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NO. 14-60837
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
CAMPAIGN FOR SOUTHERN EQUALITY; REBECCA BICKETT;
ANDREA SANDERS; JOCELYN PRITCHETT; CARLA WEBB,
Plaintiffs-Appellees
v.
PHIL BRYANT, in his Official Capacity as Governor of the State of
Mississippi; JIM HOOD, in his Official Capacity as Mississippi
Attorney General,
Defendants-Appellants
________________________________________________
On Appeal from the United States District Court for the
Southern District of Mississippi, Northern Division,
Civil Action No. 3:14cv818
________________________________________________
APPELLANTS REPLY BRIEF
________________________________________________
Justin L. Matheny (MS Bar # 100754)
Paul E. Barnes (MS Bar # 99107)
Office of the Mississippi Attorney General
550 High Street, Suite 1200
Jackson, MS 39201
Phone: (601) 359-3680
Facsimile: (601) 359-2003
jmath@ago.state.ms.us
pbarn@ago.state.ms.us
Counsel for Defendants-Appellants

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TABLE OF CONTENTS
Page
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
REPLY ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I.

Baker v. Nelson Forecloses the Campaigns Claims. . . . . . . . . . . . . 1

II. Mississippis Marriage Laws Satisfy Rational Basis Review. . . . . . 3


III. Mississippis Marriage Laws are not Subject to any form
of Heightened Scrutiny. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
A. The Supreme Courts Animus Doctrine does not Invalidate
Mississippis Marriage Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . 19
B. The Campaigns Claimed Entitlement to Suspect or
Quasi-suspect Class Status is Foreclosed.. . . . . . . . . . . . . . . 24
C. Mississippis Marriage Laws do not Infringe upon an
Established Fundamental Right. . . . . . . . . . . . . . . . . . . . . . . 28
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
CERTIFICATE OF ELECTRONIC COMPLIANCE. . . . . . . . . . . . . . . 34
CERTIFICATE OF COMPLIANCE WITH RULE 32(a). . . . . . . . . . . . 35

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TABLE OF AUTHORITIES
Cases

Page

Alabama State Federation of Teachers AFL-CIO v. James,


656 F.2d 193 (5th Cir. 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Baker v. Nelson,
490 U.S. 810 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-3
Ballew v. Continental Airlines, Inc.,
668 F.3d 777 (5th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Baskin v. Bogan,
766 F.3d 648 (7th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . 12-16
Board of Trustees of University of Alabama v. Garrett,
531 U.S. 356 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 24
Bostic v. Schaefer,
760 F.3d 352 (4th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . 4, 7, 28
Cervantes v. Guerra,
651 F.2d 974 (5th Cir. 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Citizens for Equal Protection v. Bruning,
455 F.3d 859 (8th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
City of Cleburne v. Cleburne Living Center,
473 U.S. 432 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Collins v. Harker Heights,
503 U.S. 115 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Cook v. Gates,
528 F.3d 42 (1st Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
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Dandridge v. Williams,
397 U.S. 471 (1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8
DeBoer v. Snyder,
772 F.3d 388 (6th Cir. 2014). . . . . . . . . . . . . 3-5, 9, 11, 16-17, 20, 28
El Paso Apartment Assn v. City of El Paso,
415 Fed. Appx. 574 (5th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . 14
Enquist v. Oregon Dept. Of Agr.,
553 U.S. 591 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Eisenstadt v. Baird,
405 U.S. 438 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
FCC v. Beach Communications, Inc.,
508 U.S. 307 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Gillis v. Skinner,
2013 WL 1451366 (W.D. La. Feb. 25, 2013). . . . . . . . . . . . . . . . . 27
Gochicoa v. Johnson,
238 F.3d 278 (5th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Griswold v. Connecticut,
381 U.S. 479 (1965). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Harris v. McRae,
448 U.S. 297 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Hatten v. Rains,
854 F.2d 687 (5th Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Heller v. Doe,
509 U.S. 312 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8, 13, 15-16

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Hicks v. Miranda,
422 U.S. 332 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Jacobs v. Natl Drug Intelligence Center,
548 F.3d 375 (5th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
James v. Hertzog,
415 Fed. Appx. 530 (5th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . 26
Johnson v. Johnson,
385 F.3d 503 (5th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . 24-27
Johnson v. Robison,
415 U.S. 361 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Kimel v. Florida Bd. of Regents,
528 U.S. 62 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Kitchen v. Herbert,
755 F.3d 1193 (10th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Lawrence v. Texas,
539 U.S. 558 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 11
Lofton v. Secy of Dept. of Children & Family Servs.,
358 F.3d 804 (11th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Loving v. Virginia,
388 U.S. 1 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Madden v. Kentucky,
309 U.S. 83 (1940). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Malagon de Fuentes v. Gonzalez,
462 F.3d 498 (5th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

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Massachusetts Board of Retirement v. Murgia,


427 U.S. 307 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12, 21
Metromedia, Inc. v. City of San Diego,
453 U.S. 490 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
National Endowment for the Arts v. Finley,
524 U.S. 569 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
National Rifle Assn of America, Inc. v. Bureau of Alcohol,
Tobacco, Firearms and Explosives,
700 F.3d 185 (5th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . 15-16
Overton v. City of Austin,
871 F.2d 529 (5th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Perez v. Stephens,
745 F.3d 174 (5th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Personnel Administrator of Massachusetts v. Feeney,
442 U.S. 256 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20-21
Planned Parenthood of Greater Texas Surgical
Health Services v. Abbott,
748 F.3d 583 (5th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Praylor v. Partridge,
2005 WL 1528690 (N.D. Tex. Jun. 28, 2005).. . . . . . . . . . . . . . . . 27
Price-Cornelison v. Brooks,
524 F.3d 1103 (10th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Reno v. Flores,
507 U.S. 292 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

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Robicheaux v. Caldwell,
2 F.Supp.3d 910 (E.D. La. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . 27
Rodriguez de Quijas v. Shearson/Am. Express, Inc.,
490 U.S. 477 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Romer v. Evans,
517 U.S. 620 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22-25, 27
Rust v. Sullivan,
500 U.S. 173 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Seminole Tribe v. Florida,
517 U.S. 44 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Shelby v. Dupree,
574 Fed. Appx. 397 (5th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . 26
SmithKline Beecham Corp. v. Abbott Labs.,
740 F.3d 471 (9th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Steffan v. Perry,
41 F.3d 677 (D.C. Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Tuan Anh Nguyen v. I.N.S.,
533 U.S. 53 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Turner v. Safley,
482 U.S. 78 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
United States Department of Agriculture v. Moreno,
413 U.S. 528 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
United States v. Windsor,
133 S.Ct. 2675 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . 18, 22-24, 27

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Vance v. Bradley,
440 U.S. 93 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Victorian v. Miller,
796 F.2d 94 (5th Cir. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Village of Arlington Heights v. Metropolitan Housing
Development Corp.,
429 U.S. 252 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20-21
Washington v. Glucksberg,
521 U.S. 702 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29-31
Windsor v. United States,
699 F.3d 169 (2nd Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Zablocki v. Redhail,
434 U.S. 374 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Constitutions, Statutes, and Laws
Miss. Code Ann. 93-1-1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 24, 31
Miss. Code Ann. 93-1-5.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Miss. Code Ann. 97-29-13.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Miss. Code Ann. 97-29-27.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Miss. Const., art. 14, 263A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 24
U.S. Const., amend. XIV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

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REPLY ARGUMENT
I.

Baker v. Nelson Forecloses the Campaigns Claims.


Despite the Campaigns protest, Baker v. Nelson, 409 U.S. 810

(1972) controls disposition of the claims here until the Supreme Court
says otherwise. A summary dismissal is a decision on the merits that
must be given full precedential effect by lower courts. Cervantes v.
Guerra, 651 F.2d 974, 981 (5th Cir. 1981).
Bakers binding effect in lower federal courts is not diminished by
its summary nature. As the Campaign points out, the Supreme Court
is not bound to treat summary dispositions the same as a decision on
the merits. Appellees Br. at 51. When it comes to all lower courts,
however, summary decisions are controlling until the Supreme Court
says otherwise. Hicks v. Miranda, 422 U.S. 332, 345 (1975); see also
Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 500 (1981) (the
California Supreme Court was quite right in relying on our summary
decisions as authority for sustaining the San Diego ordinance against
First Amendment attack . . .. As we have pointed out, however,
summary actions do not have the same authority in this Court as do

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decisions rendered after plenary consideration.).


The Campaigns contention that doctrinal developments excuse
adherence to Baker is likewise misplaced. Appellees Br. at 52-53. The
general development of Fourteenth Amendment jurisprudence over the
past forty years, and the fact that the Supreme Court has addressed
other issues related to gay rights in particular, do not override Baker,
nor do any other lower federal courts opinions that Baker is no longer
good law. This Court adheres to the principle that the Supreme Court
has sole authority to overrule its own decisions, meaning that the
courts of appeal must follow the Supreme Courts directly controlling
precedent even if it appears to rest on reasons rejected in some other
line of decisions. Ballew v. Continental Airlines, Inc., 668 F.3d 777,
782 (5th Cir. 2012) (quoting Rodriguez de Quijas v. Shearson/Am.
Express, Inc., 490 U.S. 477, 484 (1989)).
Speculating that Baker has been displaced by doctrinal
developments or non-merits decisions, such as denials of certiorari or
stay requests, is inappropriate. Baker is the Supreme Courts last and
only pronouncement on the merits of Fourteenth Amendment

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challenges to state laws regulating same-sex marriage. Baker is


binding and cannot be cast aside by guesswork. Perez v. Stephens, 745
F.3d 174, 180 (5th Cir. 2014) (we do not read tea leaves; we follow the
law as it is, respecting the Supreme Courts singular role in deciding
the continuing viability of its own precedents.).
II.

Mississippis Marriage Laws Satisfy Rational Basis Review.


No matter how, or how often, the Campaign denies it,

Mississippis marriage laws are structured to address the potential


procreative consequences of heterosexual activity, which do not arise in
other contexts, and thus are rationally related to a legitimate
governmental interest. The biological consequences of sex between
opposite-sex partners are one of the primary motivations for states to
incentivize the development of stable family relationships through the
institution of marriage, and justify the distinction drawn by the State
between same-sex couples and opposite-sex couples.
Recognizing that sexual activity between opposite-sex couples has
biological consequences that other sexual relationships lack does not
convict the States of irrationality. DeBoer v. Snyder, 772 F.3d 388,
405 (6th Cir. 2014). With regard to procreation, same-sex couples are
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not similarly situated to opposite-sex couples. Id. at 405-06; see also


Bostic v. Schaefer, 760 F.3d 352, 391, 394 (4th Cir. 2014) (Niemeyer, J.,
dissenting) (Only the union of a man and a woman has the capacity to
produce children and thus to carry on the species . . . . In [this]
respect[], the traditional man-woman relationship is unique.). And the
protections of the Equal Protection Clause are not implicated by laws
which draw classifications between groups which are not similarly
situated. Engquist v. Oregon Dept. of Agr., 553 U.S. 591, 602 (2008)
(When those who appear similarly situated are nevertheless treated
differently, the Equal Protection Clause requires at least a rational
reason for the difference, to ensure that all persons subject to
legislation or regulation are indeed being treated alike, under like
circumstances and conditions.).1

The fact that marriage laws address the consequences of sexual activity
distinguishes those laws from the sodomy law struck down in Lawrence v. Texas,
which only addressed private intimate conduct between consenting adults the
sexual act itself. 539 U.S. 558, 585 (OConnor, J., concurring) (That this law as
applied to private, consensual conduct is unconstitutional under the Equal
Protection Clause does not mean that other laws distinguishing between
heterosexuals and homosexuals would similarly fail under rational basis review.
Texas cannot assert any legitimate state interest here, such as . . . preserving the
traditional institution of marriage. Unlike the moral disapproval of same-sex
relations--the asserted state interest in this case--other reasons exist to promote the
institution of marriage beyond mere moral disapproval of an excluded group.).
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In DeBoer, the Sixth Circuit succinctly articulated the link


between the procreative consequences of opposite-sex unions and the
states legitimate interests, and the validity of many states chosen
methods to incentivize responsible procreative behavior by opposite-sex
couples:
One [legitimate rational basis for the laws] starts from the
premise that governments got into the business of defining
marriage, and remain the business of defining marriage, not
to regulate love but to regulate sex, most especially the
intended and unintended effects of male-female intercourse.
***
By creating a status (marriage) and by subsidizing it (e.g.,
with tax-filing privileges and deductions), the States created
an incentive for two people who procreate together to stay
together for purposes of rearing offspring. That does not
convict the States of irrationality, only of awareness of the
biological reality that couples of the same sex do not have
children in the same way as couples of opposite sexes and
that couples of the same sex do not run the risk of
unintended offspring. That explanation, still relevant today,
suffices to allow the States to retain authority over an issue
they have regulated from the beginning.
DeBoer, 772 F.3d at 404-05.
Mississippis laws, like those of Michigan, Ohio, Kentucky and
Tennessee validated in DeBoer, are structured to incentivize
responsible procreative behavior by opposite-sex couples, an interest
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not implicated by non-procreative same-sex relationships. Mississippi,


and indeed all states, has the authority to provide incentives to discrete
groups to promote and further the states legitimate interests. See
National Endowment for the Arts v. Finley, 524 U.S. 569, 588 (1998);
Rust v. Sullivan, 500 U.S. 173, 193 (1991) (government can selectively
provide subsidies to promote activities which are in the public interest);
Harris v. McRae, 448 U.S. 297, 315 (1980) (same).
A state may choose to incentivize conduct by offering benefits to a
target group that are not offered to others, when providing those
benefits to others would not serve to further the states interests. Such
a law is a rational and constitutionally permissible method of
promoting governmental interests. See Johnson v. Robison, 415 U.S.
361, 374-83 (1974) (federal law providing education benefits to activeduty veterans did not violate equal protection, even though the law
denied the same benefits to conscientious objectors, because providing
the same benefits to objectors would not serve the governmental
interest in incentivizing military service). And the line distinguishing
the groups drawn by the state does not have to be perfect. Heller v.
Doe, 509 U.S. 312, 321 (1993) (citing Dandridge v. Williams, 397 U.S.
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471, 486 (1970)).


Further, the decision of how to specifically incentivize targeted
conduct, and which groups to include or exclude, is left to the legislative
process: When, as in this case, the inclusion of one group promotes a
legitimate governmental purpose, and the addition of other groups
would not, we cannot say that the statutes classification of
beneficiaries and nonbeneficiaries is invidiously discriminatory. Id. at
383; see also Bostic, 766 F.3d at 394 (Niemeyer, J., dissenting) ([T]he
relevant inquiry is whether also recognizing same sex marriages would
further Virginias interests. With regard to its interest in ensuring
stable families in the event of unplanned pregnancies, it would not.);
Kitchen v. Herbert, 755 F.3d 1193, 1240 (10th Cir. 2014) (Kelly, J.,
concurring in part and dissenting in part) (The State has satisfied its
burden on rational basis review. One only need consider the reams of
sociological evidence urged by the parties and the scores of amicus
briefs on either side to know that the States position is (at the very
least) arguable. It most certainly is not arbitrary, irrational, or based
upon legislative facts that no electorate or legislature could conceivably
believe. Though the Plaintiffs would weigh the interests of the State
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differently and discount the procreation, child-rearing, and caution


rationales, that prerogative belongs to the electorate and their
representatives.).
The Campaign disputes the justifications for Mississippis
marriage laws as being rooted in procreation in two related ways.
Neither justifies striking down the States laws under a genuine
rational basis review.
First, the Campaign challenges the means/ends fit of the States
marriage classification. According to the Campaign, permitting
marriage solely between a man and woman under-inclusively disallows
marriage to same-sex couples, who are infertile due to the self-defining
nature of the relationship, while the State over-inclusively permits
infertile opposite-sex couples to marry. Appellees Br. at 30-32.
The primary flaw in that argument is that, under the rational
basis test, the State need not choose a perfect fit between means and
ends. Over-inclusive and under-inclusive classifications do not offend
the Equal Protection Clause. Heller, 509 U.S. at 321 (citing Dandridge,
397 U.S. at 486). A law which promotes the development of stable
family relationships for the vast majority of children in the State, who
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are born to opposite-sex couples, is rational and not illegitimately


under-inclusive, even if the line is drawn imperfectly. That is a
permissible means of promoting the States interests in addressing the
consequences of uniquely heterosexual activity and cannot be dismissed
as blatantly arbitrary. See Massachusetts Board of Retirement v.
Murgia, 427 U.S. 307, 316 (1976) ([i]t is only to say that with regard to
the interest of all concerned, the State perhaps has not chosen the best
means to accomplish this purpose. But where rationality is the test, a
State does not violate the Equal Protection Clause merely because the
classifications made by its laws are imperfect.); DeBoer, 772 F.3d at
406 (holding that foolish, sometimes offensive, inconsistencies that
have haunted marital legislation from time to time did not render
state marriage laws irrational).
It is likewise certainly rational, and thereby not indicative of an
impermissibly over-inclusive classification, for the State to provide
marital status and benefits to the aged and infertile. Conferring
marital status and benefits on aged and/or infertile opposite-sex
couples assures fertile opposite-sex couples that their family
relationship and benefits will last throughout their lifetime. That
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would not be the case if couples could be stripped of their marital status
once they pass their presumptive child-bearing years.
Mississippis laws also encourage faithfulness and monogamy
even when either or both opposite-sex spouses are infertile.
Encouraging a lifelong commitment between a man and a woman even
when they may not or cannot produce children still encourages couples
who do produce children to raise those children in a committed, family
relationship.
Drawing the marriage line at fertility to correct alleged overinclusiveness, as apparently suggested by the Campaign, would also
create serious problems of its own. It is impossible to determine,
merely by the nature of the relationship, whether an opposite-sex
couple is fertile or infertile. Determining the fertility of potential
opposite-sex spouses before permitting marriage would require an
unwarranted and indefensible intrusion into the personal privacy of
opposite-sex couples. For example, such an intrusion would likely
violate the very right to privacy that protects the private, intimate
relations of consenting adults which the Supreme Court relied on in
Lawrence to strike down state sodomy laws, and in Griswold and
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Eisenstadt to strike down laws prohibiting the use or sale of


contraceptives. See Lawrence, 539 U.S. at 585 (holding state sodomy
laws enforced only against homosexuals unconstitutional); Griswold v.
Connecticut, 381 U.S. 479, 485 (1965) (laws banning use of
contraceptives by married couples violated right of privacy); Eisenstadt
v. Baird, 405 U.S. 438, 454 (1972) (law permitting sale of
contraceptives to married person but prohibiting sale to unmarried
person violated equal protection).
But most importantly, under rational basis review, the issue is
not whether a law is the best way, the right way, or even a good way for
a state to promote a legitimate end the issue is whether it is a
rational way. Marriage laws based on the States interests in
procreative conduct are rational, even if imperfect.
Codifying the reality that the natural procreative capability of
opposite-sex couples in statutory and constitutional provisions is not
based on an impermissibly rough correlation between heterosexuality
and parenthood. Appellees Br. at 31 (quoting DeBoer, 772 F.3d at
416). Divorcing policy decisions from biological realities, as suggested
by the Campaign, would be a truly irrational course. While the line
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drawn by the Mississippi legislature and electorate obviously does not


comport with the views of some as to what constitutes good social
policy, that line is rational. Moreover, that the course chosen by
Mississippi to further its interests is not the method that the district
court or the Campaign would have chosen2 does not render that choice
irrational.
Second, the Campaign relies heavily on the Seventh Circuits
reasoning in Baskin v. Bogan, which concluded the grounds advanced
by [the states] for their discriminatory policies are not only conjectural;
they are totally implausible. 766 F.3d 648, 671 (7th Cir. 2014). The
Seventh Circuits analysis in Baskin is problematic for a number of

For example, the district court offered several alternatives the State could
have chosen which might further the States interests and opined that [i]f the
purpose of state-recognized marriage is to protect families and children, then the
State should expand marriage rights to gay and lesbian couples, not bar them from
it . . . . There is no link between the States legitimate interest in promoting strong
families and healthy children, and its decision to prohibit same-sex marriage.
ROA.331, 333. In reaching this conclusion, the district court gave insufficient
weight to the biological distinction between same-sex couples and opposite-sex
couples, and the distinct consequences and procreative potential resulting only from
heterosexual unions. Even more fundamentally, under rational basis review, the
existence of other options does not foreclose a course chosen by a state: The fact
that other means are better suited to the achievement of governmental ends
therefore is of no moment under rational basis review. Tuan Anh Nguyen v. I.N.S.,
533 U.S. 53, 77 (2001) (OConnor, J., concurring) (citing Vance v. Bradley, 440 U.S.
93, 103, n. 20, 99 S. Ct. 939, 59 L.Ed.2d 171 (1979); Murgia, 427 U.S. at 316).
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reasons, and carries no weight in a genuine rational basis review


because the panel invented and applied a hazy form of heightened
scrutiny.
For instance, the Baskin panel afforded no deference to legislative
decision-making as required by rational basis scrutiny: Heterosexuals
get drunk and pregnant, producing unwanted children; their reward is
to be allowed to marry. Homosexual couples do not produce unwanted
children; their reward is to be denied the right to marry. Go figure.
Id. at 662. Indiana has thus invented an insidious form of
discrimination: favoring first cousins, provided they are not of the
same sex, over homosexuals . . . The states argument that a marriage
of first cousins who are past child-bearing age provides a model of
family life for younger, potentially procreative mean and women is
impossible to take seriously. Id. Those passionate legislative policy
arguments run afoul of the admonition that rational basis review is
not a license for courts to judge the wisdom, fairness, or logic of
legislative choices. Heller, 509 U.S. at 319 (quoting FCC v. Beach
Communications, Inc., 508 U.S. 307, 313 (1993)).
The Seventh Circuit panel also repeatedly shifted the burden of
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proof from where it belonged on the plaintiffs, and put it to Wisconsin


and Indiana to prove, not only that their laws had a rational basis, but
additionally that including same-sex couples in the institution of
marriage would actually injure heterosexual marriages. Baskin, 766
F.3d at 761 ([M]ore than unsupported conjecture that same-sex
marriage will harm heterosexual marriage or children or any other
valid and important interest of a state is necessary to justify
discrimination on the basis of sexual orientation. As we have been at
pains to explain, the grounds advanced by Indiana and Wisconsin for
their discriminatory practices are not only conjectural; they are totally
implausible.). Burden-shifting in a rational basis analysis is entirely
inconsistent with the Supreme Courts rational basis precedents and
the law of this Circuit, which place the burden on the party
challenging the statute to negative every conceivable basis which
might support it. Alabama State Federation of Teachers, AFL-CIO v.
James, 656 F.2d 193, 195 (5th Cir. 1981) (quoting Madden v. Kentucky,
309 U.S. 83, 88 (1940)); see also El Paso Apartment Assn v. City of El
Paso, 415 Fed. Appx. 574, 578 (5th Cir. 2011) ([A] classification must
be upheld against equal protection challenge if there is any conceivable
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state of facts that could provide a rational basis for the classification,
and the burden is on the challenger to negative every conceivable basis
which might support [the classification].) (quoting Heller, 509 U.S. at
320).
The Seventh Circuit panels perceived problems with Indianas
and Wisconsins marriage laws, such as under-inclusiveness, see
Baskin, 766 F.3d at 661-62, are more properly considered questions of
the means/end fit between traditional marriage laws and state
interests, rather than the rationality of those laws. The Fourteenth
Amendment permits legislative line-drawing even when there is an
imperfect fit between means and ends and where the classification is
not made with mathematical nicety, Heller, 509 U.S. at 321, since the
question of fit is not an issue when a court applies rational basis
scrutiny. Closely examining the fit between an asserted state interest
and the method chosen to further that interest is one of the hallmarks
of heightened or intermediate scrutiny, rather than rational basis
review. See, e.g., National Rifle Assn of America, Inc. v. Bureau of
Alcohol, Tobacco, Firearms and Explosives, 700 F.3d 185, 212 (5th Cir.
2012) (heightened scrutiny requires a tighter fit between the
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discriminatory means and the legitimate ends they serve). When


applying the rational basis test, however, a court will not strike down a
classification unless the varying treatment of different groups or
persons is so unrelated to the achievement of any combination of
legitimate purposes that we can only conclude that the government's
actions were irrational. Id. (emphasis added) (quoting Kimel v.
Florida Bd. of Regents, 528 U.S. 62, 84 (2000) (internal quotation
marks and alterations omitted)).
Baskins analysis bears no resemblance to rational basis review.
It is thinly-veiled heightened scrutiny, entitled to no weight in
determining whether Mississippis marriage laws are rational.3
The Campaign has also failed to legitimately rebut Mississippis
valid interests in acting cautiously and rationally in declining to alter
3

Crediting Baskins analysis as rational basis review would only further


demonstrate Mississippis marriage laws are rationally related to the States
legitimate interests linked to procreation. If Baskin truly represents a rational
basis analysis, then, while some federal appellate courts have ratcheted up the
applicable level of scrutiny by incorrectly finding a fundamental right or affording
the plaintiffs quasi-suspect class status, DeBoer and Baskin would stand as the
only two recent appellate decisions applying rational basis review to state same-sex
marriage laws. The two panels starkly differing conclusions themselves suggest
traditional state marriage laws satisfy rational basis review. See Planned
Parenthood v. Abbott, 748 F.3d 583, 594 (5th Cir. 2014) (The fact that reasonable
minds can disagree on legislation, moreover, suffices to prove that the law has a
rational basis.) (citing Heller, 509 U.S. at 321).
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the States traditional man-woman view of marriage, and by preserving


the States related legitimate interest in safeguarding that social
change is better cultivated through democratic consensus. Proceeding
with caution is not circular reasoning or unreasonably sticking with
tradition for the sake of tradition. Appellees Br. at 33. The issue is
whether changing social views as to the acceptability of same-sex
marriage prevailing in other states requires Mississippi to abandon its
marriage laws that have been the norm for centuries. As the Sixth
Circuit recognized, proceeding with a Burkean sense of caution is not
preserving tradition for its own sake. No one here claims that the
States original definition of marriage was unconstitutional when
enacted. The plaintiffs claim is that the States have acted irrationally
in standing by the traditional definition in the face of changing social
mores. DeBoer, 772 F.3d at 406. While changing social mores may
provide a valid reason for states to choose to redefine marriage to
include same-sex couples, there is no reason why changing social mores
alone require a State to do so immediately.
The Campaigns self-contradictory rationale that the federal
judiciary should not permit the political process to work in Mississippi,
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despite the fact that the political process has been permitted to work in
those states choosing to recognize and permit same-sex marriage,
should be rejected. Appellees Br. at 34-35. The political process
should be allowed to work in all states, not merely in states which
enact measures proponents or judges consider good social policy.
Under rational basis review, courts must presume even improvident
decisions will eventually be rectified by the democratic process and that
judicial intervention is generally unwarranted no matter how unwisely
we think a political branch has acted. Hatten v. Rains, 854 F.2d 687,
692 (5th Cir. 1988) (quoting Vance, 440 U.S. at 97).
Properly framing the issue asks whether Mississippi voters are
entitled to any fewer rights than voters in New York. In United States
v. Windsor, the Supreme Court emphasized the fact that New York had
voluntarily chosen to permit and recognize same-sex marriages,
primarily through the democratic process, in accordance with the
states almost exclusive jurisdiction over domestic relations. 133 S. Ct.
2675, 2689 (2013). Windsor was based, in large measure, on the fact
that DOMA would have stripped same-sex couples of marital status
and benefits which certain states had freely chosen to provide. Id. at
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2695-96.
Mississippi voters should not be barred from expressing their
views through the political process simply because, to date, Mississippi
voters have not elected the same social policy as states such as New
York. The constitutional issue boils down to whether the Fourteenth
Amendment requires every state to conform its social policy to that of
the states which have chosen to recognize and permit same-sex
marriages. There is no principled reason to conclude that the political
process should only be allowed to work if it yields a decision which
reflects what the courts consider good social policy.
III. Mississippis Marriage Laws are not Subject to any Form of
Heightened Scrutiny.
A.

The Supreme Courts Animus Doctrine does not


Invalidate Mississippis Marriage Laws.

As the States opening brief explained, the district court


incorrectly concluded that Mississippians enacted Constitution Section
263A and Code Section 93-1-1(2) purely out of animus toward same-sex
couples. There are undoubtedly many reasons Mississippians, like
citizens in other states, decided to maintain the States longstanding
marriage scheme that have nothing to do with spite or ill-will toward
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same-sex couples. See DeBoer, 772 F.3d at 408-13. Tersely equating all
Mississippians motivations for maintaining their marriage laws with
the Courts conclusions about Congress motivations for DOMA, as the
district court erroneously did, does not establish a constitutional
violation. The Campaigns response brief does not defend that flawed
approach.
Rather, on appeal the Campaign urges this Court to adopt a
different animus rationale that fuses rational basis review with the
process for evidence gathering, burden shifting, and applying
heightened levels of scrutiny in disparate impact and discriminatory
intent cases such as Village of Arlington Heights v. Metropolitan
Housing Development Corp., 429 U.S. 252 (1977) and Personnel
Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979).
Appellees Br. at 22-27.
The novel analytical framework the Campaign proposes should be
rejected. Approaches lifted from disparate impact cases only apply
when a facially neutral law allegedly discriminates against a suspect
class, such as race (Arlington Heights), or quasi-suspect class, such as
gender (Feeney). Meanwhile, enactments allegedly discriminating
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against non-suspect classes do not implicate the disparate impact


framework for addressing proof issues, mandate heightened scrutiny,
or require the government to bear the burden of establishing the
validity of the challenged laws under equal protection review. See
Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356,
365-68 (2001), 531 U.S. at 365-68 (disability discrimination); Murgia,
427 U.S. at 312-14 (age discrimination); see also Overton v. City of
Austin, 871 F.2d 529, 540 (5th Cir. 1989) (the Arlington Heights
evaluation of original legislative intent only supports a Fourteenth
Amendment challenge where a facially neutral state law has been
shown to produce disproportionate effects along racial lines) (emphasis
added).
In this Circuit, alleged sexual orientation discrimination
decidedly does not implicate a suspect or quasi-suspect class.
Collapsing the Arlington Heights or Feeney scheme for proving
disparate impact along racial or gender lines into the Supreme Courts
rational basis animus cases in order to convict Mississippi voters of
spitefully codifying the States marriage laws would be undoubtedly
inappropriate.
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Instead of searching for impermissible racial or gender


discrimination, shifting burdens of proof, or increasing the level of
scrutiny applied, the Supreme Courts four recognized rational basis
animus cases focus on laws found to be solely motivated by hostility
toward a particular non-suspect class of persons, and lacking any
legitimate basis. The Campaign agrees the judicial inquiry under the
animus doctrine turns on whether animus is the very purpose of the
challenged law. Appellees Br. at 19. Indeed, the Courts rational basis
animus precedents examined the challenged enactments structure, and
the asserted rational bases for them, to discern whether the laws were
purely animus-driven.
Romer v. Evans, for instance, looked to the structure of an
unprecedented state law eliminating protections against sexual
orientation discrimination. 571 U.S. 620 (1996). The enactments
breadth and novelty, inconsistency with the nations constitutional
tradition, and its failure to further any legitimate government purpose,
demonstrated it was inexplicable by anything other than animus
toward the class it affect[ed]. Id. at 632. As another example,
Windsor looked to DOMAs unusual character and the statutes
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unusual deviation from the tradition of respecting states chosen


marital regulations to find animus as Congresss motivation in the
absence of any valid rational bases for the law. Windsor, 133 S.Ct. at
2691-93. Romer and Windsor both ultimately struck down the laws at
issue as animus-driven and lacking any rational relationship to a
legitimate state interest.
Mississippis marriage laws are not equivalent to the Colorado
legislation driven solely by unconstitutional animus in Romer. The
states laws are narrowly-focused on the subject of marriage, consistent
with a long-held conception of the institution, and do not take away
previously established legal rights.
The Windsor pattern revealing Congresss motives as nothing but
animus likewise does not fit Mississippis marriage laws. Unlike
Congress, the State and its citizens did not eliminate any privileges by
exceeding the scope of their traditional lawmaking authority.
Moreover, as explained in the States opening brief and the preceding
section of this one, Mississippis marriage laws advance legitimate state
interests. For those reasons, the Courts animus doctrine does not

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invalidate Section 263A or Code Section 93-1-1(2).4


B.

The Campaigns Claimed Entitlement to Suspect or


Quasi-suspect Class Status is Foreclosed.

The district court correctly ruled out the Campaigns claim to


heightened scrutiny reserved for suspect or quasi-suspect classes
due to binding precedent. ROA.306, 309. Relying on Romer, this
Courts 2004 panel opinion in Johnson v. Johnson held rational basis
review applies to claims of sexual orientation discrimination as opposed
to any form of heightened scrutiny based on recognizing gay people as a

Like Windsor and Romer, the Courts other two rational basis animus
decisions, City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) and
United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973), examined
laws said to be motivated entirely by animus and lacking any rational relationship
to any legitimate governmental interest. In Moreno, a statutory amendment reclassified persons eligible for food stamp benefits, according to a statement in its
legislative history, to deny benefits to hippies. That finding, and the absence of
any legitimate interests served by the re-classification, led to the conclusion that
the amendment failed rational basis review. Moreno, 413 U.S. at 534-35. Later, in
Cleburne, the Court invalidated a city-enacted zoning regulation targeting a home
for intellectually disabled persons that could not be justified as advancing any
legitimate state interests. Nothing other than irrational prejudice could explain
the governmental action as a result. Cleburne, 473 U.S. at 448, 500. Both Moreno
and Cleburne found that not just some animus, or some allegation of animus,
justifies striking down a challenged law. Rather, only animus could explain the
laws at issue since the enactments were not rationally related to any legitimate
governmental interest, and therefore the laws were unconstitutional. See Garrett,
531 U.S. at 367 (recognizing Cleburne does not stand[] for the broad proposition
that state decisionmaking reflecting negative attitudes or fear necessarily runs
afoul of the Fourteenth Amendment . . . [for] [a]lthough such biases may often
accompany irrational (and therefore unconstitutional) discrimination, their
presence alone does not a constitutional violation make.).
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suspect or quasi-suspect class. 385 F.3d 503, 532 (5th Cir. 2004)
(Neither the Supreme Court nor this court has recognized sexual
orientation as a suspect classification [or protected group];
nevertheless, a state violates the Equal Protection Clause if it
disadvantages homosexuals for reasons lacking any rational
relationship to legitimate governmental aims.) (citing Romer, 517 U.S.
at 631-32) (alteration in original).
There is no question Johnson preempts the Campaigns invitation
to establish sexual orientation as a suspect or quasi-suspect
classification for purposes of strict or intermediate equal protection
scrutiny on this appeal. A panel of this Court cannot overturn the
decision of a prior panel absent an intervening change in the law, such
as by statutory amendment, or a decision by the Supreme Court, or
our en banc court. Jacobs v. Natl Drug Intelligence Center, 548 F.3d
375, 378 (5th Cir. 2008); see also Victorian v. Miller, 796 F.2d 94, 96 (5th
Cir. 1986) (it is a firm rule of this circuit that a panel cannot overrule
a prior panel decision). The Campaign cannot identify any qualifying
intervening change in the law that calls Johnson, or the Supreme
Courts decision in Romer on which it relied, into question.
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The Campaign erroneously contends, nevertheless, that Johnsons


holding regarding sexual orientation discrimination claims should be
disregarded as dictum. Appellees Br. at 42. The dictum argument is
misplaced. When confronting decisions of prior panels . . . [a
subsequent panel is] bound by not only the result but also those
portions of the opinion necessary to that result . . .. Gochicoa v.
Johnson, 238 F.3d 278, 287 (5th Cir. 2000) (quoting Seminole Tribe v.
Florida, 517 U.S. 44, 67 (1996)). Johnson unequivocally held rational
basis review applied to the plaintiffs claim for sexual orientation
discrimination, and that holding was necessary to both the panels
conclusion that the plaintiff stated a claim for sexual orientation
discrimination, and its reversal of the district courts dismissal of that
claim. Johnson, 385 F.3d at 530-32. Johnsons holding and rationale
cannot be cast aside as dictum.
Additionally, as the Campaign notes, two subsequent panels of
this Court in Shelby v. Dupree, 574 Fed. Appx. 397, 398 (5th Cir. 2014)
and James v. Hertzog, 415 Fed. Appx. 530, 532 (5th Cir. 2011) have
relied on Johnsons holding to conclude claims of sexual orientation
discrimination do not invoke heightened scrutiny in this Circuit.
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Appellees Br. at 41 n. 15. Several district courts in this Circuit


including the district court below in this case have likewise followed
suit. See, e.g., Robicheaux v. Caldwell, 2 F.Supp.3d 910, 918 (E.D. La.
2014); Gillis v. Skinner, 2013 WL 1451366, at *2 (W.D. La. Feb. 25,
2013); Praylor v. Partridge, 2005 WL 1528690, at *3 (N.D. Tex. Jun. 28,
2005). While unpublished panel and district court opinions only have
limited direct precedential value, if any, they certainly further prove
Johnsons rationale and holding are not merely stray remarks.
Finally, establishing sexual orientation as a suspect or quasisuspect class for the first time in this Circuit in the context of this
appeal, as the district court and Campaign suggest, would be
inappropriate. The Supreme Court declined to recognize sexual
orientation as a suspect or quasi-suspect class in Romer. The Court
did the same again just last Summer in Windsor, even though the
Presidents administration and the Respondent urged it to take up the
issue. The overwhelming majority of federal Circuits likewise share
the view that alleged sexual orientation discrimination is subject to

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rational basis review rather than heightened equal protection scrutiny.5


This appeal from a non-final preliminary injunction order presents
neither the appropriate time nor vehicle to examine the Campaigns
proposed suspect class factors to establish heightened equal
protection scrutiny for alleged sexual orientation discrimination.6
C.

Mississippis Marriage Laws do not Infringe upon an


Established Fundamental Right.

Making out a fundamental right to enter into a same-sex


marriage protected by the Due Process Clause cannot begin and end by
simply invoking a generalized right to marriage. By shifting the focus

See DeBoer, 772 F.3d at 413-16; Bostic v. Schaefer, 760 F.3d 352, 375 n. 6
(4 Cir. 2014); Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008); Price-Cornelison v.
Brooks, 524 F.3d 1103, 1113-14 & n. 9 (10th Cir. 2008); Citizens for Equal Protection
v. Bruning, 455 F.3d 859, 865-66 (8th Cir. 2006); Lofton v. Secy of Dept. of Children
and Family Servs., 358 F.3d 804, 818 (11th Cir. 2004); Steffan v. Perry, 41 F.3d 677,
704 (D.C. Cir. 1994). But see SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d
471, 481 (9th Cir. 2014); Windsor v. United States, 699 F.3d 169, 180-85 (2nd Cir.
2012).
th

Footnote 16 of the Campaigns brief astonishingly asserts the State has


somehow waived any right to object to the district courts consideration of dozens of
extra-record sources of evidence to reach its advisory conclusions about the
Campaigns suspect class arguments. The State could not have waived any
objections to evidence applied by the district court, although not in the record,
because it obviously never had an opportunity to object. In any event, the
Campaigns waiver argument misses the point. If sexual orientation suspect or
quasi-suspect class equal protection status is going to be established for the first
time in this Circuit, it should not be in the context of an abbreviated preliminary
injunction proceeding, followed by an abbreviated appeal, with no evidentiary
record.
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from the right it actually seeks to establish to a right to marry


generally, Appellees Br. at 47-50, the Campaigns substantive due
process argument impermissibly skips the required constitutional
analysis for identifying fundamental substantive due process rights.
Whenever courts examine whether a fundamental right exists,
the Supreme Courts established method of substantive-due-process
analysis requires a careful description of the asserted fundamental
liberty interest, and asks whether that carefully described right is
deeply rooted in this Nations history and tradition and implicit in
the concept of ordered liberty, such that neither liberty nor justice
would exist if [it was] sacrificed. Washington v. Glucksberg, 521 U.S.
702, 720-21 (1997) (internal quotation marks and citations omitted); see
also Malagon de Fuentes v. Gonzalez, 462 F.3d 498, 505 (5th Cir. 2006).
If that structured analysis reveals a fundamental right, any laws
restricting the right is subjected to strict scrutiny and must be
narrowly tailored to serve a compelling state interest. Reno v. Flores,
507 U.S. 292, 302 (1993). Consequently, courts should be reluctant to
expand the concept of substantive due process because guideposts in
this unchartered area are scarce and open-ended. Glucksberg, 521
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U.S. at 720. By extending constitutional protection to an asserted


right or liberty interest . . . to a great extent, place[s] the matter
outside the arena of public debate and legislative action[,] courts
should therefore exercise the utmost care whenever we are asked to
break new ground in this field, lest the liberty protected by the Due
Process Clause be subtly transformed into the policy preferences of the
Members of this Court. Id. (quoting Collins v. City of Harker Heights,
503 U.S. 115, 125 (1992)).
The district court below did not bother to conduct a Glucksberg
analysis, and the Campaign has never answered the question whether
an asserted right to same-sex marriage is objectively deeply rooted in
this Nations history and tradition. The Campaigns maneuver makes
up a different question circumventing Glucksbergs methodology rather
than satisfying it.
The Supreme Court has recognized a fundamental right to marry.
But that does not mean a general fundamental right to marry
encompasses a right to same-sex marriage or a universal freedom to
marry anyone of ones choosing. The Courts decisions mentioning a
right to marry by name, or recognizing a right to marry in the
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circumstances presented, such as Loving v. Virginia, 388 U.S. 1 (1967),


Zablocki v. Redhail, 434 U.S. 374 (1978), and Turner v. Safley, 482 U.S.
78 (1987), infer that the right to marry enjoys its fundamental status
due to the male-female nature of the relationship, and/or those
relationships attendant link to fostering procreation, distinct from the
newly proposed relationship of a same-sex marriage. Those cases
analyses do not create the fundamental right to same-sex marriage
sought here, or a valid reason for surpassing Glucksberg to do so.
Furthermore, ignoring Glucksberg and reasoning a right to samesex marriage exists within a general right to marry fails to account for
the profound impact an open-ended fundamental right to marry would
have on other state marriage laws. Enactments impacting
fundamental rights must satisfy strict scrutiny. Absent any limiting
principle, the States marriage regulations, such as those involving
consanguinity, bigamy, and age requirements, would all be subject to
unforgiving constitutional review. See, e.g., Miss. Code Ann. 93-1-1(1)
(consanguinity requirements for marriage); Miss. Code Ann. 93-1-5
(age requirements); Miss. Code Ann. 97-29-13 (criminal penalty for
bigamy); Miss. Code Ann. 97-29-27 (criminal penalty for incestuous
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marriages). That consequence, for which the Campaign has no answer,


diminishes the notion that a freestanding right to marry without
reference to the parties exists.
CONCLUSION
The district courts preliminary injunction should be reversed for
all the reasons set forth above and in the States opening brief.
This the 2nd day of January, 2015.
Respectfully submitted,
JIM HOOD, ATTORNEY GENERAL
By:

S/Justin L. Matheny
Justin L. Matheny (MS Bar # 100754)
Paul E. Barnes (MS Bar # 99107)
Office of the Mississippi Attorney General
550 High Street, Suite 1200
Jackson, MS 39201
Phone: (601) 359-3680
Facsimile: (601) 359-2003
jmath@ago.state.ms.us
pbarn@ago.state.ms.us
Counsel for Defendants-Appellants

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CERTIFICATE OF SERVICE
Undersigned counsel certifies that this brief has been filed via the
Courts CM/ECF System and thereby served on counsel of record
registered to receive electronic notification of filings, and also served on
the following persons via US Mail, properly addressed and postage
prepaid, or overnight mail service where indicated:
Roberta A. Kaplan (via overnight mail)
Andrew J. Ehrlich
Jacob H. Hupart
Jaren Janhorbani
Joshua D. Kaye
Warren Stramiello
Paul, Weiss, Rifkind, Wharton &
Garrison, LLP
1285 Avenue of the Americas
New York, NY 10019-6064

Robert B. McDuff
Sibyl C. Byrd
McDuff & Byrd
767 North Congress
Jackson, MS 39202

Dianne Herman Ellis


Rita Nahlik Silin
Silin & Ellis
1161 Robinson Street
Ocean Springs, MS 39564

Dale Carpenter
University of Minnesota
Law School
229 Nineteenth Ave. South
Minneapolis, MN 55455

Diane E. Walton
Walton Law Office
168 S. Liberty Street
Asheville, NC 28801

This the 2nd day of January, 2015.


S/Justin L. Matheny
Justin L. Matheny

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CERTIFICATE OF ELECTRONIC COMPLIANCE


Undersigned counsel certifies that this brief has been transmitted
to the Clerk of the United States Court of Appeals for the Fifth Circuit
via the courts CM/ECF document filing system. Counsel further
certifies that the required privacy redactions have been made, Fifth
Cir. R. 25.2.13, the electronic submission is an exact copy of the paper
document, Fifth Cir. R. 25.2.1, and the document has been scanned
with the most recent version of Symantec Endpoint Protection and is
free of viruses.
This the 2nd day of January, 2015.
S/Justin L. Matheny
Justin L. Matheny

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CERTIFICATE OF COMPLIANCE WITH RULE 32(a)


Certificate of Compliance with Type Volume Limitations,
Typeface Requirements, and Type Style Requirements.
1. This brief complies with the type-volume limitations of
Fed.R.App.P. 32(a)(7)(B) because the brief contains less than 6,495
words, excluding the parts of the brief exempted by Fed.R.App.P.
32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of
Fed.R.App.P. 32(a)(6) because the brief has been prepared in a
proportionally spaced typeface using WordPerfect and Century
Schoolbook 14 pt. font.
3. The undersigned understands that a material
misrepresentation in completing this certificate or circumvention of the
type-volume limits may result in this Court striking the brief and
imposing sanctions.
This the 2nd day of January, 2015.
S/Justin L. Matheny
Justin L. Matheny

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