14-3779 - State of Missouri Reply/Response

8/9/2019 14-3779 - State of Missouri Reply/Response

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Nos. 14-3779; 14-3780

IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

KYLE LAWSON, et al.,

Appellees/Cross-Appellants,

v.

ROBERT KELLY, et al.,

Appellant/Cross-Appellee,

Appeal from the United States District Court, Western Districtof Missouri, The Honorable Ortrie D. Smith

REPLY AND RESPONSE BRIEF OF APPELLANTSTATE OF MISSOURI

JEREMIAH J. MORGANDeputy Solicitor GeneralP.O. Box 899Jefferson City, MO 65102(573) 751-1800; (573) 751-0774 (fax)[email protected]

ATTORNEY FOR APPELLANT STATEOF MISSOURI

Appellate Case: 14-3779 Page: 1 Date Filed: 04/08/2015 Entry ID: 4263060



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TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................................................... ii

ARGUMENT ............................................................................................. 1

I. Citizens for Equal Protection v. Bruning Remains

Controlling. ....................................................................................... 1

II. States Have the Right to Define, Within Constitutional

Limits, Domestic Relationships. ...................................................... 4

III. Windsor Does Not Support Plaintiffs’ Due Process

Argument. ......................................................................................... 6

CONCLUSION .......................................................................................... 9

CERTIFICATE OF COMPLIANCE AND OF SERVICE ....................... 11




ii

TABLE OF AUTHORITIES

CASES

Baker v. Nelson ,

409 U.S. 810 (1972) .............................................................. 5, 6, 8, 9

Banks v. Galbraith ,

51 S.W. 105 (Mo. Div. 2, 1899) ......................................................... 4

Citizens for Equal Protection v. Bruning ,

455 F.3d 859 (8 th Cir. 2006).................................................. 1, 3, 5, 8

Lawrence v. Texas ,

539 U.S. 558 (2003) .................................................................. 2, 8, 9

Loving v. Virginia ,

388 U.S. 1 (1967) .............................................................................. 8 Pennoyer v. Neff ,

95 U.S. 714 (1877) ............................................................................ 5

Robicheaux v. Caldwell ,

2 F.Supp.3d 910 (E.D. La. 2014) .................................................. 2, 6

Romer v. Evans ,

517 U.S. 620 (1996) ...................................................................... 2, 8




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SmithKline Beecham Corp. v. Abbott Labs. ,

740 F.3d 471 (9 th Cir. 2014).............................................................. 1

United States v. Johnson,

448 F.3d 1017 (8 th Cir. 2006) ............................................................ 3

United States v. Windsor ,

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

Washington v. Glucksberg ,

521 U.S. 702 (1997) ...................................................................... 6, 7

Zablocki v. Redhail ,

434 U.S. 374 (1978) .......................................................................... 8

CONSTITUTIONAL AND STATUTORY AUTHORITY

Art. I, § 33, Mo. Const. .............................................................................. 4

Mo. Rev. Stat § 451.022 ............................................................................. 4




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ARGUMENT

I. Citizens for Equal Protection v. Bruning RemainsControlling.

In Citizens for Equal Protection v. Bruning , 455 F.3d 859 (8 th Cir.

2006), this Court held that a state’s definition of marriage as between

one man and one woman “should receive rational-basis review under

the Equal Protection Clause,” and that it passes that level of scrutiny.

Id. at 866. Plaintiffs argue that “ United States v. Windsor , 133 S. Ct.

2675 (2013), abrogates this Court’s decision in Bruning and ‘requires

that heightened scrutiny be applied to equal protection claims involving

sexual orientation.’” Appellees/Cross-Appellants’ Brief, p. 30 (quoting

SmithKline Beecham Corp. v. Abbott Labs. , 740 F.3d 471, 481 (9 th Cir.

2014)). This argument, however, is not supported by Windsor , or any

controlling precedent.

The majority in Windsor did not discuss sexual orientation as

subject to heightened scrutiny. Plaintiffs, in fact, acknowledge that

“Windsor did not explicitly examine the traditional heightened scrutiny

criteria.” Appellees/Cross-Appellants’ Brief, p. 49. And this is

significant. The majority noted in its introductory paragraphs that the

Department of Justice had urged, and the Second Circuit had adopted,




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heightened scrutiny for sexual orientation. Id. at 2683-84. But the

Court did not discuss, much less adopt, heightened scrutiny.

It would have been a simple matter for the Windsor Court to adopt

heightened scrutiny and conclude that the government could not meet

the higher standard of proving a substantial or compelling

governmental interest. Yet, the Court did not. Indeed, the Court did not

quarrel with Justice Scalia’s characterization of its analysis as rational

basis. See id . at 2706, Scalia, J., dissenting , (“I would review this

classification only for its rationality. … As nearly as I can tell, the Court

agrees with that ….”) (internal citations omitted). “If the Supreme

Court meant to apply heightened scrutiny, it would have said so.”

Robicheaux v. Caldwell , 2 F.Supp.3d 910, 917 (E.D. La. 2014) (rejectingnotion that Windsor requires heightened scrutiny).

Likewise, in Romer v. Evans , 517 U.S. 620 (1996), and Lawrence v.

Texas , 539 U.S. 558 (2003), the Supreme Court could have applied a

heightened level of scrutiny to sexual orientation. Instead, the Court in

Romer expressly applied a rational basis test under the Equal

Protection Clause, see id. at 635, and the Court in Lawrence applied the

Due Process Clause with respect to private consensual sex. Lawrence ,




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539 U.S. 578-79. There is no support in Supreme Court precedent for

heightened scrutiny in this case. This Court has likewise never adopted

heightened scrutiny.

Thus, Windsor did not, as Plaintiffs suggest, abrogate or somehow

make the decision in Bruning “not controlling.” Appellees/Cross-

Appellants’ Brief, pp. 30 & 35. Instead, Windsor was about the states’

“responsibilities for the definition and regulation of marriage.” Id. at

2691. The federal government simply cannot unlawfully take away

rights created by the states – including same-sex marriage rights.

The citizens of Missouri have chosen to define marriage as

between one man and one woman, just as Nebraska citizens did. This

Court upheld that decision as rational in Bruning , and this Courtremains bound at this time to uphold that policy decision. See United

States v. Johnson, 448 F.3d 1017, 1018 (8 th Cir. 2006) (noting that

panels are bound by prior decision of the Court unless overruled en

banc ).




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II. States Have the Right to Define, Within ConstitutionalLimits, Domestic Relationships.

Consistent with the traditional power of a state to regulate

domestic relations, see Windsor , 133 S.Ct. at 2680-81, the State of

Missouri, through its legislature and its people, made the policy

decision to define marriage as “between a man and a woman.” Mo.

Const. Art. I, § 33; Mo. Rev. Stat § 451.022 1/; Windsor , 133 S.Ct. at 2691

(concluding that the “‘regulation of domestic relations’ is ‘an area that

has long been regarded as a virtually exclusive province of the States’”);

see also Banks v. Galbraith , 51 S.W. 105, 106 (Mo. Div. 2, 1899). Though

a state’s power to make this policy decision could change in the current

term of the United States Supreme Court, the Supreme Court has not

held that a traditional view of marriage between one man and one

woman violates any constitutional provision. Indeed, the power of a

state to define marriage – and not the federal government – was the

dominant theme of Windsor .

There is no dispute that the Supreme Court in Windsor concluded

that the federal Defense of Marriage Act (DOMA) was an “intervention”

1/ All references to the Missouri Revised Statutes will be to the2013 Cumulative Supplement unless otherwise noted.




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in the area of “state power and authority over marriage” in its refusal to

recognize certain marriages deemed lawful by the state in which the

marriage was contracted. Id . Had the Supreme Court viewed the

definition of marriage in DOMA to be merely a violation of a

fundamental right to marry between consenting persons or the

infringement of a protected classification, the Supreme Court could

have easily said so. The Supreme Court might have also referenced

Baker v. Nelson , 409 U.S. 810 (1972), at least to indicate that it was no

longer controlling on the matter or even that the decision was

inapplicable. But it did not. Instead, its decision was couched in terms

of the rights and powers of the States to define marriage without

federal interference.This Court has likewise held that “the institution of marriage has

always been, in our federal system, the predominant concern of state

government.” Bruning , 455 F.3d at 867. “The Supreme Court long ago

declared, and recently reaffirmed, that a State ‘has absolute right to

prescribe the conditions upon which the marriage relation between its

own citizens shall be created, and the causes for which it may be

dissolved.’ ” Id. (quoting Pennoyer v. Neff , 95 U.S. 714, 734-35 (1877)).




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Under these circumstances, and without further guidance from

the Supreme Court, the State of Missouri is constrained to follow the

policy decisions of its legislature and its citizens.

III. Windsor Does Not Support Plaintiffs’ Due Process Argument.

Much like their arguments under the Equal Protection Clause,

Plaintiffs argue that the Supreme Court’s decisions since Baker ,

including Windsor , changed everything for purposes of the Due Process

Clause, resulting in the “doctrinal development” of a fundamental right

to same-sex marriage. 2/ The Supreme Court will certainly reach this

issue in the near future, but a fair reading of controlling case law leaves

the decision to define marriage squarely with the citizens of the State of

Missouri.

The majority in Windsor did not use the words “fundamental

right,” nor did the majority engage in any analysis as to whether same-

sex marriage is a fundamental right under the Due Process Clause. The

only references to a “fundamental right” in Windsor are made in

2/ “Glucksberg requires a ‘careful description,’” of the assertedfundamental right, “which, here, means that plaintiffs must specificallyassert a fundamental right to same-sex marriage.” Robicheaux , 2F.Supp.3d at 922.




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dissent, and those are only to reaffirm that “[i]t is beyond dispute that

the right to same-sex marriage is not deeply rooted in this Nation’s

history and tradition.” Windsor , 133 S.Ct. at 2715, Alito, J. dissenting,

joined by Thomas, J .

Not only did Justices Alito and Thomas expressly conclude that

same-sex marriage is not deeply rooted in this Nation’s history and

tradition, but Justice Scalia also stated that “the opinion does not argue

that same-sex marriage is ‘deeply rooted in this Nation’s history and

tradition,’ Washington v. Glucksberg , 521 U.S. 702, 720-721, 117 S.Ct.

2258, 138 L.Ed.2d 772 (1997), a claim that would of course be quite

absurd.” Id. at 2706-07, Scalia, J. dissenting, joined by Thomas, J . Chief

Justice Roberts also concluded in his dissent that “[t]he Court does nothave before it, and the logic of its opinion does not decide, the distinct

question whether the States, in the exercise of their historic and

essential authority to define the marital relation, may continue to

utilize the traditional definition of marriage.” Id. at 2696, Roberts, C.J.

dissenting . Thus, the four dissenting Justices in Windsor concluded that

the opinion does not support or address whether same-sex marriage is a

fundamental right. And the majority opinion, written by Justice




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Kennedy, recognized that “[t]he limitation of lawful marriage to

heterosexual couples . . . for centuries had been deemed both necessary

and fundamental[.]”133 S. Ct. at 2689.

Windsor would have provided a perfect opportunity for the

Supreme Court to determine whether same-sex marriage fits within the

fundamental right of marriage. But the Court did not. And this was not

the first time. Five years after deciding Loving v. Virginia , 388 U.S. 1

(1967), the petitioners in Baker v. Nelson , 409 U.S. 810 (1972) argued

that same-sex marriage was a fundamental right under the Due Process

Clause. The Supreme Court decided the issue on the merits, and there

is nothing in the subsequent “doctrinal developments” to suggest that

the Supreme Court has changed its mind. The very fact that Windsordid not conclude, much less analyze or mention, the issue demonstrates

that the law set down in Baker remains controlling.

Likewise, this Court in Bruning , reviewed all of the cases

following Loving that the Plaintiffs rely on to support an alternative

doctrinal development – namely Zablocki v. Redhail , 434 U.S. 374

(1978), Romer v. Evans , 517 U.S. 620 (1996), and Lawrence v. Texas ,

539 U.S. 558 (2003) – and rejected any change in the controlling case




9

law. Indeed, none of the cases mention, much less casts doubt on the

decision in Baker . In the last of those decisions, in fact, Justice

Kennedy, speaking for the majority, expressly recognized that the case

“does not involve whether the government must give formal recognition

to any relationship that homosexual persons seek to enter.”

Lawrence , 539 U.S. at 578.

Thus, a fair reading of controlling precedent, including Windsor ,

indicates that the Supreme Court has yet to reach the issue of whether

same-sex marriage is protected by the Due Process Clause, nor has it

overturned or disavowed Baker .

CONCLUSION

For the foregoing reasons, as well as those set forth in Appellant’sprincipal brief, this Court should reverse the district court, and enter

judgment in favor of the State of Missouri.




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Respectfully submitted,

By: /s/ Jeremiah J. Morgan

Jeremiah J. MorganMo. Bar #50387Deputy Solicitor General207 West High StreetP.O. Box 899Jefferson City, MO 65102-0899Phone: 573-751-1800Fax: [email protected]

ATTORNEY FOR APPELLANTSTATE OF MISSOURI




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CERTIFICATE OF COMPLIANCE AND OF SERVICE

The undersigned hereby certifies that on this 6 th day of April,2015, one true and correct copy of the foregoing brief was served

electronically, and an additional paper copy will be mailed, postageprepaid, to:

Anthony E. Rothert Andrew J. McNulty ACLU of Missouri

Foundation454 Whittier StreetSt. Louis, Missouri 63108

Gillian R. Wilcox ACLU of Missouri

Foundation3601 Main StreetKansas City, Missouri 64111

Joshua A. Block American Civil Liberties

Union125 Broad Street18 th FloorNew York, NY 10004

Attorneys for Appellees/Cross-Appellants

W. Stephen NixonJay D. HadenJackson County Counselor415 East 12 th StreetSecond FloorKansas City, Missouri [email protected]

[email protected]

Attorneys for Defendant Robert Kelly

Deborah J. Dewart620 E. Sabiston DriveSwansboro, NC 28584-9674

Attorney for Amicus CuriaeNorth Carolina Values Coalitionand Liberty, Life, and LawFoundation

Michael F. SmithTHE S MITH A PPELLATE L AW F IRM 1717 Pennsylvania Ave. NW,Ste. 1025Washington, DC 20006

Attorney for Amicus Curiae RyanT. Anderson




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Anthony R. Picarello, Jr.U.S. Conf. of Catholic Bishops3211 Fourth St., N.E.Washington, DC 20017

Alexander DushkuR. Shawn GunnarsonK IRTON │ M CCONKIE 60 E. South TempleSte. 1800Salt Lake City, UT 84111

Carl H. Esbeck

Professor of Law209 Hulston Hall820 Conley RoadColumbia, MO 65211

Attorneys for AmicusCuriae U.S. Conference ofCatholic Bishops; National

Association of Evangelicals;

The Church of Jesus Christof Latter-day Saints; TheEthics & Religious LibertyCommission of theSouthern BaptistConvention; and theLutheran Church-MissouriSynod

Marsha I. StilesMidwest Center for Law &Justice1801 W. Norton Road Suite 202

Springfield, MO 65803

Attorney for Amicus CuriaeMissouri Family Policy Council

James A. CampbellDouglas G. Wardlow

Alliance Defending Freedom15100 N. 90 th Street

Scottsdale, AZ 85260

Attorneys for Amicus Curiae Alliance Defending Freedom

Mary E. McAlisterLiberty CounselP.O. Box 11108Lynchburg, VA 24506

Mathew D. Staver Anita L. StaverHoratio G. MihetLiberty CounselP.O. Box 540774Orlando, FL 32854

Attorneys for Amicus CuriaeLiberty Counsel




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Michael K. WhiteheadWHITEHEAD L AW F IRM , LLC1100 Main StreetSuite 2600

Kansas City, MO 64105

Attorney for Amicus CuriaeMissouri LegislativeLeadership

Gene C. Schaerr332 Constitution Ave. NEWashington, DC 20002

Attorney for Amicus Curiae114 Scholars of Marriage

Lawrence J. Joseph1250 Connecticut Ave.,NW, Suite 200Washington, DC 20036

Attorney for Amicus CuriaeEagle Forum Education &Legal Defense Fund

Carmine D. Boccuzzi, Jr.Mark A. LightnerGrant A. Bermann

Alexandra EberCLEARY G OTTLIEB S TEEN &

H AMILTON LLPOne Liberty PlazaNew York, NY 10006

Attorneys for AmicusCuriae The AmericanSociological Association

Prof. Anderson B. FrancoisHoward University School ofLaw Civil Rights Clinic2400 Sixth Street, N.W.

Washington, DC 20059

Benjamin G. ShatzBrad W. SeilingM ANATT , P HELPS & P HILLIPS ,

LLP11355 West Olympic Blvd.Los Angeles, CA 90064

Attorneys for Amicus Curiae TheHoward University School ofLaw Civil Rights Clinic

Abbe David LowellChristopher D. ManCHADBOURNE & P ARKE LLP1200 New Hampshire Ave., N.W.Washington, DC 20036

Attorneys for Amicus CuriaeOutServe-Servicemembers Legal

Defense Network and The American Military Partner Association




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Susan Baker ManningMichael L. WhitlockJawad MuaddiKimberley E. Lunetta

Jacquelynne M. HamiltonM ORGAN , LEWIS & BOCKIUS

LLP2020 K Street, N.W.Washington, DC 20006

Attorneys for AmicusCuriae 24 Employers

Ayesha N. Khan Alex J. Luchenitser1901 L Street, NWSuite 400Washington, DC 20036

Charles A. RothfeldMiriam R. NemetzRicahrd B. Katskee

Scott M. NoveckM AYER BROWN LLP1999 K Street, NWWashington, DC 20006

Hannah Y.S. ChanoineM AYER BROWN LLP1221 Avenue of the

AmericasNew York, NY 10020

Attorneys for AmicusCuriae Americans United

for Separation of Churchand State

Wade J. HendersonLisa M. BornsteinTHE LEADERSHIP CONFERENCE ON

C IVIL AND H UMAN R IGHTS

1629 K Street, NW10 th FloorWashington, DC 20006

Matthew M. Hoffman Andrew HudsonG OODWIN P ROCTER LLP901 New York Ave., N.W.Washington, DC 20001

Attorneys for Amicus Curiae TheLeadership Conference on Civiland Human Rights and TheLeadership ConferenceEducation Fund

Adam P. RomeroTHE W ILLIAMS INSTITUTE

UCLA SCHOOL OF

L AW

385 Charles E. Young DriveLos Angeles, CA 90095

Attorneys for Amicus CuriaeGary J. Gates




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Geoffrey R. StoneTHE U NIVERSITY OF

CHICAGO L AW S CHOOL 1111 E. 60 th Street

Chicago, IL 60637

Diane M. SoublyS TEVENSON K EPPELMAN

A SSOCIATES 444 S. Main

Ann Arbor, MI 48104

Lori Alvino McGill

Q UINN E MANUEL U RQUHART& S ULLIVAN LLP777 6 th Street, NW11 th FloorWashington, DC 20001-3706

Attorneys for AmicusCuriae Constitutional Law

ScholarsCatherine E. StetsonErica Knievel SongerMary Helen WimberlyMadeline H. GitomerKatherine J. DuncanH OGAN LOVELLS US LLP555 Thirteenth Street, NWWashingtonn, DC 20004

Attorneys for AmicusCuriae Historians of

Antigay Discrimination

Thomas E. NanneyBRYAN C AVE LLP1200 Main Street, Suite 3800Kansas City, MO 64105

Brian C. WalshBRYAN C AVE LLP211 N. Broadway, Suite 3600St. Louis, MO 63102

Attorneys for Amicus CuriaeFamily Equility Council andColage

Denise D. LiebermanPROMO6047 Waterman Blvd.St. Louis, MO 63112

Shane K. BlankKeith PriceS ANDBERG P HOENIX & VON

GONTARD

, P.C.600 Washington Ave.

15 th FloorSt. Louis, MO 63101

Attorneys for PROMO




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Camilla B. TaylorKyle A. PalazzoloL AMBDA LEGAL D EFENSE

AND E DUCATION F UND , INC .

105 West AdamsSuite 2600Chicago, IL 60603-6208

Michael A. PontoChristopher H. DolanEmily E. ChowChristiana M. MartensonF AEGRE B AKER D ANIELS

LLP2200 Wells Fargo Center90 South Seventh StreetMinneapolice, MN 55402

Attorneys for AmicusCuriae Janet Jorgensenand Cynthia Phillips

Joesph P. LombardoEric S. SilvestriBrittany L. ViolaSara T. GhadiriCHAPMAN AND CUTLER LLP111 W. Monroe StreetChicago, IL 60603

Attorneys for AmicusCuriae Legal Scholars

Pratick A. Shah A KIN G UMP S TRAUSS H AUER &

F ELD LLP1333 New Hampshire Ave., NW

Washington, DC 20036

Daniel McNeel Lane, Jr. A KIN G UMP S TRAUSS H AUER &

F ELD LLP300 Convent StreetSuite 1600San Antonio, TX 78205

Jessica M. Weisel A KIN G UMP S TRAUSS H AUER &

F ELD LLP2029 Century Park EastSuite 2400Los Angeles, CA 90067

Attorneys for Amicus CuriaeHistorians of Marriage




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J. Michael BridgesH USCH BLACKWELL LLP901 St. Louis StreetSuite 1800

Springfield, MO 65806

Winston Calvert, CityCounselor

City of St. Louis1200 Market StreetCity Hall, Room 314St. Louis, MO 63103

William Geary, City AttorneyCity of Kansas City28 th Floor, City Hall414 E. 12 th StreetKansas City, MO 64106

Attorneys for AmicusCuriae Mayors Francis

Slay, Sly James, ShelleyWelsch, Kyle Dorian, ChrisColeman & PeterLindstrom

Jeffrey S. TrachtmanNorman C. SimonJason M. MoffKurt M. Denk

Michelle Ben-DavidCatherine HogeK RAMER LEVIN N AFTALIS &

F RANKEL LLP1177 Avenue of the AmericasNew York, NY 10036

Attorneys for Amicus Curiae President of the House of

Deputies of the Episcopal Churchand the Episcopal Bishops ofMissouri and Nebraska; GeneralSynod of the United Church ofChrist; ReconstructionistRabbinical Association;Reconstructionist RabbinicalCollege and JewishReconstructionist Communities;

Union for Reform Judaism;Unitarian Universalist Association; Affirmation;Convenant Network of

Presbyterians; Friends forLesbian, Gay, Bisexual,Transgender, and QueerConcerns; Methodist Federation

for Social Action; More Light Presbyterians; Muslims for Progressive Values; Parity;Reconciling Ministries Network;Reconciling Works; Lutherans forFull Participation; and ReligiousInstitute, Inc.




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The undersigned further certifies that the foregoing brief complieswith the limitations contained in Rule 32(a)(5) and 32(a)(6), and thatthe brief contains 1,681 words. The undersigned further certifies that

the electronically filed brief has been scanned for viruses and are virus-free.

/s/ Jeremiah J. MorganDeputy Solicitor General

Documents

14-3779 - State of Missouri Reply/Response