Order

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

In  T h e

Supreme Court of tfre {Hmteti States
Ja m e s  O b e r g e f e l l , e t  a l ., a n d  B r it t a n i H e n r y , e t  a l .,

Pe t it io n e r s ,
V.

Ric h a r d  H o d g e s , D ir e c t o r , O h io  D e p a r t m e n t  of  
H e a l t h , e t  a l ., Re s p o n d e n t s .

V a l e r ia  Ta n c o , e t  a l ., Pe t it io n e r s ,
V.

W il l ia m  E d w a r d  “B il l” H a s l a m , G o v e r n o r  of 
T e n n e s s e e , e t  a l ., Re s p o n d e n t s .

A p r il  De B o e r , e t  a l ., Pe t it io n e r s ,
V.

Ric k  Sn y d e r , G o v e r n o r  of  M ic h ig a n , e t  a l ., 
Re s p o n d e n t s .

Gr e g o r y  B o u r k e , e t  a l ., a n d  T im o t h y  Lo v e , e t  a l ., 
Pe t it io n e r s ,

V.

St e v e  Be s h e a r , G o v e r n o r  o f  K e n t u c k y , e t  a l ., 
Re s p o n d e n t s .

On Writs of Certiorari to the United States 
Court of Appeals for the Sixth Circuit 

BRIEF OF AMICI CURIAE 
NAACP LEGAL DEFENSE & EDUCATIONAL FUND, 

INC. AND NATIONAL ASSOCIATION FOR THE 
ADVANCEMENT OF COLORED PEOPLE 

IN SUPPORT OF PETITIONERS

Sherrilyn Ifill 
Director- Counsel 

Janai Nelson 
Christina Swarns 
Jin Hee Lee 
Rachel M. Kleinman 
NAACP Legal Defense & 

Educational Fund, Inc. 
40 Rector Street, 5th Floor 
New York, NY 10006 
March 6, 2015

John Paul Schnapper- 
Casteras *

NAACP Legal Defense & 
Educational Fund, Inc. 

1444 I Street NW  
Washington, DC 20005 
202-682-1300 
jschnapper@naacpldf.org

* Counsel of Record

[Additional Counsel On Inside Cover]

mailto:jschnapper@naacpldf.org


Marshall W. Taylor 
Interim General Counsel 

Kh ylaD. Craine 
NAACP
4805 Mount Hope Drive 
Baltimore, MD 21215



TABLE OF CONTENTS
TABLE OF AUTHORITIES....... ..........................iii
INTEREST OF AMICI CURIAE........................... 1
INTRODUCTION AND SUMMARY OF THE 

ARGUMENT................................     .....3
ARGUMENT....................................................... ....6
I. STATE PROHIBITIONS AGAINST

MARRIAGE FOR SAME-SEX COUPLES 
VIOLATE THE EQUAL PROTECTION 
CLAUSE OF THE FOURTEENTH 
AMENDMENT......... .......................................10
A. The Fourteenth Amendment’s

Guarantee Of Equal Protection And The 
Holding In Loving v. Virginia Apply 
Beyond The Context Of Racial 
Discrimination..............      10

B. The History Of Anti-Miscegenation
Laws Demonstrates How Exclusion 
From Marriage Perpetuates A Caste 
System In Violation Of Equal Protection 
Principles.................................................... 14

C. State Prohibitions Against Same-Sex
Marriage Should Fall No Matter What 
Level Of Constitutional Scrutiny Is 
Applied........................................................ 18

II. THE THEORIES ADVANCED IN
SUPPORT OF THE BANS ON SAME-SEX 
MARRIAGE WERE ALSO PRESSED AND 
REJECTED REGARDING INTERRACIAL 
MARRIAGE BANS..........................................20



A. Loving Rejected The Notion That
History And Tradition Justify 
Discrimination............................................21

B. Loving Rebuffed Arguments About The
Role Of Judicial Review......... ................... 25

C. Loving Did Not Link The Right To
Marry To The Ability To Procreate........... 27

D. Loving Rejected The Proposition That
Interracial Marriage Bans Applied 
“Equally.”.................................................... 29

E. Loving Refused To Credit Theories That
Interracial Marriage Harmed Children 
Or Society....................................................31

CONCLUSION..................    34

ii



Ill

TABLE OF AUTHORITIES
Cases

Baskin v. Bogan,
766 F.3d 649 (7th Cir. 2014)........................ passim

Bostic v. Schaefer, 760 F.3d 352
(4th Cir. 2014)).............................................passim

Bourke v. Beshear, 996 F. Supp. 2d 542 (W.D. Ky. 
2014), rev’d sub nom. DeBoer v. Snyder,
772 F.3d 388 (6th Cir. 2014)................................. 2

Brown v. Board of Education, 347 U.S. 483
(1954)................................. .........................1, 22, 32

City of Cleburne, Texas v. Cleburne Living
Center, 473 U.S. 432 (1985)............................  9, 27

Conaway v. Deane, 932 A.2d 571 (Md. 2007)........... 2
Craig v. Boren, 429 U.S. 190 (1976)........................  11
DeBoer v. Snyder, 772 F.3d 388 (6th Cir.

2014)....................................................   passim
Dred Scott v. Sanford, 60 U.S. 393 (1857)..............  15
Goodridge v. Department of Public Health,

798 N.E.2d 941 (Mass. 2003)........ ................ 23, 29
Frontiero v. Richardson, 411 U.S. 677 (1973).........  11
Harper v. Virginia Board of Elections,

383 U.S. 663 (1966).............................................  24
Heller v. Doe, 509 U.S. 312 (1993)...........................  24
Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006).......2
In re Marriage Cases, 183 P.3d 384 (Cal. 2008).......2
Jackson v. State, 72 So.2d 114, cert, denied,

348 U.S. 888 (1954).................................................9



IV

Kitchen v. Herbert, 755 F.3d
1193 (10th Cir. 2014)................................. 2, 13, 26

Kitchen v. Herbert, 961 F. Supp. 2d 1181
(D. Utah 2013)......................................................30

Latta v. Otter, 771 F.3d 456 (9th Cir. 2014) ...2, 13, 24
Lawrence v. Texas, 539 U.S. 558 (2003)....6, 11, 23, 24
Lonas v. State, 50 Term. 287 (1871)........................  31
Loving v. Commonwealth, 147 S.E.2d 78

(Va. 1966).................   .7
Loving v. Virginia, 388 U.S. 1 (1967)............... passim
Lucas v. Forty-Fourth General Assembly of

State of Colorado, 377 U.S. 713 (1964)..............  27
McLaughlin v. Flordia, 379 U.S. 184 (1964)........  1, 9
McLaurin v. Oklahoma State Regents for Higher 

Education, 339 U.S. 637 (1950)..............................1
Missouri ex rel. Gaines v. Canada, 305 U.S. 337

(1938)........................................................................1
Morgan v. Virginia, 328 U.S. 373 (1946)...............  1-2
NAACP v. Alabama, 357 U.S. 449 (1958)................. 1
Naim v. Naim, 87 S.E.2d 749

(Va. 1955)......................................................passim
Nixon v. Condon, 286 U.S. 73 (1932).............. ....... 26
Oyama v. California, 332 U.S. 633 (1948)..............  11
Pace v. Alabama, 106 U.S. 583 (1883)....................  16
Parents Involved in Comm unity Schools v. Seattle 

School District No. 1, 551 U.S. 701 (2007).........  25
Perez v. Sharp, 198 P.2d 17 (Cal. 1948)..................  23



V

Perry v. Schwarzenegger, 591 F.3d 1147
(9th Cir. 2010)...................................................... 2

Perry v. Schwarzenegger, 704 F. Supp. 2d 921
(N.D. Cal. 2010).................................................... 22

Plessy v. Ferguson, 163 U.S. 537 (1896)..................  29
Romer v. Evans, 517 U.S. 620 (1996)........... ..2, 11, 27
Schuette v. Coal. To Defend Affirmative Action,

134 S. Ct. 1623 (2014).........................................  27
Scott v. State, 39 Ga. 321 (1869).............................  31
Shelley v. Kraemer, 334 U.S. 1 (1948).....................  30
Sipuel v. Board of Regents of the University of

Oklahoma, 332 U.S. 631 (1948)...................  1
SmithKline Beechaum Corp. v. Abbot Labs,

740 F.3d 471 (9th Cir. 2014).................................18
State v. Brown, 108 So. 2d 233 (La. 1959)..............  32
State v. Jackson, 80 Mo. 175 (1883)........................  31
Strauss v. Horton, 207 P.3d 48 (Cal. 2009)...............2
Sweati v. Painter, 339 U.S. 629 (1950)...............  1, 30
Town of Huntington v. Huntington Branch

NAACP, 488 U.S. 15 (1988)................................... 2
Turner v. Safley, 482 U.S. 78 (1987)...............   28
United States v. Carolene Products Co.,

304 U.S. 144 (1938)...............................................26
United States v. Virginia (VM1), 518 U.S. 515

(1996).........................................................    11
United States v. Windsor, 133 S. Ct. 2675

(2013).............................................................passim



V I

Windsor v. United States, 699 F.3d 169, 182 
(2d Cir. 2012), aff’d on alternative grounds,
133 S. Ct. 2675 (2013)....................... ........ 18-19

Zablocki v. Redhail, 434 U.S. 374 (1978)................  12

Docketed Cases
Brenner v. Armstrong, appeal docketed, Nos. 14-

14061, 14-14066 (11th Cir. Sept. 5, 2014)........... 2
De Leon v. Perry, appeal docketed, No. 14-20196

(5th Cir. Mar. 1, 2014).......................................... 2

Other Authorities
Jennifer Agiesta, Poll: Obama’s approval ratings 

stagnant despite economy, CNN, Feb. 19, 2015, 
available at http://www.cnn.com/2015/02/19/ 
politics/poll-obama-approval-rating-economy/.... 23

Brief and Appendix on Behalf of Appellee, Loving v. 
Virginia, 388 U.S. 1, Civ. No. 395, 1967 WL 
113931 (Mar. 20, 1967).................... ............passim

Bernard S. Cohen and Evan Wolfson, Loving 
Equality, Huffington Post, May 25, 2011, 
available at http://www.huffingtonpost.com/ 
bernard-s-cohen-and-evan-wolfson/loving- 
equality_b_51866.html..................................... . 13

Aderson Bellegarde Frangois, To Go into Battle with 
Space and Time: Emancipated Slave Marriage, 
Interracial Marriage, and Sam e-Sex Marriage,
13 J. Gender Race & Just. 105 (2009)...........  14-15

http://www.cnn.com/2015/02/19/
http://www.huffingtonpost.com/


Gallup, In U.S., 87% Approve of Black-White 
Marriage, vs. 4% in 1958 (July 25, 2013), 
available at http://www.gallup.com/poll/ 
169640/sex-marriage-support-reaches- 
new-high.aspx.............................. ..............9, 23, 24

Congressional Globe, 39th Congress, 1st Session 
322 (1866)............................................................. 29

John DeWitt Gregory & Joanna L. Grossman,
The Legacy of Loving, 51 How. L.J. 15 (2007).... 16

Brief of Amicus Curiae Idaho Governor C.L. “Butch” 
Otter, DeBoer v. Snyder, Nos. 14-556, 14-562, 
14-571, 14-574 & 14-596
(U.S. Dec. 15, 2014)................................. 17, 28, 29

Hon. A. Leon Higginbotham, Jr., Shades of
Freedom (1996)...................................................  15

Pamela S. Karlan, Foreword: Loving Lawrence,
102 Mich. L. Rev. 1447 (2004)......................  13, 16

Randall Kennedy, Interracial Intimacies (2003).... 16
R.A. Lenhardt, Beyond Analogy: Perez v. Sharp, 

Antimiscegenation Law, and the Fight for Same- 
Sex Marriage, 96 Calif. L. Rev. 839 (2008)... 15, 23

Press Release, Congressman John Lewis, Rep. John 
Lewis Says DOMA Decision Is A Victory for 
Equality (June 27, 2013), available at https:// 
johnlewis.house.gov/press-release/rep-john- 
lewis-says-doma-decision-victory-equality........  13

Mildred Loving, Loving for All, Address at the 40th 
Anniversary of the Loving v. Virginia 
Announcement (June 12, 2007), available at 
http://www.freedomtomarry.org/page/- 
/ file s/p dfs/mildre d_lo ving- state me nt. p df

vii

13

http://www.gallup.com/poll/
http://www.freedomtomarry.org/page/-/
http://www.freedomtomarry.org/page/-/


V l l l

Douglas Martin, Mildred Loving, Who Battled Ban on 
Mixed-Race Marriage, Dies at 68, N.Y. Times,
May 6, 2008, at B7................... .............................6

Phyl Newbeck, Virginia Hasn’t Always Been for 
Lovers: Interracial Marriage Bans and the Case 
of Richard and Mildred Loving (2004)..............  16

Brief of the National Association for the
Advancement of Colored People as Amicus Curiae, 
Loving v. Virginia, 388 U.S. 1, Civ. No. 395,
1967 WL 113930 (Feb. 28, 1967)............... 8, 16, 32

Brief of NAACP Legal Defense and Educational 
Fund, Inc. as Amicus Curiae, Loving v. Virginia, 
388 U.S. 1, Civ. No. 395, 1967 WL 113930 
(Feb. 28, 1967).......... ............................8, 18, 26, 33

Brief for Petitioners, DeBoer v. Snyder, No.
14-571 (U.S. Feb. 27, 2015)................................  25

Brief of Amici Curiae 76 Scholars of Marriage 
Supporting Review and Affirmance, DeBoer v. 
Snyder, Nos. 14-556, 14-562, 14-571,
14-574 & 14-596 (U.S. Dec. 15, 2015)............... 31, 34

Reva B. Siegel, Equality Talk: Antisubordination 
and Anticlassification Values in Constitutional 
Struggles over Brown, 117 Harv. L. Rev. 1470 
(2004)...................................................................  11, 18

Transcript of Oral Argument, Loving v. Virginia, 388 
U.S. 1 (1967) (No. 395), available at 
http://www.oyez.org/cases/1960- 
1969/1966/1966_395..........................................  7, 8

Evan Wolfson, Loving v. Virginia -  and Mrs. Loving -  
Speak to Us Today, 51 How. L. J. 187 
(2007)................................................................... 13, 14

http://www.oyez.org/cases/1960-1969/1966/1966_395
http://www.oyez.org/cases/1960-1969/1966/1966_395


INTEREST OF AMICI CURIAE1
The NAACP Legal Defense and Educational Fund, 

Inc. (LDF) is a non-profit legal organization that, for 
more than seven decades, has fought to enforce the 
guarantees of the United States Constitution against 
discrimination. See, e.g., Brown v. Bd. of Educ., 347 
U.S. 483 (1954); McLaurin v. Okla. State Regents for 
Higher Educ., 339 U.S. 637 (1950); Sweatt v. Painter, 
339 U.S. 629 (1950); Sipuel v. Bd. of Regents of Univ. 
of Okla., 332 U.S. 631 (1948); Missouri ex rel. Gaines 
v. Canada, 305 U.S. 337 (1938). Since its inception, 
LDF has worked to eradicate barriers to the full and 
equal enjoyment of social and political rights, 
including those arising in the context of partner or 
spousal relationships. See, e.g., Loving v. Virginia, 
388 U.S. 1 (1967); McLaughlin v. Florida, 379 U.S. 
184 (1964).

Founded in 1909 and incorporated by the State of 
New York, the National Association for the 
Advancement of Colored People (NAACP) is the 
country’s largest and oldest civil rights organization. 
The mission of the NAACP is to ensure the equality 
of political, social, and economic rights of all persons, 
and to eliminate racial hatred and racial 
discrimination. Throughout its history, the NAACP 
has used the legal process to champion equality and 
justice for all persons. See generally NAACP v. 
Alabama, 357 U.S. 449 (1958); Morgan v. Virginia,

1 Pursuant to Supreme Court Rule 37.6, counsel for amici 
curiae state that no counsel for a party authored this brief in 
whole or in part, and that no person other than amici curiae, its 
members, or its counsel made a monetary contribution to the 
preparation or submission of this brief. All parties have 
consented to the filing of this brief.



2
328 U.S. 373 (1946); and Town of Huntington v. 
Huntington Branch NAACP, 488 U.S. 15 (1988).

Both groups were actively involved in opposing 
bans on interracial marriage, and both filed amicus 
curiae briefs in Loving v. Virginia, 388 U.S. 1 (1967). 
Consistent with their opposition to all forms of 
discrimination, LDF and NAACP have written or 
joined as amici curiae in cases across the nation that 
affect the rights of gays and lesbians, including 
United States v. Windsor, 133 S. Ct. 2675 (2013); 
Bourke v. Beshear, 996 F. Supp 2d 542 (W.D. Ky. 
2014), rev’d sub nom. DeBoer v. Snyder, 772 F.3d 388 
(6th Cir. Nov. 6, 2014), cert, granted 135 S. Ct. 1040 
(Jan 16, 2015) (U.S. No. 14-571); Bostic v. Schaefer, 
760 F.3d 352 (4th Cir. 2014); Baskin v. Bogan, 766 
F.3d 648 (7th Cir. 2014); Latta v. Otter, 771 F.3d 456 
(9th Cir. 2014); Perry v. Schwarzenegger, 591 F.3d 
1147 (9th Cir. 2010); Kitchen v. Herbert, 755 F.3d 
1193 (10th Cir. 2014); Romer v. Evans, 517 U.S. 620 
(1996); Strauss v. Horton, 207 P.3d 48 (Cal. 2009); In 
re Marriage Cases, 183 P.3d 384 (Cal. 2008); 
Conaway v. Deane, 932 A.2d 571 (Md. 2007); 
Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006). See 
also De Leon v. Perry, appeal docketed, No. 14-50196 
(5th Cir. Mar. 1, 2014) (ruling pending); Brenner v. 
Armstrong, appeal docketed, Nos. 14-14061, 14-14066 
(11th Cir. Sept. 5, 2014) (held in abeyance). Amici 
curiae have a strong interest in the fair application of 
the Fourteenth Amendment to the United States 
Constitution, which provides critically important 
protections for all Americans, and submit that their 
experience and knowledge will assist the Court in 
this case.



3
INTRODUCTION AND 

SUMMARY OF THE ARGUMENT
In 1967, the Supreme Court faced the pivotal 

question of whether state bans on interracial 
marriage violated the Fourteenth Amendment. It 
was a deeply controversial issue in an era of 
significant racial strife. When Mildred Loving, an 
African-American woman, and Richard Loving, a 
white man, wed several years earlier, a staggering 
96% of the country disapproved of interracial 
marriages. Up to that point, state courts had almost 
universally upheld bans on interracial marriage, and 
the Supreme Court itself had declined to squarely 
decide the issue just three years before. Yet, despite 
strong opposition, in Loving v. Virginia the Supreme 
Court unanimously held that banning interracial 
marriage violated the central tenets of the Equal 
Protection and Due Process Clauses of the 
Fourteenth Amendment.

Today, this Court is presented with the opportunity 
to affirm the right to marry in a case with important 
parallels to Loving. It should hold that state bans on 
same-sex marriage violate the Fourteenth 
Amendment.

Loving is integral to the Court’s analysis of same- 
sex marriage for two key reasons:

First, Loving’s principles and affirmative analysis 
strongly favor striking down bans on same-sex 
marriage. Loving held that “[t]he freedom to marry 
has long been recognized as one of the vital personal 
rights essential to the orderly pursuit of happiness” 
and that “all the State’s citizens” possess a 
fundamental right to marry. 388 U.S. at 12. That 
reasoning applies with equal force here because 
neither Loving nor this Court’s Fourteenth



4
Amendment jurisprudence is limited to racial 
discrimination. State prohibitions against same-sex 
marriage plainly discriminate on the basis of sexual 
orientation and sex and fall squarely within the 
protections of the Equal Protection Clause. Loving’s 
robust anti-subordination principle further makes 
clear that state laws that exclude certain groups from 
marriage effectuate a caste system that is contrary to 
the principles of Equal Protection. Because state 
bans of same-sex marriage relegate gay and lesbian 
couples to a lower social status with a badge of 
inferiority, they run afoul of the Equal Protection 
Clause.

Second, Loving soundly rejected many of the 
arguments that Respondents and their supporters 
have repurposed and advanced today. Namely, 
Loving rebuffed any claim that banning interracial 
marriage was justified by tradition or the Framers’ 
original intent. The Court additionally rejected the 
contention that it was beyond the role of the judiciary 
to pass upon state laws that banned marriages. 
Furthermore, the Court lent no credence to research 
on the purported harm of interracial marriage to 
children and society. Such discriminatory arguments 
were, for generations, central to a system of 
oppression that grew out of slavery and were 
“designed to maintain White Supremacy.” Id. Yet, 
today, nearly identical arguments decrying same-sex 
marriage as harmful to children, families, and 
heterosexual couples and norms, are mounted to 
justify state bans on same-sex marriage. Loving’s 
unanimous rejection of these sorts of theories is 
directly applicable to this case.

Loving is certainly important in doctrinal terms, 
but also because of how broadly and quickly the 
decision was accepted and celebrated. Four decades



5
ago, the “tradition” of banning interracial marriage 
seemed sacrosanct to the vast majority of Americans. 
Yet, such intolerance is now widely seen for what it 
truly was: racist, wrong, and unconstitutional.
Whereas 96% of Americans once disapproved of 
interracial marriages, 87% of all Americans now 
support them. The sanction of interracial marriage 
has hardly destroyed the nation’s citizenry, as the 
Virginia Supreme Court had crassly conjectured in 
the Loving case. Rather, Loving has fostered 
inclusion, helped bridge racial divides, and 
strengthened the social fabric of our increasingly 
diverse nation.

Loving’s principles already reverberate through the 
sphere of same-sex marriage, in part because all 
persons yearn and deserve to be treated with equal 
dignity and respect, both individually and as married 
couples. Before 2004, gays and lesbians could not 
marry in any state in the United States. In recent 
years, however, many states and courts have gained 
“a new perspective” on same-sex marriage. Windsor, 
133 S. Ct. at 2689. What was unfathomable just a 
decade ago is rapidly becoming familiar and accepted, 
as discriminatory state ban after discriminatory state 
ban is struck down across the country. Only 13 
states currently prohibit same-sex marriage, which is 
fewer than the 16 states that banned interracial 
marriage when this Court decided Loving. Thus, 
discriminatory marriage laws, however they are 
couched, are neither etched in stone nor carved in the 
Constitution.

Loving teaches that positive change is readily 
possible -  often more swiftly and thoroughly than 
expected. Loving has helped this country make 
considerable strides towards greater equality -  even



6
as we still strive for further progress — and it should 
guide the Court’s resolution of the case at bar.

ARGUMENT
Mildred Loving, an African-American woman, and 

her husband Richard Loving, a white man, were 
sleeping in their marital abode when three police 
officers, acting on an anonymous tip, burst into their 
Virginia home in the middle of the night, shone 
flashlights in their eyes, and hauled them off to jail. 
Mrs. Loving implored, “I’m his wife,” pointing to her 
marriage certificate on the bedroom wall — but the 
sheriff retorted, “that’s no good here.”2 After Mr. 
Loving spent one night in jail, and Mrs. Loving spent 
several more, the couple pled guilty to violating 
Virginia’s “Racial Integrity Act,” and were banished 
from the state for 25 years in return for a suspended 
one-year jail term. At sentencing, the trial judge 
proclaimed: “Almighty God created the races white, 
black, yellow, malay and red, and he placed them on 
separate continents . . . .  The fact that he separated 
the races shows that he did not intend for the races to 
mix.” 388 U.S. at 3.

The Lovings challenged the constitutionality of the 
state statute prohibiting their interracial marriage. 
The Virginia Supreme Court, however, upheld the 
law, relying primarily on an earlier decision, Naim v. 
Naim, which held that states had a right to “preserve 
. . . racial integrity” and prevent a “mongrel breed of 
citizens,” “the obliteration of racial pride” and the

2 See Douglas Martin, Mildred Loving, Who Battled Ban on 
Mixed-Race Marriage, Dies at 68, N.Y. Times, May 6, 2008, at 
B7. The factual parallels to the persecution of gays and lesbians 
are also striking. See, e.g., Lawrence v. Texas, 539 U.S. 558 
(2003) (police burst into a home, acting on an anonymous tip, 
and arrested two men for violating Texas’ anti-sodomy statute).



7
“corruption of blood [that would] weaken or destroy 
its citizenship.” 87 S.E.2d 749, 756 (Va. 1955), cited 
in Loving v. Commonwealth, 147 S.E.2d 78, 80 (Va. 
1966).3 The Virginia Supreme Court also reasoned 
that nothing in Brown v. Board “detracted in any way 
from . . . Plessy [u. Ferguson],” and that any contrary 
ruling would constitute “judicial legislation in the 
rawest sense.” 147 S.E.2d at 80, 82.

Before this Court, Virginia defended its ban on 
interracial marriage on the basis of history and the 
original intent of the drafters of the Fourteenth 
Amendment. See Brief and Appendix on Behalf of 
Appellee, Loving v. Virginia, 388 U.S. 1, Civ. No. 395, 
1967 WL 113931 at *14-30 (March 20, 1967) 
[hereinafter “Loving Virginia Br.”]. Virginia warned 
that it was “not within the province of the court” to 
question the scientific basis, “wisdom, propriety, or 
desirability of preventing interracial alliances . . . .” 
Id. at *38. Virginia defended such bans on the 
grounds that “intermarriage constitutes a threat to 
society,” leads to higher rates of divorce and 
separation, and is “wrong too because [it is] often 
based on the mistaken premise [of] . . . universalism 
and human brotherhood,” which is “utterly fantastic . 
. . .  if not absurd.” Id. at *48 (citation and internal 
quotations omitted). A race “need [not] offer

3 Naim involved the conviction of a Chinese and white couple, 
notwithstanding Virginia’s representation to this Court in 
Loving that “the intermarriage of whites and orientals . . .  is not 
a problem with which Virginia has faced and one which is not 
required to adopt its policy forbidding interracial marriage too.” 
Transcript of Oral Argument at 14, Loving v. Virginia, 388 U.S. 
1 (1967) (No. 395).



8

apologies for their desire to perpetuate themselves, 
Virginia concluded. Id.4

LDF and the NAACP filed amicus curiae briefs, 
arguing that Virginia’s ban was flatly 
unconstitutional. See generally Brief of NAACP 
Legal Defense and Educational Fund, Inc. as Amicus 
Curiae, Loving v. Virginia, 388 U.S. 1, Civ. No. 395, 
1967 WL 113929 (Feb. 20, 1967); Brief of the 
National Association for the Advancement of Colored 
People as Amicus Curiae, Loving v. Virginia, 388 U.S. 
1, Civ. No. 395, 1967 WL 113930 (Feb. 28, 1967) 
[hereinafter “Loving LDF Br.” and “Loving NAACP 
Br.,” respectively]. LDF urged the Court to apply 
heightened scrutiny and noted that “state legislative 
power over marriages is not omnipotent,” since the 
“right to marry is a protected liberty under the 
Fourteenth Amendment and is one of the ‘basic civil 
rights of man.’” Loving LDF Br. at *9 (citations 
omitted). LDF also lambasted Virginia’s rationale for 
the law as an “amalgam of superstition, mythology, 
ignorance and pseudo-scientific nonsense summoned 
up to support the theories of white supremacy and 
racial ‘purity.’” Id. at *9-11; see Loving NAACP Br. at 
*7-15 (debunking concepts of racial purity, interracial 
inferiority, and cultural implications). Likewise, the 
NAACP stressed that “there is no rational or 
scientific basis upon which a statutory prohibition 
against marriage based on race or color alone can be 
justified as furthering a valid legislative purpose,” 
since the “right to marry is a civil right.” Loving 
NAACP Br. at *5.

4 The book that Virginia relied upon as “definitive” also 
broadly condemned interfaith marriage, an argument Virginia 
made sure to preserve at oral argument. See Transcript of Oral 
Argument, supra n.3, at 21.



9
The Supreme Court unanimously struck down 

Virginia’s ban, notwithstanding its reluctance to 
squarely decide the issue just a few years before. 
Jackson v. State, 72 So.2 114, cert, denied, 348 U.S. 
888 (1954); McLaughlin, 379 U.S. at 195 (declining to 
“reach[] the question of the validity of the State’s 
prohibition against interracial marriage”). Loving 
made clear that “[mjarriage is one of the ‘basic civil 
rights of man,”’ and that to “deny this fundamental 
freedom” on the basis of racial classifications violated 
the Fourteenth Amendment. 388 U.S. at 12. The 
Court also noted that a state’s power to regulate 
marriage is “not unlimited.” Id. at 7. Loving further 
set forth an anti-subordination principle holding that 
laws which exist solely to effectuate a caste system 
cannot stand. To that end, Loving reasoned that 
Virginia’s ban had “no legitimate overriding purpose 
independent of invidious racial discrimination.” 
Id. at 11.

In the years since Loving, none of the social or 
genetic harms crudely predicted by Naim have come 
to pass. Instead, public opinion on interracial 
marriage has shifted dramatically in favor of greater 
acceptance, and our nation has become significantly 
more inclusive. See Gallup, In U.S., 87% Approve of 
Black-White Marriage, vs. 4% in 1958 (July 25, 2013) 
[hereinafter “Gallup Poll”] (finding that only 4% of 
Americans approved of interracial marriage in 1958 — 
and therefore 96% disapproved -  whereas precisely 
96% of adults age 18-29 approved in 2013). See also 
City of Cleburne, Tex. v. Cleburne Living Center, 473 
U.S. 432, 465 (1985) (Marshall, J., concurring) 
(“[W]hat was once a ‘natural’ and ‘self-evident’ 
ordering [of constitutional principles of equality] later 
comes to be seen as an artificial and invidious 
constraint on human potential and freedom.”).



10
The history and holdings of Loving and its progeny 

are essential to this litigation. Thus, this brief first 
explores Loving’s overarching principles and their 
implications for state bans on same-sex marriage 
(Section I). It then explains how Loving rejected and 
debunked the repugnant theories that were espoused 
by Virginia in defense of its anti-miscegenation law, 
and demonstrates how the parallel arguments, which 
are now presented in defense of bans on same-sex 
marriages, must also be rejected (Section II). 
Together, these aspects of Loving make clear that the 
Fourteenth Amendment prohibits laws which deny 
consenting adults the right to marry based on their 
race, sexual orientation, or sex.

I. STATE PROHIBITIONS AGAINST 
MARRIAGE FOR SAME-SEX COUPLES 
VIOLATE THE EQUAL PROTECTION 
CLAUSE OF THE FOURTEENTH 
AMENDMENT.

Loving has special salience today, both because of 
its widespread acceptance and its direct application 
to same-sex marriage bans. Understanding the full 
import of Loving requires situating it in the broader 
context of this Court s Equal Protection 
jurisprudence.

A. The Fourteenth Amendment’s 
Guarantee Of Equal Protection And 
The Holding In Loving v. Virginia 
Apply Beyond The Context Of Racial 
Discrimination.

Although the Fourteenth Amendment was ratified 
in the wake of the Civil War after a long struggle to 
eradicate slavery, its reach is not limited to racial 
discrimination alone. Over time, the Supreme Court 
made clear that, while the Fourteenth Amendment’s



11
anti-discrimination principles were first articulated 
in cases involving racial discrimination, they are also 
applicable to governmental classifications that 
categorically exclude individuals from equal 
participation in our country’s social and political 
community based solely on their status as members 
of certain groups.

The Court has held that the determination of 
whether the Fourteenth Amendment governs a 
particular governmental classification should involve 
consideration of such factors as whether the 
classification was predicated upon “social 
stereotypes,” Craig v. Boren, 429 U.S. 190, 202 n.14 
(1976), and/or whether it “create[s] or perpetuate[s] 
the legal, social, and economic inferiority” of a group 
that has been subjected to sustained discrimination, 
United States v. Virginia (VMI), 518 U.S. 515, 534 
(1996). Relying on this analysis, the Court has held 
that the Fourteenth Amendment protects against 
governmental classifications that discriminate based 
not only on race, but also on such factors as national 
origin, sexual orientation, and sex. See, e.g., 
Lawrence, 539 U.S. at 558 (sexual orientation); VMI, 
518 U.S. 515 (1996) (sex); Romer, 517 U.S. at 620 
(sexual orientation); Frontiero v. Richardson, 411 
U.S. 677 (1973) (sex); Oyama v. California, 332 U.S. 
633 (1948) (national origin). This interpretation of 
the Fourteenth Amendment’s Equal Protection 
Clause has been a critical component of our nation’s 
ongoing effort to eliminate entrenched 
discrimination. See Reva B. Siegel, Equality Talk: 
Antisubordination and Anticlassification Values in 
Constitutional Struggles over Brown, 117 Harv. L. 
Rev. 1470, 1547 (2004) (“[CJoncerns about group 
subordination are at the heart of the modern equal 
protection tradition . . . .”).



12
Consistent with this history and purpose, the 

Loving decision’s interpretation of the 14th 
Amendment transcended the factual confines of that 
case. In the course of declaring anti-miscegenation 
statutes unconstitutional, Loving explained that 
“[mjarriage is one of the basic civil rights of man” and 
that “[t]he freedom to marry has long been recognized 
as one of the vital personal rights essential to the 
orderly pursuit of happiness.” 388 U.S. at 12 (citation 
and internal quotation marks omitted). Loving, 
therefore, supports the removal of discriminatory 
barriers to marriage in the “pursuit of happiness,” 
not limited to racial discrimination. Nowhere did 
Loving limit or define marriage as exclusively 
between a man and a woman.

Courts have appreciated the broader significance of 
Loving. Justice Thurgood Marshall, LDF’s founder, 
writing for the Court, declared that “[ajlthough 
Loving arose in the context of racial discrimination, 
prior and subsequent decisions of this Court confirm 
that the right to marry is of fundamental importance 
for all individuals.” Zablocki v. Redhail, 434 U.S. 374, 
384 (1978). In Zablocki, which involved the right to 
marry of so-called “deadbeat dads,” the Supreme 
Court explained that Loving “could have rested solely 
on the ground that the statutes discriminated on the 
basis of race in violation of the Equal Protection 
Clause,” but instead “went on to hold that the laws 
arbitrarily deprived the couple of a fundamental 
liberty protected by the Due Process Clause, the 
freedom to marry.” Id. at 383.

More recently, the Fourth, Seventh, Ninth, and 
Tenth Circuits, which struck down same-sex 
marriage bans on various grounds, all recognized the 
importance of Loving. Bostic, 760 F.3d at 376 (citing 
Loving as the “most notabl[e]” demonstration that the



13
“right to marry is an expansive liberty interest that 
may stretch to accommodate changing societal 
norms”); Baskin, 766 F.3d at 666 (holding that the 
state’s position “runs head on into Loving Q, since the 
limitation of marriage to persons of the same race 
was traditional in a number of states when the 
Supreme Court invalidated it”); Latta, 771 F.3d at 
476 (rejecting arguments about history and tradition 
because the “anti-miscegenation laws struck down in 
Loving were longstanding”); Kitchen, 755 F.3d at 
1209 (citing Loving at length for the proposition that 
it framed “the right to marry at a broader level of 
generality than would be consistent” with the state’s 
argument).

Legislators, practitioners, and scholars have 
reached the same conclusion. Civil rights icon, 
Congressman John Lewis, in condemning the Defense 
of Marriage Act on the floor of Congress, harkened 
back to Dr. Martin Luther King, Jr.’s declaration that 
“[rjaces do not fall in love and get married. 
Individuals fall in love and get married.” See Press 
Release, John Lewis, Rep. John Lewis Says DOMA 
Decision Is A Victory for Equality (June 27, 2013) 
(quoting floor statement from 1996). The Lovings’ 
attorney and even Mrs. Loving herself, in a rare 
public statement shortly before she passed away, 
recognized and supported Lovings application to 
same-sex marriage. Bernard S. Cohen & Evan 
Wolfson, Loving Equality, Huffington Post, May 25, 
2011; Mildred Loving, Loving for All, Address at the 
40th Anniversary of the Loving v. Virginia 
Announcement (June 12, 2007). See also Pamela S. 
Karlan, Foreword: Loving Lawrence, 102 Mich. L. 
Rev. 1447 (2004); Evan Wolfson, Loving v. Virginia -  
and Mrs. Loving -  Speak to Us Today, 51 How. L. J. 
187 (2007).



14
The sole circuit to take an aberrant view of Loving 

was the Sixth, in the case presently before the Court. 
DeBoer, 772 F.3d at 411. Judge Sutton, writing for a 
2-1 majority, cursorily discounted Loving on the 
grounds that “it did not create a new definition of 
marriage.” Id. Judge Sutton, therefore, concluded 
that the laws of Kentucky, Michigan, Ohio, and 
Tennessee (hereinafter “States’ Laws”) could 
constitutionally ban same-sex marriage. Such an 
unduly narrow reading of Loving fails to
meaningfully grapple with the case’s overarching 
principles, namely the fundamental right to marry 
and the protection against subordination.

B. The History Of Anti-Miscegenation
Laws Demonstrates How Exclusion 
From Marriage Perpetuates A Caste 
System In Violation Of Equal 
Protection Principles.

Loving recognized that anti-miscegenation laws 
were more than just arbitrary restrictions on the 
right to marry. They were also a vestige of slavery 
and a central component of a broader system that 
was “designed to maintain White Supremacy.” 388 
U.S. at 11. Because enslaved people and, later, 
interracial couples were denied the right to marry, 
that history is critical to an understanding of how the 
denial of the right to marry operates to perpetuate 
and enforce a caste system. It also makes clear that 
the full import of Loving is that the Equal Protection 
Clause cannot tolerate a structure that subordinates 
certain groups.

In the antebellum United States, virtually no state 
offered enslaved persons the right to marry. Aderson 
Bellegarde Frangois, To Go into Battle with Space 
and Time: Emancipated Slave Marriage, Interracial 
Marriage, and Same-Sex Marriage, 13 J. Gender



15
Race & Just. 105, 142-43 (2009) (“[PJrior to
Reconstruction no Southern state, with the arguable 
exception of Tennessee, granted full legal recognition 
to marriage between slaves.” (footnote omitted)); see 
also id. at 110-12 (“The idea that the freedom to 
marry is a symbol of American freedom has roots in 
the institution of slavery.”). With Emancipation 
came greater marital rights, but not across racial 
lines due to anti-miscegenation statutes.5 As Chief 
Justice Taney explained in his infamous Dred Scott v. 
Sandford decision, anti-miscegenation statutes:

show that a perpetual and impassable barrier 
was intended to be efected between the white 
race and the one which they had reduced to 
slavery, and governed as subjects with absolute 
and despotic power, and which they then looked 
upon as so far below them in the scale of created 
beings, that intermarriages between white 
persons and negroes or mulattoes were regarded 
as unnatural and immoral, and punished as 
crimes, not only in the parties, but in the person 
who joined them in marriage.

60 U.S. 393, 409 (1857); see also Hon. A. Leon 
Higginbotham, Jr., Shades of Freedom 44 (1996) 
(“Interracial marriages represented a potentially 
grave threat to the fledgling institution of slavery.”).

Even after the adoption of the Fourteenth 
Amendment, anti-miscegenation statutes were still 
prevalent and upheld by the Supreme Court. In 
1883, the Supreme Court held that anti­

5 The first statute in America expressly prohibiting interracial 
marriage was enacted in the seventeenth century. See R.A. 
Lenhardt, Beyond Analogy: Perez v. Sharp, Antimiscegenation 
Law, and the Fight for Same-Sex Marriage, 96 Calif. L. Rev. 
839, 870 (2008).



16
miscegenation statutes were not discriminatory 
because they “appl[y] the same punishment to both 
offenders, the white and the black,” Pace v. Alabama, 
106 U.S. 583, 585 (1883). See also Naim, 87 S.E.2d at 
756. This is perhaps unsurprising, given that “when 
the Fourteenth Amendment was drawn up and 
ratified, the vast majority of its supporters did not 
envision it as a bar to antimiscegenation laws.” 
Randall Kennedy, Interracial Intimacies 277 (2003). 
Indeed, racial restrictions on marriage had a near 
universal and defining feature: “Every state whose 
black population reached or exceeded 5 percent of the 
total eventually drafted and enacted anti­
miscegenation laws.” Id. at 219 (citation omitted). At 
one point, approximately 40 of the 50 states 
prohibited African Americans from marrying whites. 
Loving NAACP Br. at *2.

Given the crucial role that anti-miscegenation laws 
played in maintaining our nation’s racial caste 
system, Loving became “one of the major landmarks 
of the civil rights movement.” Phyl Newbeck, 
Virginia Hasn’t Always Been for Lovers: Interracial 
Marriage Bans and the Case of Richard and Mildred 
Loving xii (2004). Loving made clear that it was 
unconstitutional to subordinate certain groups by 
denying them the right to marry strictly on the basis 
of their race. See 388 U.S. at 12. “Legalizing 
interracial marriage was an essential step toward 
racial equality.” John DeWitt Gregory & Joanna L. 
Grossman, The Legacy of Loving, 51 How. L.J. 15, 52 
(2007). See also Karlan, supra, at 1147 (‘'Loving 
marked the crystallization, a dozen years after 
Brown, of the antisubordination principle . . . .”).

Viewed in its full historical context, the holding in 
Loving has powerful implications for the 
constitutionality of bans on same-sex marriage. Like



17
the early laws designed to oppress African 
Americans, the States’ Laws here consign lesbian and 
gay couples to an unequal and inferior status by 
denying them “a dignity and status of immense 
import”: the status of state-sanctioned marriage.
Windsor, 133 S. Ct. at 2692; id. at 2693 (noting that 
the federal Defense of Marriage Act was intended to 
express “moral disapproval of homosexuality”). This 
exclusion -  which is premised on stereotypes and 
moral condemnation of gays and lesbians as a group -  
is both stigmatizing and demeaning, and perpetuates 
the historical discrimination long suffered by lesbians 
and gay people.6 Moreover, this disapprobation 
creates and perpetuates a social hierarchy that 
disadvantages people based on their sexual 
orientation. Opponents of same-sex marriage often 
gild their arguments with the patina of tolerance, for 
example, by framing the issue in “definitional” terms, 
but stigma and scorn lie just beneath the surface. 
Sometimes the disparagement is implied, other 
times, it is manifest.7 Regardless, the message of 
opponents is clear: gays and lesbians should not

6 While the African-American and gay and lesbian 
communities certainly have different histories, these 
distinctions do not undermine the reality that gays and lesbians 
also face discrimination and exclusion. But see DeBoer, 772 F.3d 
at 413-15 (reasoning that historical distinctions among these 
groups prevent an inference of prejudice against or a recognition 
of disenfranchisement of gay and lesbian couples).

7 For example, Idaho claims that same-sex marriage erodes 
family-centric “norms” and “places the law’s authoritative stamp 
of approval on such child-rearing arrangement.” See Brief of 
Amicus Curiae Idaho Governor C.L. “Butch” Otter, at 9, DeBoer 
v. Snyder, Nos. 14-556, 14-562, 14-571, 14-574 & 14-596 (U.S. 
Dec. 15, 2014). The subtext is unmistakable: gay and lesbian 
couples are literally abnormal (i.e., outside the norm) and not 
worthy of approval.



18
share in the rights of “traditional” marriage. 
However, as detailed herein, this argument directly 
contravenes Loving’s proscriptions that the Equal 
Protection Clause prohibits classifications that 
subordinate individuals based on certain 
characteristics, see Siegel, supra, at 1504 & n.125 
(citing Loving, 388 U.S. at 7, 11) -  here, sexual 
orientation.

C. State Prohibitions Against Same-Sex 
Marriage Should Fall No Matter What 
Level Of Constitutional Scrutiny Is 
Applied.

It is well-settled that courts should apply a more 
rigorous standard of review to government 
classifications that categorically exclude individuals 
from equal participation in our country’s social and 
political community based solely on their status as 
members of a certain group. See, e.g., Loving, 388 
U.S. at 9; Loving LDF Br. at *6 (urging the 
application of “rigid scrutiny”). A faithful application 
of these principles reveals that more searching 
judicial review applies to laws that burden lesbians 
and gay men as a group. See SmithKline Beecham 
Corp. v. Abbott Labs., 740 F.3d 471, 482 (9th Cir. 
2014) (equal protection jurisprudence “refuses to 
tolerate the imposition of a second-class status on 
gays and lesbians”).

We urge the Court to take this path -  or at least 
leave it open. By virtually any measure, lesbians and 
gay men have been subjected to the kind of systemic 
discrimination that would trigger heightened 
Fourteenth Amendment protection. See Windsor v. 
United States, 699 F.3d 169, 182 (2d Cir. 2012) (“It is 
easy to conclude that homosexuals have suffered a 
history of discrimination. . . . Ninety years of 
discrimination is entirely sufficient . . . .”), aff’d on



19
alternative grounds, 133 S. Ct. 2675 (2013). Indeed, 
the lone detractors of marriage equality concede that 
there is a shameful history of discrimination and 
antagonism against gays and lesbians. See DeBoer, 
772 F.3d at 413.

But even under a more relaxed standard of review, 
the States’ Laws could not pass constitutional 
muster. Several courts have recognized as much. See 
e.g., Baskin, 766 F.3d at 656 (“discrimination against 
same-sex couples is irrational”). Some states have 
struggled to offer a legitimate justification for same- 
sex marriage bans even under rational basis review 
and have experimented with different theories, see 
infra Section II.A-C. Many of these are so circuitous 
and “full of holes that [they] cannot be taken 
seriously.” Baskin, 766 F.3d at 656.

Regardless of the level of scrutiny, the States’ Laws 
should be invalidated. They plainly burden lesbians 
and gay men as a class, because they ban lesbian and 
gay couples from marrying and, thus, exclude them 
from “participating fully in our society, which is 
precisely the type of segregation that the Fourteenth 
Amendment cannot countenance.” Bostic, 760 F.3d at 
384. Accordingly, Equal Protection principles govern 
the constitutionality of laws denying the right to 
marry to lesbian and gay couples who “aspire to 
occupy the same status and dignity as that of a man 
and woman in lawful marriage.” See Windsor, 133 S. 
Ct. at 2689.8 Like any other law that demeans and

8 The fact that some of the States’ Laws recognize marriages 
of lesbian and gay couples who were legally married in other 
jurisdictions does not alter the conclusion. The Lovings 
themselves were married in the District of Columbia before 
returning to Virginia, where they were convicted of violating 
Virginia’s ban on marriage for interracial couples. Loving, 388 
U.S. at 2-3. The Court in Loving struck down not only Virginia’s



20
denigrates an entire class of people, the States’ Laws 
here cannot be reconciled with the Fourteenth 
Amendment or Loving.

II. THE THEORIES ADVANCED IN 
SUPPORT OF THE BANS ON SAME- 
SEX MARRIAGE WERE ALSO 
PRESSED AND REJECTED
REGARDING INTERRACIAL
MARRIAGE BANS.

Respondents and their supporting amici curiae 
have presented myriad arguments against the 
straightforward recognition that banning same-sex 
marriage violates the Fourteenth Amendment. The 
primary theories include the following: 
(1) heterosexual marriage is rooted in tradition and 
supported by original intent; (2) the states should 
decide this issue, not the courts; (3) heterosexual-only 
marriage is needed to encourage “responsible 
procreation”; (4) marriage bans apply “equally” to 
(gay) men and (lesbian) women; and (5) same-sex 
marriage harms families, children, and society. All of 
these theories echo those advanced by proponents of 
anti-miscegenation statutes and rejected by the 
Supreme Court in Loving. The Sixth Circuit, and, 
increasingly, the states, have narrowed their focus to 
the first three theories, perhaps cognizant that the

statute imposing criminal punishment on interracial couples 
who married, but also Virginia’s “comprehensive statutory 
scheme aimed at prohibiting and punishing interracial 
marriages,” a scheme that prohibited marriage for interracial 
couples within Virginia and denied recognition to marriages of 
interracial couples solemnized outside Virginia. See id. at 4, 12. 
Loving thus applies with equal force to state laws that prohibit 
recognition of lawful same-sex marriages celebrated outside the 
state as it does to laws that prohibit celebration of those 
marriages within the state.



21
logic of Plessy and the specter of gays and lesbians 
harming children are unpersuasive and offensive.

A. Loving Rejected The Notion That 
History And Tradition Justify 
Discrimination.

Respondents and their amici curiae rely heavily on 
history, tradition, and original intent to justify the 
bans on same-sex marriage. The Sixth Circuit 
stressed that heterosexual marriage is a “tradition 
measured in millennia,” DeBoer, 772 F.3d at 396, and 
that an originalist interpretation of the Constitution, 
reinforced by tradition, confirms that marriage bans 
are permissible, id. at 404.9

This type of argument is nothing new. In 1955, the 
Virginia Supreme Court upheld a ban on interracial 
marriage on the grounds that the institution of 
marriage “may be maintained in accordance with 
established tradition,” among other reasons. Naim, 
87 S.E.2d at 756. In Loving, the trial court reasoned 
that marriage for interracial couples was aberrant 
and contrary to a proper understanding of the nature 
of marriage. 388 U.S. at 3 (reciting the trial court’s 
invocation of racialized Creation theory). Before the 
Supreme Court, Virginia again appealed to tradition:

The Virginia statutes here under attack reflects 
[sic] a policy which has obtained in this 
Commonwealth for over two centuries . . . .  They 
have stood -  compatibly with the Fourteenth 
Amendment, though expressly attacked

9 Other amici curiae argue that states have the right to define 
certain terms and institutions as they long have -  but this is 
also a call to tradition by another name. The same could have 
been said about Loving: at one point, 40 states also had a
“tradition” of defining marriage to exclude interracial couples.



22
thereunder -  since that Amendment was 
adopted.

Loving Virginia Br. at *52. Indeed, such arguments 
were broadly shared amongst proponents of anti­
miscegenation laws. Perry v. Schwarzenegger, 704 F. 
Supp. 2d 921, 957 (N.D. Cal. 2010) (summarizing 
racial restrictions on marriage).

In Loving, however, the Court directly rejected 
claims that long-held beliefs about the 
incompatibility of interracial relationships and the 
traditional understanding of marriage (including 
those held by the Framers of the Fourteenth 
Amendment) should be controlling. See 388 U.S. at 
9-10. Significantly, the Supreme Court declared anti­
miscegenation statutes unconstitutional in spite of 
the fact that the majority of states ratifying the 
Fourteenth Amendment had such laws in place as 
recently as 1950. Loving Virginia Br. at *6; Loving 
388 U.S. 9-10. The Court declared that these 
historical justifications for the prohibitions on 
interracial marriage were simply “not sufficient to 
resolve the problem” at hand. 388 U.S. at 9 (citing 
Brown, 347 U.S. at 489). Instead, the Court held 
that, regardless of the precise intentions of the 
Framers of the Fourteenth Amendment with respect 
to interracial marriage, anti-miscegenation statutes 
were inconsistent with the “broader, organic purpose” 
of the Amendment, which was “to remove all legal 
distinctions among ‘all persons born or naturalized in 
the United States.’” 388 U.S. at 9 (quoting Brown, 
347 U.S. at 489).

Thus, in Loving, this Court was wholly undeterred 
by the lack of tradition or precedent allowing 
interracial marriage, as, in 1967, only a single court —



23
the Supreme Court of California10 -  had found anti­
miscegenation statutes to violate the Fourteenth 
Amendment. Nor was the Court persuaded by the 
widespread popular support for anti-miscegenation 
statutes throughout the vast majority of our nation’s 
history, as demonstrated by the fact that nearly three 
in four Americans still opposed interracial marriage 
one year after Loving was decided. See Gallup Poll, 
supra. Despite this, “[n jeither the Perez court nor the 
Loving Court was content to permit an 
unconstitutional situation to fester because the 
remedy might not reflect a broad social consensus.” 
Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 
958 n.16 (Mass. 2003).11

Even beyond the context of Loving, this Court has 
refused to credit the maintenance of tradition as a 
rational justification that satisfies the Fourteenth 
Amendment. See Lawrence, 539 U.S. at 579 (“As the 
Constitution endures, persons in every generation 
can invoke its principles in their own search for 
greater freedom.”); see also Windsor, 133 S. Ct. at 
2689, 2689-93 (centuries-long “limitation of lawful 
marriage to heterosexual couples . . . came to be seen

10 California struck down its anti-miscegenation statute in 
Perez v. Sharp, 198 P.2d 17 (Cal. 1948), at a time when a 
majority of states still had anti-miscegenation statutes in place, 
and all of the other courts confronting the question had ruled 
that there was no constitutional right to marry a person of 
another race. See Lenhardt, supra n.5, at 857.

11 Though constitutional principles, not public opinion polls, 
govern these cases, today, 63% of Americans support marriage 
for same-sex couples, see Jennifer Agiesta, Poll: Obama’s 
approval ratings stagnant despite economy, CNN, Feb. 19, 2015, 
a level of support that interracial marriage did not achieve until 
the late-1990s, see Gallup Poll, supra, almost thirty years after 
Loving.



24
[in some states] . . .  as an unjust exclusion . . . .  [and] 
reflects both the community’s considered perspective 
on the historical roots of the institution of marriage 
and its evolving understanding of the meaning of 
equality.”); Harper v. Va. Bd. of Elections, 383 U.S. 
663, 669 (1966) (“[T]he Equal Protection Clause is not 
shackled to the political theory of a particular era.”); 
Bostic, 760 F.3d at 380 (“‘[A]ncient lineage of a legal 
concept does not give it immunity from attack.”’ 
(quoting Heller v. Doe, 509 U.S. 312, 326 (1993)).

Likewise, lower courts have rejected these 
traditionalist arguments in the context of same-sex 
marriage. See, e.g., Bostic, 760 F.3d at 380 
(“Preserving the historical and traditional status quo 
is therefore not a compelling interest that justifies 
the Virginia Marriage Laws.”); Latta, 771 F.3d at 476 
(“[N]either history nor tradition [can] save [the laws] 
from constitutional attack.”) (quoting Lawrence, 539 
U.S. at 577-78). This is because not every tradition 
has constitutional significance. As the Seventh 
Circuit explained in Baskin, there are “harmless” 
traditions, and “mindless” traditions and also 
discriminatory traditions. 766 F.3d at 667. 
“Tradition per se . . . cannot be a lawful ground for 
discrimination -  regardless of the age of the 
tradition.” Id. at 666.

Finally, the demise of the “tradition” of banning 
interracial marriage has been an incredibly positive 
step in terms of helping our society move toward 
greater racial equality. The legalization of such 
marriage, together with the other advances of the 
civil rights movement, has led to a remarkable 
reversal in public opinion. See Gallup Poll, supra 
(“87% of Americans now favor marriage between 
blacks and whites, up from 4% in 1958.”).



25
There is no reason to fear embracing a new, more 

inclusive tradition or to devolve into some 
epistemological debate about the long-term impacts of 
changing established traditions.12 Loving did not 
require definitive proof of what the long-term impact 
of interracial marriage might be, nor could it have. 
Same-sex marriage is now permissible in more states 
than interracial marriage at the time of Loving,13 and 
the sky has not fallen. “[0]ur tradition is to go 
beyond present achievements, however significant, 
and to recognize and confront the flaws and injustices 
that remain.” Parents Lnvolved in Cmty. Schs. v. 
Seattle Sch. Dist. No. 1, 551 U.S. 701, 787 (2007) 
(Kennedy, J., concurring in part and concurring in 
the judgment). That overarching tradition of 
progress and inclusion should rule the day.

B. Loving Rebuffed Arguments About The 
Role Of Judicial Review.

Respondents and their supporters contend that 
federal courts should not decide the propriety of 
banning same-sex marriage, but instead reserve that 
question for the states. The Sixth Circuit revisited 
this argument in various forms. DeBoer, 772 F.3d at 
396 (this case comes down to “who decides” how to 
“handle change”), id. at 419 (“[W]ho are we [federal 
courts] to say?”).

12 But see DeBoer, 772 F.3d at 406 (“Even today, the only 
thing anyone knows for sure about the long-term impact of 
redefining marriage is that they do not know.”).

13 Compare Brief for Petitioners at 22, DeBoer u. Snyder, No. 
14-571 (U.S. Feb. 27, 2015) (“[S]ame-sex couples [are] now 
allowed to marry in thirty-seven states. . . .”), with Loving, 388 
U.S. at 6 (at the time of the oral argument and the subsequent 
decision, “Virginia [was] one of 16 States which prohibit and 
punish marriages on the basis of racial classifications.”).



26
In Loving, Virginia made a very similar claim about 

why federal courts should not scrutinize the “wisdom” 
of interracial marriage bans or engage in “judicial 
legislation.” Loving Virginia Br. at *13. Yet, as noted 
by LDF’s amicus curiae brief in Loving, no one asked 
the courts to engage in such “legislation” — the 
Lovings challenged a specific statute as 
unconstitutional, and it was the state’s burden to 
justify that law. Loving LDF Br. at *13. See also 
Bostic, 760 F.3d at 379-80 (rejecting the state’s 
argument that federalism interests justified 
infringing upon the right to marry); Kitchen, 755 F.3d 
at 1228 (agreeing that striking down the state law at 
issue here would not subvert the federalist, 
democratic process).

Equal protection law locates in the judiciary a 
special responsibility of prodding society to 
reexamine assumptions that are rooted in animus, 
bigotry, and social stereotypes that, in turn, entrench 
social caste. See United States v. Carolene Prods. Co., 
304 U.S. 144, 152 n.4 (1938) (discussing laws that 
restrict political processes or target discrete and 
insular minorities). While all branches of 
government have a role to play in ensuring the equal 
protection of the laws, the judicial branch is best 
situated to safeguard historically subordinated 
groups, including lesbians and gay men, whom 
majoritarian political processes are often unwilling or 
unable to protect against constitutional violations. 
Nixon v. Condon, 286 U.S. 73, 89 (1932) (“[Equal 
protection] lays a duty upon the court to level by its 
judgment these barriers . . . .”).

Nor does the fact that some bans on same-sex 
marriage were brought about by ballot initiative, as 
opposed to legislation, inoculate such laws from



27
constitutional review.14 “[Tjhat [a law] is adopted in 
a popular referendum is insufficient to sustain its 
constitutionality. . . .  A citizen’s constitutional rights 
can hardly be infringed simply because a majority of 
the people choose that it be.” Lucas v. Forty-Fourth 
Gen. Assembly of State of Colo., 377 U.S. 713, 736—37 
(1964). See also City of Cleburne, 473 U.S. at 448 (“It 
is plain that the electorate as a whole, whether hy 
referendum or otherwise, could not order city action 
violative of the Equal Protection Clause, and the City 
may not avoid the strictures of that Clause by 
deferring to the wishes or objections of some fraction 
of the body politic.”) (citations omitted); Romer, 517 
U.S. at 620 (invalidating a state constitutional 
amendment that excluded, gays, lesbians, and 
bisexuals from anti-discrimination protections).15 
The Court has not wavered in weighing in on these 
issues before, and it need not hesitate to fulfill its role 
now.

C. Loving Did Not Link The Right To 
Marry To The Ability To Procreate.

In upholding same-sex marriage bans under 
rational basis review, the Sixth Circuit also reasoned 
that people “need the government’s encouragement to 
create and maintain stable relationships within 
which children may flourish.” DeBoer, 772 F.3d at 
405. This is a variant upon what has come to be

14 But see DeBoer, 772 F.3d at 421 (reasoning that it is better 
to “let the people resolve new social issues like this one,” 
through “customary political processes”).

15 The Sixth Circuit’s passing reference, 772 F.3d at 409, to 
dicta in Schuette v. Coal, to Defend Affirmative Action, 134 S. Ct. 
1623, 1638 (2014), does not change matters, since this is a case 
about the merits of a constitutional issue, not the process by 
which a law was brought about.



28
known as the “responsible procreation” theory, 
although some other amici curiae frame the same 
concept more in terms of child-rearing norms and 
institutions. See Brief of Amicus Curiae Idaho 
Governor, supra, at 7-9.

This Court can readily dispose of this contention. 
Nowhere did Loving link the right to marry to a 
couple’s ability to procreate. Although the Lovings 
happened to have biological children, this Court 
never suggested that its decision rested in any part 
on the Lovings’ intention or ability to procreate. 
Other of this Court’s decisions have made clear that 
the right to marriage is not dependent on the 
capacity for procreation but is, instead, an 
“expression!] of emotional support and public 
commitment.” Turner v. Safley, 482 U.S. 78, 95 
(1987) (holding that incarcerated persons have the 
right to marry); Windsor, 133 S. Ct. at 2689 (same- 
sex couples seek the right to marry to “affirm their 
commitment to one another before their children, 
their family, their friends, and their community . . . 
and so live with pride in themselves and their 
union”).

In the lower courts, the “responsible procreation” 
theory has been regarded as “so full of holes that it 
cannot be taken seriously.” Baskin, 766 F.3d at 656. 
Even the Sixth Circuit acknowledged that “the 
foolish, sometimes offensive, inconsistencies that 
have haunted marital legislation,” include the fact 
that “States allow couples to continue procreating no 
matter how little stability, safety, and love they 
provide the children they already have.” DeBoer, 772 
F.3d at 406.

Moreover, there is simply no support for the 
proposition that removing discriminatory restrictions 
on the right to marry will, in any way, affect existing



29
marital or procreative practices. Indeed,
“[r]ecognizing the right of an individual to marry a 
person of the same sex will not diminish the validity 
or dignity of opposite-sex marriage, any more than 
recognizing the right of an individual to marry a 
person of a different race devalues the marriage of a 
person who marries someone of her own race.” 
Goodridge, 798 N.E.2d at 965.

D. Loving Rejected The Proposition That
Interracial Marriage Bans Applied 
“Equally.”

Some amici curiae continue to contend that 
banning marriage equality does not discriminate on 
the basis of sex because it applies “equally” to men 
and women. See, e.g., Brief of Amicus Curiae Idaho 
Governor, supra, at 18 (“[T]here is already perfect 
formal equality between homosexuals and
heterosexuals.”) (citation and internal quotations 
omitted).

This line of reasoning is particularly audacious, 
given its unambiguous and repeated rejection in the 
context of segregation and interracial marriage. It is 
especially stunning to see this argument revived in 
light of its shameful origins from Plessy v. Ferguson, 
which held that segregation was not discriminatory 
because it applied “equally” to individuals of all races, 
163 IJ.S. 537, 551 (1896). Likewise, in Loving, 
Virginia argued that its anti-miscegenation statutes 
were not discriminatory because a “law forbidding 
marriages between whites and blacks operates alike 
on both races.” Loving Virginia Br. at *17 (quoting 
Cong. Globe, 39th Cong., 1st Sess. 322 (1866)).

Even assuming arguendo that these laws are 
ostensibly facially neutral, because they prohibit both 
men and women from marrying a person of the same



30
sex, this would not undermine a finding of an Equal 
Protection violation. Loving directly “rejected] the 
notion that mere ‘equal application’” of a statute 
somehow evades the protections of the Fourteenth 
Amendment. 388 U.S. at 8. The Court recognized 
that, despite the symmetrical application to members 
of different races, Virginia’s laws operated in a 
racially discriminatory manner because they 
“proscribe [d] generally accepted conduct if engaged in 
by members of different races.” Id. at 11; see also 
Romer, 517 U.S. at 633 (“Equal protection of the laws 
is not achieved through indiscriminate imposition of 
inequalities.” (quoting Sweatt v. Painter, 339 U.S. 
629, 635 (1950); Shelley v. Kraemer, 334 U.S. 1, 22 
(1948))).

As in Loving, this Court must reject the 
contention that there is no sex discrimination in the 
instant cases because the state law here treats men 
and women equally. Loving found that Virginia’s 
anti-miscegenation laws classified -  and 
discriminated against -  persons on the basis of race 
because the legality of a marriage turned on the races 
of the adults seeking to exercise their right to marry 
(i.e., only same-race marriages were permitted). See 
Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1206 (D. 
Utah 2013) (rejecting the state’s argument that its 
prohibition against same-sex marriage applies 
“equally” to both men and women and analogizing 
Loving). The States’ Laws here similarly classify -  
and discriminate against -  persons on the basis of sex 
because the legality of a marriage turns on the sex of 
the adults seeking to exercise their right to marry 
(i.e., only opposite-sex marriages are permitted). It 
also discriminates on the basis of sexual orientation. 
All of these circumstances violate the Equal 
Protection Clause.



31
E. Loving Refused To Credit Theories 

That Interracial Marriage Harmed 
Children Or Society.

The theory that same-sex marriage harms children 
or society, while previously in vogue, has largely been 
abandoned by the states, presumably because it was 
unsuccessful and incorrect. Nevertheless, various 
amici curiae still advance this theory in some form. 
See generally Brief of Amici Curiae 76 Scholars of 
Marriage Supporting Review and Affirmance, DeBoer 
v. Snyder, Nos. 14-556, 14-562, 14-571, 14-574 & 14- 
596 (U.S. Dec. 15, 2015).

In the context of race, these sorts of arguments 
were also once common. Historically, courts and 
opponents of interracial marriage argued that such 
unions harmed children. See, e.g., State v. Jackson, 
80 Mo. 175, 179 (1883) (interracial couples “cannot 
possibly have any progeny”); Lonas v. State, 50 Tenn. 
287, 299 (1871) (interracial couples are “unfit”); Scott 
v. State, 39 Ga. 321, 323 (1869) (biracial children are 
“unnatural,” “sickly,” “effeminate,” and “inferior”).

Indeed, the belief that interracial couples would 
produce damaged children was a key rationale 
proffered by the Virginia Supreme Court in upholding 
an anti-miscegenation statute. Naim, 87 S.E.2d at 
756 (endorsing “the power of the State to regulate the 
marriage relation so that it shall not have a mongrel 
breed of citizens”). Four years later, the Louisiana 
Supreme Court upheld another anti-miscegenation 
statute on the grounds that interracial marriages 
spawned “half-breed children” who “have difficulty in 
being accepted by society” and “are burdened, as has 
been said in another connection, with ‘a feeling of 
inferiority as to their status in the community that 
may affect their hearts and minds in a way unlikely



32
ever to be undone.’” State v. Brown, 108 So. 2d 233, 
234 (La. 1959) (quoting Brown, 347 U.S. at 494).

In defending its anti-miscegenation statutes before 
the Supreme Court in Loving, Virginia cited 
purportedly scientific sources for its contention that 
prohibitions against marriage for interracial couples 
were in the interest of children. These theories took 
various forms, including: (1) assertions that
interracial children might be genetically 
disadvantaged, Loving Virginia Br. at *43 (“[W]here 
two [widely distinct] races are in contact the inferior 
qualities are not bred out, but may be emphasized in 
the progeny . . . .” (internal quotation marks 
omitted)); (2) cultural arguments that only 
monoracial couples could provide a coherent cultural 
heritage necessary for a proper upbringing, id. at 
*44-45 (“[M]uch that is best in human existence is a 
matter of social inheritance, not of biological 
inheritance. Race crossings disturb social 
inheritance.” (internal quotation marks and citations 
omitted)); and (3) sociological claims that interracial 
marriages were more likely to divorce, id. at *45, *47- 
48 (citation omitted).

As LDF stressed at the time, these arguments 
amounted to an “amalgam of superstition, mythology, 
ignorance and pseudo-scientific nonsense summoned 
up to support the theories of white supremacy and 
racial ‘purity.’” Loving LDF Br. at *9-10. Likewise, 
the NAACP argued that these theories were 
“outmoded and unscientific” assumptions “abhorrent 
to both science and jurisprudence,” and “disprove[n]” 
by “[c]ontemprary physical anthropology and human 
genetics. . . .” Loving NAACP Br. at *7.

This Court agreed, rejecting these theories as 
unfounded, post-hoc rationalizations for Virginia’s 
discriminatory marriage laws. Loving, 388 U.S. at 11



33
(“There is patently no legitimate overriding purpose 
independent of invidious racial discrimination which 
justifies this classification.”)- Loving refused to even 
credit Naim’s pseudo-scientific theories, casting them 
aside instead as “obviously an endorsement of the 
doctrine of White Supremacy.” Id. at 7. With time, it 
has become even clearer how blatantly offensive and 
preposterous these theories really are.

Today’s arguments about the purported harm to 
children, families, and heterosexuals are as offensive 
as they were in 1967. They are also patently wrong. 
The overwhelming consensus is that “there is no 
scientific evidence that parenting effectiveness is 
related to parental sexual orientation,” and “the same 
factors” — including family stability, economic 
resources, and the quality of parent-child 
relationships -  “are linked to children's positive 
development, whether they are raised by 
heterosexual, lesbian, or gay parents.” Bostic, 760
F.3d at 383 (internal quotations omitted) (quoting 
amicus brief on behalf of the American Psychological 
Association, American Academy of Pediatrics, 
American Psychiatric Association, National 
Association of Social Workers, and Virginia 
Psychological Association). Indeed, even amici curiae 
in support of Respondents acknowledge that the 
primary study they cite found ‘“no evidence’ that 
allowing same-sex marriage has any effect on U.S. 
heterosexual marriage rates,” although they criticize 
the study’s methodology and plead for more time. 
Brief of Amici Curiae 76 Scholars of Marriage, supra, 
at 13-14. Whatever the pseudoscientific theory du 
jour may be, this Court should not deign to reconsider 
these unsupported and irrational arguments in the 
present case.



34
CONCLUSION

The proud legacy of Loving is deeply relevant to 
this Court’s assessment of the constitutionality of 
laws banning same-sex marriage. Loving’s principles 
transcend the factual confines of that case and 
support a finding in this case that consenting adults 
should not be denied the right to marry solely 
because of their sexual orientation or sex. Logically 
and legally, the arguments against interracial 
marriage and same-sex marriage bear striking 
similarities and fatal flaws. It is hard to imagine 
that their fate will not be the same. Today, Loving 
has been almost universally celebrated, and the 
repugnant theories hurled against interracial couples 
have been largely relegated to the dustbin of history. 
This progress is central to Loving’s promise: that
forms of equality that were once inconceivable can 
become indisputable. There will likewise come a time 
when the rights of lesbian and gay couples to express 
their love and commitment through marriage will no 
longer be subject to debate. Our nation has a 
tremendous capacity to move forward. To ensure the 
equal protection of law, this Court should reverse the 
Sixth Circuit’s decision below.



35

Respectfully submitted,

S h e r r il y n  If il l  
Director-Counsel 

Ja n a i  N e l s o n  
C h r is t in a  S w a r n s  
J in  H e e  L e e  
Ra c h e l  M . K l e i n m a n  
NAACP L e g a l  D e f e n s e  &  

E d u c a t io n a l  F u n d , In c . 
40 Rector Street, 5th Floor 
New York, NY 10006

J o h n  Pa u l  S c h n a p p e r - 
Ca s t e r a s  *

NAACP L e g a l  D e f e n s e  &  
E d u c a t io n a l  F u n d , In c . 

1444 I Street NW 
Washington, DC 20005 
202-682-1300 
jschnapper@naacpldf.org

M a r s h a l l  W . T a y l o r  
Interim General Counsel 

K h y l a D . C r a in e  
NAACP
4805 Mount Hope Drive 
Baltimore, MD 21215

Counsel for Am ici Curiae

March 6, 2015 * Counsel of Record

mailto:jschnapper@naacpldf.org