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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION APRIL DEBOER, et al, Plaintiffs, v RICHARD SNYDER, et al Defendants. Civil Action No. 12-cv-10285 HON. BERNARD A. FRIEDMAN MAG. MICHAEL J. HLUCHANIUK STATE DEFENDANTS CLOSING BRIEF

Dana M. Nessel (P51346) Attorney for Plaintiffs 645 Griswold Street, Suite 4300 Detroit, MI 48226 (313) 556-2300; Fax (313) 965-5580 dana@nesselandkessellaw.com

Carole M. Stanyar (P34830) Attorney for Plaintiffs 221 N. Main St., Ste. 300 Ann Arbor, MI 48104 (313) 819-3953 cstanyar@wowway.com

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Kristin M. Heyse (P64353) Joseph E. Potchen (P49501) Michelle M. Brya (P66861) Tonya C. Jeter (P55352) Attorneys for State Defendants Mich. Dept of Attorney General Health, Education & Family Services Division P.O. Box 30758 Lansing, MI 48909 (517) 373-7700; Fax (517) 351-1152 heysek@michigan.gov potchenj@michigan.gov bryam@michigan.gov jetert@michigan.gov

Andrea J. Johnson (P74596) Michael L. Pitt (P24429) Beth M. Rivers (P33614) Attorneys for Defendant Lisa Brown Pitt McGehee Palmer Rivers & Golden, P.C. 117 W. Fourth St., Ste. 200 Royal Oak, MI 48067 (248) 398-9800 ajohnson@pittlawpc.com mpitt@pittlawpc.com brivers@pittlawpc.com
/

Bill Schuette Attorney General Kristin M. Heyse Assistant Attorney General Attorneys for State Defendants Mich. Dept of Attorney General Health, Education & Family Services Division P.O. Box 30758 Lansing, MI 48909 (517) 373-7700 P64353

Dated: March 10, 2014

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TABLE OF CONTENTS Page Table of Contents ....................................................................................... i Index of Authorities................................................................................. iii Introduction ............................................................................................... 1 Argument ................................................................................................... 2 I. The change Plaintiffs seek should be left to the will of the peoplethis Court is not the correct forum to define marriage in Michigan. ...................................................................... 2 The law is clear that the Michigan Marriage Amendment does not violate Plaintiffs constitutional rights. ............................ 4 A. B. Baker v. Nelson forecloses the Courts review of this case. ......................................................................................... 4 Because this case affects sexual orientation, which is not a protected class, and does not infringe a fundamental right, rational-basis review applies. ................. 5 Trials are unnecessary in rational-basis cases, such as this one, because the burden is on the plaintiffs to negate every conceivablenot necessarily actual or articulatedbasis that might support the law at issue. ....... 7 The Michigan Marriage Amendment meets rationalbasis review. ............................................................................ 8 1. It is rational for the people of the State of Michigan to define marriage such that a family with both a mom and a dad is the ideal setting in which to raise children. .................................................. 8

II.

C.

D.

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2.

In the face of scientific disagreement in the area of same-sex parenting, it was prudent for the people to proceed with caution..................................... 16 The majority of Michigan voters who supported the Marriage Amendment cannot fairly be said to have been motivated by animus in electing to retain the definition of marriage. ................................ 17

3.

E.

The Michigan Adoption Code meets rational-basis review. ................................................................................... 19

Conclusion and Relief Requested ............................................................ 20 Certificate of Service (e-file) .................................................................... 21

ii

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INDEX OF AUTHORITIES Page Cases Andersen v. King County, 158 Wash. 2d 1 (2006) ...................................................................... 6, 11 Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) ...................................................................... 13 Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) ................................................................ 4 Baker v. Nelson, 409 U.S. 810 (1972) ................................................................................ 4 Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) .............................................................................. 13 Cf. Taylor v. Louisiana, 419 U.S. 522 (1975) .............................................................................. 13 Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006) ................................................................ 13 Davis v. Prison Health Serv., 679 F.3d 433 (6th Cir. 2012) .............................................................. 5, 6 Dean v. Dist. of Columbia, 653 A.2d 307 (D.C. 1995) ................................................................. 7, 13 F.C.C. v. Beach Commcns, Inc., 508 U.S. 307 (1993) ................................................................................ 7 Heller v. Doe, 509 U.S. 312 (1993) .......................................................................... 7, 12 Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) ................................................................. 6, 18 iii

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In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004).............................................. 13 In re Winship, 397 U.S. 358 (1970) ................................................................................ 3 J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) ................................................................................ 5 Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (D. Haw. 2012) ........................................ 5, 10, 13 Lewis v. Harris, 908 A.2d 196, 211 (N.J. 2006 ............................................................... 7 Lofton v. Sec. of Dept. of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004) .............................................................. 19 Loving v. Virginia, 388 U.S. 1 (1967)........................................................ 9 Marshall v. United States, 414 U.S. 417 (1974) ........................................................................ 16, 17 Powers v. Harris, 379 F.3d 1208 (10th Cir. 2004) .............................................................. 6 Romer v. Evans, 517 U.S. 620 (1996) ................................................................................ 6 Scarbrough v. Morgan Cnty Bd. of Educ., 470 F.3d 250 (6th Cir. 2006) .................................................................. 6 Sevcik v. Sandoval, 911 F. Supp. 2d 966 (D. Nev. 2012) ..................................................... 13 Sissung v. Sissung, 31 N.W. 770 (Mich. 1887) ....................................................................... 9 Smelt v. County of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005) ................................................... 13

iv

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Standhardt v. Super. Court, 77 P.3d 451 (Ariz. Ct. App. 2003)......................................................... 13 United States v. Windsor, 133 S. Ct. 2675 (2013) ...................................................................... 3, 18 Washington v. Glucksberg, 521 U.S. 702, 72021 (1997) ................................................................ 6 Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) ................................................ 13

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INTRODUCTION The definition of marriage in Michigan is an issue entrusted to the people to decide: this policy question is best resolved in the voting booth, not in a court room. In 2004, the people memorialized the longstanding definition of marriage, as a union between one man and one woman, in the Michigan Constitution by a vote of 59% to 41%. In raw numbers, that translates to nearly 2.7 million people in support of reaffirming the definition of marriage. In defending that vote, the State does not promote animosity or bigotryit simply defends the will of the people and the democratic process itself. Because the peoples vote is supported by multiple valid reasons, such as the idea that a child benefits from having a mother and a father, it must be upheld. Regardless of the forum, the Michigan Marriage Amendment does not violate the Plaintiffs constitutional rights. Short of a constitutional violation, which Plaintiffs do not establish, the United States Supreme Court has held that it is up to the states, in their sovereign authority, to define and pass laws regarding marriage. That is precisely what Michigan has done here.

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The Marriage Amendment is constitutional because it is rationally related to legitimate governmental interests. The Marriage Amendment is supported, for example, by the simple truth that a child being raised by his or her mom and dad, with all things being equal, is ideal. This is not meant to insult or denigrate same-sex parents, but rather to recognize that one gender cannot wholly substitute the other, because each gender brings something unique to the raising of children. For these reasons, the State Defendants respectfully request that this Court rule in their favor. ARGUMENT I. The change Plaintiffs seek should be left to the will of the peoplethis Court is not the correct forum to define marriage in Michigan. Just as the people voted to enshrine the definition of marriage in the Michigan Constitution, so too should any changes be sought through the democratic process. The marriage debate is an ongoing issue of public policythe exact sort of decision that a democracy entrusts to the people. Thus, it should be up to the people, not this Court, to redefine marriage in Michigan if that is their will. Policy decisions are not for the courts to make. When this Court assumes for itself the power to declare any lawstate or federal 2

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unconstitutional because it offends [a] majority[ ] [of the courts] own views of what is fundamental and decent in our society, our Nation ceases to be governed according to the law of the land and instead becomes one governed ultimately by the law of the judges. In re Winship, 397 U.S. 358, 384 (1970) (Black, J., dissenting). The purpose of the judiciary is not to reflect public opinion in its deliberations or to satisfy public opinion with its decisions. Eugene Hickok, Judicial Selection: The Political Roots of Advice and Consent, in Judicial Selection: Merit, Ideology, and Politics 5 (1990). Indeed, the point of life tenure is independence from public opinion: the quality most needed in a judge is the ability to withstand the pressures of public opinion in order to ensure the primacy of the rule of law over the fluctuating politics of the hour. Id. The States retain the power to define and regulate marriage. By history and tradition the definition and regulation of marriage . . . has been treated as being within the authority and realm of the separate States. United States v. Windsor, 133 S. Ct. 2675, 2689-690 (2013). Here, the decision of whether to redefine marriage in Michigan should be left to the people, whether by a ballot initiative in 2016 or

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through their elected officials. As shown below, the Michigan Marriage Amendment is constitutional. Thus, the rule of law should prevail in this Court, with any change to be made through the democratic process. II. The law is clear that the Michigan Marriage Amendment does not violate Plaintiffs constitutional rights. A. Baker v. Nelson forecloses the Courts review of this case.

Any review of the Michigan Marriage Amendment is effectively foreclosed by Baker v. Nelson, 409 U.S. 810 (1972), because there is no substantial federal question posed. Thus, this case should be dismissed. In the lower-court Baker case, the Minnesota Supreme Court held that Minnesotas marriage law did not authorize marriage between persons of the same sex and that such marriages [were] accordingly prohibited. Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971). The Court went on to hold that this law did not violate the First, Eighth, Ninth, or Fourteenth Amendments. Id. at 187. On appeal to the United States Supreme Court, the Court dismissed the appeal for want of a substantial federal question. Baker, 409 U.S. 810. Like Minnesotas law, the Michigan Marriage Amendment also does not authorize marriage between persons of the same sex and such

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marriages are, accordingly, prohibited. Thus, Baker is binding, dispositive precedent on this issue: the case should be dismissed. B. Because this case affects sexual orientation, which is not a protected class, and does not infringe a fundamental right, rational-basis review applies.

Should the Court reach the merits of this case, despite Baker, the appropriate level of scrutiny is rational-basis review, because the class at issue involves sexual orientation, which is not a suspect class. Sixth Circuit precedent is binding on this point. In same-sex marriage cases, the court must be acutely aware of the class at issue. Gender is not at issue, because marriage laws are generally gender-neutral on their facethe prohibition on same-sex marriage is applied equally to men and women. See, e.g., Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1098-099 (D. Haw. 2012) (collecting cases). Were gender at issue, heightened scrutiny would be triggered. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 135 (1994). To the extent sexual orientation may be at issue, equal-protection claims involving sexual orientation are governed by rational-basis review. Davis v. Prison Health Serv., 679 F.3d 433, 438 (6th Cir. 2012); Scarbrough v. Morgan Cnty Bd. of Educ., 470 F.3d 250, 261 (6th Cir.

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2006). This is because homosexuality is not a suspect class in this circuit[.] Scarbrough, 470 F.3d at 261. Here, the Michigan Marriage Amendment treats men and women equally, thus heightened scrutiny does not apply. If sexual orientation is at issue, under Davis, the appropriate level of scrutiny in this case is rational-basis review. 1 Plaintiffs due-process argument does not change this, for the right to marry someone of the same sex is not a right that is objectively, deeply rooted in this Nations history and tradition, and implicit in the concept of ordered liberty. Washington v. Glucksberg, 521 U.S. 702, 72021 (1997). The right to marry that has been fundamental to our Nation (and Michigan) has not included same-sex marriage, as numerous courts have recognized. See, e.g., Andersen v. King Cnty., 138 P.3d 963, 979 (Wash. 2006) (en banc); Hernandez v.
1

In addition, the type of searching rational-basis review the Court employed in Romer v. Evans, 517 U.S. 620 (1996), is not applicable here. That case is the exception, not the rule. Powers v. Harris, 379 F.3d 1208, 1224 (10th Cir. 2004). Romer was unique in that the amendment ha[d] the peculiar property of imposing a broad and undifferentiated disability on a single named group by prohibiting all legislative, executive or judicial action at any level of state or local government designed to protect . . . homosexual persons or gays and lesbians. 517 U.S. at 624, 632. Because the Michigan Marriage Amendment focuses solely on marriage, it does not fall in the exceptional realm of Romer.

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Robles, 855 N.E.2d 1, 10 (N.Y. 2006); Lewis v. Harris, 908 A.2d 196, 211 (N.J. 2006; Dean v. District of Columbia, 653 A.2d 307, 333 (D.C. 1995). C. Trials are unnecessary in rational-basis cases, such as this one, because the burden is on the plaintiffs to negate every conceivablenot necessarily actual or articulatedbasis that might support the law at issue.

Under rational-basis review, a court does not judge the perceived wisdom or fairness of a law, nor does it examine the actual rationale for the law when adopted, but asks only whether there is any reasonably conceivable state of facts that could provide a rational basis for the classification. Heller v. Doe, 509 U.S. 312, 319-20 (1993) (quoting F.C.C. v. Beach Commcns, Inc., 508 U.S. 307, 313 (1993)). The question of rationality is a matter of lawa legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data. Beach Commcns, 508 U.S. at 315. Accordingly, trials, like the one here, are unnecessary. Further, the burden lies with, and never shifts from, the plaintiffs in a rational-basis case. Laws reviewed for rational basis come to the courts bearing a strong presumption of validity[.] Beach Commcns, 508 U.S. at 314. [T]hose attacking the rationality of the legislative classification have the burden to negative every conceivable basis 7

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which might support it[.] Id. at 315 (internal citation omitted). Plaintiffs face a high burden to overcome a statutes presumptive validity under rational-basis review. Maxwells Pic-Pac, Inc. v. Dehner, 739 F.3d 936, 940 (6th Cir. 2014). D. The Michigan Marriage Amendment meets rationalbasis review.

Plaintiffs have not met their burden to negate every conceivable basis the over 2.7 million voters may have had for retaining the definition of marriage. Retaining the definition of marriage between one man and one woman furthers State interests that would not be furthered, or furthered to the same degree, by allowing same-sex couples to marry due to the unique relationship between men and women and their natural ability to bear children. It is rational, indeed reasonable, for the people of the State of Michigan to define marriage to promote this as the ideal setting for raising children. 1. It is rational for the people of the State of Michigan to define marriage such that a family with both a mom and a dad is the ideal setting in which to raise children.

The bedrock of marriage in Michigan, along with dozens of other states, is a union between one man and one woman. Only this union

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reflects the unique ability for men and women to have children, to serve as role models for their children, and for parents to have a biological connection to their children. The definition corresponds to the reality of how children are most often born. In essence, it is rational for Michigan voters to decide that, all other things being equal, it is ideal for a child to be raised by his or her mom and dad. Before 2004, when Massachusetts voters elected for the first time in this nations history to redefine marriage to include same-sex relationships, it was commonly understood, without any controversy, that the institution of marriage owed its very existence to societys vital interest in responsible procreation and childrearing. Indeed, the Supreme Court has long recognized marriage as fundamental to our very existence and survival. Loving v. Virginia, 388 U.S. 1, 12 (1967). Moreover, in Michigan in particular, procreation has historically been understood as the first purpose of matrimony[.] Sissung v. Sissung, 31 N.W. 770, 772 (Mich. 1887). As the Hawaii District Court recognized, encouraging procreation to take place within an opposite-sex marital relationship advances legitimate State goals, while encouraging same-sex couples to marry

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does not advance this interest because same-sex couples cannot naturally procreate. Jackson, 884 F. Supp. 2d at 1112. In seeking to foster the optimal setting in which to raise children, it is rational to define marriage based on the relationshipone man and one woman out of which children are ordinarily born. There is then both a mother and a father to serve as role models for the children, and the potential for the children to be the offspring of the married couple. Every child has a mother and a father, and each parent brings something unique to the table. A man and a woman generally have the inherent ability to together produce a child biologically connected to both parents. This unique capacity to conceive a child is based on their complementarity in a conjugal union. There is, of course, no obligation to have children in marriage. But there is no dispute that it is through the sexual union of a man and a woman that the vast majority of children are created. In contrast, for same-sex couples, their conjugal union will never yield a child. For any children, there will always be at least one biological parent who is outside of the marital union, and there always will be at least one legal parent who is not a biological one. See

10

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Andersen, 158 Wash. 2d at 37 (Heterosexual couples are the only couples who can produce biological offspring of the couple). Defining marriage to include a relationship that is not biologically capable of producing children separates marriage from procreation. Same-sex couples must generally rely on some artificial intervention for the conception of any child, necessarily separating the child from one or both biological parents. Id. at 983 (single-sex couples raise children and have children with third party assistance or through adoption). On the other hand, children routinely result from the conjugal relationship between husband and wife. Because this can never be true for same-sex couples, they are not similarly situated, as equalprotection analysis requires. Again, this conclusion does not disparage the ability of same-sex couples or others to provide loving homes or to establish a stable, nurturing setting for children. The point is that the citizens of Michigan may choose to encourage the ideal setting by providing legal support for it, fostering it as the optimal arrangement. This definition has existed from time immemorial, a fact that demonstrates it is not rooted in animus toward same-sex couples or in an unwarranted

11

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stereotype that same-sex couples cannot provide a loving setting for children. They clearly can. Rather, the definition simply acknowledges the reality that same-sex relationships are different because they lack the natural capacity to bear children and the ability to provide biologically connected role modelsa mom and a dadto the children. In Michigans definition of marriage, each parent serves as a role model to the children. As one of their key family roles, moms and dads educate their children and provide them with tools that assist them in reaching adulthood. Specifically, moms and dads together teach their boys in their transition to manhood and their girls in reaching womanhood. The point is that having both a mom and a dad is beneficial for the raising of children. Importantly, the fact that not all opposite-sex couples have the ability or desire to procreate does not render this interest irrational. Id. at 1113. The Supreme Court has held that [a] classification does not fail rational-basis review because it is not made with mathematical nicety or because in practice it results in some inequality. Heller, 509 U.S. at 321. Rational-basis review does not require that sort of narrow tailoring or least-restrictive-means analysis. A state may act on the

12

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basis of distinguishing characteristics relevant to interests the State has the authority to implement without violating the Constitution. Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 366-67 (2001). Here, opposite-sex couples, who can naturally procreate, advance the interest in encouraging natural procreation to take place in stable relationships and same-sex couples do not to the same extent. Jackson, 884 F. Supp. 2d at 1114. Accordingly, it should not be surprising that federal and state courts have, en masse, agreed that responsible procreation and childrearing are well-recognized as legitimate state interests served by marriage. 2 There is a fundamental difference between a same-sex couple and a married man and woman who are unable to have children. For the raising of children, the married couple represents each of the sexes, which reflects the complementarity of the sexes and offers the role modeling helpful to the rearing of children. Each sex offers something

2See,

e.g., Jackson, 884 F. Supp. 2d at 1113; Sevcik v. Sandoval, 911 F. Supp. 2d 966, 1015-016 (D. Nev. 2012); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 867 (8th Cir. 2006); Smelt v. County of Orange, 374 F. Supp. 2d 861, 880 (C.D. Cal. 2005); Wilson v. Ake, 354 F. Supp. 2d 1298, 1308 (M.D. Fla. 2005); In re Kandu, 315 B.R. 123, 145 (Bankr. W.D. Wash. 2004); Standhardt v. Super. Court, 77 P.3d 451, 461-62 (Ariz. Ct. App. 2003); Dean, 653 A.2d at 333; Baehr v. Lewin, 852 P.2d 44, 55-56 (Haw. 1993).

13

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unique to children. Cf. Taylor v. Louisiana, 419 U.S. 522, 531-32 (1975) (The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; . . . a distinct quality is lost if either sex is excluded.). And the marriage of a man and woman who do not want children nevertheless reinforces the family ideal by establishing an example in marriage for other couples of the opposite sex who will have children. Furthermore, social science supports the States rationale for retaining the definition of marriage. The experts illustrated that moms and dads are important. Plaintiffs expert Dr. David Brodzinsky conceded this point on the first day of trial. (2/25/14 Trial Tr. at 21.) In addition, he acknowledged that mothers and fathers have unique characteristics. (2/25/14 Trial Tr. at 15-16.) Dr. Nancy Cott also agreed that the two sexes bring different contributions to parenting. (2/28/14 Trial Tr. at 55.) Defendants expert Dr. Joseph Price opined that [t]he ideal environment for a child is to be raised by a father and mother and particularly if the child is biologically related to both parents, particularly if those parents are married. (3/4/14 Trial Tr. at 108.) Furthermore, Drs. Mark Regnerus, Joseph Price, and Douglas Allen all

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conducted large, population-based studies that showed poorer outcomes for children being raised by same-sex couples. See 3/4/14 Trial Tr. at 88-92, 93-95 (Price); 3/5/14 Trial Tr. at 3 (Price); 3/5/14 Trial Tr. at 9294 (Marks); 3/3/14 Trial Tr. at 39-40, 62-63, 104-105 (Regnerus); Regnerus, How Different Are Adult Children of Parents Who Have Same-Sex Relationships? Findings from the New Family Structures Study, Social Science Research 41, 752-770 (2012). In sum, Plaintiffs have not negated every conceivable basis for the people of the State of Michigan to define marriage as a union between one man and one woman, because it is rational to promote the relationship between men and women as the ideal setting in which to raise children. To say otherwise is to conclude that the nearly 2.7 million Michigan citizens who voted for the Amendment did not have a single rational basis among them, but instead were all irrational. Hence, the Court should hold that Plaintiffs have not met their burden.

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2.

In the face of scientific disagreement in the area of same-sex parenting, it was prudent for the people to proceed with caution.

At a minimum, the social sciences indicate that research in this area is still in its infancy, which merits the people, and courts, proceeding with caution in potentially redefining marriage in Michigan. The United States Supreme Court has held that when there is disagreement in the sciences, states are permitted to set the bounds of its laws until the disagreements are resolved. When a legislature undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad and courts should be cautious not to rewrite legislation, even if the judge is in a position to effectuate change. Marshall v. United States, 414 U.S. 417, 427 (1974). In essence, states may proceed with caution in areas of scientific uncertainty. That is the case here. There exist studies on both ends of the spectrum coming to differing conclusions on the issue of whether samesex couples raise children as well as opposite-sex couples. Dr. Regnerus opined that the no differences claim is premature because scientists are nothing if not tending to be a little skeptical when people purport

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rapid change in a paradigm. (3/3/14 Trial Tr. at 29-30; see also 2/25 /14 Trial Tr. at 14, 21-25 (Brodzinsky); 3/4/14 Trial Tr. at 46-48 (Price); 3/3/14 Trial Tr. at 107 (Regnerus); 3/5/14 Trial Tr. at 23-24 (Marks conducting survey of 59 studies); Doc # 71-1 (Brief of Amicus Curiae Michigan Family Forum at 11-12, 15-19)). Further, Dr. Douglas Allen chronologically detailed methodological flaws in approximately 60 gay/lesbian parenting studies. Dr. Allen painstakingly reviewed each study and explained why the no difference conclusion is simply wrong. (See 3/6/14 Hrg Tr. at _____ (Allen); see also More Heat Than Light: A Critical Assessment of the Same-Sex Parenting Literature, 1995-2013 (2013), States Exhibit 12)). Ultimately, the testimony showed that this area is fraught with . . . scientific uncertainties. See Marshall, 414 U.S. at 427. Accordingly, it was prudent for the State to proceed with caution in this area by retaining the definition of marriage. 3. The majority of Michigan voters who supported the Marriage Amendment cannot fairly be said to have been motivated by animus in electing to retain the definition of marriage.

The effort to retain the definition of marriage is not based in animus toward same-sex couples or individuals who experience same17

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sex attraction. Every human life has inherent dignity and is of immense worth. Rather, the retention is a policy decision that expresses the peoples view about the ideal family life. To say that the only basis for the Marriage Amendment is animus is to disparage every supporter of the Amendment. Such a sentiment is simply unfounded. A court should not lightly conclude that everyone who held [the historical belief that there could be marriages only between the different sexes] was irrational, ignorant or bigoted. Hernandez v. Robles, 855 N.E.2d 1, 8 (N.Y. 2006). It is up to the states to define marriage within their borders, Windsor, 133 S. Ct. at 2689690, thereby necessarily promoting what that state sees as the ideal. All citizens are free to argue about the current understanding of the ideal of marriage. Accordingly, different communities will have different visions of what constitutes the ideal. People of good will may genuinely and reasonably disagree about the issue without holding any sort of discriminatory animus. Consequently, Plaintiffs have failed to render irrational all of the States conceivable bases for retaining the definition of marriage such that animus is the only basis that remains.

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E.

The Michigan Adoption Code meets rational-basis review.

As this Court noted in its Opinion and Order denying the cross motions for summary judgment, second-parent adoption is not at issue because it is subsumed within the marriage issue. (Op. & Order Den. Cross Mot. for Summ. J., Doc. #89 at 3 n.5.) That is, the decision on the marriage issue will resolve the adoption issue. (Id.) But even if the adoption issue were on the table, Plaintiffs again fail to meet their burden to negate every conceivable basis the State may have for limiting adoptions to single persons or married couples. This issue is subject to rational-basis review, because Michigans adoption statute does not burden a fundamental right, nor is sexual orientation a suspect class. See Lofton v. Sec. of Dept. of Children & Family Servs., 358 F.3d 804, 818 (11th Cir. 2004). In this case, the Michigan legislature rationally determined that the best interest of children and the interest of familial stability would be promoted by limiting adoptions to single persons and married couples. First, the limitations ensure that the adopting parents are able to provide the adoptee with the ideal family structure, i.e., families with married mothers and fathers. Second, the adopting married 19

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parent is similarly able to provide the adoptee with a dual-gender parenting environment. Finally, the adopting single parent has a greater potential of providing their adoptee with the ideal family structure. Because Plaintiffs have not negated the rationality of these bases, or any other conceivable basis for that matter, Michigans adoption statute is constitutional. CONCLUSION AND RELIEF REQUESTED State Defendants respectfully request this Court rule in their favor, holding that Plaintiffs have failed to render the will of the people irrational. Bill Schuette Attorney General /s/ Kristin M. Heyse Assistant Attorney General Attorneys for State Defendants Mich. Dept of Attorney General Health, Education & Family Services Division P.O. Box 30758 Lansing, MI 48909 (517) 373-7700 P64353

Dated: March 10, 2014

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CERTIFICATE OF SERVICE (E-FILE) I hereby certify that on March 10, 2014, I electronically filed the above document with the Clerk of the Court using the ECF System, which will provide electronic copies to counsel of record. /s/ Kristin M. Heyse Assistant Attorney General Attorneys for State Defendants Mich. Dept of Attorney General Health, Education & Family Services Division P.O. Box 30758 Lansing, MI 48909 (517) 373-7700 P64353

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