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Case Nos. 14-1167(L), 14-1169, 14-1173 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT TIMOTHY B. BOSTIC, et al., Plaintiffs-Appellees, and JOANNE HARRIS, JESSICA DUFF, CHRISTY BERGHOFF, AND VICTORIA KIDD, on behalf of themselves and all others similarly situated, Intervenors, v. GEORGE E. SCHAEFER, III, in his official capacity as the Clerk of Court for Norfolk Circuit Court, Defendant-Appellant, and JANET M. RAINEY, in her official capacity as State Registrar of Vital Records, et al., Defendant-Appellant, and MICHELE B. MCQUIGG, in her official capacity as Prince William County Clerk of Circuit Court, et al., Intervenor/Defendant-Appellant. On appeal from the United States District Court for the Eastern District of Virginia, Norfolk Division BRIEF OF AMICI CURIAE IN SUPPORT OF APPELLEES ON BEHALF OF NATIONAL AND WESTERN STATES WOMENS RIGHTS ORGANIZATIONS IRELL & MANELLA LLP BRUCE A. WESSEL MOEZ M. KABA C. MITCHELL HENDY BRIAN EGGLESTON 1800 Avenue of the Stars, Suite 900 Los Angeles, California 90067-4276 Telephone: (310) 277-1010 Facsimile: (310) 203-7199 mkaba@irell.com Counsel for Amici Curiae

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UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus case, except that a disclosure statement is not required from the United States, from an indigent party, or from a state or local government in a pro se case. In mandamus cases arising from a civil or bankruptcy action, all parties to the action in the district court are considered parties to the mandamus case. Corporate defendants in a criminal or post-conviction case and corporate amici curiae are required to file disclosure statements. If counsel is not a registered ECF filer and does not intend to file documents other than the required disclosure statement, counsel may file the disclosure statement in paper rather than electronic form. Counsel has a continuing duty to update this information. 14-1167 No. __________
Bostic, et al. v. Schaefer, et al. Caption: __________________________________________________

Pursuant to FRAP 26.1 and Local Rule 26.1,

California Women's Law Center, Feminist Majority Foundation, Legal Voice, National Organization for ______________________________________________________________________________ (name of party/amicus) Women Foundation ______________________________________________________________________________ amici curiae who is _______________________, makes the following disclosure: (appellant/appellee/petitioner/respondent/amicus/intervenor)

1. 2.

Is party/amicus a publicly held corporation or other publicly held entity?

YES

NO

Does party/amicus have any parent corporations? YES NO If yes, identify all parent corporations, including grandparent and great-grandparent corporations:

3.

Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or other publicly held entity? YES NO If yes, identify all such owners:

10/28/2013 SCC

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4.

Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation (Local Rule 26.1(b))? YES NO If yes, identify entity and nature of interest:

5.

Is party a trade association? (amici curiae do not complete this question) YES NO If yes, identify any publicly held member whose stock or equity value could be affected substantially by the outcome of the proceeding or whose claims the trade association is pursuing in a representative capacity, or state that there is no such member:

6.

Does this case arise out of a bankruptcy proceeding? If yes, identify any trustee and the members of any creditors committee:

YES

NO

s/ Moez M. Kaba Signature: ____________________________________ Amici Curiae Counsel for: __________________________________

April 18, 2014 Date: ___________________

CERTIFICATE OF SERVICE
************************** April 18, 2014 I certify that on _________________ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below:

s/ Moez M. Kaba _______________________________ (signature) - ii -

April 18, 2014 ________________________ (date)

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TABLE OF CONTENTS Page(s) CORPORATE DISCLOSURE STATEMENT ....................................................... i INTEREST OF AMICI CURIAE ............................................................................ 1 A. B. C. D. E. California Womens Law Center ....................................................... 1 Feminist Majority Foundation............................................................ 1 Legal Voice ........................................................................................ 1 National Organization for Women Foundation ................................. 2 Interests of Amici Curiae .................................................................... 3

INTRODUCTION AND SUMMARY OF ARGUMENT ..................................... 4 ARGUMENT .......................................................................................................... 7 VIRGINIAS MARRIAGE RESTRICTION LAW IS UNCONSTITUTIONAL AS IT DISCRIMINATES ON THE BASIS OF SEX AND FAILS TO WITHSTAND THE REQUIRED HEIGHTENED SCRUTINY. ....................................................................... 7 A. The Marriage Restriction Law Is Subject To Heightened Judicial Scrutiny Because It Discriminates On The Basis Of Sex. ..................................................................................................... 7 Virginias Marriage Restriction Law Perpetuates Sex Stereotypes Regarding the Role of Women. .................................... 15 The Marriage Restriction Law Cannot Withstand Heightened Scrutiny. ........................................................................................... 20 Baker v. Nelson Does Not Excuse Sex-Based Discrimination. ....... 22

B. C. D.

CONCLUSION ..................................................................................................... 22 CERTIFICATE OF COMPLIANCE .................................................................... 24 CERTIFICATE OF SERVICE ............................................................................. 25

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TABLE OF AUTHORITIES Page(s) Cases Anderson v. Martin, 375 U.S. 399 (1964)................................................................................ 12 Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) .......................................................................... 9 Baker v. Nelson, 409 U.S. 810 (1972)................................................................................ 22 Baker v. State, 744 A.2d 864 (Vt. 1999) ........................................................................... 9 Bostic v. Rainey, 2014 WL 561978, (E.D. Va. Feb. 13, 2014) .......................................... 18 Brause v. Bureau of Vital Statistics, 3AN-95-6562 CI, 1998 WL 88743 (Alaska Super. Ct. Feb. 27, 1998) ......................................................................................... 11 Caban v. Mohammed, 441 U.S. 380 (1979)................................................................................ 16 Craig v. Boren, 429 U.S. 190 (1976)............................................................................ 7, 21 Frontiero v. Richardson, 411 U.S. 677 (1973)................................................................................ 19 Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) ................................................................ 8 Golinski v. U.S. Office of Personnel Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012) ...................................................... 8 Goodridge v. Dept of Pub. Health, 798 N.E.2d 941 (Mass. 2003) ............................................................. 9, 10

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TABLE OF AUTHORITIES Page(s) Hibbs v. Dept of Human Res., 273 F.3d 844 (9th Cir. 2001) .............................................................. 8, 19 Hollingsworth v. Perry, 133 S. Ct. 2652 (2013)........................................................................ 4, 22 In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011) ..................................................... 9 In re Levenson, 560 F.3d 1145 (9th Cir. Judicial Council 2009) ................................. 8, 11 J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994)...................................................................... 7, 13, 14 Johnson v. California, 543 U.S. 499 (2005)................................................................................ 12 Kirchberg v. Feenstra, 450 U.S. 455 (1981)................................................................................ 20 Li v. State, No. 0403-03057, 2004 WL 1258167 (Or. Cir. Ct. April 20, 2004) ................................................................................................. 11 Loving v. Virginia, 388 U.S. 1 (1967)............................................................................. passim McLaughlin v. Florida, 379 U.S. 184 (1964)................................................................................ 12 Metro Broad., Inc. v. FCC, 497 U.S. 547 (1990)................................................................................ 14 Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982).............................................................. 11, 16, 19, 22 Mitchell v. Commr of the Soc. Sec. Admin., 182 F.3d 272 (4th Cir. 1999) .................................................................... 7

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TABLE OF AUTHORITIES Page(s) Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) .......................................... 8, 15, 16 Shaw v. Reno, 509 U.S. 630 (1993).......................................................................... 11, 12 Shelley v. Kraemer 334 U.S. 1 (1948).................................................................................... 12 United States v. Virginia, 518 U.S. 515 (1996)......................................................................... passim Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) ................................................................. 17 Statutes Va. Code 2045.2........................................................................................... 10 Va. Code 2045.3........................................................................................... 10 Other Authorities Andrew Koppelman, Defending the Sex Discrimination Argument for Lesbian and Gay Rights, 49 U.C.L.A. L. Rev. 519 (2001) ............................................................. 13

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INTEREST OF AMICI CURIAE A. California Womens Law Center

Amicus California Womens Law Center (CWLC), founded in 1989, is dedicated to addressing the comprehensive and unique legal needs of women and girls. CWLC represents women who are committed to ensuring that life opportunities for women and girls are free from unjust social, economic, legal and political constraints. CWLCs priorities on behalf of its members are gender discrimination, womens health, reproductive justice and violence against women. CWLC and its members are firmly committed to eradicating invidious discrimination in all forms. CWLC recognizes that women have historically been the target of invidious discrimination and unequal treatment under the law. B. Feminist Majority Foundation

Amicus Feminist Majority Foundation (FMF) was founded in 1987 as an organization rooted in the belief that feministsincluding women, men, girls, and boysare the majority. FMF is the largest feminist research and action organization dedicated to womens equality, empowerment, and non-violence. FMF supports lesbian, gay, bisexual and transgender rights and is dedicated to advancing the legal, social, and political equality of women and men. C. Legal Voice

Amicus Legal Voice, founded in 1978 as the Northwest Womens Law Center, is a regional nonprofit public interest organization based in Seattle that
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works to advance the legal rights of women through litigation, legislation, education, and the provision of legal information and referral services. Since its founding, Legal Voice has worked to eliminate all forms of sex discrimination, including gender stereotyping. To that end, Legal Voice has a long history of advocacy on behalf of lesbians, gay men, bisexuals, and transgender individuals. Legal Voice has participated as counsel and as amicus curiae in cases throughout the country and is currently involved in numerous legislative and litigation efforts. Legal Voice served on the governing board of Washington United for Marriage, a broad coalition that worked to secure civil marriage for same-sex couples in Washington State. D. National Organization for Women Foundation

Amicus National Organization for Women Foundation (NOW Foundation) is a 501(c)(3) organization devoted to furthering womens rights through education and litigation. For decades, NOW Foundation has advocated for equal rights and full protection of the law for LGBT persons. Established in 1966, NOW Foundation is affiliated with the National Organization for Women (NOW), the largest feminist activist organization in the U.S., including hundreds of chapters in every state and the District of Columbia, with hundreds of thousands of members and contributing supporters. NOW is a leading organization in the effort to recognize in law same-sex couples equal marriage rights.

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E.

Interests of Amici Curiae

Amici submit this brief1 to urge the Court to apply heightened scrutiny to Virginias marriage restrictions on the grounds that they discriminate on the basis of sex and impermissibly perpetuate sex stereotypes. Amici are dedicated to ending sex discrimination and achieving full equality for women and girls. Each amicus has extensive knowledge concerning issues and the history of discrimination based on sex and sex stereotypes. The amici have a particular interest in protecting women and men, including lesbian women and gay men, from sex discrimination and gender-based stereotypes. For these reasons, amici have a strong interest in the present case and in ensuring that laws that discriminate on the basis of sex are subjected to heightened scrutiny. The law at issue here cannot satisfy heightened scrutiny and thus must be struck down as it violates the equal protection guarantee of the U.S. Constitution.

All parties have consented to the filing of this amicus brief. No party, partys counsel, or any person other than amici and their counsel authored any part of this brief or contributed money intended to fund this brief. -3-

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INTRODUCTION AND SUMMARY OF ARGUMENT Appellees are the targets of state-ordered discrimination. They suffer this discrimination because of their sex. Although this Court has not previously held that state marriage bans are subject to heightened scrutiny because they discriminate on the basis of sex, the law in this area has continued to develop. Recently, Justice Kennedy questioned whether Californias marriage ban can be treated as a gender-based classification, revealing that it was a difficult question that [hes] been trying to wrestle with. Transcript of Oral Argument at 13, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (No. 12-144). Amici submit that the answer to Justice Kennedys question is yes: Marriage bans are gender-based classifications that must be subject to heightened scrutiny. Amici further submit that Virginias marriage ban is unconstitutional. It is undisputed that Mr. Bostic is denied the right to be married in Virginia because he is a male who wishes to marry his male partner. It is undisputed that if Mr. Bostic were female, his freedom to marry Mr. London would be guaranteed. It is also undisputed that Ms. Schall is denied recognition of her marriage in Virginia because she is a female who married her female partner. But for Ms. Schalls gender, she would enjoy the unencumbered right to marry her partner and all the privileges of recognition of that marriage. Thus, at core, Virginia strips Appellees of their rights because of their sex. Their dignity is diminished because of their

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sex. Their liberty is restricted because of their sex. Their freedom to enter into intimate associations is restricted because of their sex. They are subject to greater financial burdens because of their sex. The fact that Appellees are also discriminated against because of their sexual orientation in no way diminishes the sex discrimination they suffer. Such sex-based discrimination, while once endorsed by the laws of the United States, is no longer permitted. The law at issue is also based upon and impermissibly perpetuates gender stereotypes. Though guised in language suggesting that the law was designed to celebrat[e] the diversity of the sexes, Bostic v. Rainey, No. 2:13cv395, 2014 WL 561978, *17 (E.D. Va. Feb. 13, 2014) (quoting counsel for IntervenorDefendant-Appellant), defenders of the law continue to rely on claims tied to traditional roles for women and men in the household, and the traditional composition of a household. Thus, proponents of discriminatory marriage laws argue that the freedom to marry must be denied to same-sex couples because they do not fit into this traditional family structure. Such gender stereotyping is patently unconstitutional and is not justified by any important governmental interest necessary to sustain the laws at issue here. Defenders of discriminatory marriage laws have argued that they pass constitutional muster because the laws equally apply to women and to menthat is, the laws equally prohibit women and men from marrying a same-sex partner.

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But the laws clearly serve to disadvantage certain women because they are women who wish to marry other women, and disadvantage certain men because they are men who wish to marry other men. That a law may generally impact both genders does not negate or excuse the constitutional harm suffered by any one individual who is denied equal protection under the law because of her gender. To be sure, if Virginia passed a law barring women from working in certain state government jobs that the Commonwealth deemed traditionally male and, in the same statute, barred men from working in other jobsconstituting the same percentage of the government workforcethat the Commonwealth deemed traditionally female, this Court would recognize such a statute as a classification based on sex that is subject to heightened scrutiny when challenged under the Equal Protection Clause. If a female applicant to one of the prohibited jobs brought suit to overturn the statute, no court would reject her request on the grounds that the statute excludes men from an equal number of jobs. But here, in the arena of marriage, this is exactly what the proponents of Virginias marriage restriction law advocate.2 Under the marriage restriction law, two women are unable to be legally married only because they are women; were one of the two a man, the marriage would be recognized. This is sex discrimination. It does not

The Virginia laws restricting marriage are collectively referred to herein as the marriage restriction law or the marriage ban. -6-

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matter that the law imposes parallel disadvantages on members of both sexes; the actual disadvantage suffered by a particular individual is suffered on the basis of that individuals sex.3 Such discriminatory laws cannot stand under our Constitution. ARGUMENT VIRGINIAS MARRIAGE RESTRICTION LAW IS UNCONSTITUTIONAL AS IT DISCRIMINATES ON THE BASIS OF SEX AND FAILS TO WITHSTAND THE REQUIRED HEIGHTENED SCRUTINY. A. The Marriage Restriction Law Is Subject To Heightened Judicial Scrutiny Because It Discriminates On The Basis Of Sex.

It is well established that sex-based classifications require the application of heightened judicial scrutiny under the Equal Protection Clause. United States v. Virginia, 518 U.S. 515, 534 (1996) (the Equal Protection Clause prohibits discrimination based on sex in the absence of an exceedingly persuasive justification); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 152 (1994) (In over 20 cases beginning in 1971 . . . we have subjected government classifications based on sex to heightened scrutiny.); Mitchell v. Commr of the Soc. Sec. Admin., 182 F.3d 272, 274 (4th Cir. 1999) ([C]ertain quasi-suspect classifications, such as gender . . . , are subject to an intermediate form of scrutiny and will be upheld only

Cf. Craig v. Boren, 429 U.S. 190 (1976) (holding that a state statute that imposed limits on sale of certain alcohol to males under 21 and females under 18 was unconstitutional sex discrimination). -7-

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if substantially related to a sufficiently important government interest. (internal quotation marks omitted)); see also Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011) (discriminating against someone on the basis of his or her gender nonconformity constitutes sex-based discrimination under the Equal Protection clause and applying heightened scrutiny). An increasing number of federal and state courts and judges have recognized that discrimination against gay and lesbian people constitutes sex discrimination.4 See In re Levenson, 560 F.3d 1145, 1147, 1149 (9th Cir. Judicial Council 2009) (Reinhardt, J.) (finding that Section 3 of the Defense of Marriage Act (DOMA) constituted a sex-based distinction and that the claim was likely subject to some form of heightened constitutional scrutiny); Golinski v. U.S. Office of Personnel Mgmt., 824 F. Supp. 2d 968, 982 n.4 (N.D. Cal. 2012) (Ms. Golinski is prohibited from marrying Ms. Cunninghis, a woman, because Ms. Golinski is a woman. If Ms. Golinski were a man, DOMA would not serve to withhold benefits from her. Thus, DOMA operates to restrict Ms. Golinskis access to federal benefits because of her sex.); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 996

To hold that Appellees are not victims of sex discrimination would create a gaping exception to the Courts sex-discrimination jurisprudence. In the future, such a holding would allow statutes that discriminate against women to avoid the intermediate scrutiny applied to sex discrimination so long as the statute also discriminates in some way against men, or so long as the statute can also be cloaked in sexual-orientation discrimination. -8-

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(N.D. Cal. 2010) ([F]or example, Perry is prohibited from marrying Stier, a woman, because Perry is a woman. If Perry were a man, Proposition 8 would not prohibit the marriage. Thus, Proposition 8 operates to restrict Perrys choice of marital partner because of her sex and is subject to heightened scrutiny); In re Balas, 449 B.R. 567, 577-78 (Bankr. C.D. Cal. 2011) (opinion of twenty bankruptcy judges) (DOMA is gender-biased because it is explicitly designed to deprive the Debtors of the benefits of other important federal law solely on the basis that these debtors are two people married to each other who happen to be men. . . . Spouses should be treated equally, whether of the opposite-sex variety or the same-sex variety, under heightened scrutiny . . . .); Goodridge v. Dept of Pub. Health, 798 N.E.2d 941, 971-72 (Mass. 2003) (Greaney, J., concurring) (noting Massachusetts marriage statutes create a statutory classification based on the sex of the two people who wish to marry, and the fact that the classification is sex based is self-evident); Baker v. State, 744 A.2d 864, 905-07 (Vt. 1999) (Johnson, J., concurring in part and dissenting in part) (reasoning that Vermonts marriage laws imposed a sex-based classification that should be reviewed under heightened judicial scrutiny); Baehr v. Lewin, 852 P.2d 44, 66-67 (Haw. 1993) (finding distinction between different-sex couples and same-sex couples to be a sex-based classification subject to heightened scrutiny).

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On its face, the marriage restriction law discriminates on the basis of sex. Indeed, Article I, Section 15-A of the Virginia Constitution (the Marshall/Newman Amendment) provides that [o]nly a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions. The Virginia Code is similarly explicit in discriminating on the basis of sex, as it provides that a marriage or civil union between persons of the same sex is prohibited. Va. Code 2045.2; see also id. 2045.3. The restriction thus makes the right to get married in Virginia dependent upon the sex of the partners in the marriage: If Alan wishes to marry Jane, he may do so and get the full panoply of rights, privileges and obligations the Commonwealth grants to married couples; but if Allison seeks to marry Jane, Virginias laws forbid recognition of her marriage. The only basis for preventing the latter marriage is that Janes partner is a woman rather than a man. See Goodridge, 798 N.E.2d at 971 (Greaney, J., concurring) (Stated in particular terms, Hillary Goodridge cannot marry Julie Goodridge because she (Hillary) is a woman. Likewise, Gary Chalmers cannot marry Richard Linnell because he (Gary) is a man. Only their gender prevents Hillary and Gary from marrying their chosen partners under the present law.). Consequently, the marriage restriction law at issue in this appeal discriminates against Mr. Bostic (for example) and other men on the basis of their

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sex because it denies recognition of their marriages whereas those marriages would be recognized if Mr. Bostic were a woman marrying the same individual. See Virginia, 518 U.S. at 532-33 (the Equal Protection Clause prohibits differential treatment or denial of opportunity based on a persons sex); cf. Loving v. Virginia, 388 U.S. 1, 9 (1967) (holding that Virginias anti-miscegenation law constituted unlawful racial discrimination even though it applied with equal force to blacks and whites). By any measure, this is a sex-based classification. See, e.g., In re Levenson, 560 F.3d at 1147 ([T]he denial of benefits at issue here was sex-based and can be understood as . . . sex discrimination.); Brause v. Bureau of Vital Statistics, 3AN-95-6562 CI, 1998 WL 88743 (Alaska Super. Ct. Feb. 27, 1998) (prohibition on marriage for same-sex couples is a sex-based classification); Li v. State, No. 0403-03057, 2004 WL 1258167 (Or. Cir. Ct. April 20, 2004) (finding that the Oregon marriage statute impermissibly classif[ied] on the basis of gender where [a] woman is denied the benefits [of marriage] because her domestic partner is a woman; had her domestic partner been a man, then benefits would be available to them). Accordingly, heightened judicial scrutiny applies.5

The laws facially discriminate on the basis of gender and are therefore subject to heightened scrutiny regardless of whether they are also motivated by animus towards gays and lesbians. See Miss. Univ. for Women v. Hogan, 458 U.S. 718, 723 (1982) (Because the challenged policy expressly discriminates among applicants on the basis of gender, it is subject to [heightened] scrutiny under the Equal Protection Clause of the Fourteenth Amendment.); cf. Shaw v. Reno, 509 U.S. 630, 642 (1993) (No inquiry into legislative purpose is necessary when the
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It is of no consequence that the laws equally disadvantage or burden both sexes. In Loving v. Virginia, Virginia argued that its anti-miscegenation statute treated the races equally because it burdened both blacks and whites. 388 U.S. at 8. That is, where there is equal burdening of both races, as in Loving (or both sexes, as at issue here), the Commonwealth contended there could be no cognizable discrimination. Id. The Supreme Court disagreed, recognizing that regulating the right to marry on distinctions drawn according to race denied both the white husband and the black wife the equality guaranteed to them by the Fourteenth Amendment.6 Id. at 8-12. Thus, although the anti-miscegenation statute at issue in Loving applied equally to both races, it was subjected to exacting racial classification appears on the face of the statute. . . . Express racial classifications are immediately suspect . . . .). The Loving decision was neither the first nor the last time the Court discredited the equal application notion. See, e.g., Shelley v. Kraemer, 334 U.S. 1, 22 (1948) (rejecting the argument that, because state courts stood ready to enforce covenants barring ownership of property by white persons, state enforcement of restrictive covenants limiting land ownership to whites was not denial of equal protection, noting, [e]qual protection of the laws is not achieved through indiscriminate imposition of inequalities); McLaughlin v. Florida, 379 U.S. 184 (1964) (striking down a law prohibiting cohabitation among unmarried interracial couples, specifically disapproving of the theory that a discriminatory law can be saved merely because it applie[s] equally to those to whom it [is] applicable); Anderson v. Martin, 375 U.S. 399, 404 (1964) (invalidating provision that identified candidates for office by race, rejecting argument that the Act is nondiscriminatory because the labeling provision applies equally to Negro and white); Shaw v. Reno, 509 U.S. 630, 650 (1993) (racial classifications receive close scrutiny even when they may be said to burden or benefit the races equally); Johnson v. California, 543 U.S. 499, 505-06 (2005) (reaffirming that equal application does not justify classification based on suspect class). - 12 6

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constitutional scrutiny, and ruled unconstitutional, because it denied individuals the right to marry the spouse of their choice purely on the basis of race. Id. at 11-12 (In the case at bar . . . we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race.). Just as the Supreme Court rejected the equal application argument in Loving, this Court should not excuse the marriage restriction laws sex-based classifications on the purported grounds that it applies equally to men and women. As the law recognizes that the harm to blacks counts against the miscegenation laws, then for the same reasons, the harm to women should count against antigay laws. Andrew Koppelman, Defending the Sex Discrimination Argument for Lesbian and Gay Rights, 49 U.C.L.A. L. Rev. 519, 529 (2001). In J.E.B. v. Alabama, the Supreme Court struck down sex-based peremptory challenges made in jury voir dire, notwithstanding the fact that sex-based peremptory challenges could be applied equally against men and women. 511 U.S. at 146. The dissent in J.E.B. advanced an argument very similar to the equal application argument proffered by some to defend the Virginia marriage restriction law, namely that since all groups [in this context, women and men] are subject to the peremptory challenge (and will be made the object of it, depending on the nature of the

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particular case) it is hard to see how any group is denied equal protection. Id. at 159 (Scalia, J., dissenting). That argument did not carry the day in J.E.B., and should not be revived here. As Justice Kennedy noted in his concurring opinion, [a]t the heart of the Constitutions guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial [or] sexualclass. Id. at 152-53 (quoting Metro Broad., Inc. v. FCC, 497 U.S. 547, 602 (1990) (OConnor, J., dissenting)). To accept the equal application argument here would be to do exactly what the guarantee of equal protection commands not be donei.e. condone sex-based discrimination against individuals under the flawed rationale that, in the aggregate, all groups are treated similarly. In sum, that Virginias discriminatory marriage restriction law applies to both sexes does not cure its constitutional deficiencies. Like Loving, and the many federal cases that comprise its progeny, this is a case about individualsin this case, individuals who are denied recognition of their marriage to the spouse of their choice, solely because of that individuals sex. This is the sine qua non of sex-based discrimination, and accordingly the marriage restriction law must be subject to a heightened level of judicial scrutiny. The law fails under such heightened scrutiny. See infra Part C.

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B.

Virginias Marriage Restriction Law Perpetuates Sex Stereotypes Regarding the Role of Women.

Appellants attempt to distinguish Loving and the many other cases refusing to use the equal application theory to justify racial classifications by asserting that the discrimination in those cases was based on disapproval of racial mixing and was therefore invidious, while here it is not. See, e.g., Opening Brief of Appellant George E. Schaefer, III at 27-28 (Dkt. # 71) (distinguishing Loving on the grounds that case involved infringing the right to marry based on invidious racial laws). This purported distinction cannot withstand scrutiny. Just as an effort to forestall racial mixing was a key factor in the laws at issue in those cases, gender stereotyping is a key factor in Virginias marriage restriction law. The gender stereotypes undergirding laws restricting marriage to differentsex couples were explored in the litigation surrounding Californias unconstitutional Proposition 8. In that case, the district court in Perry explained that the evidence shows that the tradition of gender restrictions arose when spouses were legally required to adhere to specific gender roles. Perry, 704 F. Supp. 2d at 998. These traditional roles evolved, however, such that California has eliminated all legally mandated gender roles except the requirement that a marriage consist of one man and one woman. Id. The court concluded that Proposition 8 . . . enshrines in the California Constitution a gender restriction that

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the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life. Id. As with Californias Proposition 8, the marriage restriction laws at issue here were impermissibly enacted with specific gender-stereotyped objectives, based on stereotypes that only the traditional familywith a homemaker/caretaker mother and the breadwinner fatheris a socially acceptable or moral form of family life. Without in any way diminishing the virtues of such families, Amici submit that restricting marriage so as to support the traditional family as the only acceptable option in society rests on gender stereotypes and diminishes the equality and dignity of women and men who are denied the right to marry. See Hogan, 458 U.S. at 724-25 (classifications based on fixed notions concerning the roles and abilities of males and females cannot be sustained); Caban v. Mohammed, 441 U.S. 380, 388-89 (1979) (rejecting any universal difference between maternal and paternal relations at every phase of a childs development). Appellants arguments in defense of Virginias marriage restriction laws reveal reliance on such unacceptable stereotypes: In the District Court, as arguments offered in support of Virginias historical regulation of marriage licenses, Defendants noted that the Commonwealth traditionally required the husband to pay the fee of the celebrant and that the occupation of the husband be identified

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in the marriage register. Memorandum of State Defendants Robert F. McDonnell and Janet M. Rainey In Opposition To Plaintiffs Motion for Summary Judgment, No. 5:13-cv-00077, at 2021, 31, 33; see also id. 37 (suggesting that only in 1975 such terms were amended to become more gender neutral in language and more sexually equal in burden, obligations and requirements). Such historical references only support amicis position that the defense of marriage restriction laws is premised on outdated and impermissible stereotypes that a marriage entails a sole breadwinner who must be male. Appellants assertion that restricting marriage to opposite-sex couples encourages a unique . . . ordering of individual, family, group and social responsibilities to support optimal childrearing is similarly laden with now-discredited assumptions rooted in stereotypes as to the proper ordering of males and females in the household. Id. at 37. As Appellees have noted, courts have recognized that such childrearing arguments are based more on stereotype than anything else. Brief i/s/o Plaintiffs Motion for Summary Judgment, No. 5:13-cv-00077, at 25 (quoting Varnum v. Brien, 763 N.W.2d 862, 899 n.26 (Iowa 2009)). In rejecting Appellants attempt to justify the

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marriage restriction laws as promoting stereotypical gender roles in parenting, the District Court correctly found that legislat[ing] a statesanctioned preference for one model of parenting that uses two adults over another model of parenting that uses two adults is constitutionally infirm. Bostic, 2014 WL 561978, at *19. In this Court, defenders of the discriminatory marriage law renew their failed and discredited claims (based in outdated sex stereotypes) that genderless marriage would harm children on the grounds that men and women bring different gifts to the parenting enterprise, and that children benefit from having parents with distinct parenting styles. Appellant McQuiggs Opening Brief at 40 (Dkt. #75) (internal quotation marks and alterations omitted). Virginias marriage restriction is historically rooted in gender-based stereotypes, pursuant to which men were expected to marry women, and women were expected to marry men. This regime was set up because of supposed complementary characteristics, with men held up to strong, masculine ideals and in need of the civilizing influences of women, and with women held to soft, feminine ideals and in need of the protection of men. Virginia may choose to describe this as diversity of the sexes, but it is in fact perpetuation of outdated sex stereotypes. Bostic, 2014 WL 561978, at *17. The marriage restriction law

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manifests a worldview that privileges the union of masculine men with feminine women, based on a view that women (and their children) purportedly need the support and protection of men. Advocates of these laws presume that two women are unable to form an optimal familial relationship because they lack the indispensable masculine and paternal force of a husband. The Equal Protection Clause prohibits Virginia from enshrining in law these precise stereotypical expectations and the outmoded stratification of the genders they enforce.7 See Miss. Univ. for Women, 458 U.S. at 725, 729 (explaining that [c]are must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions and holding that a policy excluding males from admission to the School of Nursing tends to perpetuate the stereotyped view of nursing as an exclusively womans job).
7

In a line of cases spanning from Frontiero v. Richardson, 411 U.S. 677, 685 (1973) (finding equal protection violation in rebuttable presumption of dependency of female military spouses which was based on gross, stereotyped distinctions between the sexes), to Virginia, 518 U.S. at 533 (finding equal protection violation in state military academy that excluded women because it rel[ied] on overbroad generalizations about the different talents, capacities, or preferences of males and females), the Supreme Court has made clear that classifications based on traditional gender stereotypes violate the federal Constitutions Equal Protection Clause. Classifications drawn on the basis of notions of what men and women are likewhat Justice Ginsburg has called supposed inherent differenceshave long been rejected as sex discrimination. Virginia, 518 U.S. at 533; see also Hibbs v. Dept of Human Res., 273 F.3d 844, 865 (9th Cir. 2001) (State actors controlling gates of opportunitymay not exclude qualified individuals based on fixed notions concerning the roles and abilities of males and females. (internal quotation marks and citation omitted)). - 19 -

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C.

The Marriage Restriction Law Cannot Withstand Heightened Scrutiny.

When reviewing state-sponsored gender discrimination, the court must determine whether the proffered justification is exceedingly persuasive. The State must show at least that the challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives. Virginia, 518 U.S. at 531 (internal quotation marks and citations omitted). [T]he burden remains on the party seeking to uphold a statute that expressly discriminates on the basis of sex to advance an exceedingly persuasive justification for the challenged classification. Kirchberg v. Feenstra, 450 U.S. 455, 461 (1981). The Virginia marriage restriction law cannot survive intermediate scrutiny, and its proponents have not even meaningfully sought to establish otherwise. Here, the only plausible governmental interest identified in support of Virginias gender discrimination is founded upon the sex stereotypes and traditional notions of marriage and childrearing discussed above. See, e.g., Appellant McQuiggs Opening Brief at 55-56 (Dkt. #75) (arguing genderless marriage undermines fathers or mothers roles in rearing their children and speculating this would cause fewer husbands to stay with their wives and children). That is, the marriage restriction law discriminates against women (marrying women) because those women are depriving their home of the perceived

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strength and benefit of a male breadwinner. The Supreme Court has already rejected such justifications for sex discrimination. Craig, 429 U.S. at 198-99 ([I]ncreasingly outdated misconceptions concerning the role of females in the home rather than in the marketplace and world of ideas were rejected as loosefitting characterizations incapable of supporting state statutory schemes that were premised upon their accuracy.). Nor is the law supported by any important governmental interest. Apart from reliance on outdated gender stereotypes, why should a female be able to marry Mr. Bostics partner when Mr. Bostic cannot? Appellants cannot offer a public health or safety rationale for the marriage restriction law not based on generalized sex stereotypes. Appellants cannot point to any facts that demonstrate that Appellees sex alone merits differential treatment. The fact is there is no cognizable justification, let alone one that is exceedingly persuasive, for this discriminatory treatment. See Cf. Craig, 429 U.S. at 199 (In light of the weak congruence between gender and the characteristic or trait that gender purported to represent, it was necessary that the legislatures choose either to realign their substantive laws in a gender-neutral fashion, or to adopt procedures for identifying those instances where the sex-centered generalization actually comported with fact.). Without an important government interest or a persuasive justification, the marriage restriction law must fail.

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D.

Baker v. Nelson Does Not Excuse Sex-Based Discrimination.

Baker v. Nelson, 409 U.S. 810 (1972), predates decades of Supreme Court case law teaching that laws utilizing sex-based classifications are given exacting scrutiny. See Transcript of Oral Argument at 12, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (No. 12-144) (Justice Ginsburg noting this fact, remarking I dont think we can extract much from Baker). Since Baker, the Supreme Court has instructed courts reviewing such laws to determine whether the proffered justification is exceedingly persuasive, such that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives. Virginia, 518 U.S. at 533 (quoting Miss. Univ. for Women, 458 U.S. at 724 (other internal quotation marks omitted)). The application of heightened scrutiny is context-specific, and dependent on the actual motivation and tailoring of the challenged policy before the court. As the Supreme Court had not yet determined that sex-based classifications should be tested under this standard when Baker was summarily affirmed, the now well-established jurisprudence in this area establishes that Baker is not relevant to sex discrimination claims. CONCLUSION For the reasons stated herein, amici respectfully submit that the laws of Virginia that deny certain men and certain women the freedom to marry must be

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deemed unconstitutional, as they impermissibly discriminate on the basis of sex, and do so only to perpetuate gender stereotypes. The judgment below should be affirmed. DATED: April 18, 2014 Respectfully submitted, /s/ Moez M. Kaba IRELL & MANELLA LLP BRUCE A. WESSEL MOEZ M. KABA C. MITCHELL HENDY BRIAN EGGLESTON 1800 Avenue of the Stars, Suite 900 Los Angeles, California 90067-4276 Telephone: (310) 277-1010 Facsimile: (310) 203-7199 mkaba@irell.com

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CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Rule 29(d) of the Federal Rules of Appellate Procedure because it has 5,240 words, excluding the parts of the brief exempted by Rule 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Rule 32(a)(5) of the Federal Rules of Appellate Procedure and the type-style requirements of Rule 32(a)(6) of the Federal Rules of Appellate Procedure because this brief has been prepared in a proportionally spaced typeface using Microsoft Office Word 2010, in 14-point Times New Roman font.

/s/ Moez M. Kaba

Dated: April 18, 2014

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CERTIFICATE OF SERVICE I hereby certify that on April 18, 2014, I electronically filed the foregoing with the Clerk of the Court for the U.S. Court of Appeals for the Fourth Circuit by using the appellate CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.

/s/ Moez M. Kaba Moez M. Kaba

Dated: April 18, 2014

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