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Nos. 12-16995, 12-16998, 12-17668 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BEVERLY SEVCIK, et al., Plaintiffs-Appellants, v. BRIAN SANDOVAL, et al., Defendants-Appellees

NATASHA N. JACKSON, et al., Plaintiffs-Appellants, v. NEIL ABERCROMBIE, et al., Defendant-Appellant On Appeal from United States District Court for the District of Nevada, Case No. 2:12-cv-00578-RCJ-PAL (Hon. Robert C. Jones) and United States District Court for the District of Hawaii, Case No. 1:11-cv-00734-ACK-KSC (Hon. Alan C. Kay)

BRIEF OF AMICI CURIAE 13 PUBLIC INTEREST AND LEGAL SERVICE ORGANIZATIONS IN SUPPORT OF APPELLANTS AND REVERSAL OF THE JUDGMENTS BELOW Shannon P. Minter Christopher F. Stoll Samantha Ames NATIONAL CENTER FOR LESBIAN RIGHTS 870 Market St., Suite 370 San Francisco, CA 94102 (415) 392-6257

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This brief is filed on behalf of the following organizations:

9to5 Asian Americans Advancing Justice | AAJC Asian Americans Advancing Justice - Asian Law Caucus Asian Americans Advancing Justice - Chicago Asian Americans Advancing Justice - Los Angeles Human Rights Campaign Leadership Conference on Civil and Human Rights League of United Latin American Citizens National Association for the Advancement of Colored People National Black Justice Coalition National Center for Lesbian Rights National Council of La Raza National Gay and Lesbian Task Force Foundation

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FED. R. APP. P. 26.1 CORPORATE DISCLOSURE STATEMENT None of the amici has a parent corporation and no corporation owns 10% or more of any amicis stock.

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TABLE OF CONTENTS INTEREST OF AMICI CURIAE................................................................................... 1 SUMMARY OF THE ARGUMENT ........................................................................... 2 ARGUMENT ................................................................................................................. 4 I. Classifications That Are Irrelevant Or Rarely Relevant To Government Decision-Making Receive Heightened Scrutiny Under The Equal Protection Clause.................................................................... 4 Under Supreme Court Precedent, Laws That Discriminate On The Basis Of Sexual Orientation Are Subject To Heightened Scrutiny................................................................................................................ 6 A. Federal Decisions Before Lawrence Rejected Heightened Scrutiny By Relying on Bowers, But Lawrence Removed Any Impediment To Applying Heightened Scrutiny To Sexual Orientation Classifications ........................................................ 6 Windsor Confirms That Heightened Scrutiny Is Appropriate For Laws That Discriminate On The Basis Of Sexual Orientation.......................................................................... 13

II.

B.

III.

Under The Traditional Heightened-Scrutiny Framework, Classifications Based On Sexual Orientation Warrant Treatment As Suspect Or Quasi-Suspect ...................................................... 16 A. Gay, Lesbian, And Bisexual People Have Suffered A Long History Of Discrimination ...................................................................... 18 Sexual Orientation Has No Bearing On Ability To Perform In Or Contribute To Society ................................................................... 19 Sexual Orientation Is An Immutable Characteristic And An Integral Part Of Identity That Defines A Discrete Group ...................................................................................................... 21

B.

C.

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D.

Gay, Lesbian, and Bisexual People Are Disadvantaged in the Political Arena .................................................................................. 24

CONCLUSION............................................................................................................ 28 CERTIFICATE OF COMPLIANCE .......................................................................... 29 CERTIFICATE OF SERVICE.................................................................................... 30 APPENDIX ................................................................................................................ A-1

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TABLE OF AUTHORITIES Cases Able v. U.S., 968 F. Supp. 850 (E.D.N.Y. 1997) revd on other grounds, 155 F.3d 628 (2nd Cir. 1998) ..............................................................................................................22 Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989) ..................................................................... 8, 19, 25 Bowers v. Hardwick, 478 U.S. 186 (1986) ...................................................................................... 3, 6, 7 Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010)..........................................................................................10 Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006) ......................................................................... 12, 13 City of Cleburne, Tex. v. City of Cleburne Living Ctr., 472 U.S. 432 (1985) .............................................................................. 5, 7, 21, 27 City of New Orleans v. Dukes, 427 U.S. 297 (1976) ...............................................................................................5 Clark v. Jeter, 486 U.S. 456 (1988) ...............................................................................................5 Equal. Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 54 F.3d 261 (6th Cir. 1995) ....................................................................... 8, 20, 22 Frontiero v. Richardson, 411 U.S. 677 (1973) ...................................................................................... 17, 25 Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374 (D. Mass. 2010)...................................................................20 Golinski v. Office of Pers. Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012).......................................................... passim Grutter v. Bollinger, 539 U.S. 306 (2003) ...............................................................................................5 Hernandez-Montiel v. I.N.S., 225 F.3d 1084 (9th Cir. 2000) ..............................................................................23

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High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) ........................................................................ passim High Tech Gays, 909 F.2d 375 (9th Cir. 1990) ..................................................................................9 In re Marriage Cases, 183 P.3d 384 (Cal. 2008) ......................................................................... 17, 23, 24 J.E.B. v. Alabama, 511 U.S. 127 (1994) .............................................................................................15 Jantz v. Muci, 976 F.2d 623 (10th Cir. 1992) ..........................................................................8, 22 Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004) ................................................................................12 Karouni v. Gonzales, 399 F.3d 1163 (9th Cir. 2005) ..............................................................................10 Kerrigan v. Commr of Pub. Health, 957 A.2d 407 (Conn. 2008) .......................................................................... passim Lawrence v. Texas, 539 U.S. 558 (2003) ..................................................................................... passim Lofton v. Secy of the Dept of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004) ..............................................................................12 Log Cabin Republicans v. United States, 716 F. Supp. 2d 884 (C.D. Cal. Oct. 12, 2010), vacated 658 F.3d 1162 (9th Cir. 2011) .....................................................................................................................26 Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) .............................................................................................18 Massachusetts v. U.S. Dep't of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012) ....................................................................................11 Mathews v. Lucas, 427 U.S. 495 (1976) ...................................................................................... 17, 23 Nyquist v. Mauclet, 432 U.S. 1 (1977) .................................................................................................21 Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987)..................................................................................8

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Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294 (D. Conn. 2012) ..................................................................19 Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010)............................................... 18, 20, 22, 24 Plyler v. Doe, 457 U.S. 202 (1982) .........................................................................................5, 22 Price-Cornelison v. Brooks, 524 F.3d 1103 (10th Cir. 2008) ............................................................................12 Richenberg v. Perry, 97 F.3d 256 (8th Cir. 1996) ....................................................................................8 Romer v. Evans, 517 U.S. 620 (1996) ...........................................................................................5, 6 Rowland v. Mad River Local Sch. Dist, 470 U.S. 1009 (1985) .......................................................................................7, 19 Scarbrough v. Morgan County Bd. of Educ., 470 F.3d 250 (6th Cir. 2006) ................................................................................12 Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005) ..............................................................................23 Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) ....................................................................................8 Tuan Anh Nguyen v. INS, 533 U.S. 53 (2001) .................................................................................................2 United States v. Carolene Prods. Co., 304 U.S. 144 (1938) .........................................................................................4, 26 United States v. Virginia, 518 U.S. 515 (1996) ...........................................................................................2, 6 United States v. Windsor, 133 S. Ct. 2675 (2013).................................................................................. passim United States v. Windsor, 699 F.3d 169 (2d Cir. 2012) ......................................................................... passim Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) ........................................................................ 17, 20 Watkins v. U.S. Army, 875 F.2d 699 (9th Cir. 1989) ............................................................... 9, 19, 23, 24
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Witt v. Dept of Air Force, 527 F.3d 806 (9th Cir. 2008) ............................................................. 12, 14, 18, 26 Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989) ........................................................................8, 10 Statutes Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, Pub. L. No. 111-84, 4701-4713, 123 Stat. 2190 (2009) .....................................................26 Other Authorities Am. Psychiatric Assn, Resolution, (Dec. 15, 1973), reprinted in 131 Am. J. Psychiatry 497 (1974); ...................................................20 Arthur S. Leonard, Exorcising the Ghosts of Bowers v. Hardwick: Uprooting Invalid Precedents, 84 Chi.-Kent L. Rev. 519 (2009) ...............................................................................12 Barbara S. Gamble, Putting Civil Rights to a Popular Vote, 41 Am. J. Pol. Sci. 245 (1997) ..............26 Brief for the United States on the Merits Question, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307), 2013 WL 683048 ..................................................................................................... 19, 22, 24 Donald P. Haider-Markel et al., Lose, Win, or Draw? A Reexamination of Direct Democracy and Minority Rights, 60 Pol. Res. Q. 304 (2007) .......................................................................26 G.M. Herek, et al. Demographic, Psychological, and Social Characteristics of SelfIdentified Lesbian, Gay, and Bisexual Adults, 7 (2010) .......................................................22 John Hart Ely, Democracy & Distrust 162-64 (1980)..............................................................7, 21 Laurence H. Tribe, American Constitutional Law 1616 (2d ed.) (1988) ..............................................7 Letter from the Attorney General to Congress on Litigation Involving the Defense of Marriage Act (Feb. 23, 2011)...........................................................................11 Minutes of the Annual Meeting of the Council of Representatives, 30 Am. Psychologist 620 (1975) ..........................................................................20
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INTEREST OF AMICI CURIAE1 Amici are a coalition of 13 civil and human rights groups and legal service organizations committed to preventing, combatting, and redressing discrimination and protecting the equal rights of women and minorities in the United States, including African-Americans, Latinos, Asian Americans and Pacific Islanders, and lesbian, gay, bisexual, and transgender individuals.2 Amici submit this brief in support of Appellants to ensure that the Constitutions guarantees of equal protection effectively protect all people from invidious discrimination, whether on account of race, gender, national origin, religion, alienage, or sexual orientation. All amici have given their authorization to have this brief filed on their behalf.

The parties have consented to the filing of this brief. Counsel for the parties have not authored this brief. The parties and counsel for the parties have not contributed money that was intended to fund preparing or submitting the brief. No person other than the amici curiae, their members, or their counsel contributed money that was intended to fund preparing or submitting the brief.
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A brief description of each amicus is included herein as Appendix A.

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SUMMARY OF THE ARGUMENT This Court should expressly hold that laws that discriminate against gay, lesbian, and bisexual persons, including state laws that exclude same-sex couples from marriage, are subject to heightened scrutiny under the Equal Protection Clause. In United States v. Windsor, 133 S. Ct. 2675 (2013), the Supreme Court noted that whether heightened equal protection scrutiny should apply to laws that classify on the basis of sexual orientation is an issue still being debated and considered in the courts. Id. at 2683-84. In affirming the judgment of the Second Circuit in that case, the Court left undisturbed the Second Circuits holding that laws that discriminate based on sexual orientation should be scrutinized under the same heightened standard that the Supreme Court has applied to sex-based classifications.3 See United States v. Windsor, 699 F.3d 169, 185 (2d Cir. 2012).

The Second Circuit used both the term heightened scrutiny and the term intermediate scrutiny to describe the inquiry required of laws that discriminate based on sex or sexual orientation. See Windsor, 699 F.3d at 185. This brief will use the phrase heightened scrutiny, except when quoting authorities. See United States v. Virginia, 518 U.S. 515, 555 (1996) (using the term heightened scrutiny to describe the standard of review for sex-based classifications, without using the term intermediate scrutiny anywhere in majority opinion); United States v. Windsor, 133 S.Ct. at 2684) (using the term heightened scrutiny, but not intermediate scrutiny); Tuan Anh Nguyen v. INS, 533 U.S. 53, 61 (2001) (same); id. at 2066 (OConnor, J., dissenting) (In a long line of cases spanning nearly three decades, this Court has applied heightened scrutiny to legislative classifications based on sex.).
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Moreover, the Supreme Court in Windsor determined that Section 3 of the Defense of Marriage Act (DOMA) could not withstand careful consideration, without examining whether that statutory provision could survive ordinary rational basis review. 133 S. Ct. at 2692. After Windsor, it seems plain that government discrimination based on sexual orientation warrants heightened scrutiny under the Constitutions equal protection guarantees. For many years, courts, including this Court, invoked the Supreme Courts holding in Bowers v. Hardwick, 478 U.S. 186 (1986), that same-sex intimate conduct could be criminalized, to conclude that government discrimination based on sexual orientation did not warrant heightened scrutiny. However, the Supreme Court overruled Bowers ten years ago in Lawrence v. Texas, 539 U.S. 558 (2003), acknowledging in its opinion that lesbian and gay persons had experienced a long history of discriminatory treatment and that lesbian and gay people were capable of building enduring relationships. Id. at 567. In light of Lawrence and Windsor, earlier decisions from this Court and other circuits holding or suggesting that classifications that discriminate on the basis of sexual orientation are subject only to rational basis review do not comport with Supreme Court precedent. Such cases, therefore, do not determine the result this Court should reach regarding the appropriate level of constitutional scrutiny. Rather, this Court should look to and apply the well-established factors that the

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Supreme Court itself has used to determine whether laws that classify based on a particular personal characteristic should be subject to heightened scrutiny. Under those factors, heightened scrutiny is required where, as here, there has been a history of discrimination against a politically vulnerable group, based on a characteristic that is unrelated to ones ability to contribute to society, but that is integral to ones identity and that one cannot reasonably be expected to change . Windsor illustrates that courts should view classifications based on sexual orientation with skepticism to ensure they are not based on an improper discriminatory purpose. Amici urge the Court to hold that classifications based on sexual orientation are subject to heightened scrutiny. The statutes challenged in these cases cannot withstand that exacting inquiry. ARGUMENT I. Classifications That Are Irrelevant Or Rarely Relevant To Government Decision-Making Receive Heightened Scrutiny Under The Equal Protection Clause. In a long and established line of cases, the Supreme Court has developed a framework for considering whether a classification should be treated with suspicion and subjected to heightened scrutiny. The most important factors in this framework are (1) whether a classified group has suffered a history of invidious discrimination, and (2) whether the classification has any bearing on a persons ability to perform in or contribute to society. As additionalbut not dispositive

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factors, courts occasionally have considered (3) whether the characteristic is immutable or an integral part of a persons identity and (4) whether the group is a minority or lacks sufficient power to protect itself in the political process. See Windsor, 699 F.3d at 181 (Immutability and lack of political power are not strictly necessary factors to identify a suspect class.). No single factor is dispositive, and each can serve as a warning sign that a particular classification provides no sensible ground for differential treatment, City of Cleburne, Tex. v. City of Cleburne Living Ctr., 472 U.S. 432, 440 (1985), or is more likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective, Plyler v. Doe, 457 U.S. 202, 216 n.14 (1982). The Supreme Court has so far . . . given the protection of heightened equal protection scrutiny explicitly to classifications based on race, sex, illegitimacy, religion, alienage, and national origin. See Romer v. Evans, 517 U.S. 620, 629 (1996); Clark v. Jeter, 486 U.S. 456, 461 (1988); City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976). Courts approach such classifications with skepticism and subject them to heightened scrutiny in order to smoke out whether they reflect prejudice or stereotypes rather than a legitimate governmental purpose. Grutter v. Bollinger, 539 U.S. 306, 326 (2003). Depending on the classification at issue, the Supreme Court has described its review as strict scrutiny, or heightened or intermediate scrutiny. Under any of these forms of elevated

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scrutiny, the Court requires the government to bear the burden of proving the statutes constitutionality and demands a substantial and exceedingly persuasive justification. See Virginia, 518 U.S. at 531-33. For the reasons explained below, sexual orientation is another classification that should be given the protection of heightened equal protection scrutiny. Romer, 517 U.S. at 629. The government should bear the burden of proving the statutes constitutionality, by showing, at a minimum and in an exceedingly persuasive manner, that the sexual orientation classification substantially furthers an important governmental interest. Cf. Virginia, 518 U.S. at 532-33. II. Under Supreme Court Precedent, Laws That Discriminate On The Basis Of Sexual Orientation Are Subject To Heightened Scrutiny. A. Federal Decisions Before Lawrence Rejected Heightened Scrutiny By Relying on Bowers, But Lawrence Removed Any Impediment To Applying Heightened Scrutiny To Sexual Orientation Classifications.

Sexual orientation shares important features with characteristics like sex and race that first led courts to look with skepticism at classifications made on those bases. From 1986 to 2003, however, traditional equal protection analysis for sexual orientation classifications was cut short by the Supreme Court s decision in Bowers, which erroneously held that the Due Process Clause does not protect a fundamental right . . . [for] homosexuals to engage in sodomy. Bowers, 478 U.S. at 190. The Supreme Court overruled Bowers in Lawrence, and emphatically

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declared that Bowers was not correct when it was decided, and it is not correct today. Lawrence, 539 U.S. at 578. But in the meantime, the Bowers decision had imposed a stigma that demean[ed] the lives of homosexual persons in other areas of the law as well. Id. at 575. As Lawrence explained, [w]hen homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination. 539 U.S. at 575. By effectively endorsing that discrimination, Bowers preempted the equal protection principles that otherwise would have required subjecting sexual orientation classifications to heightened scrutiny. In the decades before Bowers, the Supreme Court developed a framework for deciding whether a classification should be subjected to heightened scrutiny. See City of Cleburne, 473 U.S. at 440-41 (1985). Judges and scholars alike concluded that gay, lesbian, and bisexual people met the test.4 However, after Bowers erroneously held that criminal sodomy statutes were constitutional under the Due Process Clause, 478 U.S. at 191, most courts stopped examining the heightened-scrutiny factors and instead interpreted Bowers to

See, e.g., Rowland v. Mad River Local Sch. Dist, 470 U.S. 1009, 1014 (1985) (Brennan, J., dissenting from denial of certiorari) (arguing that classifications based on sexual orientation should receive strict, or at least heightened, scrutiny); John Hart Ely, Democracy & Distrust 162-64 (1980); Laurence H. Tribe, American Constitutional Law 1616 (2d ed.) (1988).

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foreclose application of heightened scrutiny to sexual orientation classifications.5 These courts reasoned that, if the Constitution permitted a state to criminalize particular conduct, it would make little sense to forbid a state from passing laws targeting the class of people who engaged in that conduct.6 To the extent the courts discussed the heightened-scrutiny factors at all, they did so in a cursory fashion and with the assumption that the only characteristic uniting gay, lesbian, and bisexual people as a class was the fact that they engaged in intimate conduct that, at the time, could be criminalized. The Ninth Circuit followed the prevailing view that Bowers automatically foreclosed sexual orientation classifications from heightened scrutiny. In High Tech Gays, the Court reasoned that, if there is no fundamental right to engage in homosexual sodomy under the Due Process Clause of the Fifth Amendment, it

See, e.g., Richenberg v. Perry, 97 F.3d 256, 260 (8th Cir. 1996); Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir. 1996) (en banc); Equal. Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 54 F.3d 261, 267-68 (6th Cir. 1995), vacated and remanded 518 U.S. 1001 (1996); Jantz v. Muci, 976 F.2d 623 (10th Cir. 1992); High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989); Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987). 6 See, e.g., Padula, 822 F.2d at 103 (If the [Bowers] Court was unwilling to object to state laws that criminalize the behavior that defines the class, it is hardly open to a lower court to conclude that state sponsored discrimination against the class is invidious. After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal.) .
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would be incongruous to expand the reach of equal protection to find a fundamental right of homosexual conduct under the equal protection component of the Due Process Clause of the Fifth Amendment. 895 F.2d at 571 (internal citation omitted). Though the Ninth Circuit followed others in not undertaking a comprehensive inquiry into the heightened scrutiny factors, it recognized that homosexuals have suffered a history of discrimination. Id. at 573-74. Some judges, including Judges Norris and Canby of this Court, forcefully argued that Bowers should not be used to bypass the traditional heightened-scrutiny analysis. Watkins v. U.S. Army, 875 F.2d 699, 724-28 (9th Cir. 1989) (en banc) (Norris, J., concurring); High Tech Gays, 909 F.2d 375, 378 (9th Cir. 1990) (Canby, J., dissenting from denial of rehearing en banc). But a panel of this Court in High Tech Gays viewed Bowers as a barrier to heightened scrutiny, and this Court declined to grant rehearing of the panels decision. See High Tech Gays, 895 F.2d at 571 (holding that Bowers precluded sexual orientation from being recognized as a suspect classification); High Tech Gays, 909 F.2d at 376 (declining to hear High Tech Gays en banc). When the Supreme Court decided Lawrence, it removed the barrier that Bowers had erected and cleared the path for traditional heightened scrutiny analysis to resume its well-established role in equal protection cases. Further, in

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overruling Bowers, the Supreme Court rejected the logic of High Tech Gays and other decisions that attempted to distinguish discrimination based on homosexual conduct from invidious discrimination against gay people as a class. High Tech Gays, 895 F.2d at 573; see also Woodward, 871 F.2d at 1076. As Lawrence explained, [w]hen homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination. Lawrence, 539 U.S. at 575 (emphasis added); accord id., at 583 (OConnor, J., concurring in judgment) (While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class.). Indeed, applying Lawrence, the Supreme Court in Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010), rejected a litigants argument that a prohibition on same-sex intimate conduct is different from discrimination against gay people. Id. at 2990. The Court explained that [o]ur decisions have declined to distinguish between status and conduct in this context. Id.; see also Karouni v. Gonzales, 399 F.3d 1163, 1172-73 (9th Cir. 2005) (rejecting attempt to distinguish between discrimination based on status as a homosexual and discrimination based on homosexual acts).

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After carefully analyzing the pre-Lawrence decisions that relied on Bowers to deny heightened scrutiny for sexual orientation classifications, the Executive Branch undertook a review of its previous positions in cases across the country challenging Section 3 of DOMA and concluded that under any reasonable application of the Supreme Courts test, legislative classifications based on sexual orientation should be denied a presumption of constitutionality and instead be subjected to heightened scrutiny. See Letter from the Attorney General to Congress on Litigation Involving the Defense of Marriage Act (Feb. 23, 2011).7 The Second Circuit in Windsor accepted the Executive Branchs position and expressly held that sexual orientation is a quasi-suspect classification subject to heightened scrutiny. United States v. Windsor, 699 F.3d 169, 185 (2d Cir. 2012).8 After Lawrence, but before the Executive Branchs announcement of its position on heightened scrutiny, some circuit courts continued to hold that sexual orientation discrimination is not subject to heightened scrutiny. But those

7 8

Available at http://www.justice.gov/opa/pr/2011/February/11-ag-223.html.

The First Circuit declined to hold that sexual orientation classifications are suspect or quasi-suspect, but nevertheless held that such classifications must be subjected to a form of review that requires a more careful assessment of the justifications than the light scrutiny offered by conventional rational basis review. Massachusetts v. U.S. Dep't of Health & Human Servs., 682 F.3d 1, 11 (1st Cir. 2012).

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decisions simply followed outdated cases that relied on Bowers instead of engaging in a proper analysis of the heightened-scrutiny factors.9 In several cases the parties had not submitted briefs on the appropriate standard of scrutiny or otherwise presented the issue to the court.10 The only post-Lawrence circuit court decision applying ordinary rational basis review without reliance on Bowers and its progeny is Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006), which upheld a state constitutional amendment barring same-sex couples from marrying. But instead of applying the factors established by the Supreme Court to determine whether sexual orientation classifications require heightened scrutiny, the Bruning panel tautologically concluded that rational-basis review should apply to classifications based on sexual orientation because a rational basis allegedly

See, e.g., Lofton v. Secy of the Dept of Children & Family Servs., 358 F.3d 804, 818 & n.16 (11th Cir. 2004); Scarbrough v. Morgan County Bd. of Educ., 470 F.3d 250, 261 (6th Cir. 2006); Price-Cornelison v. Brooks, 524 F.3d 1103, 1114 n.9 (10th Cir. 2008); Witt v. Dept of Air Force, 527 F.3d 806, 821 (9th Cir. 2008); see generally Arthur S. Leonard, Exorcising the Ghosts of Bowers v. Hardwick: Uprooting Invalid Precedents, 84 Chi.-Kent L. Rev. 519 (2009).

10

See, e.g., Price-Cornelison, 524 F.3d at 1113 n.9 (noting that plaintiff argued in the district court that lesbians comprise a suspect class, warranting strict scrutiny, [but] does not reassert that claim now on appeal); Witt, 527 F.3d at 823 (Canby, J., dissenting in part) (noting that plaintiff had not argued on appeal that sexual orientation classifications should receive heightened scrutiny); see also Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004) (qualified-immunity case discussing the level of scrutiny during the period from 2000 to 2002 but not addressing what the standard of scrutiny should be after Lawrence).

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existed for such classifications in some circumstances. Id. at 867-68.11 Yet if suspect classifications always failed rational-basis review, then there would be no need for heightened scrutiny. The whole point of heightened scrutiny is that the courts must require a stronger justification from the government when certain classifications have historically been prone to abuse. After Lawrence, Bowers no longer acts as a barrier to applying heightened scrutiny to sexual orientation classifications, nor can it be relied on to avoid the question altogether. Instead, this Court should engage in the established inquiry, which strongly supports the application of heightened scrutiny to laws targeting gay, lesbian, and bisexual people. B. Windsor Confirms That Heightened Scrutiny Is Appropriate For Laws That Discriminate On The Basis Of Sexual Orientation. In United States v. Windsor, the Supreme Court struck down Section 3 of DOMA, holding that it violates the Fifth Amendments guarantees of due process and equal protection. Windsor, 133 S. Ct. at 2696. Although the Supreme Court did not explicitly state what level of scrutiny it was applying, this Court must

11

The court apparently concluded that because same-sex couples cannot procreate by accident, there exists a rational basis for distinguishing between same-sex and different-sex couples for purposes of conferring the benefits of marriage. See Bruning, 455 F.3d at 867-68. Amici agree with Appellants that the responsible procreation theory is not a rational basis for disparate treatment of gay people.

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determine the level of scrutiny applied by the Supreme Court by analyz[ing] what the Court actually did. Witt, 527 F.3d at 816 (emphasis in original). In Windsor, the Supreme Court affirmed the Second Circuits decision, which expressly held that laws that discriminate based on sexual orientation are subject to heightened scrutiny. See Windsor, 699 at 185. The Supreme Court did not reverse or criticize the Second Circuits analysis. Indeed, the Court held that Section 3 of DOMA required careful consideration under the Constitutions guarantees of equal protection and due process. 133 S. Ct. at 2692 (citations omitted). In holding that Section 3 of DOMA could not survive this careful review, the Court did not consider whether it would survive the ordinary rational basis inquiry. Instead, the Court rejected all of the proffered justifications for the law, holding that no legitimate purpose overcomes the [statutes] purpose and effect to disparage and to injure same-sex couples. Id. at 2696. Such weighing of purported justifications to determine whether they are sufficiently important and substantial is antithetical to ordinary rational basis reviewbut it is the essence of heightened scrutiny. The language the Supreme Court used in concluding that Section 3 was unconstitutional because its effect was to demean gay, lesbian, and bisexual people does not resemble the analysis used in ordinary rational basis review. See id. at 2706 (Scalia, J., dissenting) ([T]he Court certainly does not apply anything

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that resembles that deferential framework.). Instead, it is similar to the language the Court has used when discussing other discriminatory statutory classifications that are subject to heightened scrutiny. See, e.g., J.E.B. v. Alabama, 511 U.S. 127, 142 (1994) (Striking individual jurors on the assumption that they hold particular views simply because of their gender . . . denigrates the dignity of the excluded juror, and, for a woman, reinvokes a history of exclusion from political participation.). Windsor also provides further justifications for applying heightened scrutiny to sexual orientation classifications. The Supreme Court observed that gay, lesbian, and bisexual people have been subject to a history of discrimination with regard to the protections, responsibilities, and benefits of marriage. Windsor, 133 S.Ct. at 2689 (The limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to be seen in New York and certain other states as an unjust conclusion.). The Court also concluded that sexual orientation was not relevant to the issue of whether couples should enjoy those rights and benefits. Id. at 2692 ([M]arriage is more than a routine classification for purposes of certain statutory benefits. Private, consensual sexual intimacy between two adult persons of the same sex . . . can form but one element in a personal bond that is more enduring.) (quoting Lawrence, 539 U.S. at 567). The Court additionally referred to the relative lack of political power of

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gay, lesbian, and bisexual people. Id. at 2693 (The Constitutions guarantee of equality must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot justify disparate treatment of that group. (citations omitted)). In sum, applying this Courts Witt analysis, it is evident that what the Supreme Court actually did in Windsor was to apply a form of elevated scrutiny, which it described as careful consideration. Accordingly, this Court is not bound by High Tech Gayss conclusion that rational basis is the proper level of scrutiny and is free to consider that question in light of the factors that the Supreme Court has long applied in determining whether a suspect or quasi-suspect classification is at issue. III. Under The Traditional Heightened-Scrutiny Framework, Classifications Based On Sexual Orientation Warrant Treatment As Suspect Or Quasi-Suspect. The Supreme Court has developed a framework over many years for determining which classifications carry a high risk of reflecting prejudice, and, thus, should be scrutinized more heavily. The most important factors in this analysis are 1) whether a classified group has suffered a history of invidious discrimination, and 2) whether the classification has any bearing on a persons ability to perform in or contribute to society. See Windsor, 699 F.3d at 181; Kerrigan v. Commr of Pub. Health, 957 A.2d 407, 426 (Conn. 2008) (discussing

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precedents); Varnum v. Brien, 763 N.W.2d 862, 889 (Iowa 2009) (same); In re Marriage Cases, 183 P.3d 384, 443 (Cal. 2008) (analyzing factors that parallel the federal test). Occasionally, courts consider two additional factors to supplement their analyses: 3) whether the characteristic is immutable or an integral part of ones identity, and 4) whether the group is a minority or lacks sufficient political power to protect itself through the democratic process. See, e.g., Frontiero v. Richardson, 411 U.S. 677, 686 (1973); Mathews v. Lucas, 427 U.S. 495, 505 (1976); Windsor, 699 F.3d at 181. These factors are not essential to the analysis; the Supreme Court has never denied heightened scrutiny review where the group in question has experienced a long history of discrimination based on deep-seated prejudice and where the groups defining characteristic has no bearing on the ability of persons to contribute to society. Sexual orientation satisfies the two essential factors, as lesbian, gay, and bisexual people have suffered a long history of discrimination, and sexual orientation has no bearing on a persons ability to perform in or contribute to society. Furthermore, if the Court decides to take the optional factors into consideration as well, the Court should conclude that sexual orientation is both integral to persons identity and immutable, and that gay, lesbian, and bisexual

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people are politically vulnerable and not sufficiently powerful to be able to vindicate their rights through the political process. A. Gay, Lesbian, And Bisexual People Have Suffered A Long History Of Discrimination.

Courts apply heightened scrutiny when a group has experienced a history of purposeful unequal treatment or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities. Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313 (1976). As many courts have concluded, gay, lesbian, and bisexual people have faced a long and painful history of discrimination and persecution.12 Courts have acknowledged this history in multiple areas, including public employment, denial of child custody and visitation rights, denial of the ability to associate freely, and both legislative efforts and ballot initiatives targeting people on the basis of sexual orientation.13 The

See, e.g., Windsor, 699 F.3d at 182 (It is easy to conclude that homosexuals have suffered a history of discrimination. . . . [W]e think it is not much in debate. Perhaps the most telling proof of animus and discrimination against homosexuals in this country is that, for many years and in many states, homosexual conduct was criminal. These laws had the imprimatur of the Supreme Court.); Golinski v. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 985-86 (N.D. Cal. 2012); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 981-91, 997 (N.D. Cal. 2010).
12

See, e.g., Witt, 527 F.3d at 824-25 ([H]omosexuals have experienced a history of purposeful unequal treatment [and] been subjected to unique disabilities on the basis o stereotyped characteristics not truly indicative of their abilities.) (quoting Murgia, 427 U.S. at 313); High Tech Gays, 895 F.2d at 573 (acknowledging that homosexuals have suffered a history of discrimination); Ben-Shalom v. Marsh,
13

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Executive Branch also recognized this history when it stopped defending DOMA and argued that the Supreme Court should strike it down, based on its conclusion that sexual orientation classifications should be subjected to heightened scrutiny. See Brief for the United States on the Merits Question at 22-27, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307), 2013 WL 683048. B. Sexual Orientation Has No Bearing On Ability To Perform In Or Contribute To Society.

It is also well established that sexual orientation does not bear any relationship to a persons ability to perform in or contribute to society, as many courts have held.14 Empirical studies have shown no difference between gay,

881 F.2d 454, 465-66 (7th Cir. 1989) (Homosexuals have suffered a history of discrimination and still do.); Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294, 317 (D. Conn. 2012) ([H]omosexuals have suffered a long history of invidious discrimination.); Golinski, 824 F. Supp. 2d at 985 (There is no dispute in the record that lesbians and gay men have experienced a long history of discrimination.); see also Rowland, 470 U.S. at 1014 (Brennan, J., dissenting from denial of certiorari) ([H]omosexuals have historically been the object of pernicious and sustained hostility, and it is fair to say that discrimination against homosexuals is likely to reflect deep-seated prejudice rather than . . . rationality.) (internal quotation marks omitted). See, e.g., Windsor, 699 F.3d at 182 (There are some distinguishing characteristics, such as age or mental handicap, that may arguably inhibit an individual's ability to contribute to society, at least in some respect. But homosexuality is not one of them.); Watkins v. United States Army, 875 F.2d 699, 725 (9th Cir. 1989) (Norris, J., concurring in the judgment) (Sexual orientation plainly has no relevance to a persons ability to perform or contribute to society.); Perry, 704 F. Supp. 2d at 1002 (The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts. . . .);
14

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lesbian, and bisexual people and heterosexuals in forming loving, committed relationships and parenting children. See Perry, 704 F. Supp. 2d at 967-68; Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 388 & n.106 (D. Mass. 2010). Forty years ago, the American Psychiatric Association and the American Psychological Association recognized this consensus and announced that sexual orientation was not correlated with any impairment in judgment, stability, reliability or general social and vocational capabilities. Am. Psychiatric Assn, Resolution, (Dec. 15, 1973), reprinted in 131 Am. J. Psychiatry 497 (1974); Minutes of the Annual Meeting of the Council of Representatives, 30 Am. Psychologist 620, 633 (1975); see also Golinski, 824 F. Supp. 2d at 986; Perry, 704 F. Supp. 2d at 967. In short, a persons sexual orientation is rarely, if ever, relevant to any legitimate policy objective of the government. Indeed, laws that discriminate based on sexual orientation frequently are not based on anything related to persons ability to participate in society or in family

Equality Found. of Greater Cincinnati v. Cincinnati, 860 F. Supp. 417, 437 (S.D. Ohio 1994) ([S]exual orientation . . . bears no relation whatsoever to an individuals ability to perform, or to participate in, or contribute to, society.), revd on other grounds, 54 F.3d 261 (6th Cir. 1995), vacated and remanded, 518 U.S. 1001 (1996); Varnum, 763 N.W.2d at 890 (Not surprisingly, none of the same-sex marriage decisions from other state courts around the nation have found a persons sexual orientation to be indicative of the persons general ability to contribute to society.); Kerrigan, 957 A.2d at 434 (The defendants also concede that sexual orientation bears no relation to a persons ability to participate in or contribute to society, a fact that many courts have acknowledged, as well.).
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relationships, but on animus, see, e.g., Windsor, 133 S. Ct. at 2693, or on gendered stereotypes or expectationsfor example, the expectation that a woman should form an intimate relationship and a home with a man, not with another woman, and the expectation that a man should form an intimate relationship and a home with a woman, not with another man. Even if such stereotypes or expectations are true for most people, they do not ring true for all, and the government has no legitimate interest in enforcing such gendered stereotypes and expectations, which are unrelated to ones ability to form a family and to participate in society in other ways. C. Sexual Orientation Is An Immutable Characteristic And An Integral Part Of Identity That Defines A Discrete Group.

Many courts and commentators have questioned whether examining a characteristics immutability should play any role when determining whether heightened scrutiny applies.15 But even assuming that such an inquiry is relevant,

The Supreme Court has rejected claims of heightened scrutiny for groups that are defined by immutable characteristics and granted it for classifications that are not. See Cleburne, 473 U.S. at 442 n.10 (disability classifications not subject to heightened scrutiny despite being sometimes immutable); Nyquist v. Mauclet, 432 U.S. 1, 9 n.11 (1977) (alienage classifications subject to heightened scrutiny despite aliens ability to naturalize); Kerrigan, 957 A.2d at 427 n.20 (noting that the Supreme Court has frequently omitted any reference to immutability when describing the heightened-scrutiny test); see also Cleburne, 473 U.S. at 442 n.10 (criticizing reliance on immutability as a factor); John Hart Ely, Democracy and Distrust 150 (1980) (same).

15

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courts have recognized that sexual orientation is immutable for all pertinent purposes here, regardless of whether, or to what degree, it is biologically determined. See, e.g., Windsor, 699 F.3d at 183-84; High Tech Gays, 909 F.2d at 377 (Canby, J., dissenting); Golinski, 824 F. Supp. 2d at 986-87; Able v. U.S., 968 F. Supp. 850, 863-64 (E.D.N.Y. 1997) revd on other grounds, 155 F.3d 628 (2nd Cir. 1998); Equality Found., 860 F. Supp. at 426; Jantz, 759 F. Supp. at 1548.16 [T]he consensus in the scientific community is that sexual orientation is an immutable characteristic. Golinski, 824 F. Supp. 2d at 986 (citing G.M. Herek, et al. Demographic, Psychological, and Social Characteristics of SelfIdentified Lesbian, Gay, and Bisexual Adults, 7, 176200 (2010)); Perry, 704 F. Supp. 2d at 966; see also Brief for the United States on the Merits Question at 32, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307), 2013 WL 683048. Regardless of whether some small subset of individuals have reported experiencing changes in their sexual orientation, there is no evidence that such changes can be made through an intentional decision-making process or by medical intervention. See Plyler, 457 U.S. at 216 n. 14 (explaining that discrimination based on immutable characteristics often warrants heightened scrutiny because it unfairly

16

As discussed above, the reliance of the High Tech Gays court on a distinction between status and conduct in concluding that sexual orientation is not an immutable characteristic is no longer good law after Lawrence and CLS.

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burdens groups based on circumstances beyond their control); Mathews, 427 U.S. at 505 (same). Whether gay, lesbian, bisexual, or straight, a persons sexual orientation is an integral component of personal identity, and Lawrence made clear that gay people cannot be required to sacrifice this central part of their identity any more than heterosexual people may be required to do so. Lawrence, 539 U.S. at 574 (Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.). Accordingly, courts have recognized that the fundamental question is not whether a characteristic is theoretically alterable by some, but is instead whether it is an integral component of a persons identity that an individual should not be compelled to change to avoid discriminatory treatment even if it were theoretically possible to do so. See, e.g., Hernandez-Montiel v. I.N.S., 225 F.3d 1084, 1093 (9th Cir. 2000) (Sexual identity is inherent to ones very identity as a person.), overruled on other grounds, Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005); Watkins, 875 F.2d at 726 (Norris, J., concurring in the judgment) (immutability describes traits that are so central to a persons identity that it would be abhorrent for government to penalize a person for refusing to change them); Golinksi, 824 F. Supp. 2d at 987 ([A] persons sexual orientation is so fundamental to one's identity that a person should not be required to abandon it.); In re Marriage Cases, 183 P.3d at 442 ([A] persons sexual orientation is so

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integral an aspect of ones identity [that] it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment.). Gay, lesbian, and bisexual people should not be forced to sacrifice their sexual orientation in order to avoid discriminatory treatment. Lawrence, 539 U.S. at 574; In re Marriage Cases, 183 P.3d at 442; Watkins, 875 F.2d at 725-26 (Norris, J., concurring in the judgment). This Court therefore should conclude that sexual orientation is an immutable characteristic D. Gay, Lesbian, and Bisexual People Are Disadvantaged in the Political Arena.

Finally, to the extent that being a minority or lacking political power is relevant to the heightened-scrutiny test, gay, lesbian, and bisexual people are clearly a small minority and experience sufficient political disadvantages to merit the protection of heightened scrutiny. The continuing political vulnerability of gay, lesbian, and bisexual people has been recounted in depth by other courts and the Executive Branch. See Windsor, 699 F.3d at 184; Golinski, 284 F. Supp. 2d at 987-89; Perry, 704 F. Supp. 2d at 943-44, 987-88; Kerrigan, 957 A.2d at 444-47 & 452-54; Brief for the United States on the Merits Question at 32-35, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307), 2013 WL 683048. Against the weight of this evidence, some courts have asserted that because gay people have received some modest legal protections, sexual orientation should
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not be treated as a suspect or quasi-suspect classification. See High Tech Gays, 895 F.2d at 574; Ben-Shalom, 881 F.2d at 466 n.9. That analysis fundamentally misconstrues the Supreme Courts equal protection precedents. The Court has never construed the concept of political powerlessness to mean that a group is unable to secure any protections for itself through the normal political process. When the Supreme Court first began discussing heightened-scrutiny factors, women already had achieved important legislative protection from discrimination. See Kerrigan, 957 A.2d at 441-44. By the time the Frontiero plurality recognized sex as a suspect or quasi-suspect classification, Congress already had passed Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963. See Frontiero v. Richardson, 411 U.S. 677, 687-88 (1973) (plurality); Kerrigan, 957 A.2d at 45153. These legislative protections did not eradicate invidious discrimination on the basis of sex, which continues to this day. And the existence of these protections did not stop the Supreme Court from holding that discrimination on the basis of sex must be subjected to heightened scrutiny. The limited protections currently provided to lesbian, gay, and bisexual people do not match the legislative protections available to women at the time the courts first applied heightened scrutiny to classifications based on sex. There is no federal legislation expressly prohibiting discrimination on the basis of sexual orientation in employment or education, as there was on the basis of sex when

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Frontiero was decided. Indeed, no federal legislation had ever been passed to protect people on the basis of their sexual orientation until 2009, when sexual orientation was added to the federal hate crimes laws. See Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, Pub. L. No. 111-84, 4701-4713, 123 Stat. 2190, 2835-44 (2009). Congress only in the past few years authorized the repeal of the militarys ban on gay service members, and it did so only after two courts declared the ban unconstitutional.17 Moreover, often when gay people have secured protections in state courts and legislatures, opponents have aggressively used state ballot initiative and referendum processes to repeal laws, to amend state constitutions, and even to recall state supreme court judges.18 This extraordinary use of ballot measures to preempt the normal legislative process and withdraw protections from gay people vividly illustrates the continuing disadvantages that gay people face in the political arena. Cf. United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938)

17

Log Cabin Republicans v. United States, 716 F. Supp. 2d 884 (C.D. Cal. Oct. 12, 2010), vacated 658 F.3d 1162 (9th Cir. 2011); Witt v. U.S. Dept of Air Force, 739 F. Supp. 2d 1308 (W.D. Wash. Sept. 24, 2010).
18

See also Barbara S. Gamble, Putting Civil Rights to a Popular Vote, 41 Am. J. Pol. Sci. 245 (1997) (calculating the high rate of success of anti-gay ballot initiatives); Donald P. Haider-Markel et al., Lose, Win, or Draw? A Reexamination of Direct Democracy and Minority Rights, 60 Pol. Res. Q. 304, 312-13 (2007) (same).

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(noting that heightened scrutiny is warranted when majority prejudice curtail[s] the operation of those political processes ordinarily to be relied upon to protect minorities). There is, in sum, no basis for concluding that the limited protections currently provided to lesbian, gay, and bisexual people belie[] a continuing antipathy or prejudice and a corresponding need for more intrusive oversight by the judiciary. Cleburne, 473 U.S. at 443. To the contrary, recent history has shown that lesbian, gay, and bisexual people are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public. Windsor, 699 F.3d at 184. This Court should conclude that this political vulnerability supports application of heightened scrutiny to laws that discriminate /// /// /// /// /// /// /// /// ///

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on the basis of sexual orientation. CONCLUSION The Court should hold that sexual orientation discrimination must be subjected to heightened scrutiny, and that the state constitutional provisions and statutes challenged in these appeals cannot survive this demanding standard.

DATED: October 25, 2013

Respectfully submitted,

NATIONAL CENTER FOR LESBIAN RIGHTS

By: /s/ Shannon P. Minter Attorneys for Amici Curiae

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CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because it contains 6,670 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)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2013 in 14point Times New Roman type style.

Dated: October 25, 2013

/s/ Christopher F. Stoll Attorney for Amici Curiae

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CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on October 25, 2013. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.

s/ Christopher Zaldua.

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APPENDIX 9to5 is a national membership-based organization of women in low-wage jobs dedicated to achieving economic justice and ending discrimination. Our membership includes lesbian, bisexual and transgender women. Our members and constituents are directly affected by workplace discrimination and poverty, among other issues. 9to5 is committed to combating all forms of oppression, and has actively supported local, state and federal policy efforts to prohibit discrimination based on sexual orientation, gender identity and gender expression in the workplace, in the legal system, in educational institutions, in public programs, and in family rights. The outcome of this case will directly affect our members and constituents rights and economic wellbeing, and that of their families. Asian Americans Advancing Justice | AAJC (Advancing JusticeAAJC) is a national non-profit, non-partisan organization in Washington, D.C. whose mission is to advance the civil and human rights of Asian Americans and build and promote a fair and equitable society for all. Founded in 1991, Advancing Justice-AAJC engages in litigation, public policy advocacy, and community education and outreach on a range of issues, including anti-discrimination. Advancing Justice-AAJC is committed to challenging barriers to equality for all sectors of our society and has supported same-sex marriage rights in numerous amicus briefs.

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Asian Americans Advancing Justice - Asian Law Caucus (Advancing Justice-ALC) was founded in 1972 with a mission to promote, advance, and represent the legal and civil rights of Asian and Pacific Islanders, with a particular focus on low-income members of those communities. Recognizing that social, economic, political, and racial inequalities continue to exist in the United States, Advancing Justice-ALC is committed to the pursuit of equality and justice for all sectors of our society. Asian Americans Advancing Justice - Chicago (Advancing JusticeChicago) is a pan-Asian, non-partisan, not-for-profit organization located in Chicago, Illinois, whose mission is to empower the Asian American community through advocacy, coalition-building, education, and research. Advancing JusticeChicagos programs include community organizing, leadership development, and legal advocacy. Founded in 1992, Advancing JusticeChicago is deeply concerned about the discrimination and exclusion faced by Asian Americans, including lesbian, gay, bisexual, transgender and queer members of the Asian American community. Accordingly, Advancing JusticeChicago is committed to challenging barriers to equality for all members of society and has supported same-sex marriage rights in other amicus briefs. Asian Americans Advancing Justice - Los Angeles (Advancing JusticeLA) is the nations largest legal and civil rights organization for Asian Americans,

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Native Hawaiians, and Pacific Islanders (NHPI). As part of its mission to advance civil rights, Advancing Justice-LA is committed to challenging discrimination and has championed equal rights for the LGBT community, including supporting marriage equality for same-sex couples and opposing California's Proposition 8. Human Rights Campaign (HRC), the largest national lesbian, gay, bisexual and transgender political organization, envisions an America where lesbian, gay, bisexual and transgender people are ensured of their basic equal rights, and can be open, honest and safe at home, at work and in the community. Among those basic rights is equal access for same-sex couples to marriage and the related protections, rights, benefits and responsibilities. The Leadership Conference on Civil and Human Rights (The Leadership Conference) is a coalition of more than 200 organizations committed to the protection of civil and human rights in the United States.* It is the nations oldest, largest, and most diverse civil and human rights coalition. The Leadership Conference was founded in 1950 by three legendary leaders of the civil rights movementA. Philip Randolph of the Brotherhood of Sleeping Car Porters; Roy Wilkins of the NAACP; and Arnold Aronson of the National Jewish Community Relations Advisory Council. Its member organizations represent people of all

A list of the Leadership Conferences participating members is included at the end of this Appendix.
*

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races, ethnicities, and sexual orientations. The Leadership Conference works to build an America that is inclusive and as good as its ideals, and toward this end, urges the Court to hold that sexual orientation classifications should be subject to heightened scrutiny. The Leadership Conference believes that every person in the United States deserves to be free from discrimination based on race, ethnicity, gender, or sexual orientation. The League of United Latin American Citizens (LULAC) is the nations largest and oldest civil rights volunteer-based organization that empowers Hispanic Americans and builds strong Latino communities. Headquartered in Washington, DC, with 900 councils around the United States and Puerto Rico, LULACs programs, services and advocacy address the most important issues for Latinos, meeting critical needs of today and the future. The mission of the League of United Latin American Citizens is to advance the economic condition, educational attainment, political influence, housing, health and civil rights of the Hispanic population of the United States. LULAC has a longstanding history of advancing equal justice under law for all Latinosincluding our lesbian, gay, bisexual and transgender (LGBT) sisters and brothers. Through direct action and national resolutions, LULAC and its membership have stood firm on the right for LGBT Americans to be protected from hate crimes, the right to work free from discrimination, the right to serve openly and honestly in the U.S. Armed Services,

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the right to allow bi-national couples to stay together by updating antiquated immigration laws, and officially oppose federal marriage laws that discriminate against couples who have entered legal unions in their state. The National Association for the Advancement of Colored People (NAACP) is the countrys largest and oldest civil rights organization. Founded in 1909, the NAACP is a New York not-for-profit corporation. The mission of the NAACP is to ensure the political, social, and economic equality of rights of all persons, and to eliminate racial hatred and racial discrimination. In fulfilling its mission, the NAACP has filed numerous amicus briefs on behalf of litigants in civil rights litigation in federal and state courts across the country. The National Black Justice Coalition (NBJC) is a civil rights organization dedicated to empowering Black lesbian, gay, bisexual and transgender (LGBT) people. NBJCs mission is to end racism and homophobia. As Americas leading national Black LGBT civil rights organization focused on federal public policy, NBJC has accepted the charge to lead Black families in strengthening the bonds and bridging the gaps between the movements for racial justice and LGBT equality. The National Center for Lesbian Rights (NCLR) is a national nonprofit legal organization dedicated to protecting and advancing the civil rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public

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policy advocacy, and public education. Since its founding in 1977, NCLR has played a leading role in securing fair and equal treatment for LGBT people and their families in cases across the country involving constitutional and civil rights. NCLR has an interest in ensuring that laws that treat people differently based on their sexual orientation are subject to heightened scrutiny, as equal protection requires. The National Council of La Raza (NCLR)the largest national Hispanic civil rights and advocacy organization in the United Statesworks to improve opportunities for Hispanic Americans. Through its network of nearly 300 affiliated community-based organizations, NCLR reaches millions of Hispanics each year in 41 states, Puerto Rico, and the District of Columbia. To achieve its mission, NCLR conducts applied research, policy analysis, and advocacy, providing a Latino perspective in five key areasassets/investments, civil rights/immigration, education, employment and economic status, and health. In addition, it provides capacity-building assistance to its Affiliates who work at the state and local level to advance opportunities for individuals and families. Founded in 1968, NCLR is a private, nonprofit, nonpartisan, tax-exempt organization headquartered in Washington, DC, serving all Hispanic subgroups in all regions of the country. It has regional offices in Chicago, Los Angeles, New York, Phoenix, and San Antonio and state operations throughout the nation.

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The National Gay and Lesbian Task Force Foundation (the Task Force), founded in 1973, is the oldest national LGBT civil rights and advocacy organization. As part of a broader social justice movement, the Task Force works to create a world in which all people may fully participate in society, including the full and equal participation of same-sex couples in the institution of civil marriage.

*The Leadership Conferences participating members include: A. Philip Randolph Institute AARP Advancement Project African Methodist Episcopal Church Alaska Federation of Natives Alliance for Retired Americans Alpha Kappa Alpha Sorority, Inc. Alpha Phi Alpha Fraternity, Inc. American-Arab Anti-Discrimination Committee American Association for Affirmative Action American Association of People with Disabilities AAUW American Baptist Churches, U.S.A.-National Ministries

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American Civil Liberties Union American Council of the Blind American Ethical Union American Federation of Government Employees American Federation of Labor-Congress of Industrial Organizations American Federation of State, County & Municipal Employees, AFL-CIO American Federation of Teachers, AFL-CIO American Friends Service Committee American Islamic Congress (AIC) American Jewish Committee American Nurses Association American Society for Public Administration American Speech-Language-Hearing Association Americans for Democratic Action Amnesty International USA Anti-Defamation League Appleseed Asian American Justice Center Asian Pacific American Labor Alliance Association for Education and Rehabilitation of the

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Blind and Visually Impaired Bnai Brith International Brennan Center for Justice at New York University School of Law Building & Construction Trades Department, AFLCIO Center for Community Change Center for Responsible Lending Center for Women Policy Studies Childrens Defense Fund Church of the Brethren-World Ministries Commission Church Women United Coalition of Black Trade Unionists Common Cause Communications Workers of America Community Action Partnership Community Transportation Association of America Compassion & Choices DC Vote Delta Sigma Theta Sorority DEMOS: A Network for Ideas & Action Disability Rights Education and Defense Fund

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Division of Homeland Ministries-Christian Church (Disciples of Christ) Epilepsy Foundation of America Episcopal Church-Public Affairs Office Equal Justice Society Evangelical Lutheran Church in America FairVote: The Center for Voting and Democracy Families USA Federally Employed Women Feminist Majority Friends Committee on National Legislation Gay, Lesbian and Straight Education Network (GLSEN) General Board of Church & Society of the United Methodist Church Global Rights: Partners for Justice GMP International Union Hip Hop Caucus Human Rights Campaign Human Rights First Immigration Equality Improved Benevolent & Protective Order of Elks ofthe World International Association of Machinists and Aerospace Workers

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International Association of Official Human Rights Agencies International Brotherhood of Teamsters International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) Iota Phi Lambda Sorority, Inc. Japanese American Citizens League Jewish Council for Public Affairs Jewish Labor Committee Jewish Women International Judge David L. Bazelon Center for Mental Health Law Kappa Alpha Psi Fraternity Labor Council for Latin American Advancement Laborers International Union of North America Lambda Legal LatinoJustice PRLDEF Lawyers Committee for Civil Rights Under Law League of United Latin American Citizens League of Women Voters of the United States Legal Aid Society Employment Law Center Legal Momentum
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Mashantucket Pequot Tribal Nation Matthew Shepard Foundation Mexican American Legal Defense and Educational Fund NaAmat USA NAACP NAACP Legal Defense and Educational Fund, Inc. NALEO Educational Fund National Alliance of Postal & Federal Employees National Association for Equal Opportunity in Higher Education National Association of Colored Womens Clubs, Inc. National Association of Community Health Centers National Association of Consumer Advocates (NACA) National Association of Human Rights Workers National Association of Negro Business & Professional Womens Clubs, Inc. National Association of Neighborhoods National Association of Social Workers 9 to 5 National Association of Working Women National Bar Association National Black Caucus of State Legislators National Black Justice Coalition

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National CAPACD National Coalition For Asian Pacific American Community Development National Center for Transgender Equality National Center on Time & Learning National Coalition for the Homeless National Coalition on Black Civic Participation National Coalition to Abolish the Death Penalty National Committee on Pay Equity National Community Reinvestment Coalition National Conference of Black Mayors, Inc. National Congress for Puerto Rican Rights National Congress of American Indians National Consumer Law Center National Council of Churches of Christ in the U.S. National Council of Jewish Women National Council of La Raza National Council of Negro Women National Council on Independent Living National Disability Rights Network National Education Association National Employment Lawyers Association
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National Fair Housing Alliance National Farmers Union National Federation of Filipino American Associations National Gay & Lesbian Task Force National Health Law Program National Hispanic Media Coalition National Immigration Forum National Immigration Law Center National Korean American Service and Education Consortium, Inc. (NAKASEC) National Latina Institute for Reproductive Health National Lawyers Guild National Legal Aid & Defender Association National Low Income Housing Coalition National Organization for Women National Partnership for Women & Families National Senior Citizens Law Center National Sorority of Phi Delta Kappa, Inc. National Urban League National Womens Law Center National Womens Political Caucus

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Native American Rights Fund Newspaper Guild OCA (formerly known as Organization of Chinese Americans) Office of Communications of the United Church of Christ, Inc. Omega Psi Phi Fraternity, Inc. Open Society Policy Center ORT America OutServe-SLDN Paralyzed Veterans of America Parents, Families, Friends of Lesbians and Gays People for the American Way Phi Beta Sigma Fraternity, Inc. Planned Parenthood Federation of America, Inc. PolicyLink Poverty & Race Research Action Council (PRRAC) Presbyterian Church (USA) Pride at Work Progressive National Baptist Convention Project Vote Public Advocates

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Religious Action Center of Reform Judaism Retail Wholesale & Department Store Union, AFL-CIO SAALT (South Asian Americans Leading Together) Secular Coalition for America Service Employees International Union Sierra Club Sigma Gamma Rho Sorority, Inc. Sikh American Legal Defense and Education Fund Sikh Coalition Southeast Asia Resource Action Center (SEARAC) Southern Christian Leadership Conference Southern Poverty Law Center Teach For America The Association of Junior Leagues International, Inc The Association of University Centers on Disabilities The National Conference for Community and Justice The National PTA TransAfrica Forum Union for Reform Judaism Unitarian Universalist Association

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UNITE HERE! United Brotherhood of Carpenters and Joiners of America United Church of Christ-Justice and Witness Ministries United Farm Workers of America (UFW) United Food and Commercial Workers International Union United Mine Workers of America United States International Council on Disabilities United States Students Association United Steelworkers of America United Synagogue of Conservative Judaism Women of Reform Judaism Workers Defense League Workmens Circle YMCA of the USA, National Board YWCA USA Zeta Phi Beta Sorority, Inc.

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