatically guaranteeing home
loans to veterans and covering some surviving spouses).
49. See, e.g., 38 U.S.C. § 3311(b)(9) (giving post-9/11 GI Bill
benefits to spouses of servicemembers who die in the line of duty);
id. § 3501(a)(1) (defi ning educational benefits for “eligible persons”
to include spouses of disabled servicemembers or those who died
from service-related disabilities).

 21
• Family separation benefits;50
• Housing and cost-of-living allowances;51
• Supplemental subsistence allowances for lowincome servicemember households;52
• Healthcare in armed forces facilities, 53 including
access to TRICARE, which is “the health care program
for uniformed servicemembers (active, Guard/Reserve,
retired) and their families around the world”;54
• Civil protections in financial and procedural areas
like default judgments, taxes, and voting rights;55 and

50. See 37 U.S.C. § 427 (providing monthly allowance when
servicemembers are separated from their families).
51. See, e.g., 37 U.S.C. §§ 403 (amended 2014), 403b (providing
monthly allowances).
52. See 37 U.S.C. § 402a (providing additional allowances
if servicemember’s household income falls within eligibility for
federal nutrition assistance programs).
53. See, e.g., 10 U.S.C. §§ 1072(2), 1076, 1077, 1097a, 38 U.S.C.
§ 1781 (providing for dependent access to military healthcare).
54. About Us, TRICARE, http://tinyurl.com/obergefell12-1
(last visited Mar. 5, 2015).
55. Servicemembers Civil Relief Act, 50 App. U.S.C. § 538
(applying servicemember protections to dependents, including
spouses, if “materially affected by reason of the servicemember’s
military service”).

 22
• The right to be buried together in veterans’
cemeteries. 56
The Court’s opinion in Windsor singled out veterans’
benefits as one facet of benefits denied by DOMA. 133 S.
Ct. at 2694. A state law that prevents military couples
from marrying can produce the same denial of benefits,
leaving some veterans on unequal footing as compared
with those who served alongside them.
Even after Windsor, the Department of Veterans
Affairs continues to deny benefits to legally married,
same-sex couples. The Justice Department has said:
[the] VA will recognize for purpose of applicable
benefits those same-sex marriages that are
recognized by the law of the place of residence
of either spouse at the time of the marriage,
or by the law of the place of residence of either
spouse at the time the claimant became eligible
for benefits. 57
Thus, a veteran stationed in a non-recognition State
at the time he or she married may be denied veterans’
benefits or have such benefits reduced. As the American
Military Partner Association (AMPA) has explained, “the
VA will deny spousal benefits to AMPA member veterans
and same-sex spouses who married in Maryland but at the
56. See, e.g., Windsor, 133 S. Ct. at 2694 (noting that DOMA
“prohibits [married same-sex couples] from being buried together
in veterans’ cemeteries.”).
57. Attorney General Memorandum, supra note 24, at 8; see
also 38 U.S.C. § 103(c).

 23
time of their marriage and application for spousal benefits
resided in Virginia—even though Virginia’s marriage ban
has been held unconstitutional by the Fourth Circuit.”58
These concerns are real for many veterans, who put
themselves in harm’s way and yet still face discrimination
at home. For example:
[f]or Steven Rains, the Defense of Marriage
Act is very much alive.
In 2008, Rains and his partner, Donald Condit,
drove from Fort Worth, Texas, to the Riverside
County town of Hemet, where Condit’s parents
lived, to marry during the brief window when
California allowed same-sex marriages before
voters banned them again under Proposition
8. A federal court overturned that ban in 2010,
although it wasn’t until 2013 that the marriages
resumed.
“We got in the car and drove,” Rains said. “We
didn’t even want to wait a couple of weeks for a
decent airline ticket.”
In 2013, Condit, after retiring from a railroad
career, died from the drugs used to treat his
exposure to Agent Orange in Vietnam. As
his widower, Rains, now 60, could have been
entitled to federal railroad retiree and veterans’
survivor benefits. But both have been denied
58. Petition for Review at 8 , Am. Military Partner Ass’n
v. McDonald, No. 14-7121 (Fed. Cir. Aug. 21, 2014), ECF No. 1.

 24
because at the time of Condit’s death, the couple
lived in Texas, which bans gay and lesbian
marr iages. 59
3.

Domestic Support Obligations

Another federal protection States deny to same-sex
couples by barring their marriages is “the Bankruptcy
Code’s special protections for domestic-suppor t
obligations,” which the Court also highlighted in Windsor.
133 S. Ct. at 2694.
When two individuals marry, a subsequent divorce
may result in a domestic support obligation. If the spouse
that owes the obligation later declares bankruptcy, the
obligation is at risk of being diluted or extinguished. The
Bankruptcy Code protects against this risk by ensuring
that domestic support obligations receive priority over
other creditors’ claims and are not discharged.60 These
“special protections” are premised on the idea that spouses’
contributions to each other’s wellbeing are a foundation of
security for spouses and their children—including after
a marital relationship ends. The need for this security
is especially acute where one partner supports the other
in non-financial ways and, at a parting of the ways, finds
himself lacking an established career or education.

59. Carolyn Lochhead, Federal Ban on Same-Sex Marriage
Still Casts Shadow on Many Lives, S.F. Chron., Jan. 12, 2015,
http://tinyurl.com/obergefell13.
60. See 11 U.S.C. § 101(14A); id. § 507(a)(1); id. § 523(a)(5),
(a)(15).

 25
A State’s marriage ban can prevent such a domestic
support obligation from ever coming into existence,61
impairing a key source of family security in the event of
bankruptcy.
4.

Federal Employee Protections

The state bans likewise frustrate federal interests in
protecting federal employees, including law enforcement
agents and prosecutors, and their families.
As many of us explained in Windsor, “[t]he Federal
Employee Compensation Act acknowledges the financial
interdependence of spouses regardless of the presence
of children, and it provides spousal survivor benefits
if a federal employee is killed on the job.”62 Numerous
other benefits flow from federal employment, such as
health insurance provided for an employee’s spouse.63
The state bans frustrate the congressional goal behind
61. See, e.g., Borman v. Pyles-Borman, No. 2014CV36, 2014
WL 4251133 (Tenn. Cir. Ct. Aug. 5, 2014) (denying same-sex
married couple a divorce under Tennessee’s non-recognition law).
62. Windsor Amicus, supra note 13, at 26 (citing 5 U.S.C.
§§ 8101 et seq.).
63. See 5 U.S.C. §§ 8901(5), 8905 (allowing federal employees
to enroll in health benefits plans covering self, spouse, and
children); In re Golinski, 587 F.3d 901, 902 (9th Cir. 2009)
(describing provision of Federal Employees Health Benefits Act
covering employees’ families, including spouses); see also, e.g.,
5 U.S.C. §§ 9001, 9002 (providing long-term care insurance to
spouses of employees); see also U.S. Gov’t Accountability Office,
GAO/OGC-97-16, Defense of Marriage Act, Enclosure I 4 (1997)
(describing how “[m]arital status is a factor . . . in many ways” in
laws concerning federal employee benefits).

 26
these benefits: to ensure a productive and stable federal
workforce.
Beyond those employee protections, Congress has
acted to protect federal officials and their families from
retaliation or intimidation. Federal law criminalizes the
threat or commission of violent offenses against federal
officials, judges, and law enforcement officers—and their
families, including spouses—with the intent to impede or
retaliate against the official.64
The federal interest in this statute is clear: to guard
against interference with federal judges, agents, and
prosecutors. As the Court has said:
It would be a great reproach to the system of
government of the United States, declared to
be within its sphere sovereign and supreme,
if there is to be found within the domain of
its powers no means of protecting the judges,
in the conscientious and faithful discharge of
their duties, from the malice and hatred of
those upon whom their judgments may operate
unfavorably.65
Protections against, and punishment for, individuals
who coerce or retaliate against federal officials and their
families are integral to a well-functioning government.
The state bans impair these protections for federal
officials. A gay or lesbian FBI agent, federal prosecutor,
or federal judge may have far less protection for his or
64. See 18 U.S.C. § 115.
65. In re Neagle, 135 U.S. 1, 59 (1890) (concerning federal
official protecting a Supreme Court Justice).

 27
her family than would otherwise attach. These officials
may investigate, prosecute, or preside over some of the
most dangerous individuals, including terrorists, drug
kingpins, members of organized crime syndicates, gang
members, and human traffickers. Because of the state
bans, such important work may expose a gay or lesbian
federal official to a greater chance of violence, a harm this
Court said was “even more serious” than other inequalities
imposed by DOMA. Windsor, 133 S. Ct. at 2694–95.
IV. States’ Refusals to Respect Lawful Marriages
Place Our Constituents at Risk.
Windsor recognizes that the marital relationship,
once created, confers “a dignity and status of immense
import” that cannot be lightly ignored. 133 S. Ct. at 2692.66
Yet, because of the state bans, crossing a state line creates
enormous risk for a married same-sex couple and their
children. Easily done by other families without a second
thought, such a simple act could have severe consequences
for these couples and infl ict harm on their children, for no
legitimate purpose.
A.

Like DOMA, States that Refuse to Recognize
Valid Marriages Deny Equal Protection.

Like DOMA, state bans on recognizing marriages
performed elsewhere have the “principal effect” of
“identify[ing] a subset of state-sanctioned marriages and
mak[ing] them unequal.” Windsor, 133 S. Ct. at 2694.
Such bans create two tiers of out-of-state marriages. One
66. See also Zablocki v. Redhail, 434 U.S. 374, 397 n.1 (1978)
(Powell, J., concurring in the judgment).

 28
class is recognized as a matter of course,67 and a second
class is denied recognition because it consists of the
marriages of same-sex couples—the same class denied
federal recognition under DOMA.
Indeed, the bans at issue come from States that
commonly validate out-of-state marriages—as long as the
couple is opposite-sex—even where the marriage could
not validly occur under that State’s law and was purposely
celebrated out of state to evade the State’s marriage
prohib ition. 6 8 By departing from the longstanding
“place-of-celebration” marriage recognition rule applied
to opposite-sex couples,69 these bans, like DOMA, are
“discriminations of an unusual character [that] especially
suggest careful consideration to determine whether they
are obnoxious to the constitutional provision.” Windsor,
133 S. Ct. at 2692 (quoting Romer, 517 U.S. at 633).
As in Windsor, “no legitimate purpose overcomes
the purpose and effect to disparage and to injure those
67. “The general rule in the United States for interstate
marriage recognition is the ‘place of celebration’ rule, which
provides that marriages valid where celebrated are valid
everywhere.” Henry v. Himes, 14 F. Supp. 3d 1036, 1040 (S.D.
Ohio 2014), rev’d sub nom. DeBoer, 772 F.3d 388. This means,
for example, that a State like Ohio will recognize all out-of-state
marriages other than those of same-sex couples. See Obergefell,
962 F. Supp. 2d at 973.
68. Such “evasive” marriages have routinely been granted
interstate respect. See, e.g., In re Miller’s Estate, 214 N.W. 428
(Mich. 1927); Mazzolini v. Mazzolini, 155 N.E.2d 206 (Ohio 1958);
Keith v. Pack, 187 S.W.2d 618 (Tenn. 1945).
69. See supra note 67.

 29
whom the State, by its marriage laws, sought to protect in
personhood and dignity.” Id. at 2696.70 The Court rejected
a claimed link between excluding gay and lesbian married
couples from federal benefits and the asserted goal of
“address[ing] the tendency of opposite-sex relationships
to produce unintended and unplanned offspring.” 71 A
federal statute penalizing already-married same-sex
couples was simply unconnected to that asserted goal.72
Just so here. “There is no rational reason to think that
taking away the designation of ‘marriage’ from same-sex
couples would advance the goal of encouraging [] oppositesex couples to procreate more responsibly.” Perry v.
Brown, 671 F.3d 1052, 1088 (9th Cir. 2012), vacated sub
70. Section 2 of DOMA, 28 U.S.C. § 1738C, is not challenged
here and is irrelevant. States cannot escape examination of
their laws by resort to Section 2 because “Congress has no
affi rmative power to authorize the States to violate the Fourteenth
Amendment and is implicitly prohibited from passing legislation
that purports to validate any such violation.” Saenz v. Roe, 526
U.S. 489, 508 (1999); see also Graham v. Richardson, 403 U.S.
365, 382 (1971) (“Congress does not have the power to authorize
the individual States to violate the Equal Protection Clause.”).
Moreover, were Section 2 to have any bearing here, the Court
has already held that “[t]he history of DOMA’s enactment and its
own text demonstrate that interference with the equal dignity
of same-sex marriages, a dignity conferred by the States in the
exercise of their sovereign power, was more than an incidental
effect of the federal statute. It was its essence.” Windsor, 133
S. Ct. at 2693. This conclusion applies with equal force to both
operative sections of the law.
71. Windsor BLAG Brief, supra note 23, at 21.
72. See Windsor, 699 F.3d at 188 (“Incentives for oppositesex couples to marry and procreate (or not) were the same after
DOMA was enacted as they were before.”).

 30
nom. Hollingsworth, 133 S. Ct. 2652; see also Kitchen v.
Herbert, 755 F.3d 1193, 1223 (10th Cir. 2014) (calling such
a position “wholly illogical”).
B. States that Refuse to Recog nize Valid
Marriages Deprive Many of Our Constituents
of Important Rights Essential to Family
Stability.
As of 2013, there were a reported 251,695 married
same-sex couples, representing more than half a million
individuals, in the United States.73 This number is likely
significantly larger today because many States have since
extended the freedom to marry to same-sex couples.74
These couples and their children live throughout the
nation, in States that include same-sex couples in their
marriage laws and those that still do not.75 Many are, or
were, our constituents. Like other families, they move and
travel to and through other States for reasons including
employment, education, health care, and leisure.
Yet unlike other married couples, they are often
stripped of spousal protections when they move and travel.
For example, a same-sex couple who married in Maryland
will, upon entering Ohio, be treated as legal strangers:
73. See U.S. Census Bureau, supra note 3.
74. Same-sex couples gained the ability to marry in
approximately twenty States over the past year alone. See, e.g.,
Same-Sex Marriage State-by-State, Pew Research Center (Feb. 9,
2015), http://tinyurl.com/obergefell15. A number of these States,
such as Illinois and Pennsylvania, are some of the most populous
States in the nation.
75. See U.S. Census Bureau, supra note 3, tbl.3.

 31
Same-sex couples are denied local and state
tax benefits available to heterosexual married
couples, denied access to entitlement programs
(Medicaid, food stamps, welfare benefits, etc.)
available to heterosexual married couples and
their families, barred by hospital staff and/
or relatives from their long-time partners’
bedsides during serious and final illnesses due
to lack of legally-recognized relationship status,
denied the remedy of loss of consortium when a
spouse is seriously injured through the acts of
another, denied the remedy of a wrongful death
claim when a spouse is fatally injured through
the wrongful acts of another, and evicted from
their homes following a spouse’s death because
same-sex spouses are considered complete
strangers to each other in the eyes of the law.
Henry, 14 F. Supp. 3d at 1050.
This discrimination imposes far-reaching disabilities
on same-sex married couples reminiscent of those imposed
by the state constitutional amendment in Romer v. Evans,
which singled out gay men and lesbians for disfavored
treatment. 517 U.S. at 631, 633. The case of James
Obergefell and John Arthur is illustrative. After nearly
20 years together in a loving, committed relationship,
Mr. Arthur was diagnosed with ALS,76 or “Lou Gehrig’s
Disease.” 77 Knowing that Mr. Arthur did not have long
76. Declaration of James Obergefell ¶¶ 3, 9, Obergefell v.
Kasich, No 1:13-cv-501 (S.D. Ohio July 22, 2013).
77. See What is ALS?, ALS Association, http://tinyurl.com/
obergefell16 (last visited Mar. 5, 2015).

 32
to live, the couple flew on a medically-equipped plane to
Maryland, where they were married on the airport tarmac
by Mr. Arthur’s aunt.78 As Mr. Obergefell explained, they
“want[ed] the world to know that [they] share the highest
commitment two people can make to each other in our
society.” 79
Marriage was important not only for their sense of
dignity, but also for practical reasons. Being married
would allow Mr. Obergefell to be listed as the surviving
spouse on Mr. Arthur’s death certificate, which has
important evidentiary value for issues such as receiving life
insurance payouts, administering wills, and transferring
title for automobiles, real estate, and other property. See
Obergefell, 962 F. Supp. 2d at 980. Mr. Arthur wished
to have Mr. Obergefell buried next to him in his family
plot, but the family plot directive limited those who may
be interred in the plot to descendants and spouses. See
Obergefell v. Kasich, No. 1:13-cv-501, 2013 WL 3814262,
at *7 (S.D. Ohio July 22, 2013). As the district court
emphasized, “the uncertainty around this issue during
Mr. Arthur’s final illness is the cause of extreme emotional
hardship to the couple. Dying with an incorrect death
certificate that prohibits Mr. Arthur from being buried
with dignity constitutes irreparable harm.” Id.
This couple took extraordinary steps to overcome
Ohio’s marriage ban, made possible only through the
loving support of their family and friends. 80 For many
78. Declaration of James Obergefell, supra note 76, ¶ 12.
79. Id. ¶ 15.
80. Id. ¶ 12.

 33
couples, this would have been a fi nancial impossibility.
Regardless of whether a couple can travel out of state to
marry, their lawful marriage may be denied recognition,
as occurred here. Such significant and direct interference
with the ability of an entire class of citizens to access the
vast array of state and federal rights and responsibilities of
civil marriage does not comply with core equal protection
guarantees. 81 Cf. Zablocki, 434 U.S. 374. “A State cannot
so deem a class of persons a stranger to its laws.” Romer,
517 U.S. at 635.
Moreover, even couples who live in States that
recognize their marriages face unwarranted jeopardy
when they visit or travel through States that do not. For
example, should an accident or medical emergency occur
during a family trip, one spouse may be obstructed when
visiting or making medical care decisions on behalf of the
other spouse. 82
81. Since Windsor, the federal government has tried to
mitigate the hardship and harm caused by state marriage bans by,
for example, granting same-sex military personnel non-chargeable
leave “for travel to a state or jurisdiction that allows same-sex
couples to be married.” Memorandum from the Under Sec’y of Def.
to Secretaries of the Military Dep’ts and Chiefs of the Military
Servs., Further Guidance on Extending Benefits to Same-Sex
Spouses of Military Members 1 (Aug. 13, 2013), available at http://
tinyurl.com/obergefell17. Such efforts demonstrate the burden
that these bans impose on couples, their families, and the federal
government.
82. See, e.g., Langbehn v. Pub. Health Trust of Miami-Dade
Cnty., 661 F. Supp. 2d 1326, 1347 (S.D. Fla. 2009) (fi nding no relief
available where hospital denied plaintiff visitation with her samesex partner and access to partner’s medical records). In response
to the Langbehn case and others, the Department of Health

 34
The legendary “Blues Highway” route, 83 for instance,
could take a family through up to four States that do not
recognize marriages of same-sex couples (Arkansas,
Tennessee, Mississippi, and Louisiana). As a Mississippi
district court recognized: “Suppose that . . . Joce becomes
[seriously] ill and [the] hospital denies Carla the visiting
rights it grants married couples. The emotional damage
would be profound and irreparable. The same can be said
for . . . every other committed same-sex couple without a
State-recognized marriage.” Campaign for S. Equal. v.
Bryant, No. 3:14-CV-818-CWR-LRA, 2014 WL 6680570,
at *35 (S.D. Miss. Nov. 25, 2014).

and Human Services promulgated regulations and guidelines
requiring Medicare and Medicaid participating hospitals to allow
patients to designate their visitors and healthcare proxies. See
42 C.F.R. §§ 482.13, 485.635; Press Release, Ctrs. for Medicare
& Medicaid Servs., Medicare Steps Up Enforcement of Equal
Visitation and Representation Rights in Hospitals (Sept. 8,
2011), available at http://tinyurl.com/obergefell18. However, in
situations where a patient has not made pre-designations and
is unable to do so, hospitals can resort to their default visitation
policies, which may not be inclusive of gay men and lesbians, and
to state laws, which often give spouses, but not same-sex partners,
priority to make medical care decisions. See, e.g., Ky. Rev. Stat.
Ann. § 311.631(1)(c); Ohio Rev. Code Ann. § 2133.08(B)(2); Tenn.
Code Ann. § 68-11-1806(c)(3)(A); see also Blake Boldt, Woman
Denied Visitation of Partner at Local Hospital, Out & About
Nashville, Dec. 19, 2011, http://tinyurl.com/obergefell19 (reporting
Tennessee woman denied visit with same-sex partner by hospital
participating in Medicare and Medicaid).
83. See Road Trip: The Blues Highway, Tennessee and
Mississippi, Nat’l Geographic, http://tinyurl.com/obergefell20
(last visited Mar. 5, 2015).

 35
C.

States that Refuse to Recog nize Valid
Marriages Divest Many of Our Constituents of
the “Dignity and Status of Immense Import”
of Marriage.

States’ refusals to recognize marriages also cause
same-sex couples, and the hundreds of thousands of
children of those couples, 84 immeasurable psychological
harm by “instruct[ing] all . . . officials, and indeed all
persons with whom same-sex couples interact, including
their own children, that their marriage is less worthy
than the marriages of others.” Windsor, 133 S. Ct. at
2696. “The state’s refusal to recognize the plaintiffs’
marriages de-legitimizes their relationships, degrades
them in their interactions with the state, causes them
to suffer public indignity, and invites public and private
discrimination and stigmatization.” Tanco v. Haslam, 7
F. Supp. 3d 759, 770 (M.D. Tenn. 2014), rev’d sub nom.
DeBoer, 772 F.3d 388.
For example, Dr. Valeria Tanco and Dr. Sophia Jesty
married in New York, where they met while studying
veterinary medicine. After completing their training, they
accepted teaching positions at the University of Tennessee.
Upon moving, the couple found their commitment and hard
work rewarded with a second-class status infecting major
facets of their lives. Because theirs was not an oppositesex marriage, they faced uncertainties surrounding
property protections in their newly purchased home 85
84. See Gates, supra note 4.
85. Married couples enjoy property protections under
Tennessee’s laws, including the right to a share of a decedent’s
estate (Tenn. Code Ann. § 31-2-104); the right to hold real property

 36
and their eligibility for a family health insurance plan.
Id. at 764. When Dr. Tanco became pregnant, a cause for
celebration became a cause for
concern[] about the environment in which their
child [would] be raised, fearing that Tennessee’s
refusal to recognize her parents’ marriage
[would] stigmatize her, cause her to believe that
she and her family are entitled to less dignity
than her peers and their families, and give her
the impression that her parents’ love and their
family unit is somehow less stable.
Id.
Another couple, Matthew Mansell and John Espejo,
moved to Tennessee after Mr. Mansell’s law firm
transferred him from California, where the couple had
married and adopted children. Id. at 765. In Tennessee
they found their marriage a nullity. Like the TancoJesty couple, they were understandably concerned about
the impact that would have on their children. Id. As the
Tennessee district court acknowledged, these couples
faced the “imminent risk of potential harm to their children
during their developing years from the stigmatization and
denigration of their family relationship.” Id. at 770.
Countless couples will move or travel, if they have
not already, to a non-recognizing State and be subject to
a law that does not treat them with the same dignity and
respect that other married couples receive. Oppositein a tenancy by the entirety (Tenn. Code Ann. § 66-1-109); and the
right to defer some property taxes (Tenn. Code Ann. § 7-64-201).

 37
sex married couples enjoy the security of knowing their
marriages will be recognized throughout the country,
even in States where they could not affi rmatively marry. 86
However, as with DOMA:
[state bans] tell[] [same-sex] couples, and all the
world, that their otherwise valid marriages are
unworthy of . . . recognition. This places samesex couples in an unstable position of being in
a second-tier marriage. The differentiation
demeans the couple, whose moral and sexual
choices the Constitution protects . . . . And it
humiliates tens of thousands of children now
being raised by same-sex couples. The [state
ban] in question makes it even more difficult for
the children to understand the integrity and
closeness of their own family and its concord
with other families in their community and in
their daily lives.
Windsor, 133 S. Ct. at 2694.
No legitimate interest justifies the drastic “deprivation
of the liberty of the person” effected by the nullification
of already-established marriages, including those of our
constituents. Id. at 2695.

86. See supra notes 67–68.

 38
CONCLUSION
For the foregoing reasons, the judgments of the Court
of Appeals for the Sixth Circuit should be reversed.
Respectfully submitted,
HEATHER C. SAWYER
House Committee on
the Judiciary
Minority Counsel to
Ranking Members
John Conyers, Jr.
and Jerrold Nadler
B-336 Rayburn Bldg.
Washington, DC 20515
(202) 225-6906

JOSEPH F. TRINGALI
Counsel of Record
JOSHUA C. POLSTER
ELISA Y. LEE
A IDAN T. GRANO
Simpson Thacher
& Bartlett LLP
425 Lexington Avenue
New York, NY 10017
(212) 455-2000
jtringali@stblaw.com

Counsel for Amici Curiae
March 6, 2015

 APPENDIX

1a
Appendix
APPENDIX
The Members of Congress participating
as amici are:
United States Senators
Tammy Baldwin
Michael F. Bennet
Richard Blumenthal
Cory Booker
Barbara Boxer
Sherrod Brown
Maria Cantwell
Benjamin L. Cardin
Thomas R. Carper
Robert P. Casey, Jr.
Christopher Coons
Joe Donnelly
Richard J. Durbin
Dianne Feinstein
Al Franken
Kirsten Gillibrand
Martin Heinrich
Heidi Heitkamp
Mazie K. Hirono
Tim Kaine
Angus S. King, Jr.
Amy Klobuchar

Patrick Leahy
Edward J. Markey
Claire McCaskill
Robert Menendez
Jeff Merkley
Barbara A. Mikulski
Christopher S. Murphy
Patty Murray
Bill Nelson
Gary Peters
Jack Reed
Harry Reid
Bernard Sanders
Brian Schatz
Charles E. Schumer
Jeanne Shaheen
Debbie Stabenow
Jon Tester
Mark R. Warner
Elizabeth Warren
Sheldon Whitehouse
Ron Wyden

 2a
Appendix
Members of the U.S. House of Representatives
Alma S. Adams
Pete Aguilar
Brad Ashford
Karen Bass
Joyce Beatty
Xavier Becerra
Ami Bera
Donald S. Beyer Jr.
Earl Blumenauer
Suzanne Bonamici
Brendan F. Boyle
Robert A. Brady
Julia Brownley
Cheri Bustos
Lois Capps
Michael E. Capuano
Tony Cárdenas
John C. Carney, Jr.
André Carson
Matt Cartwright
Kathy Castor
Joaquin Castro
Judy Chu
David N. Cicilline
Katherine M. Clark
Yvette D. Clarke
James E. Clyburn
Steve Cohen
Gerald E. Connolly

John Conyers, Jr.
Jim Cooper
Joe Courtney
Joseph Crowley
Elijah E. Cummings
Danny K. Davis
Susan A. Davis
Peter A. DeFazio
Diana DeGette
John K. Delaney
Rosa L. DeLauro
Suzan K. DelBene
Mark DeSaulnier
Theodore E. Deutch
Debbie Dingell
Lloyd Doggett
Michael F. Doyle
Tammy Duckworth
Donna F. Edwards
Keith Ellison
Eliot L. Engel
Anna G. Eshoo
Elizabeth H. Esty
Sam Farr
Chaka Fattah
Bill Foster
Lois Frankel
Marcia L. Fudge
Tulsi Gabbard

 3a
Appendix
Members of the U.S. House of Representatives
(continued)
Ruben Gallego
Barbara Lee
John Garamendi
Sander M. Levin
Alan Grayson
John Lewis
Al Green
Ted Lieu
Raúl M. Grijalva
Dave Loebsack
Luis V. Gutiérrez
Zoe Lofgren
Janice Hahn
Alan S. Lowenthal
Alcee L. Hastings
Nita M. Lowey
Denny Heck
Ben Ray Luján
Brian Higgins
Michelle Lujan Grisham
James A. Himes
Stephen F. Lynch
Michael M. Honda
Carolyn B. Maloney
Steny H. Hoyer
Sean Patrick Maloney
Jared Huffman
Doris O. Matsui
Steve Israel
Betty McCollum
Sheila Jackson Lee
Jim McDermott
Hakeem S. Jeffries
James P. McGovern
Henry C. “Hank” Johnson, Jr.
Jerry McNerney
Marcy Kaptur
Gregory W. Meeks
Robin L. Kelly
Grace Meng
Joseph P. Kennedy
Gwen Moore
Dan Kildee
Seth Moulton
Derek Kilmer
Patrick E. Murphy
Ron Kind
Jerrold Nadler
Ann Kirkpatrick
Grace F. Napolitano
Ann McLane Kuster
Richard E. Neal
James R. Langevin
Richard M. Nolan
John B. Larson
Donald Norcross
Brenda L. Lawrence
Eleanor Holmes Norton

 4a
Appendix
Members of the U.S. House of Representatives
(continued)
Beto O’Rourke
Brad Sherman
Frank Pallone, Jr.
Kyrsten Sinema
Bill Pascrell, Jr.
Albio Sires
Donald M. Payne, Jr.
Louise McIntosh Slaughter
Nancy Pelosi
Adam Smith
Ed Perlmutter
Jackie Speier
Scott H. Peters
Eric Swalwell
Chellie Pingree
Mark Takai
Mark Pocan
Mark Takano
Jared Polis
Mike Thompson
David E. Price
Dina Titus
Mike Quigley
Paul Tonko
Charles B. Rangel
Norma J. Torres
Kathleen M. Rice
Niki Tsongas
Lucille Roybal-Allard
Chris Van Hollen
Raul Ruiz
Juan Vargas
C. A. Dutch Ruppersberger
Marc A. Veasey
Bobby L. Rush
Nydia M. Velázquez
Tim Ryan
Timothy J. Walz
Linda T. Sánchez
Debbie Wasserman Schultz
Loretta Sanchez
Maxine Waters
John P. Sarbanes
Bonnie Watson Coleman
Janice D. Schakowsky
Peter Welch
Adam B. Schiff
Frederica S. Wilson
Robert C. “Bobby” Scott
John A. Yarmuth
José E. Serrano