Case: 14-50196 Document: 00512771264 Page: 1 Date Filed: 09/16/2014

Case No. 14-50196

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

CLEOPATRA DE LEON, et al.,

Plaintiffs-Appellees

v.

RICK PERRY, in his official capacity as Governor of the State of Texas, et al.,
Defendants-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF TEXAS, SAN ANTONIO DIVISION, NO. 5:13-CV-00982

AMICI CURIAE BRIEF OF THE NATIONAL WOMEN’S LAW CENTER,

GENDER JUSTICE, LEGAL MOMENTUM, LEGAL VOICE, NATIONAL
ASSOCIATION OF WOMEN LAWYERS, NATIONAL PARTNERSHIP
FOR WOMEN & FAMILIES, OHIO WOMEN’S BAR ASSOCIATION,
SOUTHWEST WOMEN’S LAW CENTER, WOMEN LAWYERS
ASSOCIATION OF MICHIGAN, WOMEN’S LAW PROJECT, AND
PROFESSORS OF LAW ASSOCIATED WITH THE WILLIAMS
INSTITUTE IN SUPPORT OF PLAINTIFFS-APPELLEES AND
AFFIRMANCE
[All Parties Have Consented to Filing. FRAP 29(a)]

MARCIA D. GREENBERGER
EMILY J. MARTIN
COUNSEL OF RECORD
NATIONAL WOMEN’S LAW CENTER
11 DUPONT CIRCLE NW, SUITE 800
WASHINGTON, D.C. 20036
TELEPHONE: (202) 588-5180
FACSIMILE: (202) 588-5185
EMAIL: EMARTIN@NWLC.ORG
 Case: 14-50196 Document: 00512771264 Page: 2 Date Filed: 09/16/2014

No. 14-50196

CERTIFICATE OF INTERESTED PERSONS

Pursuant to Fifth Circuit Rule 28.2.1, the undersigned counsel of record certifies

that the following listed persons have an interest in the outcome of this case.

These representations are made in order that the judges of this Court may evaluate

possible disqualification or recusal.

Plaintiffs-Appellees’ Counsel:

Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, Mark Phariss.

Plaintiffs-Appellees’ Counsel:

Barry Alan Chasnoff (Trial and appellate counsel)

Daniel McNeel Lan, Jr. (Trial and appellate counsel)
Matthew E. Pepping (Trial and appellate counsel)
Akin Gump Strauss Hauer & Feld LLP
300 Convent St., Suite 1600
San Antonio, TX 78205

Michael P. Cooley (Trial and appellate counsel)

Andrew Newman (Trial and appellate counsel)
Akin Gump Strauss Hauer & Feld LLP
1700 Pacific Ave, Suite 4100
Dallas, TX 75201

Jessica M. Weisel (Trial and appellate counsel)

Akin Gump Strauss Hauer & Feld LLP
2029 Century Park East, Suite 2400
Los Angeles, CA 90067-3010

ii
 Case: 14-50196 Document: 00512771264 Page: 3 Date Filed: 09/16/2014

Frank Stenger-Castro (Trial counsel)

Attorney at Law
208 Sir Arthur Court
San Antonio, TX 78213

Defendants-Appellants:

Rick Perry, in his official capacity as Governor of Texas (Defendant-

Appellant)

Greg Abbott, in his official capacity as Texas Attorney General (Defendant-

Appellant)

David Lakey, in his official capacity as Commissioner of the Texas

Department of State Health Services (Defendant-Appellant)

Gerard Rickhoff, in his official capacity as Bexar County Clerk (Defendant)

Defendants-Appellants’ Counsel:

Michael P. Murphy (Trial and appellate counsel for Appellants)

Beth Ellen Klusmann (Trial and appellate counsel for Appellants)
Office of the Attorney General
Office of the Solicitor General

Jonathan F. Mitchell (Trial and appellate counsel)

Office of the Solicitor General for the State of Texas
209 W. 14th Street
Austin, TX 78701

Susan Bowen (Trial counsel for Defendant Rickhoff)

Bexar County District Attorney’s Office
101 Nueva, 4th Floor
San Antonio, TX 78205

Amici Curiae and Counsel:

Amici Curiae National Women’s Law Center Gender Justice, Legal

Momentum, Legal Voice, National Association of Women Lawyers,

iii
Case: 14-50196 Document: 00512771264 Page: 4 Date Filed: 09/16/2014

National Partnership for Women & Families, Ohio Women’s Bar

Association, Southwest Women’s Law Center, Women’s Law Project,
Women Lawyers Association of Michigan, and professors of law associated
with the Williams Institute

Emily J. Martin and Marcia D. Greenberger, National Women’s Law Center

(Counsel for Amici Curiae)

Amici Curiae American Psychological Association, Texas Psychological

Association, American Psychiatric Association, American Association for
Marriage and Family Therapy, National Association of Social Workers, and
National Association of Social Workers Texas Chapter

Paul M. Smith, Jenner &Block LLP (Counsel for Amici Curiae American
Psychological Association, et al.)

Nathalie F.P. Gilfoyle, American Psychological Association (Counsel for

Amici Curiae American Psychological Association and Texas Psychological
Association)

Aaron M. Panner, Kellogg Huber Hansen Todd Evans & Figel, PLLC
(Counsel for Amicus Curiae American Psychiatric Association)

Amici Curiae Leadership Conference on Civil and Human Rights, American

Civil Liberties Union, American Civil Liberties Union of Texas, API
Equality-LA, Asian Americans Advancing Justice | AAJC, Asian Americans
Advancing Justice | Asian Law Caucus, Asian Americans Advancing Justice
| Chicago, Asian Americans Advancing Justice | Los Angeles, Human Rights
Campaign, League of United Latin American Citizens, National Association
for the Advancement of Colored People (NAACP), National Center for
Lesbian Rights, National Gay and Lesbian Task Force Foundation, National
LGBT Bar Association

Joshua A. Block, American Civil Liberties Union (Counsel for Amici

Curiae)

Rebecca L. Robertson, American Civil Liberties Union of Texas (Counsel

for Amici Curiae)

iv
Case: 14-50196 Document: 00512771264 Page: 5 Date Filed: 09/16/2014

Amicus Curiae Gary J. Gates

Brad W. Seiling and Benjamin G. Shatz, Manatt, Phelps & Phillips, LLP
(Counsel for Amicus Curiae)

Amicus Curiae GLMA: Health Professionals Advancing LGBT Equality

Nicholas M. O’Donnell, Sullivan & Worcester LLP (Counsel for Amicus

Curiae)

Amicus Curiae Professor Carlos A. Ball

Jyotin Hamid and Joseph Rome, Debevoise & Plimpton LLP (Counsel for
Amicus Curiae)

Amici Curiae North Carolina Values Coalition and Life, Liberty and Law
Foundation

Deborah Jane Dewart (Counsel for Amici Curiae North Carolina Values
Coalition and Life, Liberty and Law Foundation)

Amici Curiae Professors Alan J. Hawkins and Jason S. Carroll

Robert Smead Hogan, Hogan Law Firm, P.C. (Counsel for Amici Curiae
Professors Alan J. Hawkins and Jason S. Carroll)

Amicus Curiae Liberty Counsel

Mathew D. Staver, Anita Leigh Staver, and Mary Elizabeth McAlister,

Liberty Counsel (Counsel for Amicus Curiae Liberty Counsel)

Amicus Curiae Paul McHugh

Kevin Trent Snider and Gerard V. Bradley, Pacific Justice Institute (Counsel
for Amicus Curiae Paul McHugh)
v
Case: 14-50196 Document: 00512771264 Page: 6 Date Filed: 09/16/2014

Amicus Curiae Concerned Women for America

Steven W. Fitschen, National Legal Foundation (Counsel for Amicus Curiae

Concerned Women for America)

Amicus Curiae 23 Scholars of Federalism and Judicial Restraint

Dean John Sauer, Clark & Sauer, L.L.C. (Counsel for Amicus Curiae 23
Scholars of Federalism and Judicial Restraint)

Amicus Curiae The Becket Fund for Religious Liberty

Eric C. Rassbach and Asma Uddin, The Becket Fund for Religious Liberty
(Counsel for Amicus Curiae The Becket Fund for Religious Liberty)

Amicus Curiae State of Louisiana

James D. “Buddy” Caldwell, Attorney General, and Trey Phillips, First

Assistant Attorney General, Louisiana Department of Justice (Counsel for
Amicus Curiae State of Louisiana)

Stuart Kyle Duncan, Duncan, P.L.L.C. (Counsel for Amicus Curiae State of
Louisiana)

J. Michael Johnson, Law Offices of Mike Johnson, LLC (Counsel for

Amicus Curiae State of Louisiana)

Amicus Curiae Helen M. Alvare

Steven James Griffin, Daniel, Coker, Horton & Bell (Counsel for Amicus
Curiae Helen M. Alvare)

Amicus Curiae Social Science Professors

vi
Case: 14-50196 Document: 00512771264 Page: 7 Date Filed: 09/16/2014

Jon Roy Ker, Jon R. Ker P.C. (Counsel for Amicus Curiae Social Science
Professors)

Amicus Curiae Marriage Law Foundation

William C. Duncan, Marriage Law Foundation (Counsel for Amicus Curiae

Marriage Law Foundation)

Amici Curiae Robert P. George, Sherif Girgis and Ryan T. Anderson

Michael Francis Smith, Smith Appellate Law Firm (Counsel for Amici
Curiae Robert P. George, et al.)

Amicus Curiae Texas Conservative Coalition

Russell Henry Withers, Texas Conservative Coalition (Counsel for Amicus

Curiae Texas Conservative Coalition)

Amici Curiae Indiana, Alaska, Arizona, Colorado, Idaho, Montana,

Oklahoma, South Carolina, South Dakota and Utah

Thomas Molnar Fisher, Solicitor General, and Gregory F. Zoeller, Attorney

General of Indiana, Office of the Attorney General for the State of Indiana
(Counsel for Amici Curiae Indiana, et al.)

Michael C. Geraghty, Attorney General, State of Alaska (Counsel for Amici

Curiae Alaska)

Thomas C. Horne, Attorney General, State of Arizona (Counsel for Amici

Curiae Arizona)

John Suthers, Attorney General, State of Colorado (Counsel for Amici

Curiae Colorado)

Lawrence G. Wasden, Attorney General, State of Idaho (Counsel for Amici

Curiae Idaho)
vii
Case: 14-50196 Document: 00512771264 Page: 8 Date Filed: 09/16/2014

Timothy C. Fox, Attorney General, State of Montana (Counsel for Amici

Curiae Montana)

E. Scott Pruitt, Attorney General, State of Oklahoma (Counsel for Amici

Curiae Oklahoma)

Alan Wilson, Attorney General, State of South Carolina (Counsel for Amici
Curiae South Carolina)

Marty J. Jackley, Attorney General, State of South Dakota (Counsel for

Amici Curiae South Dakota)

Sean D. Reyes, Attorney General, State of Utah (Counsel for Amici Curiae
Utah)

Amici Curiae Texas Values and Louisiana Family Forum

David Robert Nimocks, Alliance Defending Freedom (Counsel for Amici

Curiae Texas Values and Louisiana Family Forum)

Robert Paul Wilson, Law Offices of Robert P. Wilson (Counsel for Amici
Curiae Texas Values and Louisiana Family Forum)

Amici Curiae United States Conference of Catholic Bishops, National

Association of Evangelicals, The Church of Jesus Christ of Latter Day
Saints, The Ethics & Religious Liberty Commission of the Southern Baptist
Convention, and The Lutheran Church – Missouri Synod

Richard Arthur Bordelon and Ralph Joseph Aucoin, Sr., Denechaud &
Denechaud, L.L.P. (Counsel for Amici Curiae United States Conference of
Catholic Bishops, et al.)

Amicus Curiae Center for the Preservation of American Ideals

Cecilia M. Wood, Cecilia M. Wood Attorney and Counselor at Law, P.C.

(Counsel for Amicus Curiae Center for the Preservation of American Ideals)

viii
Case: 14-50196 Document: 00512771264 Page: 9 Date Filed: 09/16/2014

Amici Curiae Texas Eagle Forum and Eagle Forum Education and Legal

Lawrence John Joseph (Counsel for Amici Curiae Texas Eagle Forum and
Eagle Forum Education and Legal Defense Fund)

Amicus Curiae Professor David R. Upham (represented by himself)

Amicus Curiae David A. Robinson (represented by himself)

Amici Curiae U.S. Pastor Counsel and Coalition of African American

Pastors

Leif A. Olson, Olson Firm, P.L.L.C. (Counsel for Amici Curiae U.S. Pastor
Counsel and Coalition of African American Pastors)

Amicus Curiae David Boyle (motion for leave to file pending)

Amicus Curiae Katy Faust (motion for leave to file pending)

Amicus Curiae B.N. Klein (motion for leave to file pending)

Amicus Curiae Oscar Lopez (motion for leave to file pending)

Amicus Curiae Dawn Stefanowicz (motion for leave to file pending)

David Boyle (Counsel for himself and proposed Amici Curiae Katy Faust,
B.N. Klein, Oscar Lopez, and Dawn Stefanowicz)

Respectfully Submitted,
/s/ Emily J. Martin
Emily J. Martin

Counsel for Amici Curiae

ix
Case: 14-50196 Document: 00512771264 Page: 10 Date Filed: 09/16/2014

TABLE OF CONTENTS

Page

I. INTEREST OF AMICI CURIAE ............................................................ 1

II. SUMMARY OF ARGUMENT ............................................................... 2

III. ARGUMENT ........................................................................................... 4

A. The Supreme Court Adopted Heightened Scrutiny for

Laws That Discriminate Based on Sex Because Such
Laws Are Typically Based On Gender Stereotypes. ......................... 8

B. Laws That Discriminate Based on Sexual Orientation

Should Be Subject to Heightened Scrutiny Because of
Their Frequent Basis in Gender Stereotypes. .................................... 13

1. Laws That Discriminate Based on Sexual

Orientation Are Rooted in Gender Stereotypes. ................... 14

2. Government Action That Discriminates Based

on Sexual Orientation Warrants Heightened
Scrutiny. ................................................................................ 21

C. Laws Excluding Same-Sex Couples From Marriage

Cannot Survive Heightened Scrutiny. ............................................... 24

1. Heightened Scrutiny Has Been Key to

Dismantling Sex-Specific Marriage Laws That
Once Enforced Gender Stereotypes ...................................... 24

2. Like Other Marriage Laws Enforcing Gender-

Based Expectations, Laws Excluding Same-
Sex Couples From Marriage Cannot Survive
Constitutional Scrutiny. ...................................................... 27

IV. CONCLUSION ........................................................................................ 33

x
 Case: 14-50196 Document: 00512771264 Page: 11 Date Filed: 09/16/2014

TABLE OF AUTHORITIES

Page(s)

Cases

Barnes v. City of Cincinnati,

401 F.3d 729 (6th Cir. 2005) ....................................................................... 2

Baskin v. Bogan,
No. 14-2386, 2014 WL 4359059 (7th Cir. Sept. 4, 2014) .......................... 6

Bostic v. Schaefer,
No. 14-1167, 2014 WL 3702493 (4th Cir. July 28, 2014) .......................... 6

Bradwell v. Illinois,
16 Wall. 130 (1873) ..................................................................................... 9

Caban v. Mohammed,
441 U.S. 380 (1979) .................................................................................. 30

Califano v. Goldfarb,
430 U.S. 199 (1977) ............................................................................ 11, 26

Califano v. Westcott,
443 U.S. 76 (1979) .............................................................................. 11, 27

Centola v. Potter,
183 F.Supp.2d 403 (D. Mass. 2002).......................................................... 15

Craig v. Boren,
429 U.S. 190 (1976) .................................................................................. 12

Couch v. Chu,
Appeal No. 0120131136, 2013 WL 4499198
(E.E.O.C. Aug. 13, 2013) .......................................................................... 20

De Leon v. Perry,
975 F.Supp.2d 632 (W.D. Tex. 2014) ............................................. 7, 28, 31

xi
 Case: 14-50196 Document: 00512771264 Page: 12 Date Filed: 09/16/2014

DeBoer v. Synder,
973 F. Supp. 2d 757 (E.D. Mich. 2014) .................................................... 31

E.E.O.C. v. Boh Bros. Const. Co., L.L.C.,

731 F.3d 444 (5th Cir. 2013) .................................................................... 17

Frontiero v. Richardson,
411 U.S. 677 (1973) ........................................................................ 9, 23, 26

Glenn v. Brumby,
663 F.3d 1312 (11th Cir. 2011) ................................................................... 3

Griego v. Oliver,
316 P.3d 835 (N.M. 2013) ........................................................................... 6

Griswold v. Connecticut,
381 U.S. 479 (1965) .................................................................................. 29

Henderson v. Labor Finders of Virginia, Inc.,

No. 3:12-CV-600, 2013 WL 1352158 (E.D. Va. Apr. 2, 2013) ............... 15

Henry v. Himes,
No. 1:14-cv-129, 2014 WL 1418395 (S.D. Ohio Apr. 14, 2014) ............... 7

Hoyt v. Florida,
368 U.S. 57 (1961) .................................................................................... 10

In re Marriage Cases,
183 P.3d 384 (Cal. 2008)............................................................................. 6

J.E.B. v. Alabama ex rel. T.B.,

511 U.S. 127 (1994) .................................................................................... 9

Johnson v. California,
543 U.S. 499 (2005) .................................................................................... 8

Kalina v. R.R. Ret. Bd.,

541 F.2d 1204 (6th Cir. 1976), aff’d, 431 U.S. 909 (1977) ...................... 12

xii
 Case: 14-50196 Document: 00512771264 Page: 13 Date Filed: 09/16/2014

Kerrigan v. Comm’r of Pub. Health,

957 A.2d 407 (Conn. 2008) ......................................................................... 6

Kirchberg v. Feenstra,
450 U.S. 455 (1981) .................................................................................. 26

Kitchen v. Herbert,
No. 13-4178, 2014 WL 2868044 (10th Cir. June 25, 2014) ....................... 6

Kitchen v. Herbert,
961 F. Supp. 2d 1181 (D. Utah 2013) ....................................................... 13

Koren v. Ohio Bell Tel. Co.,

894 F. Supp. 2d 1032 (N.D. Ohio 2012) ................................................... 17

Lawrence v. Texas,
539 U.S. 558 (2003) .............................................................................. 5, 22

Lopez v. River Oaks Imaging & Diagnostic Group, Inc.,

524 F. Supp. 2d 653 (S.D. Tex. 2008) ..................................................... 18

Mississippi Univ. for Women v. Hogan,

458 U.S. 718 (1982) ............................................................................ 12, 21

Muller v. Oregon,
208 U.S. 412 (1908) .................................................................................. 10

Nichols v. Azteca Rest. Enters., Inc.,

256 F.3d 864 (9th Cir. 2001) ..................................................................... 16

Orr v. Orr,
440 U.S. 268 (1979) ............................................................................ 11, 27

Perry v. Schwarzenegger,
704 F. Supp. 2d 921 (N.D. Cal. 2010) ...................................................... 31

Planned Parenthood of Se. Penn. v. Casey,

505 U.S. 833 (1992) ............................................................................ 22, 29

xiii
 Case: 14-50196 Document: 00512771264 Page: 14 Date Filed: 09/16/2014

Price Waterhouse v. Hopkins,

490 U.S. 228 (1989) ......................................................................16, 17, 20

Prowel v. Wise Business Forms, Inc.,

579 F.3d 285 (3d Cir. 2009) ...................................................................... 16

Reed v. Reed,
404 U.S. 71 (1971) .................................................................................... 25

Rene v. MGM Grand Hotel, Inc.,

305 F.3d 1061 (9th Cir. 2002) ................................................................... 16

Riccio v. New Haven Bd. of Educ.,

467 F.Supp.2d 219 (D. Conn. 2006) ......................................................... 17

Robicheaux v. Caldwell,
No. 2:13-cv-5090, 2014 WL 4347099 (E.D. La. Sept. 3, 2014) ................. 7

San Antonio v. Rodriguez,

411 U.S. 1 (1973) ...................................................................................... 21

Smith v. City of Salem,

378 F.3d 566 (6th Cir. 2004) .................................................................... 18

SmithKline Beecham Corp. v. Abbott Labs,

740 F.3d 471 (9th Cir. 2014) ....................................................................... 5

Stanley v. Illinois,
405 U.S. 645 (1972) .................................................................................. 30

Terveer v. Billington,
No. 12-1290, 2014 WL 1280301 (D. D.C. Mar. 31, 2014)....................... 17

Turner v. Safley,
482 U.S. 78 (1987) .................................................................................... 29

United States v. Carolene Prods. Co.,

304 U.S. 144 (1938) .................................................................................. 21

xiv
 Case: 14-50196 Document: 00512771264 Page: 15 Date Filed: 09/16/2014

United States v. Virginia,

518 U.S. 515 (1996) ...........................................................................passim

United States v. Windsor,

133 S. Ct. 2675 (2013) .......................................................................passim

Varnum v. Brien,
763 N.W.2d 862 (Iowa 2009) ...................................................................... 6

Veretto v. U.S. Postal Service,

Appeal No. 0120110873, 2011 WL 2663401
(E.E.O.C. Jul. 1, 2011) .............................................................................. 20

Weber v. Aetna Cas. & Sur. Co.,

406 U.S. 164 (1972) .................................................................................. 26

Weinberger v. Wiesenfeld,
420 U.S. 636 (1975) ................................................................11, 26, 30, 31

Wengler v. Druggists Mut. Ins. Co.,

446 U.S. 142 (1980) .................................................................................. 26

Whitewood v. Wolf,
No. 1:13-cv-1861, 2014 WL 2058105 (M.D. Penn. May 20, 2014)........... 6

Windsor v. United States,

699 F.3d 169 (2d Cir. 2012) .................................................................. 5, 22

Rules and Statutes

Fair Housing Act, 42 U.S.C. 3601 et seq............................................................. 19

Title IX, 20 U.S.C. § 1681 et seq......................................................................... 19

Other Authorities

xv
 Case: 14-50196 Document: 00512771264 Page: 16 Date Filed: 09/16/2014

1 William Blackstone, Commentaries on the Laws of England

(3d ed. 1768) .............................................................................................. 24

Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is

Sex Discrimination, 69 N.Y.U. L. Rev. 197 (1994) ............................... 14

Appellants’ Brief,
De Leon v. Perry, No. 14-50196 (5th Cir. July 28, 2014) ........................ 28

Brief of Amicus Curiae Gary J. Gates, Obergefell v. Himes,

No. 14-3057 (6th Cir. May 1, 2014) ......................................................... 29

Brief of Amici Curiae Texas Values & Louisiana Family Forum in

Support of Defendants-Appellants and Reversal,
De Leon v. Perry, No. 14-50196 (August 4, 2014) .......................... 29, 30

Brief for Appellant,

Reed v. Reed, 404 U.S. 71 (1971) (No. 70-4) ........................................... 26

Deborah A. Widiss, Changing the Marriage Equation,

89 Wash. U. L. Rev. 721 (2012) .............................................................. 25

Equal Access to Housing in HUD Programs Regardless of Sexual

Orientation or Gender Identity, 77 Fed. Reg. 5662-01
(Feb. 3, 2012)............................................................................................. 19

Nancy F. Cott, Public Vows: A History of Marriage and the Nation

(2000)......................................................................................................... 24

Nan D. Hunter, Marriage, Law, and Gender: A Feminist Inquiry,

1 Law & Sexuality 9 (1991) ..................................................................... 25

U.S. Dep’t of Educ. Office for Civil Rights, Dear Colleague Letter:
Harassment and Bullying (Oct. 26, 2010), available at
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-
201010.pdf ................................................................................................. 19

U.S. Dep’t of Justice, Civil Rights Div., Protecting the Rights of Lesbian,
Gay, Bisexual, Transgender, and Intersex (LGBTI) Individuals (Feb.

xvi
Case: 14-50196 Document: 00512771264 Page: 17 Date Filed: 09/16/2014

11, 2013), available at http://www.justice.gov/crt/publications/

lgbtibrochure.pdf ....................................................................................... 19

xvii
 Case: 14-50196 Document: 00512771264 Page: 18 Date Filed: 09/16/2014

I. INTEREST OF AMICI CURIAE1

Amici Curiae are the National Women’s Law Center, Gender Justice,

Legal Momentum, Legal Voice, National Association of Women Lawyers,

National Partnership for Women & Families, Ohio Women’s Bar

Association, Southwest Women’s Law Center, Women’s Law Project,

Women Lawyers Association of Michigan, and professors of law associated

with the Williams Institute, an academic research center at UCLA School of

Law dedicated to the study of sexual orientation and gender identity law and

public policy. Amici have substantial expertise related to equal protection,

discrimination based on sex, sexual orientation, and gender stereotypes.

Their expertise bears directly on the issues before the Court. Descriptions of

individual Amici are set out in the Appendix.

1
No counsel for any party authored this brief in whole or in part, nor
did a party or party’s counsel contribute money intended to fund preparation
or submission of this brief, nor did a person other than Amici, its members
or counsel contribute money intended to fund preparation or submission of
the brief.

1
Case: 14-50196 Document: 00512771264 Page: 19 Date Filed: 09/16/2014

II. SUMMARY OF ARGUMENT

Under the federal Constitution’s equal protection guarantees, laws that

classify on the basis of sex are subject to heightened judicial scrutiny and

cannot stand absent an “exceedingly persuasive justification,” and a showing

that such laws substantially further important governmental interests.

United States v. Virginia, 518 U.S. 515, 533 (1996) [hereinafter “VMI”]. In

particular, the government may not enforce laws that make sex

classifications based on gender stereotypes or gendered expectations,

including those regarding roles that women and men perform within the

family, whether as caregivers, breadwinners, heads of households, or

parents. Courts have recognized that sex classifications warrant heightened

scrutiny because the legal imposition of archaic and overbroad gender

stereotypes arbitrarily harms women and men by limiting individuals’

abilities to make decisions fundamental to their lives and their identities.

Laws that discriminate based on sexual orientation, like laws that

discriminate based on sex, frequently have a basis in overbroad gender

stereotypes about the preferences and capacities of men and women. 2

2
Amici note that laws that discriminate based on gender identity,
including transgender status, are also premised on overbroad gender
stereotypes and should be subject to heightened scrutiny. See generally,
e.g., Barnes v. City of Cincinnati, 401 F.3d 729, 737 (6th Cir. 2005) (holding
that Title VII protected a transgender individual because evidence showed
2
Case: 14-50196 Document: 00512771264 Page: 20 Date Filed: 09/16/2014

Lesbian, gay, and bisexual persons long have been harmed by legal

enforcement of the expectation that an individual’s most intimate

relationship will be and should be with a person of a different sex. Such

presumptions underlie many laws that discriminate based on sexual

orientation, including Texas’s challenged laws, and cause lesbian, gay, and

bisexual persons to experience both serious practical and dignitary harms of

constitutional magnitude. These laws communicate to them and to the world

that there is something wrong with a core part of their identity, that they do

not measure up to what a man or a woman supposedly should be, and that

their most important relationships are “less worthy,” United States v.

Windsor, 133 S. Ct. 2675, 2696 (2013) [hereinafter “Windsor”], than the

relationships and marriages of different-sex couples.

Just as the Constitution requires close scrutiny of laws that enforce the

roles that men and women perform within marriage on the basis of gender

stereotypes, the Constitution demands close scrutiny of laws based on

gender stereotypes that restrict an individual’s liberty to decide whom he or

she marries and with whom he or she forms a family. Accordingly, this

he was discriminated against based on departure from gender stereotypes);

Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011) (holding
discrimination against a transgender individual based on gender
nonconformity constitutes sex discrimination and collecting cases in accord).

3
Case: 14-50196 Document: 00512771264 Page: 21 Date Filed: 09/16/2014

Court should hold that laws that discriminate based on sexual orientation

warrant heightened judicial scrutiny and that the laws challenged here

cannot withstand such scrutiny.

III. ARGUMENT

Over the last four decades, application of heightened scrutiny to laws

that discriminate based on sex has served as an important bulwark in

protecting individuals’ liberty to participate in family life, education, and

work, free from legally-imposed gender roles. Lesbian, gay, and bisexual

persons, however, are still subject to laws that burden their liberty to enter

into relationships, including marriage, with the person to whom they may

feel closest—a person of the same sex. These laws deny lesbian, gay, and

bisexual persons full citizenship in profound ways.

Rather than serving any important governmental interest, laws that

discriminate against same-sex couples reflect the gender-role expectation

that women will form intimate relationships with men, and that men will

form such relationships with women, as well as the stereotype that same-sex

spouses are inferior parents because they cannot fulfill particular gender

roles. The decisions whether and with whom to enter into intimate

relationships, including marriage, and whether and with whom to raise

children, are central to individual liberty under the Constitution. The

4
Case: 14-50196 Document: 00512771264 Page: 22 Date Filed: 09/16/2014

government has no authority to restrict these choices based on gender-based

stereotypes or expectations, just as it has no authority to dictate the roles that

men and women fill within marriage on such bases. The Supreme Court

repeatedly has held that the government may not justify sex discrimination

by an asserted interest in perpetuating traditional gender roles in people’s

family and work lives. Nor is sexual orientation discrimination justified by a

rigid and exclusionary gender-role expectation that an individual will only

partner with someone of a different sex.

“As the Constitution endures, persons in every generation can invoke

its principles in their own search for greater freedom.” Lawrence v. Texas,

539 U.S. 558, 579 (2003). Under the Equal Protection Clause, laws that

deny rights or opportunities based on sexual orientation should be subject to

heightened scrutiny. In Windsor, the Supreme Court noted that this question

is “still being debated and considered in the courts.” 133 S. Ct. at 2683. In

affirming the judgment of the Second Circuit in that case, the Supreme Court

let stand the holding that the federal Constitution requires heightened

scrutiny of laws that discriminate based on sexual orientation. Windsor v.

United States, 699 F.3d 169, 181 (2d Cir. 2012) [hereinafter “Windsor v.

United States”]. The Ninth Circuit has held the same, SmithKline Beecham

Corp. v. Abbott Labs, 740 F.3d 471, 481 (9th Cir. 2014), as have the highest

5
Case: 14-50196 Document: 00512771264 Page: 23 Date Filed: 09/16/2014

courts of California, Connecticut, Iowa, and New Mexico under their state

constitutions, see In re Marriage Cases, 183 P.3d 384, 401 (Cal. 2008);

Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407, 476 (Conn. 2008);

Varnum v. Brien, 763 N.W.2d 862, 896 (Iowa 2009); Griego v. Oliver, 316

P.3d 865, 884 (N.M. 2013). Post-Windsor, every federal appellate court and

all but one federal district court to consider laws that ban same-sex couples

from marrying or prohibit recognition of same-sex couples’ out-of-state

marriages has held these laws violate the Fourteenth Amendment. Many

have found these prohibitions are subject to heightened scrutiny and fail, or

are likely to fail, this test. See, e.g., Baskin v. Bogan, No. 14-2386, 2014

WL 4359059, at *3, *20 (7th Cir. Sept. 4, 2014) (holding Indiana and

Wisconsin’s marriage bans not only unconstitutionally deny equal protection

under heightened scrutiny, but also are “irrational” discrimination and fail

rational basis review); Bostic v. Schaefer, No. 14-1167, 2014 WL 3702493

(4th Cir. July 28, 2014) (holding Virginia’s challenged laws an

unconstitutional denial of a fundamental right under a strict scrutiny

analysis); Kitchen v. Herbert, No. 13-4178, 2014 WL 2868044, at *25-26

(10th Cir. June 25, 2014) (affirming district court’s finding that Utah’s

marriage bans were subject to heightened scrutiny and failed even rational

basis review). Whitewood v. Wolf, No. 1:13-cv-1861, 2014 WL 2058105, at

6
Case: 14-50196 Document: 00512771264 Page: 24 Date Filed: 09/16/2014

*16-17 (M.D. Penn. May 20, 2014) (finding Pennsylvania’s marriage bans

are subject to and violate heightened scrutiny); Henry v. Himes, No. 1:14-cv-

129, 2014 WL 1418395, at *16-18 (S.D. Ohio Apr. 14, 2014) (finding

Ohio’s marriage bans implicated a protected class and lacked even a rational

basis). But see Robicheaux v. Caldwell, No. 2:13-cv-5090, 2014 WL

4347099, at *5-6 (E.D. La. Sept. 3, 2014) (upholding Louisiana’s marriage

bans under rational basis review). Similarly, the district court in this case

found that while heightened scrutiny likely applied, “it is not necessary to

apply heightened scrutiny to Plaintiffs’ equal protection claim since Texas’s

ban on same-sex marriage fails under the most deferential rational basis

level of review.” De Leon v. Perry, 975 F. Supp. 2d 632, 652 (W.D. Tex.

2014).

Were this Court to apply the same standard of review applicable to

sex discrimination, laws denying rights based on sexual orientation would be

invalid unless the government could show an “exceedingly persuasive

justification” for them, including a showing “at least that the [challenged]

classification[s] serve important governmental objectives and that the

discriminatory means employed are substantially related to the achievement

of those objectives” without “rely[ing] on overbroad generalizations about

the different talents, capacities, or preferences of males and females.” VMI,

7
Case: 14-50196 Document: 00512771264 Page: 25 Date Filed: 09/16/2014

518 U.S. at 533 (internal quotation marks and citations omitted; first

alteration in original). The laws challenged here cannot withstand such

scrutiny.3

A. The Supreme Court Adopted Heightened Scrutiny for Laws That

Discriminate Based on Sex Because Such Laws Are Typically
Based on Gender Stereotypes.

Again and again, the Supreme Court has recognized that laws that

discriminate on the basis of sex typically rely on gender-based expectations

about the roles or conduct that is supposedly natural, moral, or traditional for

women and men, and that legal enforcement of these stereotypes is

incompatible with equal opportunity. A repeated refrain runs through

modern case law addressing measures that deny rights or opportunities based

on sex: Such laws warrant “skeptical scrutiny,” VMI, 518 U.S. at 531,

because “of the real danger that government policies that professedly are

based on reasonable considerations in fact may be reflective of archaic and

overbroad generalizations about gender, or based on outdated

misconceptions concerning the role of females in the home rather than in the

3
Amici also note that these laws lack any rational basis, as the district
court found. Moreover, were this Court to employ strict scrutiny for laws
that discriminate based on sexual orientation—the standard of review for
laws that classify based on race and national origin, e.g., Johnson v.
California, 543 U.S. 499, 505 (2005)—the challenged measures would fail,
for they are not narrowly tailored to further a compelling state interest.

8
Case: 14-50196 Document: 00512771264 Page: 26 Date Filed: 09/16/2014

marketplace and world of ideas.” J.E.B. v. Alabama ex rel. T.B., 511 U.S.

127, 135 (1994) (internal quotation marks omitted).

In Frontiero v. Richardson, for example, a plurality of the Supreme

Court recognized that “our Nation has had a long and unfortunate history of

sex discrimination” in which the Supreme Court itself played a role. 411

U.S. 677, 684 (1973) (plurality). The Court noted now-infamous language

from an 1873 opinion stating that “‘[m]an is, or should be, women’s

protector and defender’”; that women’s “natural and proper timidity and

delicacy” render them “unfit[]for many of the occupations of civil life”; and

that “[t]he paramount destiny and mission of woman are to fulfil the noble

and benign offices of wife and mother.” Id. at 684-85 (quoting Bradwell v.

Illinois, 16 Wall. 130, 141 (1873) (Bradley, J., concurring) (rejecting

constitutional challenge to Illinois’s refusal to admit a woman to the bar)).

The Frontiero plurality observed that “[a]s a result of notions such as these,

our statute books gradually became laden with gross, stereotyped

distinctions between the sexes.” 411 U.S. at 685.

Frontiero struck down a military benefits scheme premised on the

gender-based expectation that women were financially dependent on their

husbands. It directly rejected assumptions that the Supreme Court had relied

on not only in 1873 but for many decades thereafter—assumptions that

9
Case: 14-50196 Document: 00512771264 Page: 27 Date Filed: 09/16/2014

fundamental differences between women and men, rooted in women’s

traditional family roles, justified laws limiting opportunities for women and

reinforcing gender stereotypes. E.g., Hoyt v. Florida, 368 U.S. 57, 62

(1961) (upholding state law that made jury duty registration optional for

women because “woman [was] still regarded as the center of home and

family life”); cf. Muller v. Oregon, 208 U.S. 412, 421-22 (1908) (upholding

legislation limiting women’s work hours because “healthy mothers are

essential to vigorous offspring, [and so] the physical well-being of woman

becomes an object of public interest”).

In Weinberger v. Wiesenfeld, the Supreme Court further illuminated

how laws based on gender stereotypes arbitrarily harm those who do not

conform to those stereotypes. 420 U.S. 636 (1975) [hereinafter

“Wiesenfeld”]. Wiesenfeld held unconstitutional a Social Security Act

provision that required payment of benefits to a deceased worker’s widow

and minor children, but not to a deceased worker’s widower. Id. at 637-39.

First, the Court explained that the challenged measure’s reliance on the

“gender-based generalization” that “men are more likely than women to be

the primary supporters of their spouses and children” devalued the

employment of women, “depriv[ing] women of protection for their families

which men receive as a result of their employment.” Id. at 645. Second, the

10
Case: 14-50196 Document: 00512771264 Page: 28 Date Filed: 09/16/2014

challenged provision “was intended to permit women to elect not to work

and to devote themselves to the care of children.” Id. at 648. The measure

thereby failed to contemplate fathers such as Stephen Wiesenfeld, a widower

who wished to care for his child at home. The Court emphasized that gender

does not prescribe or limit parental roles, stating, “It is no less important for

a child to be cared for by its sole surviving parent when that parent is male

rather than female. . . .’” Id. at 652; see also Califano v. Goldfarb, 430 U.S.

199, 216-17 (1977) [hereinafter “Goldfarb”] (holding unconstitutional

differential treatment of widows and widowers based on “‘archaic and

overbroad’ generalizations”) (citations omitted).

As these and other cases illustrate, laws that discriminate on the basis

of sex are typically premised on gender stereotypes, including stereotypes of

the family as necessarily comprising a woman assuming the role of

homemaker and caretaker and a man assuming the role of breadwinner and

protector.4 In their failure to recognize that many men and women either do

not wish to or are unable to conform to these roles, such laws arbitrarily

4
See also, e.g., Califano v. Westcott, 443 U.S. 76, 89 (1979) (holding
unconstitutional federal statute providing for support only in event of
father’s unemployment based on stereotype that father is principal provider
“while the mother is the ‘center of home and family life’”); Orr v. Orr, 440
U.S. 268, 283 (1979) (invalidating measure imposing alimony obligations
solely on husbands because it “carries with it the baggage of sexual
stereotypes”).

11
Case: 14-50196 Document: 00512771264 Page: 29 Date Filed: 09/16/2014

limit individuals’ ability to make fundamental decisions about their lives.

When the law enforces “assumptions about the proper roles of men and

women,” it closes opportunity, depriving individuals of their essential liberty

to depart from gender-based expectations. Mississippi Univ. for Women v.

Hogan, 458 U.S. 718, 726 (1982) [hereinafter “Hogan”]. Accordingly, “the

test for determining the validity of a gender-based classification . . . must be

applied free of fixed notions concerning the roles and abilities of males and

females.” Id. at 724-25.

These decisions make clear that “archaic and overbroad

generalizations” cannot justify “statutes employing gender as an inaccurate

proxy for other, more germane bases of classification.” Craig v. Boren, 429

U.S. 190, 198 (1976). Such “loose-fitting characterizations” are “incapable

of supporting . . . statutory schemes . . . premised upon their accuracy.” Id.

at 199; see also Kalina v. R.R. Ret. Bd., 541 F.2d 1204, 1209 (6th Cir. 1976)

(invalidating provision of the Railroad Retirement Act that required

husbands, but not wives, to establish that they received at least half of their

financial support from their spouse to qualify for annuity because its basis in

overbroad stereotypes led to disparate treatment of identically situated

individuals solely on basis of sex), aff’d, 431 U.S. 909 (1977). By requiring

an “exceedingly persuasive” showing of a close relationship between a sex

12
Case: 14-50196 Document: 00512771264 Page: 30 Date Filed: 09/16/2014

classification and a statutory scheme’s objective, and by demanding that the

objective be important (rather than merely legitimate), the Equal Protection

Clause rejects the “artificial constraints on an individual’s opportunity”

imposed by laws resting on imprecise gender stereotypes.5 VMI, 518 U.S. at

533.

B. Laws That Discriminate Based on Sexual Orientation Should Be

Subject to Heightened Scrutiny Because of Their Frequent Basis
in Gender Stereotypes.

Just as laws that classify based on sex often improperly rest on gender

stereotypes or expectations that do not hold true for all men and women, so

too do laws that discriminate based on sexual orientation. Central among

such gender-based expectations are the overbroad presumptions that a

woman will be attracted to and form an intimate relationship and family with

a man, not with a woman, and that a man will be attracted to and form an

intimate relationship and family with a woman, not with a man. Courts have

rejected gender stereotypes as a proper basis for lawmaking with regard to

sex. Courts similarly should view these stereotypes and expectations with

skepticism when reviewing the constitutionality of laws that discriminate

based on sexual orientation.

5
The challenged laws not only improperly rest on gender stereotypes,
but also classify on the basis of sex in defining who may enter into marriage.
They must be subject to heightened scrutiny for this reason as well. See,
e.g., Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1206 (D. Utah 2013).

13
Case: 14-50196 Document: 00512771264 Page: 31 Date Filed: 09/16/2014

1. Laws That Discriminate Based on Sexual Orientation Are

Rooted in Gender Stereotypes.

Laws that classify based on sexual orientation typically share with

laws that discriminate based on sex a foundation in gender stereotypes or

gender-based expectations. Many laws discriminating based on sexual

orientation are founded on assumptions that men and women form (or

should form) romantic, familial, or sexual relationships with each other,

rather than with persons of the same sex. These assumptions have been at

the root of laws prohibiting same-sex intimate conduct, as well as laws

regarding family structure that discriminate based on sexual orientation,

such as the marriage laws challenged here. Perhaps less apparent, but

equally true, is that such gender-based expectations underlie other forms of

discrimination against lesbian, gay, and bisexual people, too.

The notion that stigma and discrimination against lesbian, gay, and

bisexual persons are premised on gender-role assumptions is a matter of

common experience in our society. “There is nothing esoteric or

sociologically abstract in the claim that the homosexuality taboo enforces

traditional sex roles. Everyone knows that it is so.” Andrew Koppelman,

Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination,

69 N.Y.U. L. Rev. 197, 235 (1994). “Most Americans learn no later than

high school that one of the nastier sanctions that one will suffer if one

14
Case: 14-50196 Document: 00512771264 Page: 32 Date Filed: 09/16/2014

deviates from the behavior traditionally deemed appropriate for one’s sex is

the imputation of homosexuality. The two stigmas, sex-inappropriateness

and homosexuality, are virtually interchangeable, and each is readily used as

a metaphor for the other.” Id.; see also Centola v. Potter, 183 F. Supp. 2d

403, 410 (D. Mass. 2002) (“[S]tereotypes about homosexuality are directly

related to our stereotypes about the proper roles of men and women.”);

Henderson v. Labor Finders of Virginia, Inc., No. 3:12-CV-600, 2013 WL

1352158, at *5 (E.D. Va. Apr. 2, 2013) (“[A]s a result of the well-

documented relationship between perceptions of sexual orientation and

gender norms, gender-loaded language can easily be used to refer to

perceived sexual orientation and vice versa.”). Individuals who depart from

gender-based expectations are often targeted with antigay animus and slurs,

regardless of their actual sexual orientation. Lesbian, gay, and bisexual

people regularly experience social disapproval and discrimination that is

targeted at their nonconformity with gender-based expectations—because

they are not acting as “real men” or “real women” supposedly do.

Although the linkage between antigay stigma and gender-based

expectations is apparent in ordinary life, courts have only recently begun to

recognize its legal implications. For example, in considering whether

lesbian, gay, and bisexual people could find recourse in federal statutes

15
Case: 14-50196 Document: 00512771264 Page: 33 Date Filed: 09/16/2014

prohibiting discrimination based on sex, courts initially focused on the

absence of express mention of sexual orientation in such laws. See, e.g.,

Smith v. Liberty Mut. Ins. Co., 569 F.2d 325, 326-27 (5th Cir. 1978)

(declining to apply Title VII to claim of “sexual preference” discrimination

because “the prohibition on sexual discrimination could not be “extend(ed) .

. . to situations of questionable application without some stronger

Congressional mandate”). More recently, however, courts have begun to

understand that much of the discrimination that lesbian, gay, and bisexual

people experience in the workplace or in school takes the form of hostility

toward nonconformance with gender stereotypes—which, as the Supreme

Court recognized twenty-five years ago in Price Waterhouse v. Hopkins, 490

U.S. 228 (1989), constitutes sex discrimination. See, e.g., Prowel v. Wise

Business Forms, Inc., 579 F.3d 285, 290 (3d Cir. 2009) (holding that

harassment of gay man targeting his gender-nonconforming behavior and

appearance could constitute sex harassment); Rene v. MGM Grand Hotel,

Inc., 305 F.3d 1061, 1069 (9th Cir. 2002) (en banc) (Pregerson, J.,

concurring) (concluding that gay man stated a claim for sex discrimination

based on evidence that he was mocked by male co-workers because of his

nonconformance with “gender-based stereotypes”); Nichols v. Azteca Rest.

Enters., Inc., 256 F.3d 864, 874-75 (9th Cir. 2001) (holding that harassment

16
Case: 14-50196 Document: 00512771264 Page: 34 Date Filed: 09/16/2014

of male employee for failing to act “as a man should act,” including being

derided for not having sex with female colleague, constituted actionable sex

discrimination based on nonconformity with gender stereotypes); Terveer v.

Billington, No. 12-1290, 2014 WL 1280301, at *11 (D.D.C. Mar. 31, 2014)

(holding that gay man who alleged he was discriminated against because of

his nonconformance with gender stereotypes stated sex discrimination

claim); Koren v. Ohio Bell Tel. Co., 894 F. Supp. 2d 1032, 1037 (N.D. Ohio

2012) (holding allegation that manager harassed employee because he took

his male spouse’s surname stated claim based on sex stereotyping); Riccio v.

New Haven Bd. of Educ., 467 F. Supp. 2d 219, 226 (D. Conn. 2006)

(explaining that plaintiff’s allegations of harassment in the form of antigay

epithets could proceed to trial under Title IX’s sex discrimination

prohibition based on plaintiff’s alleged failure to conform to gender

stereotypes).

Following Price Waterhouse, this Court has recognized that a

“plaintiff can satisfy Title VII’s because-of-sex requirement with evidence

of a plaintiff’s perceived failure to conform to traditional gender

stereotypes.” E.E.O.C. v. Boh Bros. Const. Co., L.L.C., 731 F.3d 444, 454

(5th Cir. 2013) (finding evidence of homophobic epithets and lewd gestures

in workplace sufficient for sex stereotyping claim under Title VII). In the

17
Case: 14-50196 Document: 00512771264 Page: 35 Date Filed: 09/16/2014

related context of a Title VII sex stereotyping claim brought by a

transgender individual, one district court in this Circuit explained:

The Court cannot ignore the plain language of Title VII and Price
Waterhouse, which do not make any distinction between a
transgendered litigant who fails to conform to traditional gender
stereotypes and an ‘effeminate’ male or ‘macho’ female who . . . is
perceived by others to be in nonconformity with traditional gender
stereotypes. . . . To hold otherwise would be to permit employers and
‘courts [to] superimpose classifications such as ‘transsexual’ on a
plaintiff, and then legitimize discrimination based on the plaintiff’s
gender non-conformity by formalizing the non-conformity into an
ostensibly unprotected classification.’

Lopez v. River Oaks Imaging & Diagnostic Group, Inc., 524 F. Supp. 2d

653, 660 (S.D. Tex. 2008) (quoting Smith v. City of Salem, 378 F.3d 566,

574 (6th Cir. 2004). This jurisprudence recognizes that discrimination faced

by lesbian, gay, and bisexual people, as well as transgender people, will

often be based on gender stereotypes.

Federal agencies also have recently emphasized that discrimination

experienced by lesbian, gay, and bisexual people is often discrimination

based on nonconformity with gender-based expectations—and thus sex

discrimination. For example, the Civil Rights Division of the United States

Department of Justice recently issued guidance explaining that federal

employment, housing, education, and other statutes that prohibit

discrimination based on sex “protect[] all people (including LGBTI people)

18
Case: 14-50196 Document: 00512771264 Page: 36 Date Filed: 09/16/2014

from . . . discrimination based on a person’s failure to conform to

stereotypes associated with [a] person’s real or perceived gender.” U.S.

Dep’t of Justice, Civil Rights Div., Protecting the Rights of Lesbian, Gay,

Bisexual, Transgender, and Intersex (LGBTI) Individuals (Feb. 11, 2013),

available at http://www.justice.gov/crt/publications/lgbtibrochure.pdf. The

United States Department of Education’s Office for Civil Rights has

explained that harassment of students “on the basis of their LGBT status,” is

prohibited by Title IX, 20 U.S.C. § 1681 et seq., when such harassment is

based on “sex-stereotyping.” U.S. Dep’t of Educ. Office for Civil Rights,

Dear Colleague Letter: Harassment and Bullying at 7-8 (Oct. 26, 2010),

available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-

201010.pdf. The United States Department of Housing and Urban

Development has similarly construed the sex discrimination prohibition in

the Fair Housing Act, 42 U.S.C. 3601 et seq. See Equal Access to Housing

in HUD Programs Regardless of Sexual Orientation or Gender Identity, 77

Fed. Reg. 5662-01 (Feb. 3, 2012) (to be codified at 24 C.F.R. Parts 5, 200,

203, 236, 400, 570, 574, 882, 891, and 982) (“[T]he Fair Housing Act’s

prohibition of discrimination on the basis of sex prohibits discrimination

against LGBT persons in certain circumstances, such as those involving

nonconformity with gender stereotypes.”).

19
Case: 14-50196 Document: 00512771264 Page: 37 Date Filed: 09/16/2014

In addition, the United States Equal Employment Opportunity

Commission has explained that Title VII’s “broad prohibition of

discrimination ‘on the basis of . . . sex’ will offer coverage to gay individuals

in certain circumstances,” including where an employee is discriminated

against “based on the perception that he does not conform to gender

stereotypes of masculinity.” Couch v. Chu, Appeal No. 0120131136, 2013

WL 4499198, at *7-8 (E.E.O.C. Aug. 13, 2013) (“[S]ince Price Waterhouse,

every court of appeals has recognized that disparate treatment for failing to

conform to gender-based expectations is sex discrimination and has also

concluded that this principle applies with equal force in cases involving

plaintiffs who are gay, bisexual, heterosexual, or transgender.”); see also

Veretto v. U.S. Postal Service, Appeal No. 0120110873, 2011 WL 2663401,

at *3 (E.E.O.C. Jul. 1, 2011) (holding that discrimination based on

stereotype that a man should not marry another man can constitute sex

discrimination).

Just as courts and agencies have recognized in the context of statutory

antidiscrimination protections that Price Waterhouse’s anti-stereotyping

principle can serve as a basis for protecting lesbian, gay, and bisexual people

from discrimination, so must courts consider the implications of the anti-

stereotyping principle underlying constitutional protections against sex

20
Case: 14-50196 Document: 00512771264 Page: 38 Date Filed: 09/16/2014

discrimination for laws that discriminate based on sexual orientation. Laws

that discriminate based on sexual orientation are, at core, based on “‘fixed

notions’” about the roles, preferences, and capacities of women and men of

the sort that have been repeatedly rejected in sex discrimination cases under

the Equal Protection Clause. VMI, 518 U.S. at 541 (quoting Hogan, 458

U.S. at 725). Such discrimination improperly seeks to impose gender-based

expectations on how men and women structure their lives.

2. Government Action That Discriminates Based on Sexual

Orientation Warrants Heightened Scrutiny.

Lesbian, gay, and bisexual people long have had important life

opportunities foreclosed by state action seeking to enforce gender-based

expectations in connection with the most intimate of human relationships.

As with measures seeking to enforce outdated gender stereotypes on the

basis of sex, courts should require at least “an exceedingly persuasive

justification,” id. at 531, for classifications based on sexual orientation.

Heightened scrutiny for such laws follows straightforwardly from precedents

identifying relevant factors in considering whether a particular classification

warrants close judicial scrutiny, rather than simple deference to majoritarian

lawmaking. See generally United States v. Carolene Prods. Co., 304 U.S.

144, 153 n.4 (1938) (noting considerations that “may call for . . . more

searching judicial inquiry”); San Antonio v. Rodriguez, 411 U.S. 1, 28

21
Case: 14-50196 Document: 00512771264 Page: 39 Date Filed: 09/16/2014

(1973) (reciting “traditional indicia of suspectness”); Windsor v. United

States, 699 F.3d at 180-85 (explaining why lesbian, gay, and bisexual

persons meet definition of a quasi-suspect class). That is so because

measures discriminating on the basis of sexual orientation typically bear

little or no relation to the actual abilities, capacities, or preferences of the

persons that such measures constrain or burden.

Heightened scrutiny is particularly appropriate in this context because

laws that impose gender-role expectations in contravention of the actual

preferences of individuals offend the central liberty interest on which the

Supreme Court focused in Lawrence and Windsor. In Lawrence, the

Supreme Court reaffirmed that “‘matters involving the most intimate and

personal choices a person may make in a lifetime, choices central to personal

dignity and autonomy, are central to the liberty protected by the Fourteenth

Amendment,’” and that “‘[b]eliefs about these matters could not define the

attributes of personhood were they formed under compulsion of the State.’”

539 U.S. at 573 (quoting Planned Parenthood of Se. Penn. v. Casey, 505

U.S. 833, 851 (1992)). The Court in Lawrence was emphatic that “[p]ersons

in a homosexual relationship may seek autonomy for these purposes, just as

heterosexual persons do,” id. at 574, and in Windsor, the Court expressly

noted that state marriage laws permitting same-sex couples to marry

22
Case: 14-50196 Document: 00512771264 Page: 40 Date Filed: 09/16/2014

“reflect[] . . . evolving understanding of the meaning of equality,” 133 S. Ct.

at 2692-93. The Constitution’s liberty and equality principles are mutually-

reinforcing and are incompatible with a presumption of constitutionality for

the legally-enforced expectation that individuals should enter into intimate

relationships only with someone of a different sex.

An essential component of the Constitution’s due process and equal

protection guarantees is that the government cannot exclude individuals

from important social statuses, institutions, relationships, or legal protections

because of a characteristic that is irrelevant to participation in such statuses,

institutions, relationships, or protections. E.g., Frontiero, 411 U.S. at 686.

The courts therefore must look with skepticism upon laws that restrict access

to marriage based on overbroad gender stereotypes unrelated to the actual

capacity of persons to engage in mutual care and protection, to share

economic risks, and to raise children together—capacities that do not turn on

sexual orientation. Because legal enforcement of overbroad gender

stereotypes arbitrarily constrains and determines individuals’ most

fundamental and personal choices about their own lives, the Constitution

requires vigorous interrogation of any such government action.

23
Case: 14-50196 Document: 00512771264 Page: 41 Date Filed: 09/16/2014

C. Laws Excluding Same-Sex Couples From Marriage Cannot

Survive Heightened Scrutiny.

Laws related to marriage were once a leading example of sex-based

rules enforcing separate gender roles for men and women and depriving

persons of equal opportunities. As the harm arising from laws requiring

adherence to gender stereotypes has been recognized, sex-based marriage

rules have been almost completely dismantled, with one glaring exception:

Many states continue to exclude same-sex couples from marriage. The

Equal Protection Clause promises lesbian, gay, and bisexual persons, as it

promises all persons, “full citizenship stature—equal opportunity to aspire,

achieve, participate in and contribute to society.” VMI, 518 U.S. at 532.

Subjecting laws, including marriage laws, that discriminate based on sexual

orientation to heightened scrutiny is appropriate so that each person may

have equal opportunity to aspire to and to experience a relationship with the

person with whom he or she most wishes to build a life.

1. Heightened Scrutiny Has Been Key to Dismantling Sex-

Specific Marriage Laws That Once Enforced Gender
Stereotypes.

Historically, “the husband and wife [were] one person in law: . . . the

very being or legal existence of the woman [was] suspended . . . or at least

[was] incorporated and consolidated into that of the husband.” 1 William

Blackstone, Commentaries on the Laws of England 442 (3d ed. 1768);

24
Case: 14-50196 Document: 00512771264 Page: 42 Date Filed: 09/16/2014

Nancy F. Cott, Public Vows: A History of Marriage and the Nation 11

(2000). For example, wives could not contract or dispose of their assets

without their husbands’ cooperation. Even after the Married Women’s

Property Acts and similar laws gave married women increased control over

their property in the nineteenth century, many state and federal statutes

continued to rely on the notion that marriage imposed separate (and unequal)

roles on men and women. See generally Deborah A. Widiss, Changing the

Marriage Equation, 89 Wash. U. L. Rev. 721, 735-39 (2012). Indeed,

courts routinely invalidated efforts by spouses to “alter the ‘essential’

elements of marriage” through contractual arrangements seeking to modify

its “gender-determined aspects.” Nan D. Hunter, Marriage, Law, and

Gender: A Feminist Inquiry, 1 Law & Sexuality 9, 15 & n.24 (1991).

An extensive legal framework continued to set out gender-specific

rules relating to marriage well into the second half of the twentieth century.

In 1971, for example, an appendix to the appellant’s brief submitted by then-

attorney Ruth Bader Ginsburg in Reed v. Reed listed numerous areas of state

law that disadvantaged married women, including: mandatory

disqualification of married women from administering estates of the

intestate; qualifications on married women’s right to engage in independent

business; limitations on the capacity of married women to become sureties;

25
Case: 14-50196 Document: 00512771264 Page: 43 Date Filed: 09/16/2014

differential marriageable ages; and domiciles of married women following

that of their husbands. Brief for Appellant at 69-88 (App.), Reed v. Reed,

404 U.S. 71 (1971) (No. 70-4) (collecting state laws in each area). Federal

law also persisted in attaching different legal consequences to marriage for

men and women. For example, across a variety of federal programs,

benefits were provided to wives on the assumption that they were financially

dependent on their husbands, but denied to husbands altogether or unless

they could prove financial dependence on their wives. See, e.g., Goldfarb,

430 U.S. at 201; Wiesenfeld, 420 U.S. at 643-44.

In the intervening years, courts applying heightened scrutiny have

played a key role in dismantling the legal machinery enforcing separate

gender roles within marriage, based on the principle that such legally-

enforced roles do not properly reflect individuals’ “ability to perform or

contribute to society” and thus violate “‘the basic concept of our system that

legal burdens should bear some relationship to individual responsibility.’”

Frontiero, 411 U.S. at 686 (quoting Weber v. Aetna Cas. & Sur. Co., 406

U.S. 164, 175 (1972)); see also, e.g., Kirchberg v. Feenstra, 450 U.S. 455,

458-60 (1981) (invalidating Louisiana statute giving the husband as “head

and master” the right to sell marital property without his wife’s consent);

Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 147-48 (1980) (rejecting

26
Case: 14-50196 Document: 00512771264 Page: 44 Date Filed: 09/16/2014

stereotypes regarding wives’ financial dependency in the context of

differential workers’ compensation benefits); Westcott, 443 U.S. at 89

(finding unconstitutional a statute’s limitation of social security benefits to

unemployed fathers, rather than to both fathers and mothers); Orr, 440 U.S.

at 281-82 (rejecting stereotypes regarding wives’ financial dependency in

the context of alimony). As a result, men and women entering into marriage

today have the liberty under law to determine for themselves the

responsibilities each will shoulder regardless of whether these roles conform

to traditional arrangements.

2. Like Other Marriage Laws Enforcing Gender-Based

Expectations, Laws Excluding Same-Sex Couples From
Marriage Cannot Survive Constitutional Scrutiny.

Although the law no longer expressly imposes separate roles on

married men and women, marriage laws that discriminate based on sexual

orientation continue to rest on gender stereotypes about the preferences,

relationship roles, and capacities of men and women that do not reflect the

realities of many individuals’ lives. For example, supporters of Texas’s law

banning same-sex couples from marrying claimed:

The protective marriage relationship between a man and a woman is

a fundamental institution whose purpose is the propagation of the
species in humanity’s collective interest. The state has an interest in
protecting this relationship, because it gives women and children the
surest protection against poverty and abuse, provides for the healthy
psychological development of children, and avoids health risks of

27
Case: 14-50196 Document: 00512771264 Page: 45 Date Filed: 09/16/2014

same-sex relations and promiscuity. The state’s recognition of same-

sex marriages would undermine the institution of marriage and
society’s ability to transmit its values to younger generations.

De Leon, 975 F. Supp. 2d at 642 (compiling legislative history of Texas’s

statutory exclusion of same-sex couples from marriage). Appellants

similarly purport “the view that marriage inherently requires a man and a

woman has been a bedrock of society for thousands of years in every corner

of the globe.” Appellants’ Brief at 15, De Leon v. Perry, No. 14-50196 (5th

Cir. July 28, 2014) [hereinafter “Appellants’ Brief”]. Such justifications

reflect the gender-stereotyped notion that it is natural or “inherent” for

women and men to play different roles within marriage and require skeptical

examination under the Equal Protection Clause.

Proponents of Texas’s constitutional amendment banning same-sex

couples from marrying and prohibiting recognition of same-sex couples’

out-of-state, legally valid marriages also argued that procreation is a

principal reason for marriage and that recognizing same-sex couples’

marriages will not further responsible procreation. See De Leon, 975 F.

Supp. 2d at 642. Appellants assert that “marriage exists primarily to

encourage the orderly propagation of the human race by channeling

naturally procreative heterosexual activity into stable, responsible

relationships.” Appellants’ Brief at 10. Amici for the Appellants also argue

28
Case: 14-50196 Document: 00512771264 Page: 46 Date Filed: 09/16/2014

that by allowing same-sex couples to marry, “[t]he newly instated

genderless-marriage regime would permanently sever the inherent link

between procreation (a necessarily gendered endeavor) and marriage.” Brief

of Amici Curiae Texas Values & Louisiana Family Forum in Support of

Defendants-Appellants and Reversal at 25, De Leon v. Perry, No. 14-50196

(August 4, 2014) [hereinafter “Texas Values & Louisiana Family Forum

Brief”]. Same-sex couples, of course, may become parents through

adoption, assisted reproduction, or surrogacy, or may be raising biological

children from prior different-sex relationships. See Brief of Amicus Curiae

Gary J. Gates, Obergefell v. Himes, No. 14-3057 (6th Cir. May 1, 2014).

Moreover, as the Supreme Court has recognized, marriage has many other

core purposes, including emotional support, public commitment, and

personal dedication as well as tangible benefits such as social security and

property rights—purposes that have nothing to do with the capacity to bear

offspring. See Turner v. Safley, 482 U.S. 78, 95-96 (1987) (holding prison

inmates must be allowed to marry, even if marriages are never

consummated). Cases holding that married couples have a right to use

contraception, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965), and that

women cannot be required to notify their spouses to obtain an abortion,

Casey, 505 U.S. at 898, further illustrate that marriage and procreation are

29
Case: 14-50196 Document: 00512771264 Page: 47 Date Filed: 09/16/2014

not coextensive. See generally id. at 849 (“[T]he Constitution places a limit

on a State’s right to interfere with a person’s most basic decisions about

family and parenthood . . . as well as bodily integrity.”). Indeed, a

description of marriage as based primarily on procreation is one that most

married couples would fail to recognize.

Relatedly, Amici for the Appellants assert that “men and women bring

different gifts to the parenting enterprise, and that children benefit from

having parents with distinct parenting styles.” Texas Values & Louisiana

Family Forum Brief at 19. The contention that permitting same-sex couples

to marry could harm child welfare because children need to be raised by a

mother and a father and that children require “gender differentiated

parenting,” id. at 19, also improperly rests on pervasive gender stereotypes.

Courts repeatedly have struck down laws that are based on the assumption

that mothers and fathers play categorically and predictably different roles as

parents, rejecting “any universal difference between maternal and paternal

relations at every phase of a child’s development.” Caban v. Mohammed,

441 U.S. 380, 389 (1979); see also Wiesenfeld, 420 U.S. at 652 (“It is no

less important for a child to be cared for by its sole surviving parent when

that parent is male rather than female.”); Stanley v. Illinois, 405 U.S. 645,

646-47 (1972) (finding unconstitutional a state’s presumption that single

30
 Case: 14-50196 Document: 00512771264 Page: 48 Date Filed: 09/16/2014

fathers were unfit to raise their children where single mothers were

presumed fit). Gender-based generalizations about how mothers and fathers

typically parent are an insufficient basis for discriminatory laws even when

these generalizations are “not entirely without empirical support.”

Wiesenfeld, 420 U.S. at 645. Here, empirical evidence does not support the

notion that different-sex couples are better parents than same-sex couples;

indeed, research supports the conclusion that “[c]hildren raised by gay or

lesbian parents are as likely as children raised by heterosexual parents to be

healthy, successful and well-adjusted”—a finding that “is accepted beyond

serious debate in the field of developmental psychology.” Perry v.

Schwarzenegger, 704 F. Supp. 2d 921, 980 (N.D. Cal. 2010).6 Indeed, the

district court in this case explicitly stated that “[t]here is no doubt that the

welfare of children is a legitimate state interest, [but] limiting marriage to

opposite-sex couples fails to further this interest. Instead, [it] causes needless

stigmatization and humiliation for children being raised by the loving same-

sex couples being targeted.” De Leon, 975 F. Supp. 2d at 653.

Banning same-sex couples from marrying and preventing recognition

of same-sex couples’ marriages performed in other states inflicts serious

6
Two district courts to hold bench trials on this question, Perry, 704 F.
Supp. 2d 921, and DeBoer v. Synder, 973 F. Supp. 2d 757 (E.D. Mich.
2014), found the overwhelming consensus among scholars is that there is no
difference in quality of parenting between heterosexual and gay parents.

31
Case: 14-50196 Document: 00512771264 Page: 49 Date Filed: 09/16/2014

harms on same-sex couples and their children. These harms include not only

denial of substantial tangible benefits and responsibilities, but also serious

dignitary harms of constitutional dimension. Windsor, 133 S. Ct. at 2694-95

(explaining how the federal government’s refusal to recognize same-sex

couples’ marriages “demeans” such couples and “humiliates” their children).

Windsor instructs that, in evaluating for constitutional purposes the harms

that discriminatory marriage laws inflict, dignitary harms are of great

moment.

One of the most serious ways in which laws that exclude same-sex

couples from marriage demean lesbian, gay, and bisexual persons is by

enforcing gender-based expectations in the roles that men and women play

in families. State enforcement of such stereotypes and expectations—

through exclusionary marriage laws and other discriminatory government

actions—communicates to lesbian, gay, and bisexual persons, their children,

and their communities that there is something wrong with a core part of their

identity and being. Such government actions communicate that lesbian, gay,

and bisexual persons do not measure up to what a man or a woman should

be and that their most important relationships are “less worthy,” Windsor,

133 S. Ct. at 2696, than the relationships and marriages of different-sex

couples. Such discrimination cannot survive heightened scrutiny.

32
Case: 14-50196 Document: 00512771264 Page: 50 Date Filed: 09/16/2014

IV. CONCLUSION

Amici respectfully request that the Court apply heightened scrutiny to

invalidate Texas’s laws banning same-sex couples from marrying and

denying recognition to same-sex couples’ legal marriages obtained in other

jurisdictions, and affirm the judgment of the District Court.

Dated: September 16, 2014

Respectfully submitted,

/s/ Emily J. Martin

Marcia D. Greenberger
Emily J. Martin
NATIONAL WOMEN’S LAW CENTER
11 Dupont Circle NW, Ste. 800
Washington, DC 20036
(202) 588-5180

Counsel for Amici Curiae

33
Case: 14-50196 Document: 00512771264 Page: 51 Date Filed: 09/16/2014

APPENDIX

National Women’s Law Center

The National Women’s Law Center is a nonprofit legal advocacy

organization dedicated to the advancement and protection of women’s legal

rights and opportunities since its founding in 1972. The Center focuses on

issues of key importance to women and their families, including economic

security, employment, education, health, and reproductive rights, with

special attention to the needs of low-income women, and has participated as

counsel or Amicus Curiae in a range of cases before the Supreme Court and

Federal Courts of Appeals to secure the equal treatment of women under the

law, including numerous cases addressing the scope of the Constitution’s

guarantees of equal protection of the laws. The Center has long sought to

ensure that rights and opportunities are not restricted for women or men on

the basis of gender stereotypes and that all individuals enjoy the protection

against such discrimination promised by the Constitution.

Gender Justice

Gender Justice is a nonprofit law firm based in the Midwest that

eliminates gender barriers through impact litigation, policy advocacy, and

education. As part of its mission, Gender Justice helps courts, employers,

34
Case: 14-50196 Document: 00512771264 Page: 52 Date Filed: 09/16/2014

schools, and the public better understand the central role of cognitive bias

and gender stereotypes in perpetuating gender discrimination. Gender

Justice addresses gender discrimination in all its forms, including

discrimination on the basis of sex, gender identity, and sexual orientation.

As part of its impact litigation program, Gender Justice represents

individuals in the Midwest and provides legal advocacy as Amicus Curiae in

cases that have an impact in the Midwest and beyond. Gender Justice

strongly supports full and equal citizenship for lesbian, gay, and bisexual

persons, including their Constitutional right to decide whether and with

whom to enter into marriage.

Legal Momentum

Legal Momentum, formerly NOW Legal Defense and Education

Fund, is the nation’s oldest women’s legal rights organization. Legal

Momentum has appeared before courts in many cases concerning the right to

be free from sex discrimination and gender stereotypes, including appearing

as counsel in Nguyen v. INS, 533 U.S. 53 (2001), and Miller v. Albright, 523

U.S. 420 (1998), and as Amicus Curiae in United States v. Virginia (VMI),

518 U.S. 515 (1996), and Mississippi Univ. for Women v. Hogan, 458 U.S.

718 (1982). Legal Momentum views discrimination on the basis of sexual

35
Case: 14-50196 Document: 00512771264 Page: 53 Date Filed: 09/16/2014

orientation as a form of sex discrimination, and strongly supports the rights

of lesbians and gay men to be free from discrimination based on, among

other things, gender stereotyping.

Legal Voice

Legal Voice, founded in 1978 as the Northwest Women’s Law Center,

is a regional nonprofit public interest organization based in Seattle that

works to advance the legal rights of women in the five Northwest states

(Washington, Oregon, Idaho, Montana, and Alaska) through litigation,

legislation, education, and the provision of legal information and referral

services. Since its founding, Legal Voice has worked to eliminate all forms

of sex discrimination, including gender stereotyping. To that end, Legal

Voice has a long history of advocacy on behalf of lesbians, gay men,

bisexuals, and transgender individuals. Legal Voice has participated as

counsel and as Amicus Curiae in cases throughout the Northwest and the

country. Legal Voice also served on the governing board of Washington

United for Marriage, the coalition that successfully advocated in 2012 to

extend civil marriage to same-sex couples in Washington State.

36
Case: 14-50196 Document: 00512771264 Page: 54 Date Filed: 09/16/2014

National Association of Women Lawyers

The National Association of Women Lawyers (“NAWL”) is the oldest

women’s bar association in the United States. Founded in 1899, the

association promotes not only the interests of women in the profession but

also women and families everywhere. That has included taking a stand

opposing gender stereotypes in a wide range of areas, including Title IX and

Title VII. NAWL is proud to have been a signatory to the civil rights

amicus brief in the 2003 case of Goodridge v. Department of Public Health,

where the Massachusetts Supreme Judicial Court found that denial of

marriage licenses to same sex couples violated state constitutional

guarantees of liberty and equality. Now, over a decade later, NAWL is

proud to join in this brief and stand, once again, for marriage equality.

National Partnership for Women & Families

The National Partnership for Women & Families is a nonprofit,

nonpartisan organization that uses public education and advocacy to promote

fairness in the workplace, quality health care for all, and policies that help

women and men meet the dual demands of work and family. Founded in

1971 as the Women’s Legal Defense Fund, the National Partnership has

been instrumental in many of the major legal changes that have improved

37
Case: 14-50196 Document: 00512771264 Page: 55 Date Filed: 09/16/2014

the lives of women and their families. The National Partnership has devoted

significant resources to combating sex, race, and other forms of invidious

discrimination and has filed numerous briefs as Amicus Curiae in the

Supreme Court and in the Federal Courts of Appeals to protect constitutional

and legal rights.

Ohio Women’s Bar Association

The Ohio Women’s Bar Association is in support of the National

Women’s Law Center’s brief to the Fifth Circuit in De Leon v. Perry, which

challenges Texas’s prohibition of recognition of out-of-state marriage

between same-sex couples.

Southwest Women’s Law Center

The Southwest Women’s Law Center is a nonprofit women’s legal

advocacy organization based in Albuquerque, New Mexico. Its mission is to

create the opportunity for women to realize their full economic and personal

potential, including by eliminating gender bias, discrimination, and

harassment. This case could help prevent discrimination in matters involving

the most intimate and personal choices that people make during their

38
Case: 14-50196 Document: 00512771264 Page: 56 Date Filed: 09/16/2014

lifetime. Personal intimate choices that individuals make for themselves are

central to the liberty protected by the Fourteenth Amendment.

Women’s Law Project

Founded in 1974, the Women’s Law Project (“WLP”) is a nonprofit

women’s legal advocacy organization with offices in Philadelphia and

Pittsburgh, Pennsylvania. Its mission is to create a more just and equitable

society by advancing the rights and status of all women throughout their

lives. For forty years, WLP has engaged in high-impact litigation, advocacy,

and education challenging discrimination rooted in gender stereotypes. WLP

represented the plaintiffs in Planned Parenthood v. Casey, 505 U.S. 833,

898 (1992), striking down the Pennsylvania Abortion Control Act’s husband

notification provision as “repugnant to this Court’s present understanding of

marriage and the nature of the rights secured by the Constitution.” WLP

served as counsel to Amici Curiae in T.B. v. L.R.M., 786 A.2d 913 (Pa.

2001), which conferred third-party standing on parents in same-sex

relationships to sue for partial custody or visitation of the children they have

raised, and In re Adoption of R.B.F., 803 A.2d 1195 (Pa. 2002), which

recognized that the Pennsylvania Adoption Act permits second-parent

adoption in families headed by same-sex couples. Together with Legal

39
Case: 14-50196 Document: 00512771264 Page: 57 Date Filed: 09/16/2014

Momentum, WLP represented women in non-traditional employment as

Amici Curiae in Prowel v. Wise Business Forms, Inc., 579 F.3d 285 (3d Cir.

2009), in which the Court of Appeals reinstated a Title VII sex

discrimination claim involving concurrent evidence of sexual orientation

discrimination. WLP also joined as Amici Curiae in United States v.

Windsor, 133 S.Ct. 2675 (2013), in which the Supreme Court struck down

the Defense of Marriage Act’s definition of marriage for being in violation

of the Fifth Amendment of the Constitution. Because harmful gender

stereotypes often underlie bigotry against lesbian and gay people, it is

appropriate to subject classifications based on sexual orientation to

heightened judicial scrutiny.

Women Lawyers Association of Michigan

Women Lawyers Association of Michigan (“WLAM”) was founded

in 1919. WLAM works to secure the rights of women in society. The

mission statement for WLAM is to advance the interest of women members

of the legal profession, to promote improvements in the administration of

justice, and to promote equality and social justice for all people. WLAM

has participated as Amicus Curiae in cases to secure equal treatment of

women under the law. With more than 700 member attorneys, judges and

40
Case: 14-50196 Document: 00512771264 Page: 58 Date Filed: 09/16/2014

law students, WLAM has substantial expertise related to equal protection,

including discrimination based on sex. WLAM has an interest in the

continued recognition by Courts that sex classifications warrant heightened

scrutiny under the Equal Protection Clause of the Constitution. WLAM

supports the Amicus Brief provided by the National Women’s Law Center to

the extent that all people should be afforded the rights provided under the

Equal Protection Clause of the United States Constitution.

Williams Institute Scholars of Sexual Orientation and Gender Law

The Amici professors of law are associated with the Williams

Institute, an academic research center at UCLA School of Law dedicated to

the study of sexual orientation and gender identity law and public policy.

These Amici have substantial expertise in constitutional law and equal

protection jurisprudence, including with respect to discrimination based on

sex, sexual orientation, and gender stereotypes. Their expertise thus bears

directly on the constitutional issues before the Court in these cases. These

Amici are listed below. Institutional affiliations are listed for identification

purposes only.

 David B. Cruz

Professor of Law, University of Southern California Gould

School of Law;
41
Case: 14-50196 Document: 00512771264 Page: 59 Date Filed: 09/16/2014

Faculty Advisory Committee Member, The Williams Institute.

 Nan D. Hunter

Associate Dean for Graduate Programs and Professor of Law,

Georgetown Law;
Former Faculty Chair & Faculty Advisory Committee Member,
The Williams Institute;
Legal Scholarship Director, The Williams Institute.

 Christine A. Littleton

Vice Provost for Diversity and Faculty Development, UCLA;

Professor of Law and Gender Studies, UCLA School of Law;
Former Faculty Chair and Faculty Advisory Committee
Member, The Williams Institute.

 Nancy Polikoff

Professor of Law, American University Washington College of

Law;
2012 Visiting McDonald/Wright Chair of Law, UCLA School
of Law;
Former Faculty Chair & Faculty Advisory Committee Member,
The Williams Institute.

 Vicki Schultz

Ford Foundation Professor of Law and Social Sciences, Yale

Law School;
2011 Visiting McDonald/Wright Chair of Law, UCLA School
of Law;
Former Faculty Chair & Faculty Advisory Committee Member,
The Williams Institute.

 Brad Sears

42
Case: 14-50196 Document: 00512771264 Page: 60 Date Filed: 09/16/2014

Assistant Dean of Academic Programs and Centers, UCLA

School of Law;
Roberta A. Conroy Scholar of Law and Policy, The Williams
Institute;
Executive Director, The Williams Institute.

 Seana Shiffrin

Pete Kameron Professor of Law and Social Justice, UCLA

School of Law;
Professor of Philosophy, UCLA;
Faculty Advisory Committee Member, The Williams Institute.

 Adam Winkler

Professor of Law, UCLA School of Law;

Faculty Advisory Committee Member, The Williams Institute.

43
Case: 14-50196 Document: 00512771264 Page: 61 Date Filed: 09/16/2014

CERTIFICATE OF COMPLIANCE

This amicus brief complies with this Court’s length limitation because

it contains 6,997 words, excluding exempted parts of the brief. This brief

also complies with this Court’s typeface and typestyle requirements because

it has been prepared in a proportionally spaced typeface using Microsoft

Word in 14-point Time New Roman font.

Dated: September 16, 2014

/s/ Emily J. Martin

Marcia D. Greenberger
Emily J. Martin
NATIONAL WOMEN’S LAW CENTER
11 Dupont Circle NW, Ste. 800
Washington, DC 20036
(202) 588-5180

Counsel for Amici Curiae

44
Case: 14-50196 Document: 00512771264 Page: 62 Date Filed: 09/16/2014

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing document with

the Clerk of the Court for the United States Court of Appeals for the Fifth

Circuit by using the appellate CM/ECF system. I certify that all registered

attorneys in the case are registered CM/ECF users and that service will be

accomplished by the appellate CM/ECF system.

Dated: September 16, 2014

/s/ Emily J. Martin

Marcia D. Greenberger
Emily J. Martin
NATIONAL WOMEN’S LAW CENTER
11 Dupont Circle NW, Ste. 800
Washington, DC 20036
(202) 588-5180

Counsel for Amici Curiae

45