14-556 LGBT Student Organizations

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NOS. 14-556, 14-562, 14-571 & 14-574

In the Supreme Court of the United States

JAMES OBERGEFELL, ET AL., Petitioners,v.

RICHARD HODGES, Director, Ohio Department ofHealth, ET AL., Respondents.

VALERIA TANCO, ET AL., Petitioners,v.

BILL HASLAM, Governor of Tennessee,ET AL., Respondents.

APRIL DEBOER, ET AL., Petitioners,v.

RICK SNYDER, Governor of Michigan,ET AL., Respondents.

GREGORY BOURKE, ET AL., Petitioners,v.

STEVE BESHEAR, Governor of Kentucky,ET AL., Respondents.

On Writs of Certiorari to the United StatesCourt of ppeals for the Sixth Circuit

BRIEF OF AMICI CURIAE LGBT STUDENTORGANIZATIONS AT UNDERGRADUATE,

GRADUATE, AND PROFESSIONAL SCHOOLSIN SUPPORT OF PETITIONERS

A NDREW MELZER *DEBORAH M ARCUSE D AVID TRACEY SANFORD HEISLER KIMPEL, LLP1350 A VENUE OF THE A MERICAS , 31ST FLOOR NEW Y ORK , NY 10019 (646) 402-5657

AMELZER @SANFORDHEISLER .COM C OUNSEL FOR A MICI C URIAE S TANFORD G RAD Q, ET AL .

M ARCH 6, 2015 * C OUNSEL OF R ECORDSUPREME COURT PRESS ♦ (888) 958-5705 ♦ BOSTON , M ASSACHUSETTS

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... iii

STATEMENT OF INTEREST ................................... 1 SUMMARY OF THE ARGUMENT ........................... 3

I. THE FOURTEENTH A MENDMENT PROTECTSTHE FUNDAMENTAL RIGHT TO TRAVEL ; L AWSTHAT PENALIZE THE EXERCISE OF THISENTRENCHED RIGHT MUST WITHSTANDSTRICT SCRUTINY .............................................. 7

A. It is Firmly Established that the Rightto Travel is Essential to Our Nation’sStatus as a Federal Union .......................... 7

B. State Laws Which Burden or Penalizethe Fundamental Right to InterstateTravel Are Subject to Strict Scrutiny ........ 8

II. N ON-RECOGNITION L AWS IMPOSE M ASSIVE AND UNJUSTIFIABLE PENALTIES ON S AME-SEX COUPLES WHO EXERCISE THEIRFOURTEENTH A MENDMENT RIGHT TOTRAVEL ............................................................ 10

A. The Sixth Circuit’s Cursory AnalysisMisapprehends How Non-RecognitionLaws Burden the Right to Travel ............ 12

B. Non-Recognition Laws Amount to anImpermissible Levy on Same-SexCouples Who Exercise theirConstitutional Right to Resettle inNon-Recognition States ............................ 15


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TABLE OF CONTENTS – Continued

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C. The Only Interest Non-RecognitionLaws Serve Is to Disfavor and ExcludeSame-Sex Spouses, an Interest That IsNeither Legitimate Nor Compelling ........ 22

III. N ON-RECOGNITION L AWS AREP ARTICULARLY BURDENSOME FOR LGBTSTUDENTS ENTERING A MOBILEWORKFORCE , DETERRING THEM FROMPURSUING V ALUABLE TRAINING ANDEMPLOYMENT OPPORTUNITIES ........................ 25

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

APPENDIX ............................................................... 36


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TABLE OF AUTHORITIES

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TABLE OF AUTHORITIES

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CASES

Attorney Gen. of New York v. Soto-Lopez ,476 U.S. 898 (1986) ............................. 7, 9, 10, 21

Baskin v. Bogan ,766 F.3d 648 (7th Cir. 2014) ............................. 17

Bourke v. Beshear,996 F. Supp. 2d 542 (W.D. Ky. 2014) ......... 17, 22

De Leon v. Perry ,975 F. Supp. 2d 632 (W.D. Tex. 2014) ........ 23, 24

Deboer v. Snyder ,772 F.3d 388 (6th Cir. 2014) ............................. 12

Deboer v. Snyder ,973 F. Supp. 2d 757 (E.D. Mich. 2014) . 18, 19, 23

Dunn v. Blumstein ,405 U.S. 330 (1972) ................................. 9, 10, 20

Henry v. Himes ,14 F. Supp. 3d 1036 (S.D. Ohio 2014) .............................. 17, 19, 20, 23

In re Adoption of Doe , 130 Ohio App. 3d 288

(Ohio Ct. App., Summit County 1998) ............. 16 Jernigan v. Crane ,

No. 4:13-CV-00410 KGB, 2014 WL6685391 (E.D. Ark. Nov. 25, 2014) ................... 23

Jones v. Helms ,452 U.S. 412 (1981) ........................................... 22


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TABLE OF AUTHORITIES— Continued

Page

Lawrence v. Texas ,539 U.S. 558 (2003) ........................................... 23

McDowell v. Sapp ,39 Ohio St. 558 (1883) ....................................... 14

Mem’l Hosp. v. Maricopa Cnty .,415 U.S. 250 (1974) ........................... 9, 10, 13, 20

Morgan v. McGhee ,24 Tenn. 13 (1844) ............................................. 14

Noble v. Noble ,299 Mich. 565, 300 N.W. 885 (1941) ................. 14

Obergefell v. Wymyslo ,962 F. Supp. 2d 968 (S.D. Ohio 2013)... 17, 23, 25

Robicheaux v. Caldwell ,No. CIV.A. 13 -5090, 2014 WL 4347099(E.D. La. Sept. 3, 2014) ..................................... 23

Romer v. Evans ,517 U.S. 620 (1996) ........................................... 23

Saenz v. Roe ,526 U.S. 489 (1999) ....................................... 8, 13

Shapiro v. Thompson ,394 U.S. 618 (1969) ........................... 8, 10, 13, 20

Sosna v. Iowa ,419 U.S. 393 (1975) ................................. 8, 22, 24

Speiser v. Randall ,357 U.S. 513 (1958) ........................................... 20

Stevenson v. Gray ,56 Ky. 193 (1856) ............................................... 14


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Tanco v. Haslam ,No. 3:13-CV-01159, 2014 WL 997525

(M.D. Tenn. Mar. 14, 2014) ............... 4, 14, 15, 23 United States v. Guest ,

383 U.S. 745 (1966) ......................................... 7, 8

United States v. Windsor ,133 S. Ct. 2675 (2013) ................................ passim

Washington v. Glucksberg ,521 U.S. 702 (19 97) ............................................. 9

Waters v. Ricketts ,No. 14-cv-00356 (D. Neb. Mar. 2, 2015) ....... 4, 18

Williams v. Fears ,179 U.S. 270 (1900) ........................................... 34

Zablocki v. Redhail ,434 U.S. 374 (19 78) ............................................. 9

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I ................................................. 20

U.S. Const. amend. XIV ..................................... passim

STATUTES

Defense of Marriage Act ........................................... 11

Mich. Comp. Laws § 710.24 ...................................... 16

Or. Rev. Code § 3107.03 ............................................ 16

The Employment Non-Discrimination Act of2013 (Sept. 12, 2013) ................................... 28, 29


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OTHER AUTHORITIES

Americans Favor Federal Job ProtectionsBased On Sexual Orientation and GenderIdentity , Out & Equal (Oct. 30, 2014),http://www.outandequal.org/connect/about/media-announcements/2014-harris-poll/. ........ 31

Articles of Confederation of 1781,art. IV, para. 1. .................................................... 7

Being ‘Out’ on the Job Search and at Work ,Stanford University, http://studentaffairs .stanford.edu/cdc/jobs/jobsearch-out-at-

work. .................................................................. 32Brett Sholtis, Some Med School Grads Fail to

Get Residency , Pittsburgh Post-Gazette,May 26, 2014, http://www.post-gazette .com/news/health/2014/05/26/Some-med-school-grads-fail-to-get-residency/stories/201405260083. ................................................... 26

Br. of 57 Employers and OrganizationsRepresenting Employers as Amici Curiae in Support of Appellees, DeBoer v.

Snyder , 772 F.3d 388 (6th Cir. 2014) (No. 14-1341), 2014 WL 2800890 ...................... 28

Danger Signs for the Academic Job Market inHumanities? , The American Academy of

Arts & Sciences (March 2015), https://www.amacad.org/content/research /dataForumEssay. aspx?i=21673 ....................... 26

http://www.outandequal.org/connect/abouthttp://studentaffairs/http://www.post-gazette/http://www.amacad.org/content/researchhttp://www.outandequal.org/connect/abouthttp://studentaffairs/http://www.post-gazette/http://www.amacad.org/content/research


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David Ihrke, U.S. Census Bureau, P20-574,Reasons for Moving 2012-2013 1 (2014),

available at http://www.census.gov/prod /2014pubs/p20-574.pdf ....................................... 27

Ellen C. Perrin et al., Promoting the Well- Being of Children Whose Parents

Are Gay or Lesbian ,131 Pediatrics e1374 (2013) .................. 17, 18, 21

Gary J. Gates and Frank Newport, LGBTPercentage Highest in D.C., Lowest inNorth Dakota, Gallup (2012), http://www .gallup.com/poll/160517/lgbt-percentage-highest-lowest-north-dakota. aspx. .................. 26

Jamie M. Grant et al., Injustice at Every Turn: A Report of the National TransgenderDiscrimination Survey , 56 (2011) ..................... 29

Jennifer C. Pizer et al., Evidence of Persistentand Pervasive Workplace Discrimination

Against LGBT People: The Need for Federal Legislation Prohibiting Discrimination and Providing for EqualEmployment Benefits ,45 Loy. L. Rev. 715 (2012) ................................. 28

Kentucky Department of Revenue, Same-SexMarried Couples Filing Guidance,Kentucky Tax Alert, Nov. 2013, available athttp://www.revenue.ky.gov/nr/rdonlyres /9ba15c3d-34cc-45fe-bfb6-0d346d93bac5/0/kytaxalertnov2013. pdf ....................................... 16

http://www.census.gov/prodhttp://www/http://www.revenue.ky.gov/nr/rdonlyreshttp://www.census.gov/prodhttp://www/http://www.revenue.ky.gov/nr/rdonlyres


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Kristin Weir, The New Academic Job Market ,9 gradPSYCH Magazine, no. 3, 2011,

available at http://www.apa.org /gradpsych/2011/09/job-market. aspx ................ 26

LGBT Career Development Resources ,Duke University Student Affairs, http://studentaffairs.duke.edu/career/online-tools-resources/lgbt-resources/lgbt-career-development-resources ...................................... 32

LGBT Career Resources , Career Services atUniversity of Pennsylvania,http://www.vpul.upenn.edu/careerservices/affinity/LGBTResources.php ........................... 31

LGBT Career Resources , Cornell UniversityCareer Services, http://www.career .cornell.edu/resources/Diversity/lgbt.cfm ......... 31

LGBT Students and Alumni , Career Center,University of California, Berkeley, https://career.berkeley.edu/Infolab/LGBTdisc.stm ...... 32

LGBT , Teachers College at ColumbiaUniversity, http://www.tc.columbia.edu /

careerservices/index.asp?Id=Resources_Helpful+Websites&info=LGBT#LGBT ~ Job Search ............................... 32

LGBTQ Career Resources , Yale School of Forestry andEnvironmental Studies, http://environment.yale.edu/careers/lgbtq/ ................ 32

http:///reader/full/http://www.apa.orghttp://www.vpul.upenn.edu/careerserviceshttp://www.career/http:///reader/full/http://www.tc.columbia.eduhttp:///reader/full/http://www.apa.orghttp://www.vpul.upenn.edu/careerserviceshttp://www.career/http:///reader/full/http://www.tc.columbia.edu


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LGBTQ Job Search and Career Resources , Virginia Tech, http://www.career.vt.edu /

websites/LGBTQ.html ....................................... 32Memorandum from the Department of Health

and Human Resources on United States v.Windsor to State Health Officials andMedicaid Directors 2 (Sep. 27, 2013),available at http://www.medicaid.gov /Federal-Policy-Guidance/Downloads/SHO-13-006.pdf .......................................................... 17

Michigan Department of Treasury, Same-SexCouples Filing Joint Federal Income TaxReturn Must File Michigan Income TaxReturns as Single Filers, Sep. 19, 2013,available at http://www.michigan.gov /documents/taxes/DOMAnotice_434103_7.pdf ...................................................................... 16

Neli Esipova et al., 381 Million AdultsWorldwide Migrate Within Countries:U.S. one of the most mobile countries inthe world , Gallup.com (May 15, 2013),http://www.gallup.com/poll/162488/381 -

million-adults-worldwide-migrate-within-countries.aspx? utm_source=alert&utm_medium=email&utm_campaign=syndication&utm_content=morelink&utm_term=All%20Gallup%20Headlines .................................. 27

Non-Discrimination Laws: State by StateInformation Map , ACLU, https://www .

http:///reader/full/http://www.career.vt.eduhttp:///reader/full/http://www.medicaid.govhttp:///reader/full/http://www.michigan.govhttp:///reader/full/Gallup.comhttp://www.gallup.com/poll/162488/381https://www/http:///reader/full/http://www.career.vt.eduhttp:///reader/full/http://www.medicaid.govhttp:///reader/full/http://www.michigan.govhttp:///reader/full/Gallup.comhttp://www.gallup.com/poll/162488/381https://www/


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aclu.org/maps/non-discrimination-laws-state-state-information-map. ............................ 30

Ohio Department of Taxation, FilingGuidelines for Taxpayers Filing a Joint orMarried Filing Separately Federal IncomeTax Return With Someone of the SameGender, Information Release 2013-01,Oct. 11, 2013, rev. Dec. 19, 2013, availableat http://www.tax.ohio.gov/Portals/0 /ohio_individual/individual/information_releases/DOMA%20PIT%20Information%20Release%2012-19-

13.pdf. ................................................................ 16Pew Research Center, A Survey of LGBT

Americans Attitudes, Experiences and Values in Changing Times 5 (2013)available at http://www.pewsocialtrends .org/files/2013/06/SDT_LGBT-

Americans_06-2013.pdf. .................................... 28

Promoting the Well-Being of Children Whose Parents Are Gay or Lesbian , 131Pediatrics e1374 (2013) ..................................... 17

Resources for the Lesbian, Gay, Bisexual, andTransgender Communities ,Williams College Career Center,http://careers.williams.edu/resources-for -the-gay-lesbian-bisexual-and-transgender-communities/ ..................................................... 32

U.S. News and World Report Rankings ofRural Medicine Programs, U.S. News and

http://www.tax.ohio.gov/Portals/0http://www.pewsocialtrends/http://careers.williams.edu/resources-forhttp://www.tax.ohio.gov/Portals/0http://www.pewsocialtrends/http://careers.williams.edu/resources-for


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World Report , http://grad-schools.usnews .rankingsandreviews.com/best-graduate

schools/top-medical-schools/ruralmedicine-rankings ............................................................ 33

William Blackstone, 1 William Blackstone,Commentaries (1st ed. 1765) ............................. 7

http://grad-schools.usnews/http://grad-schools.usnews/


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ST TEM ENT OF INTEREST

Amici Curiae are student organizations * at

colleges and universities across the nation. Amicishare a longstanding commitment to foster andprotect the lesbian, gay, bisexual, and transgender(“LGBT”) communities on their campuses. 1 Amiciwear many hats: they organize social events, provideacademic and employment advice, and offer otherguidance and support. They also advocate for non-discrimination laws and policies and social equityand against prejudice on their campuses. Amici’sprimary constituents are LGBT undergraduate,graduate, and professional students enrolled atschools throughout the country, including collegesand universities, law schools, medical schools, andbusiness schools. Because they represent LGBTstudents who stand poised to enter the workforce,

Amici are uniquely equipped to inform the Court ofthe harms which “non-recognition” laws inflict onLGBT Americans who face the prospect of moving toRespondent States to follow employmentopportunities. 2

* Statements of interest for the organizations and a list of individual signatories may be found in Appendix A.

1 The Parties have consented to the filing of this amicus brief.Counsel for Amici authored this brief in its entirety. No personor entity other than Amici , their staff, or their counsel made amonetary contribution to the preparation or submission of thisbrief.

2 Amici support and adopt Petitioners’ position that theFourteenth Amendment requires states to license marriages


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Amici write to highlight how non-recognitionlaws amplify the preexisting discriminatory barriersLGBT individuals already face in obtainingemployment, keeping their jobs, and advancing intheir professions. Members of the LGBT communityreport high rates of employment discrimination,including failure to hire, discrimination in pay andpromotions, sexual harassment, and workplacehostility. Non-recognition laws, like those enacted bythe Respondent States, compound these alreadysignificant obstacles by limiting where validly-married same-sex couples may live, work, and raisetheir children. When circumstances compel same-sexcouples to move to jurisdictions that refuse torecognize their marriages, they and their families

lose essential rights and their lives and relationshipsare plunged into legal limbo. These harms loom largeover the life prospects of graduate and professionalstudents, who are about to join a highly mobile laborforce while at the same time often embarking ontheir most enduring life relationships and startingtheir own families. Non-recognition laws restrict

Amici’s constituents from pursuing clerkships,internships, residencies, research and teachingpositions, and other employment on a fair and equalbasis with their non-LGBT peers, leaving them at adistinct disadvantage in their respective fields. Thisimposes a handicap out of the starting gate that will

between individuals of the same sex (the first question certifiedby this Court), and urge the Court to strike down both marriagebans and non-recognition laws in unison. However, becausenon-recognition laws inflict distinct Constitutional anddignitary harms that Amici are well-positioned to address,

Amici write separately on this topic.


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inevitably exacerbate itself over the course of theircareers, inhibiting not only their own futures butthose of their spouses and children as well. Further,while recent graduates are likely to undertake publicservice projects and opportunities in underservedcommunities, non-recognition laws may well inhibitLGBT graduates from pursuing such endeavors,thereby barring populations in need from access tovaluable resources.

Accordingly, Amici submit this brief in supportof Petitioners’ argument that the right to travelencompassed by the Fourteenth Amendmentrequires states to recognize valid same-sex marriagescontracted in other jurisdictions. The non-recognitionlaws currently in place in fourteen states imposedirect penalties and burdens on same-sex couples’fundamental right to travel. Because non-recognitionlaws do violence to the protections of the Fourteenth

Amendment, they must be relegated to the annals of history.

SUM M RY OF THE RGUM ENT

For married same-sex couples, the cost ofresidency in fourteen states in our Federal Union isimpossibly high: to live in one of these states, same-sex couples must check their marital status—oftenincluding their legal relationships with theirchildren—at the door. States impose this admissionfee through “non-recognition laws,” which strip same-sex spouses and their families of the rights, benefits,


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and responsibilities of civil marriage. 3 This iscertainly no better than depriving married same-sexcouples and their children of dignity, stability, andintegrity by relegating them to “second-tier”marriages, see United States v. Windsor , 133 S. Ct.2675, 2694 (2013): under state non-recognition laws,same-sex couples who are fully married in one stateare stripped of that status merely by taking upresidence in another locale. 4 By exacting such adraconian price, non-recognition laws eviscerate theFourteenth Amendment’s protection of a citizen’sright to travel to and take up residence in a newstate. Such laws present only a Hobson’s choice toLGBT individuals who seek to live in these

jurisdictions.

This Court has long recognized that the right totravel between and among the Sister States isinherent in the very notion of a Federal Union. Thisimplicit right dates back to the Articles ofConfederation and finds its home in multiple clausesof the Constitution, including the Fourteenth

Amendment. The Fourteenth Amendment

3 As of the date of filing, the following states have statutes orconstitutional amendments that refuse to recognize a same-sexmarriage validly licensed by another State: Alabama, Arkansas,Georgia, Kentucky, Louisiana, Michigan, Mississippi, Missouri,Nebraska, North Dakota, Ohio, South Dakota, Tennessee, andTexas. Under an order of the United States District Court forthe District of Nebraska, Nebraska’s prohibition will beenjoined effective March 9. See Waters v. Ricketts , 8:14-cv-00356-JFB-TDT, slip op. at 34 (D. Neb. Mar. 2, 2015).

4 For at least some purposes, the federal government recognizesa marriage valid in the place of celebration. But see TancoPetitioners Br. at 6 n.1.


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specifically encompasses the right to travel to anddwell in any State of the Union. A state infringesupon this elemental right by enacting laws thatpenalize newcomers. Where any law imposes such apenalty on the fundamental right to travel, the lawtriggers strict scrutiny, requiring the state inquestion to demonstrate that the law both furthers acompelling state interest and provides the leastrestrictive means of achieving that end.

Non-recognition laws inflict precisely the type ofharm that this Court has found to be animpermissible burden on the right to travel. Same-sex spouses who move to one of the fourteen stateswith non-recognition laws are instantly stripped of their legally-married status, essentially renderedlegal strangers to each other solely by virtue of theirnew home address. This harm flows directly fromsame-sex couples’ exercise of their constitutionalright to travel. The concrete manifestations of thispenalty range “from the mundane to the profound.”Windsor , 133 S. Ct. at 2694. Among other things,non-recognition laws disturb or destroy healthinsurance coverage, hospital visitation rights, taxbenefits, inheritance rights, marital and spousalevidentiary privileges, and child custody and support

arrangements. In the never planned but alwayspossible event that a relationship breaks down,spouses may be prevented from divorcing andthereby hindered from reordering their lives andaffairs, including the legal and custodial status oftheir children. Apart from dispossessing same-sexcouples and their families of the myriad materialbenefits of marriage, non-recognition laws also inflictdignitary harm by divesting couples and their


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children of the symbolic value of marriage and thelegitimacy that it provides. Yet despite the onerousburden non-recognition laws place on the right totravel, these laws fail to further any legitimategovernmental purpose. Moreover, because they areblanket bans, non-recognition laws cannot beconstrued as narrowly tailored. Accordingly, theselaws fall far short of what strict scrutiny requires.

Non-recognition laws carry especially harshconsequences for same-sex couples compelled torelocate to Respondent States in pursuit ofemployment opportunities. Currently, there are nofederal protections against employmentdiscrimination on the basis of sexual orientation orgender identity. Such discrimination remainsprevalent in workplaces across the country. LGBTindividuals already face significant employmentbarriers because of their sexual orientation,including underemployment, underpayment, andhigh rates of workplace discrimination. Especiallybecause of these baseline disadvantages, LGBTindividuals must be able to freely follow availableemployment opportunities without the risk thatdoing so will nullify their marriages and legalrelationships with their children. LGBT individuals

and their families should not be forced to give up thematerial benefits and symbolic value of marriage inexchange for gainful employment or professionaladvancement.


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I. THE FOURTEENTH AMENDMENT PROTECTS THEFUNDAMENTAL RIGHT TO TRAVEL ; LAWS THATPENALIZE THE EXERCISE OF THIS ENTRENCHEDRIGHT MUST WITHSTAND STRICT SCRUTINY

A. It is Firmly Established that the Right toTravel is Essential to Our Nation’s Status asa Federal Union

The right to travel “occupies a positionfundamental to the concept of our Federal Union. Itis a right that has been firmly established andrepeatedly recognized.” United States v. Guest , 383U.S. 745, 757 (1966). The ability to move freelybetween the states has always been central to theNation’s status as a union of Sister States. TheFounders specifically enumerated the right to travelin the Articles of Confederation, providing that “thepeople of each State shall free[ly] ingress and regressto and from any other State.” Articles ofConfederation of 1781, art. IV, para. 1. Before theFounding, the right to travel can be traced toWilliam Blackstone, 1 William Blackstone,Commentaries *130 (1st ed. 1765) (invoking “thepower of loco-motion, of changing situation, of moving one’s person to whatsoever place one’s owninclination may direct, without imprisonment orrestraint, unless by due course of law.”). Accordingly,this Court has often recognized the “unquestionedhistoric acceptance of the principle of free interstatemigration, and of the important role that principlehas played in transforming many States into a singleNation.” Attorney Gen. of New York v. Soto-Lopez ,476 U.S. 898, 902 (1986) (plurality opinion).


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In light of the unquestioned standing of the rightto travel as a bedrock principle of our Nation, thisCourt for many years saw no need “to ascribe thesource of this right to travel interstate to a particularconstitutional provision.” Shapiro v. Thompson , 394U.S. 618, 630 (1969). Instead, this Court explainedthat the Founders had little reason to specificallyenumerate the right; it is “a right so elementary [it]was conceived from the beginning to be a necessaryconcomitant of the stronger Union the Constitutioncreated.” Guest , 383 U.S. at 758. Eventually,however, the Court clarified that certain“components” of this right find their home in theFourteenth Amendment. Saenz v. Roe , 526 U.S. 489,500-502 (1999). Specifically, the Fourteenth Amend-

ment protects the right to “become a citizen of anyState of the Union by a bona fide residence therein.”Id. at 503. It is axiomatic that all citizens are entitled“to migrate, resettle, find a new job, and start a newlife” in a new state. Shapiro , 394 U.S. at 629.

B. State Laws Which Burden or Penalize theFundamental Right to Interstate Travel AreSubject to Strict Scrutiny

This Court has fashioned a multi-tieredframework for evaluating whether a law offends theConstitution; the most rigorous test is strict scrutiny.Strict scrutiny applies when a law interferes with orburdens a fundamental right, such as the right totravel. See Sosna v. Iowa , 419 U.S. 393, 418 (1975)(“As we have made clear in Shapiro and subsequentcases, any classification that penalizes exercise of theconstitutional right to travel is invalid unless it is

justified by a compelling governmental interest.”);


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see also Washington v. Glucksberg , 521 U.S. 702,719–20 (1997); Zablocki v. Redhail , 434 U.S. 374, 383(1978). Under strict scrutiny, when a state lawpenalizes interstate migration, the state must putforth a compelling governmental interest and mustdemonstrate that the law is narrowly tailored toeffectuate that end. Soto-Lopez , 476 U.S. at 904;Dunn v. Blumstein , 405 U.S. 330, 339 (1972) (“[T]heCourt must determine whether the exclusions arenecessary to promote a compelling state interest.”).

A state law need not expressly regulatemovement to impermissibly burden the right totravel. Rather, a law implicates the right to traveland thereby triggers strict scrutiny “when it actuallydeters such travel, when impeding travel is itsprimary objective, or when it uses any classificationwhich serves to penalize the exercise of that right.”Soto-Lopez , 476 U.S. at 903 (internal citation andquotation marks omitted). This Court’s jurisprudenceconfirms that state laws may be found to imposeimpermissible burdens on the right to travel even inthe absence of “evidence that anyone was actuallydeterred from travelling by the challengedrestriction.” Mem’l Hosp. v. Maricopa Cnty ., 415 U.S.250, 257 (1974). The proper inquiry, then, asks

whether the law operates as a penalty on those whowould exercise the right to travel.

State laws clearly burden the right to travelwhen they deny significant benefits to those whoenter into the state as new residents. See Mem’lHosp ., 415 U.S. at 259 (noting that denials of “fundamental political right[s]” and denials of “thebasic ‘necessities of life’” amount to penalties on the


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right to travel); Soto-Lopez , 476 U.S. at 908 (notingthat a denial of a veterans’ preference for civil service

jobs amounted to a denial of a “significant benefit.”).Indeed, “even temporary deprivations of veryimportant benefits and rights can operate to penalizemigration.” Soto-Lopez , 476 U.S. at 907. This Courthas held that short-term denials of welfare benefits,Shapiro , 394 U.S at 638, non-emergency healthcarefor the indigent, Mem’l Hosp. , 415 U.S. at 261, andthe right to vote, Dunn , 405 U.S. at 342, allimpermissibly burden the right to travel.

II. N ON-RECOGNITION LAWS IMPOSE MASSIVE ANDUNJUSTIFIABLE PENALTIES ON SAME-SEXCOUPLES WHO EXERCISE THEIR FOURTEENTH

AMENDMENT RIGHT TO TRAVEL As set forth above, the freedom to move between

the states inheres in our Federal Union and isprotected by the Fourteenth Amendment. Non-recognition laws erect obstacles that deter andinhibit interstate mobility and do not satisfy strictscrutiny. Such laws inflict unconstitutional penaltieson same-sex spouses and therefore cannot stand.

The Sixth Circuit below fashioned anunprecedentedly narrow definition of the right to

travel and, in doing so, failed to appreciate how non-recognition laws penalize interstate migration. Inactuality, the burden on travel imposed by such lawsupon married same-sex couples is staggering. Whensame-sex spouses enter jurisdictions with non-recognition laws, they are forced to relinquish therights, obligations, and protections of marriage.These myriad rights and benefits affect virtuallyevery aspect of married individuals’ lives and legal


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relations, including their relations with theirchildren. Legally-married same-sex couples and theirchildren are dispossessed of the profound and far-reaching tangible and intangible benefits of marriageas a direct and immediate result of relocating to anon-recognition state. By divesting same-sex couplesof an emotional and legal cornerstone of their lives,namely their hard-won marital status, non-recognition laws penalize these couples’ exercise of the right to travel.

Yet the Respondent States and other states withnon-recognition laws cannot proffer any legitimate

justification for these laws, let alone a compellingone. Cf. Windsor , 133 S. Ct. 2675 (no validconstitutional basis for Section 3 of the Defense ofMarriage Act (“DOMA”), which precluded the federalgovernment from recognizing same-sex marriageslawfully-contracted in the spouses’ home states); id .at 2696 (“no legitimate purpose overcomes thepurpose and effect to disparage and to injure thosewhom the State, by its marriage laws, sought toprotect in personhood and dignity.”). 5 Even if states

5 While the federal DOMA was especially suspect because it“rejected the long-established precept” that determinationsregarding marriage are reserved for the states ( see Windsor at2691-93), non-recognition laws for their part reject the long-established precept that valid marriages from other states aregenerally recognized even if they could not be lawfullycontracted in the relocation state. Like DOMA, state non-recognition laws “divest[ ] married same-sex couples of theduties and responsibilities that are an essential part of marriedlife and that they in most cases would be honored to accept were[non-recognition laws] not in force” Id . at 2695. See also id . at2696.


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could articulate an important interest animatingtheir non-recognition laws, the blanket bans theselaws impose sweep far too broadly to be sustained.

A. The Sixth Circuit’s Cursory AnalysisMisapprehends How Non-Recognition LawsBurden the Right to Travel

In its opinion below, the Sixth Circuit cabinedthe right to travel in a way that is inconsistent withthis Court’s precedent. As a result, the Court of

Appeals completely bypassed the strict scrutinyanalysis it should have employed. A properapplication of this Court’s precedent demonstratesthat non-recognition laws squarely implicate theright to travel and therefore must satisfy thecompelling state interest test.

First, the Sixth Circuit wrongly concluded thatnon-recognition laws do not implicate the right totravel at all because they do “not ban, or for thatmatter regulate, movement into or out of the Stateother than in the respect all regulations createincentives or disincentives to live in one place oranother.” Deboer v. Snyder , 772 F.3d 388, 420 (6thCir. 2014). But the right to travel has never been sohollow as to only protect literal movement. Instead,

as set forth above in Part I.B, supra , a state canimpermissibly interfere with the right to travel in anumber of ways, including when it deters interstatemigration by curtailing the preexisting rights of newcomers. This is not simply an instance of stateshaving different laws or regulations (such as taxrates); instead, non-recognition laws essentiallyoperate retroactively to strip a particular category of citizens of their already-conferred legal status and its


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attendant rights and benefits. Cf. Windsor, supra .Citizens ordinarily carry their marriages with thembetween jurisdictions. 6

Second, the Court of Appeals held that the right

to travel covers only “(1) ‘the right of a citizen of oneState to enter and to leave another State’; (2) ‘theright to be treated as a welcome visitor rather thanan unfriendly alien’ when visiting a second State;and (3) the right of new permanent residents ‘to betreated like other citizens of that State.’” 772 F.3d at420 (quoting Saenz , 526 U.S. at 500). Again, thisCourt has never so limited the right. Rather, Saenzheld that “[t]he ‘right to travel’ . . . embraces at least ”those components. Saenz , 526 U.S. at 500 (emphasisadded). By circumscribing its definition of the rightto travel, the Court of Appeals ignored a well-established component of that right under thisCourt’s longstanding precedent, namely: “the right tomigrate, ‘with intent to settle and abide.’” Mem’lHosp. , 415 U.S. at 255 (quoting Shapiro , 394 U.S. at629).

Third, the Court of Appeals incorrectly premisedits analysis on the fact that states with non-recognition laws also deny marriage to longtimeresident same-sex couples. But as this Court held inMemorial Hospital , the fact that a state law alsoinflicts in-state harm does not necessarily lessen ornegate its burden on interstate travel. 415 U.S. at

6 E.g. , Obergefell v. Wymyslo , 962 F. Supp. 2d 968, 974 (S.D.Ohio 2013) (“The general rule in the United States forinterstate marriage recognition is the ‘place of celebration’ rule,or lex loci contractus , which provides that marriages validwhere celebrated are valid everywhere.”)


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255-56 (finding that a county residency requirementwhich applied to both new and longtime residents of

Arizona constituted an impermissible infringementon interstate travel). Respondent States’ demandthat same-sex spouses forfeit their already-solemnized legally-married status—“a dignity andstatus of immense import,” Windsor , 133 S. Ct. at2692—imposes an obvious and virtually unparalleledburden on these LGBT couples as a condition of theirtaking up residence in a non-recognition state.

If anything, the Court should compare thestates’ treatment of out-of-state same-sex marriagesto their general treatment of out-of-state opposite-sexmarriages. For example, as discussed in the TancoPetitioners’ brief, Tennessee (along with the otherthree Respondent States in the cases at bar) typicallyapplies the doctrine of lex loci contractus to find thatmarriages valid where contracted are also valid inthe Respondent State. 7 From this well-establisheddoctrine, the Respondent States have carved out asingle blanket exception: non-recognition of same-sex

7 See, e.g. , Noble v. Noble , 299 Mich. 565, 300 N.W. 885 (1941)(holding that a marriage valid where contracted will berecognized as valid in Michigan); McDowell v. Sapp , 39 Ohio St.558, 560 (1883) (“It is well settled that the validity of amarriage must be determined from the lex loci contractus . Ifvalid where solemnized, it is valid elsewhere; if invalid there, itis invalid everywhere.”); Stevenson v. Gray , 56 Ky. 193, 194(1856) (“A marriage valid in the country where celebrated willbe held valid in other countries where the parties may bedomiciled, though it would have been invalid by the law of thesubsequent domicile, if it had been originally celebratedthere.”); Morgan v. McGhee , 24 Tenn. 13, 14 (1844) (“Our courtsof justice recognize as valid all marriages of a foreign country, ifmade in pursuance of the forms and usages of that country.”).


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marriages validly obtained in other jurisdictions. 8 Byinappropriately comparing couples in lawful out-of-state same-sex marriages to in-state same-sexcouples, the Sixth Circuit overlooked howRespondent States have affirmatively singled outextant same-sex marriages for differential treatmentin order to deter, if not completely inhibit, migrationof married same-sex couples to their jurisdictions.Non-recognition laws have the purpose and effect of sending a clear message: We don’t want your kind here . Because these laws condition relocation on theforfeiture of one’s marital and familial rights, theybear upon and burden same-sex spouses’constitutionally-protected right to travel, and mustbe analyzed according to the proper constitutional

standard.B. Non-Recognition Laws Amount to an

Impermissible Levy on Same-Sex CouplesWho Exercise their Constitutional Right toResettle in Non-Recognition States

States with non-recognition laws levy anunconstitutional tariff on same-sex couples,nullifying marriages between legally-wedded spousesupon their entry into the jurisdiction. Non-recognition laws may also disrupt the legalrelationship between at least one of the spouses andthe couple’s children. Non-recognition laws thereby

8 As the Tanco petitioners highlight, Tennessee has only everrecognized two exceptions for opposite-sex couples: (1)interracial marriage bans, long regarded as anathema; and (2)non-recognition of marriages based on a case-by-casedetermination that they would constitute a felony under thecriminal law.


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deprive same-sex couples and their families ofnumerous protections, benefits, and obligations.These deprivations follow directly from same-sexcouples’ migration across the borders intoRespondent States.

As the district courts below spelled out in detail,state non-recognition laws inflict numerous materialand dignitary harms on same-sex couples and theirfamilies. For example, as an immediate result ofmigration, non-recognition laws prevent same-sexcouples from adopting children together; 9 deny themcertain state and local tax benefits; 10 deny them

9 Or. Rev. Code § 3107.03; In re Adoption of Doe , 130 Ohio App.3d 288, 292 (Ohio Ct. App., Summit County 1998) (“Based uponthe clear meaning of R.C. 3107.15(A), we find the trial court didnot err in finding the biological mother’s parental rights wouldterminate upon adoption of the child by appellant, a non-stepparent.”); S.J.L.S. v. T.L.S. , 265 S.W.3d 804, 837 (Ky. Ct.

App. 2008) (finding Kentucky law does not permit second-parent adoptions); Mich. Comp. Laws § 710.24.

10 See Kentucky Department of Revenue, Same-Sex MarriedCouples Filing Guidance, Kentucky Tax Alert, Nov. 2013,available at http://www.revenue.ky.gov/nr/rdonlyres/9ba15c3d -34cc-45fe-bfb6-0d346d93bac5/0/kytaxalertnov2013.pdf; MichiganDepartment of Treasury, Same-Sex Couples Filing JointFederal Income Tax Return Must File Michigan Income TaxReturns as Single Filers, Sep. 19, 2013, available athttp://www.michigan.gov/documents/taxes/DOMAnotice_434103

_7.pdf; Ohio Department of Taxation, Filing Guidelines forTaxpayers Filing a Joint or Married Filing Separately FederalIncome Tax Return With Someone of the Same Gender,Information Release 2013-01, Oct. 11, 2013, rev. Dec. 19, 2013,available at http://www.tax.ohio.gov/Portals/0/ohio_individual /individual/information_releases/DOMA%20PIT%20Information%20Release%2012-19-13.pdf.

http://www.revenue.ky.gov/nr/rdonlyres/9ba15c3dhttp://www.michigan.gov/documents/taxes/DOMAnotice_434103http://www.tax.ohio.gov/Portals/0/ohio_individualhttp://www.revenue.ky.gov/nr/rdonlyres/9ba15c3dhttp://www.michigan.gov/documents/taxes/DOMAnotice_434103http://www.tax.ohio.gov/Portals/0/ohio_individual


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access to entitlement programs such as Medicaid; 11and deny them the remedies of loss of consortiumand wrongful death. See Bourke v. Beshear, 996 F.Supp. 2d 542, 546 (W.D. Ky. 2014) (listing statebenefits denied to same sex couples); Henry v.Himes , 14 F. Supp. 3d 1036, 1049-1050 (S.D. Ohio2014) (same); Obergefell v. Wymyslo , 962 F. Supp. 2d968, 980 (S.D. Ohio 2013) (“The benefits of state-sanctioned marriage are extensive, and the injuriesraised and evidenced by Plaintiffs represent just aportion of the harm suffered by same-sex marriedcouples due to Ohio’s refusal to recognize and givethe effect of law to their legal unions.”).

Non-recognition laws inflict particular harm onthe children of same-sex couples. They deprive thesechildren of the stability and social acceptance thatderive from their parents’ legally recognizedmarriages. See Baskin v. Bogan , 766 F.3d 648, 663(7th Cir. 2014) (“Consider now the emotional comfortthat having married parents is likely to provide tochildren adopted by same-sex couples.”); Ellen C.Perrin et al., Promoting the Well-Being of ChildrenWhose Parents Are Gay or Lesbian , 131 Pediatricse1374, e1381 (2013) (“Marriage equality can helpreduce social stigma faced by lesbian and gay parents

11 Memorandum from the Department of Health and HumanResources on United States v. Windsor to State Health Officialsand Medicaid Directors 2 (Sep. 27, 2013), available at http://www.medicaid.gov/Federal-Policy-Guidance/Downloads/SHO -13-006.pdf (“[W]ith respect to Medicaid and [Children’s HealthInsurance Program] CHIP, a state is permitted and encouraged,but not required, to recognize same-sex couples who are legallymarried under the laws of the jurisdiction in which themarriage was celebrated as CHIP.”).

http://www.medicaid.gov/Federal-Policy-Guidance/Downloads/SHOhttp://www.medicaid.gov/Federal-Policy-Guidance/Downloads/SHO


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and their children, thereby enhancing socialstability, acceptance, and support.”).

Non-recognition laws also “bring[ ] financialharm to children of same-sex couples.” Windsor , 133

S. Ct. at 2695. They “raise[ ] the cost of health carefor families by taxing health benefits provided byemployers to their workers’ same-sex spouses[,]” andthey “den[y] or reduce[ ] [Social Security] benefitsallowed to families upon the loss of a spouse andparent.” Id. ; accord Waters v. Ricketts , No. 14-cv-00356, slip op. at 3-7 (D. Neb. Mar. 2, 2015) (findingNebraska’s non-recognition law inflicts upon childrenof same-sex couples the very economic injuriesidentified in Windsor , 133 S. Ct. at 2695, amongother financial and dignitary harms). Denying suchgovernmental benefits to same-sex spouses“undermines . . . one of the central historical basesfor civil marriage, namely, family stability.” Deboerv. Snyder , 973 F. Supp. 2d 757, 764 (E.D. Mich.2014); see Perrin et al., supra , at e1381 (“Marriagesupports permanence and security (the basicingredients for the healthy development ofchildren.)”). 12

These deprivations are equally acute for childrenborn or adopted after the couple’s relocation to a non-recognition jurisdiction. For instance, in Michigan,“children being raised by same-sex couples have only

12 The American Academy of Pediatrics has “conclude[d] that itis in the best interests of children that they be able to partakein the security of permanent nurturing and care that comeswith the civil marriage of their parents, without regard to theirparents’ gender or sexual orientation.” Perrin et al., supra , ate1381.

http:///reader/full/children.)%E4%A9%AE12http:///reader/full/children.)%E4%A9%AE12http:///reader/full/children.)%E4%A9%AE12


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one legal parent and are at risk of being placed in‘legal limbo’ if that parent dies or is incapacitated.”Deboer , 973 F. Supp. at 764. Should the legal parentdie, “the surviving non-legal parent would have noauthority under Michigan law to make legaldecisions on behalf of the surviving children withoutresorting to a prolonged and complicatedguardianship proceeding.” Id. at 771.

Similarly, Ohio prohibits same-sex couples fromplacing both parents’ names on their children’s birthcertificates, denying these couples, “the basiccurrency by which parents can freelyexercise . . . protected parental rights andresponsibilities.” Henry v. Himes , 14 F. Supp. 3d1036, 1050 (S.D. Ohio 2014). As the district courtnoted in Henry :

the birth certificate can be critical toregistering the child in school; determiningthe parents’ (and child’s) right to makemedical decisions at critical moments;obtaining a social security card for the child;obtaining social security survivor benefitsfor the child in the event of a parent’s death;establishing a legal parent-child relation-ship for inheritance purposes in the event ofa parent’s death; claiming the child as adependent on the parent’s insurance plan;claiming the child as a dependent forpurposes of federal income taxes; andobtaining a passport for the child andtraveling internationally.


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Id. Accordingly, non-recognition laws penalize theinterstate migration of same-sex parents by directlyundermining their ability to raise children.

Because the Sixth Circuit adopted a

circumscribed definition of the right to travel, incontravention of this Court’s precedent, it failed toconsider these significant burdens in its analysis.Unlike the temporary deprivations at issue inShapiro , Dunn , and Memorial Hospital , non-recognition laws permanently deprive same sexcouples of a broad spectrum of state benefits andrights. And rather than touching on just one area oflife—e.g. welfare benefits or medical coverage—non-recognition laws touch upon a vast expanse of rightsand obligations, ranging “from the mundane to theprofound.” Windsor , 133 S. Ct. at 2694. Theconstitutional harm imposed by non-recognition lawsis also particularly pronounced because such lawsare tantamount to unconstitutional conditioning of one right upon another. See, e.g., Speiser v. Randall ,357 U.S. 513 (1958) (striking down a California lawfor conditioning receipt of a tax benefit on swearingan oath, in violation of the First Amendment). AsPetitioners have set forth in their principal briefs,marriage is itself a fundamental right. Thus, non-

recognition laws condition one right, the right tomarriage, on the non-exercise of another right, theright to travel. Hence, the strict scrutiny analysisrequired here is even more demanding: when thestate’s infringement upon the right to travel alsoimplicates another constitutionally protected right,such as the right to marry or the right to vote, the


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Court “undertake[s] intensified equal protectionscrutiny of that law.” Soto-Lopez , 476 U.S. at 904. 13

Couples who are married upon departure fromtheir original home states become legal strangers the

moment they set foot in a state with a non-recognition law. The abrupt loss of their maritalstatus and its attendant rights, privileges, andresponsibilities flows directly from their exercise of the right to interstate migration. Where the cost of admission is so high, Respondent States mustdemonstrate that their burdensome laws further acompelling state interest and offer the leastrestrictive means of doing so. Respondent Statescannot meet this standard, and therefore non-recognition laws cannot prevail.

13 Further, by treating a same-sex marriage as a nullity, non-recognition laws can inhibit the right to divorce established inall states. Same-sex spouses’ inability to obtain divorces anddissolve their legal binds would prevent them from moving onwith their lives and, crucially, would jeopardize children of themarriage—who would benefit from resolution of their familyand legal status. Perrin et al., supra , at e1376. Withoutrecognized marriages in their states of residence, same-sexspouses may be unable to secure division of marital property,alimony, child support, or child custody and visitation decrees.Id. Although no one plans on getting divorced, as a practicalmatter, members of same-sex unions—as opposed to theirstraight counterparts—must remain acutely aware of theseconsequences when deciding where to live and raise theirfamilies.


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C. The Only Interest Non-Recognition LawsServe Is to Disfavor and Exclude Same-SexSpouses, an Interest That Is NeitherLegitimate Nor Compelling

The Fourteenth Amendment requires states thatburden the fundamental right to travel to justifytheir actions by presenting a compelling stateinterest and demonstrating that the burdensome lawis narrowly tailored to achieve that end. Non-recognition laws cannot satisfy strict scrutiny.

Previously, this Court has allowed states toburden the right to travel in certain, limitedcircumstances. For example, this Court upheld aGeorgia law that deemed voluntarily abandoning a

minor child to be a misdemeanor, but abandoning achild and then leaving the state to be a felony. SeeJones v. Helms , 452 U.S. 412 (1981). This Courtdeemed a state’s interest in preventing those whocommit crimes from fleeing the jurisdictionsufficiently weighty to allow a burden on the right totravel. Similarly, this Court found a state’s interestin protecting divorce decrees from collateral attack tobe compelling enough to justify a durationalresidency requirement. See Sosna v. Iowa , 419 U.S.393 (1975).

Non-recognition laws do not prevent abuse of the judicial system or deter criminal conduct. Most states justify their same-sex marriage bans as necessary topreserve the “tradition” of marriage between a manand a woman, uphold the integrity of the democraticprocess, and promote intact families. 14 Such

14 See, e.g. , Bourke v. Beshear , 996 F. Supp. 2d 542 (W.D. Ky.

http:///reader/full/families.14http:///reader/full/families.14http:///reader/full/families.14


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rationales, however, are nothing more than“generalized, post hoc, and litigation-reactive

justifications.” Jernigan v. Crane , No. 4:13-CV-00410KGB, 2014 WL 6685391, at *18 (E.D. Ark. Nov. 25,2014). To begin with, as articulated in Petitioners’briefs, none of these rationales would pass evenrational basis review. They reflect little more thanthe majority’s moral disapproval of a disfavoredminority. See Romer v. Evans , 517 U.S. 620, 635(1996); see also Windsor , 133 S. Ct. at 2693-94;Lawrence v. Texas , 539 U.S. 558, 582-83 (2003)(O’Connor, J., concurring). First, if mere traditionwere enough to lock society’s conception of marriagein place, married women would still be the propertyof their husbands, interracial marriage would still be

banned in swathes of the country, and divorce wouldnot exist. Tradition is not to be honored for its ownsake when it exacts a cognizable harm on a class of citizens. Second, judicial review exists precisely tosafeguard individual rights from overweeningmajorities—whether their will is expressed throughtheir elected representatives or by direct plebiscite.Third, the so-called “responsible procreation”rationale is faulty on its face; it serves no rationalend to seek to protect offspring of opposite-sex unionsby limiting marriage to opposite-sex couples (fertile

2014); Henry v. Himes , 14 F. Supp. 3d 1036 (S.D. Ohio 2014);Deboer v. Snyder , 973 F. Supp. 2d 757 (E.D. Mich. 2014); Tancov. Haslam , No. 3:13-CV-01159, 2014 WL 997525 (M.D. Tenn.Mar. 14, 2014); Obergefell v. Wymyslo , 962 F. Supp. 2d 968(S.D. Ohio 2013); see also De Leon v. Perry , 975 F. Supp. 2d 632(W.D. Tex. 2014); Robicheaux v. Caldwell , No. CIV.A. 13-5090,2014 WL 4347099 (E.D. La. Sept. 3, 2014).


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and infertile alike) and by gratuitously harming thechildren of same-sex couples.

Crucially, even these deficient rationales do notrelate to the states’ specific interests in refusing to

recognize validly-contracted marriages from other jurisdictions. In the courts below, the RespondentStates failed to present any separate justificationsfor their non-recognition laws distinct from their

justifications for same-sex marriage bans. 15 The link,for example, between fostering “responsibleprocreation” and stripping spouses and families oftheir existing legal status is so specious as to amountto sheer farce.

The fact that non-recognition laws apply

exclusively to same-sex marriages stronglydemonstrates that they serve no legitimate purpose.If any administrative or budgetary concerns wereserved by nullifying out-of-state marriages—concernswhich would be inadequate under this Court’s rightto travel jurisprudence, see Sosna , 419 U.S. at 406—there would be no reason to distinguish betweencouples on the basis of gender or sexual orientation.

As the Ohio district court pointed out:

for example, under Ohio law, out-of-statemarriages between first cousins arerecognized by Ohio, even though Ohio law

15 The same holds true for other states with non-recognitionbans. See, e.g. , De Leon v. Perry , 975 F. Supp. 2d 632, 662(W.D. Tex. 2014) (“Defendants have not provided any specificgrounds that justify the refusal to recognize lawful, out-of-statesame-sex marriages that is not related to the impermissibleexpression of disapproval of same-sex married couples.”)(internal quotation marks omitted).


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does not authorize marriages between firstcousins. Likewise, under Ohio law, out ofstate marriages [sic] of minors arerecognized by Ohio, even though Ohio lawdoes not authorize marriages of minors.

Obergefell v. Wymyslo , 962 F. Supp. 2d 968, 983(S.D. Ohio 2013). Non-recognition laws thus targetand invalidate same-sex marriages alone. Thislimited scope reveals that the true interest whichnon-recognition laws serve is to deter a disfavoredminority from taking up residence in the enactingstates. Non-recognition laws are tailored to achieveonly one end: fencing out same-sex couples. Animusis not, and has never been, a legitimate stateinterest.

III. N ON-RECOGNITION LAWS ARE PARTICULARLYBURDENSOME FOR LGBT S TUDENTS ENTERING AMOBILE WORKFORCE , DETERRING THEM FROMPURSUING VALUABLE TRAINING AND EMPLOYMENTOPPORTUNITIES

Non-recognition laws fortify the significantbarriers to equal employment that LGBT workersalready confront. LGBT individuals face high rates of workplace discrimination, making it harder for them

to both find and keep gainful employment. TheUnited States is a highly mobile country, in whichcitizens often need to relocate to secure or retain jobopportunities. This is especially the case in thespecialized academic and professional fields pursuedby many of Amici’s constituents. Jobs in these areasare simply not interchangeable and may be hard tocome by. For example, judicial clerkships andmedical residencies are prized commodities that


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frequently take graduates to far-flung locales. 16 Academic postings in particular disciplines may beespecially rare. 17 Although LGBT individuals residein every state in the country, 18 their geographicalflexibility is limited by societal discrimination. Non-recognition laws take this dilemma to an extreme:they force LGBT individuals to choose betweengainful employment and the rights, benefits, anddignity of marriage and family recognition. Wherethe obstacles to employment are already so high, thisHobson’s choice inflicts particularly severe harm.

16 Data shows that the number of medical students exceeds thenumber of available residencies and that the gap is growing.See Brett Sholtis, Some Med School Grads Fail to GetResidency , Pittsburgh Post-Gazette, May 26, 2014, http://www .post-gazette.com/news/health/2014/05/26/Some-med-school-grads-fail-to-get-residency/stories/201405260083.

17 The American Academy of Arts & Sciences reports a “patternof decline” in job postings in the humanities fields, includingEnglish and other languages, history, philosophy, religion, andclassical studies. Danger Signs for the Academic Job Market inHumanities? , The American Academy of Arts & Sciences(March 2015), https://www.amacad.org/content/research/dataForumEssay.aspx?i=21673. Similarly, doctoral candidates inpsychology note increasing difficulty in finding academicpositions. See Kristin Weir, The New Academic Job Market , 9gradPSYCH Magazine, no. 3, 2011, available at http://www.apa .org/gradpsych/2011/09/job-market.aspx. To find such a job,“[f]lexibility is key.” Id . at 18. Yet non-recognition laws inhibitflexibility by limiting the locations where LGBT candidates maypursue work.

18 See Gary J. Gates and Frank Newport, LGBT PercentageHighest in D.C., Lowest in North Dakota, Gallup (2012),http://www.gallup.com/poll/160517/lgbt-percentage-highest -lowest-north-dakota.aspx.

http:///reader/full/locales.16http:///reader/full/locales.16http://www/https://www.amacad.org/content/research/datahttp://www.apa/http://www.gallup.com/poll/160517/lgbt-percentage-highesthttp:///reader/full/locales.16http://www/https://www.amacad.org/content/research/datahttp://www.apa/http://www.gallup.com/poll/160517/lgbt-percentage-highest


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The United States remains an internally mobilecountry. Between 2012 and 2013 alone,approximately 11.7% of the U.S. population moved. 19 The most recent United States Census CommunityPopulation Survey (CPS) reveals that of CPSrespondents who moved, approximately nineteenpercent did so for employment-related reasons. 20 Since 1999, between fifteen and twenty percent of CPS respondents who moved did so for their jobs. 21Petitioners are a prime example: all three of thecouples challenging Tennessee’s same-sex marriageban and non-recognition law married elsewhere andlater moved to the state for employment reasons— pursuing new jobs, being relocated by their employer,or being transferred to another military facility.

When LGBT employees move, they areparticularly burdened with the potentially far-reaching consequences of inconsistent staterecognition of their marriages and familial rights. 22

19 David Ihrke, U.S. Census Bureau, P20-574, Reasons forMoving 2012-2013 1 (2014), available at http://www.census.gov /prod/2014pubs/p20-574.pdf; see also Neli Esipova et al., 381Million Adults Worldwide Migrate Within Countries: U.S. one of the most mobile countries in the world , Gallup.com (May 15,2013), http://www.gallup.com/poll/162488/381-million-adults -

worldwide-migrate-within-countries.aspx?utm_source=alert&utm_medium=email&utm_campaign=syndication&utm_content=morelink&utm_term=All%20Gallup%20Headlines (findingapproximately “one in four U.S. adults (24%) reported movingwithin the country in the past five years.”).

20 Ihrke, supra note 15, at 3.

21 Id. at 5.

22 Businesses are burdened too. As the employer Amici Curiaeargued to the Sixth Circuit below, inconsistent state laws

http:///reader/full/moved.19http:///reader/full/moved.19http:///reader/full/reasons.20http:///reader/full/reasons.20http:///reader/full/rights.22http:///reader/full/rights.22http:///reader/full/http://www.census.govhttp:///reader/full/Gallup.comhttp://www.gallup.com/poll/162488/381-million-adultshttp:///reader/full/moved.19http:///reader/full/reasons.20http:///reader/full/rights.22http:///reader/full/http://www.census.govhttp:///reader/full/Gallup.comhttp://www.gallup.com/poll/162488/381-million-adults


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Unfortunately, such de jure discrimination isfrequently accompanied by de facto discrimination inhiring, promotion, and the terms and conditions ofemployment.

Over the past ten years, LGBT individualsconsistently report high levels of employmentdiscrimination in national surveys. For example, a2013 Pew Research Center survey found that twenty-one percent of LGBT respondents reported “beingtreated unfairly” by their employers because of theirsexual orientation. 23 Similarly, the 2008 GeneralSocial Survey, a nationally representative surveyconducted by the National Opinion Research Centerat the University of Chicago, found that 42% oflesbian, gay, and bisexual respondents reportedhaving experienced employment discriminationbecause of their sexual orientation at some point intheir lives. 24 Twenty-seven percent of LGBT

concerning marriage “become even more serious given themobile nature of today’s workforce, where employees may workin several states, where they must then file taxes anddetermine their eligibility for state benefits.” Br. of 57Employers and Organizations Representing Employers as AmiciCuriae in Support of Appellees, DeBoer v. Snyder , 772 F.3d 388(6th Cir. 2014) (No. 14-1341), 2014 WL 2800890 at *22.

23 Pew Research Center, A Survey of LGBT Americans Attitudes, Experiences and Values in Changing Times 5 (2013)available at http://www.pewsocialtrends.org/files/2013/06 /SDT_LGBT-Americans_06-2013.pdf.

24 Jennifer C. Pizer et al., Evidence of Persistent and PervasiveWorkplace Discrimination Against LGBT People: The Need for Federal Legislation Prohibiting Discrimination and Providingfor Equal Employment Benefits , 45 Loy. L. Rev. 715, 722 (2012);see also Senate Report 113-105, The Employment Non-Discrimination Act of 2013 (Sept. 12, 2013), at p. 15, Part VIII

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respondents had experienced such discrimination inthe past five years. 25

Employment discrimination against transgenderindividuals is even more widespread. A 2010 national

survey of transgender individuals revealed that“90%[ ] of respondents said they had directlyexperienced harassment or mistreatment at work orfelt forced to take protective actions that negativelyimpacted their careers or their well-being, such ashiding who they were, in order to avoid workplacerepercussions.” 26 “78%[ ] of respondents said theyexperienced some type of direct mistreatment ordiscrimination.” 27

Similarly, studies have revealed pronounced

discrimination against LGBT employees in specificgeographic locales. For example, a recent study ofuniversity employees at rural schools in stateslacking LGBT antidiscrimination laws found that“[m]ost participants (76%) had encountered at leastone episode of harassment on the job.” 28 A recent

(a) (same).

25 Id. at 723. Among respondents who were open withcoworkers about their sexual orientation, a majority (56%)reported having experienced discrimination over the course of

their careers, while 38% had experience such discrimination inthe past five years. Id .

26 Jamie M. Grant et al., Injustice at Every Turn: A Report ofthe National Transgender Discrimination Survey , 56 (2011); seealso Senate Report 113-105, The Employment Non-Discrimination Act of 2013 (Sept. 12, 2013), at p. 15, Part VIII(a) (same).

27 Id.

28 Veronica Caridad Rabelo & Lilia M. Cortin, Two Sides of the

http:///reader/full/years.25http:///reader/full/years.25http:///reader/full/years.25


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survey of 215 lesbian, gay, and bisexual residents ofChicago, Illinois also found that “[d]uring the past 24months, 168 (78.1%) participants experienced atleast one instance of enacted stigmatization at work,”such as witnessing offensive remarks, being told toconform to gender stereotypes, or having receivednegative evaluations because of their sexualorientation. 29 Similarly recent surveys oftransgender individuals in California, Utah, andColorado have found that 70%, 67%, and 52%,respectively, of respondents had experiencedemployment discrimination. 30

Recent data also suggests that state laws figureprominently in LGBT workers’ decisions regardingemployment. A 2014 Harris Poll, conducted inpartnership with the organization Out and Equal,found that “three out of five (60%) LGBT adultsprefer a job with an employer in a state where samesex marriages are recognized over an employer in a

Same Coin: Gender Harassment and Heterosexist Harassmentin LGBQ Work Lives , 38 Law and Human Behavior 378, 385(2014).

29 Trevor G. Gates & Christopher G. Mitchell, WorkplaceStigma-Related Experiences Among Lesbian, Gay, and Bisexual Workers: Implications for Social Policy and Practice , 28 Journalof Workplace Behavioral Health 159, 165 (2013).

30 Jennifer C. Pizer et al., 45 Loy. L. Rev. at 722. Currentlythere is no federal legislation prohibiting employmentdiscrimination on the basis of sexual orientation. Moreover,twenty nine states lack state legislation protecting LGBTworkers from employment discrimination. See Non- Discrimination Laws: State by State Information Map , ACLU,https://www.aclu.org/maps/non-discrimination-laws-state-state -information-map.

http:///reader/full/orientation.29http:///reader/full/orientation.29http:///reader/full/discrimination.30https://www.aclu.org/maps/non-discrimination-laws-state-statehttp:///reader/full/orientation.29http:///reader/full/discrimination.30https://www.aclu.org/maps/non-discrimination-laws-state-state


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Similarly, Stanford University counsels students:

If you mention your involvement in theLGBT community on your resume or in the

job interview, you will need to clearly

explain how those experiences aretransferable to the job. The pro is you mayfeel better about being completely honest.However, the con is that whoever isreviewing your resume or conducting a jobinterview may not be gay-friendly, in whichcase you may not even be considered for a

job.34

Both de jure and de facto discrimination figureprominently in the LGBT job search and in the

career advice universities provide to their LGBT34 Being ‘Out’ on the Job Search and at Work , StanfordUniversity, http://studentaffairs.stanford.edu/cdc/jobs/job search-out-at-work. See also LGBT Students and Alumni ,Career Center, University of California, Berkeley,https://career.berkeley.edu/Infolab/LGBTdisc.stm _ (advisingLGBT students on strategies for resume writing andinterviewing); LGBTQ Job Search and Career Resources ,

Virginia Tech, http://www.career.vt.edu/websites/LGBTQ.html (compiling resources); LGBT Career Development Resources ,Duke University Student Affairs, http://studentaffairs.duke .edu/career/online-tools-resources/lgbt-resources/lgbt-career-development-resources (same); Resources for the Lesbian, Gay,Bisexual, and Transgender Communities , Williams CollegeCareer Center, http://careers.williams.edu/resources-for-the -gay-lesbian-bisexual-and-transgender-communities/ (same);LGBTQ Career Resources , Yale School of Forestry andEnvironmental Studies, http://environment.yale.edu/careers /lgbtq/ (same); LGBT , Teachers College at Columbia University,http://www.tc.columbia.edu/careerservices/index.asp?Id =Resources_Helpful+Websites&info=LGBT#LGBT ~ Job Search(same).

http://studentaffairs.stanford.edu/cdc/jobs/jobhttps://career.berkeley.edu/Infolab/LGBTdisc.stmhttp://www.career.vt.edu/websites/LGBTQ.htmlhttp://studentaffairs.duke/http://careers.williams.edu/resources-for-thehttp://environment.yale.edu/careershttp://www.tc.columbia.edu/careerservices/index.asp?Idhttp://studentaffairs.stanford.edu/cdc/jobs/jobhttps://career.berkeley.edu/Infolab/LGBTdisc.stmhttp://www.career.vt.edu/websites/LGBTQ.htmlhttp://studentaffairs.duke/http://careers.williams.edu/resources-for-thehttp://environment.yale.edu/careershttp://www.tc.columbia.edu/careerservices/index.asp?Id


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students. Non-recognition laws, and the attendantinconsistency in state-law rights and privileges,greatly exacerbate these difficult employment issuesand particularly burden students at a critical earlystage in their careers. Being unable to accept aclerkship on the Sixth Circuit, a research position atOak Ridge National Laboratory, or an internshipwith a rural medical program 35 —to cite just a fewexamples—can have a defining impact on one’scareer trajectory. Married students must alreadyconsider the well-being of their spouses and childrenwhen deciding what professional opportunities topursue; they should not face a state-imposed conflictbetween obtaining a job and preserving the dignity,stability, and integrity of the family unit.

35 According to U.S. News and World Report, 6 of the 15 topmedical schools for Rural Medicine are located in non-recognition states, including: #2 (tie)–University of NorthDakota, #5–University of South Dakota (Sanford), #6–EastTennessee State University (Quillen), #9–University ofNebraska Medical Center, #11 (tie)–University of Alabama-Birmingham, and #11 (tie)–University of North Texas HealthScience Center. U.S. News and World Report Rankings of Rural Medicine Programs, U.S. News and World Report , http://grad -schools.usnews.rankingsandreviews.com/best-graduateschools/top-medical-schools/ruralmedicine-rankings (noting that “Throughthese programs, students train to be physicians in rural andunderserved communities.”). Medical students who desire topractice in rural and underserved communities would be apt topursue post-graduate opportunities at or affiliated with suchinstitutions. But as argued in this brief and by Petitioners, non-recognition laws impose barriers to qualified LGBTprofessionals undertaking such endeavors.

http://grad/http://grad/


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CONCLUSION

For well over a century, this Court has endorsedthe Fourteenth Amendment’s firm protection of theright to travel: “Undoubtedly the right of locomotion,the right to remove from one place to anotheraccording to inclination, is an attribute of personalliberty, and the right, ordinarily, of free transit fromor through the territory of any state is a right

secured by the 14th Amendment and by otherprovisions of the Constitution.” Williams v. Fears ,179 U.S. 270, 274 (1900). The right to travelcontemplates unencumbered movement between thestates. Non-recognition laws directly undermine thisfundamental right without serving a legitimate,much less a compelling, purpose. Lacking such

justification, these laws also act as a hobble on LGBTgraduates’ career prospects. Hence, non-recognitionlaws—which inflict particular harm on Amici andtheir constituents—cannot pass constitutional

muster.


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Respectfully Submitted,

A NDREW MELZER Counsel of Record

DEBORAH K. M ARCUSELILA MILLERD AVID TRACEYSANFORD HEISLER KIMPEL, LLP1350 A VENUE OF THE A MERICAS ,31ST FLOORNEW Y ORK , NY 10019(646) 402-5657

AMELZER @SANFORDHEISLER .COM

Counsel for Amici Curiae

Stanford GradQ, et al.

March 6, 2015

Admission to the New York bar pending; practicing under thesupervision of Sanford Heisler Kimpel, LLP partners who aremembers of the New York bar.

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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APPENDIX

ADDITIONAL BACKGROUND INFORMATION ON THE INDIVIDUAL STUDENT GROUPS

COMPRISING THE AMICI CURIAE


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Stanford University GradQ

The Stanford University GradQ is the largeststudent-run organization for LGBTQ graduate andprofessional students at Stanford University.

Founded in 2007, GradQ is dedicated to developing asafe space for LGBTQ graduate students, creating avisible LGBTQ presence in the larger graduatecommunity through networking and communitybuilding, and facilitating communication between theLGBTQ community and the Stanford administration.Representing over 200 queer and allied students,GradQ has a vested interest in creating a world inwhich LGBTQ students feel safe and empowered topursue employment in the location of their choosing.GradQ firmly believes that respect for the dignity ofall our citizens should be a common thread unitingall states in our Union, regardless of their sexualorientation and gender identity.

Cohort Q

Cohort Q is the LGBTQ student organization forthe Boston University Graduate School ofManagement. The organization’s mission is toconnect and support LGBTQ students and allies atBoston University and increase awareness of LGBTQ

issues within the School of Management. To fulfill itsmission, Cohort Q informs LGBTQ students ofevents, career conferences, scholarships, and jobsthat specifically target LGBTQ candidates, andfacilitates networking with other Boston MBAprograms. Cohort Q strongly supports this brief, asthe organization has a fervent interest in ensuringthat the rights of LGBTQ people are protected.Cohort Q agrees that the bans on same-sex marriage


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and “non-recognition” laws violate the Fourteenth Amendment’s guarantees of equal protection and thefundamental right to travel. The bans on same-sexmarriage in many states limit Cohort Q members’ability to seek meaningful employment around thecountry, as we cannot live full lives by leaving ourmarital rights behind. The “non-recognition” lawsdirectly impact Cohort Q members, as imminentbusiness school graduates, particularly with limitedflexibility in the job market. In addition to thediscrimination already faced in the workplace, thenon-recognition laws further alienate andmarginalize LGBTQ people.

Columbia Outlaws

Columbia Outlaws is the LGBTQ studentorganization at Columbia Law School. Our primarygoal is to create a safe space for LGBTQ students todevelop professionally, socially, and academically atthe Law School. Each academic year, we sponsorprogramming to support LGBTQ law students and toadvance opportunities to advocate for the rights ofthe wider LGBTQ community. Because of themarriage non-recognition laws at issue in this case,Outlaws who marry face a difficult choice betweenthe dignity that comes with full legal recognition fortheir families on the one hand — and on the other, afull set of professional opportunities after graduation,including clerkships, fellowships, and other positionsin jurisdictions that refuse to recognize same-sexmarriages. For these reasons, we join this amicusbrief.


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Harvard Law School Lambda

Harvard Law School Lambda is an inclusiveorganization devoted to the support of lesbian, gay,bisexual, transgender, and queer (LGBTQ)

communities and to the advancement of equal rightsfor individuals at Harvard and beyond. We representover 200 Harvard Law School students of all genders,races, socioeconomic statuses, political affiliations,and sexual orientations. At any given point duringthe year, Lambda members are actively engaged inapplying for jobs across the country and makingdecisions regarding employment for the summermonths and beyond. These decisions becomeexponentially more difficult when we must considerin which geographic areas we will be treated asequal. For those of us who are married or who willmarry in the future, same-sex marriage bansconstrict our choices of where to live, work and startour families. We support a decision by the Court thatlifts this barrier and enables members of ourcommunity to make these types of decisions free fromdiscrimination.

The 2014-2015 Executive Board of NYU OUTLaw

The 2014-2015 Executive Board of NYU

OUTLaw, the LGBTQ student organization at New York University School of Law, supports the contentsof this amicus. State laws that forbid recognition of marriages between members of the same sex lawfullyentered into in other states impair the ability of ourcurrent members and alumni to travel freelythroughout the United States. Such laws unfairlylimit the professional opportunities of current NYUOUTLaw members and alumni.


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This statement of interest reflects the views ofthe 2014-2015 Executive Board of NYU OUTLaw,but does not purport to present the institutionalviews of New York University School of Law.

Out in BusinessOut in Business, an organization of MBA

students from the Michael G. Foster School ofBusiness at the University of Washington, aims toposition students as leaders of LGBTQ inclusion inbusiness by providing a welcoming community andraising awareness about the value of equality inbusiness. Out in Business joins this brief to bringattention to the issues at hand while emphasizingthe impacts no-recognition laws have upon same-sexcouples in a mobile and changing businesscommunity.

Stanford OutLaw

Stanford OutLaw is a group that representslesbian, gay, bisexual, transgender, and queerstudents (LGBTQ) at Stanford Law School. Themission of OutLaw includes promoting theparticipation of LGBTQ law students in the lawschool community. OutLaw brings speakers to

campus and hosts discussions of issues that affectLGBTQ law students, including marriage equality,employment discrimination, and accommodations forgender non-conforming students. Because of thepatchwork of same sex marriage laws, OutLawmembers are forced to make an unseemly decisionbetween having their marriages recognized andliving in the state of their choice.


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UCLA OUTlaw Executive Board

UCLA OUTlaw is a coalition of LGBTQ lawstudents at the University of California, Los Angeles.Our membership has a particularly vested interest in

the outcome of this case. Many of our LGBT studentsare married, or hope to one day be married. WhileCalifornia currently recognizes same-sex marriage,many other states refuse to recognize our marriagesas valid.

As law students, we have to decide where wewant to practice law, and in which state we want totake the bar exam after graduation. The legal marketis incredibly competitive, and the ability to expandour geographic options is vital. The legal implications

of these “non-recognition” laws constrain manystudents’ ability to move outside of California upongraduation, limiting our employment options.

The Williams College Queer Student Union QSU)

The Williams College Queer Student Union(QSU) is the student-run group that organizes socialand political programming for queer and trans*students on campus in an attempt to cultivate,nurture, and enrich the queer experience at WilliamsCollege. Representing over six percent of campus, wehope to confront discrimination and marginalizationin an intersectional manner.

Williams College is ranked the #1 college in theUnited States by Forbes magazine and U.S. News .Williams students are driven, passionate, and multi-faceted individuals with a wide variety of skills andhopes for our futures. Many of us, as younggraduates, will live all over the country. It is


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incredibly demeaning that our opportunities aftercollege will be constricted to states in which we canlegally marry.

Yale OutLaws

The Yale OutLaws is an organization of lesbian,gay, bisexual, transgender, and queer (LGBTQ)members of the Yale Law School community. Ourgoals are to provide a community for LGBTQ-identified people within YLS, to provideopportunities and connections for members of the

YLS community who are interested in LGBTQ rights,and to advocate for legal issues of interest to theLGBTQ community. Founded in the early 1970s,OutLaws sponsors speakers, supports activism, hostssocial and other community-building events, andrepresents Yale Law School at LGBTQ legalconferences and events. OutLaws brings the LawSchool community’s attention to issues of specialconcern to LGBTQ students, and serves as a bridgebetween Yale students, law school alumni, and thelegal profession at large. Because of unequalmarriage laws that still exist throughout the UnitedStates, OutLaws members who are married or wishto be married to their same sex partners must weighthe recognition of and dignity afforded to theirrelationships in choosing where to live and work. Forthis reason, we fully support this amicus brief.

14-556 LGBT Student Organizations

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