Plaintiffs-Appellees,: Nited Tates Ourt of Ppeals For The Inth Ircuit
Plaintiffs-Appellees,: Nited Tates Ourt of Ppeals For The Inth Ircuit
No. 10−16696
v.
and
KENNETH A. KLUKOWSKI
Counsel of Record
AMERICAN CIVIL RIGHTS UNION
3213 Duke Street, #625
Alexandria, Virginia 22314
(703) 807-0242
The American Civil Rights Union has not issued stock to the public, has no
of its stock.
Kenneth A. Klukowski
Counsel for Amicus Curiae American
Civil Rights Union
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TABLE OF CONTENTS
DISCLOSURE STATEMENT.…………………………………………………… i
ARGUMENT .…………………………………………………………………….. 4
C. This Court‟s Nordyke opinion correctly applied the proper test for
fundamentality……………………………………………………………. 16
II. SAME-SEX MARRIAGE DOES NOT COME WITHIN A FUNDAMENTAL RIGHT BECAUSE
FUNDAMENTAL RIGHTS MUST BE NARROWLY
DEFINED……………………………………………………………………….. 20
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B. Same-sex marriage does not fall within the fundamental right of marriage….
………………………………………………………………………………... 25
CONCLUSION …………………………………………………………………. 29
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TABLE OF AUTHORITIES
CASES
Adamson v. California,
332 U.S. 46 (1947) ………………………………………………… 9, 9−10, 10
Benton v. Maryland,
395 U.S. 784 (1969) ……………………………………………………. 12, 14
Betts v. Brady,
316 U.S. 455 (1942) ..……………………………………………………….. 13
Calder v. Bull,
3 U.S. (3 Dall.) 386 (1798) .….……………………………………… 20, 24−25
Cohen v. Hurley,
366 U.S. 117 (1961) …………………………………………………………. 10
De Jonge v. Oregon,
299 U.S. 353 (1937) ...……………………………………………………….. 12
Duncan v. Louisiana,
391 U.S. 145 (1968) ………………………………………………. 3, 15, 16, 17
Gideon v. Wainwright,
372 U.S. 335 (1963) ...……………………………………………………….. 13
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In re J.B.,
2010 Tex. App. LEXIS 7127 (Tex. Ct. App. Aug. 31, 2010) .………………. 27
Loving v. Virginia,
388 U.S. 1 (1967) ……………………………………………………. 20, 25, 28
Malloy v. Hogan,
378 U.S. 1, 6 (1964) ...…………………………………………………….. 7, 13
Mapp v. Ohio,
367 U.S. 643 (1961) ...……………………………………………………….. 13
McDonald v. Chicago,
130 S. Ct. 3020, 3064 (2010) ...…………………….. 3, 7, 15, 15−16, 18, 19, 24
Mullins v. Oregon,
57 F.3d 789 (9th Cir. 1995) ..……………………………………… 5, 20, 24, 27
Nordyke v. King,
563 F.3d 439 (9th Cir. 2009), vacated for reh’g 611 F.3d 1015 (9th Cir. 2010)
...………………………………………………………………………………16, 17
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Palko v. Connecticut,
302 U.S. 319 (1937) ..…………………………………………….. 2, 14, 15, 17
Pointer v. Texas,
380 U.S. 400 (1965) ...……………………………………………………….. 13
Powell v. Alabama,
287 U.S. 45 (1932) .………………………………………………………….. 13
Silveira v. Lockyer,
328 F.3d 567 (9th Cir. 2003) .…………………………………………………. 8
Slaughter-House Cases,
83 U.S. (16 Wall.) 36 (1873) ………………………………………………….. 6
Snyder v. Massachusetts,
291 U.S. 97 (1934) .………………………………………………….. 12, 23, 26
Spencer v. Kemna,
523 U.S. 1 (1998) ..…………………………………………………………... 23
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Valley Forge Christian College v. Americans United for Separation of Church and
State, Inc., 454 U.S. 464 (1982) .……………………………………………. 23
Warth v. Seldin,
422 U.S. 490 (1975) ..……………………………………………………….. 22
Washington v. Glucksberg,
521 U.S. 702 (1997)…… …………………………………... 7, 8, 13, 16, 21, 22
Washington v. Texas,
388 U.S. 14 (1967) ..…………………………………………………………. 13
Wilson v. Ake,
354 F. Supp. 2d 1298 (M.D. Fla. 2005) ...…………………………………… 27
Zablocki v. Redhail,
434 U.S. 374 (1978) ..……………………………………………………….. 25
U.S. Const. amend. XIV, § 1, cl. 3 (Due Process Clause) ………………….. passim
OTHER AUTHORITIES
Bruce A. Antkowiak, The Rights Question, 58 KAN. L. REV. 615, 619 (2010)
..…………………………………………………………………………….… 6, 25
CONG. GLOBE, 40th Cong., 2d Sess. 1967 (1868) (statement of Rep. Stevens) .… 6
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policy organization dedicated to defending all constitutional rights, not just those
Carlson, the ACRU files amicus briefs in constitutional cases across America.
The individuals on the ACRU‟s policy board include former U.S. Attorney
General Edwin Meese III, former Assistant Attorney General William Bradford
Wilson, Ambassador Curtin Windsor, Jr., and Dean Emeritus of the UCLA
regarding the right to marry, as it carries implications for the entire jurisprudence
All parties have consented to the filing of this amicus curiae brief.
SUMMARY OF ARGUMENT
The Supreme Court has held that there are certain unenumerated rights in the
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interests enjoy this status. These are fundamental rights, which are inalienable
Fundamental rights are those that by their very nature are implicit in the concept
of due process. Rather than chosen according to the predilections of judges, these
rights are objectively grounded in historical criteria. The Supreme Court rejects
fundamental rights, and has found a historical inquiry the most useful method for
unenumerated rights. Since the Court holds provisions of the Bill of Rights
Amendment, case law incorporating the Bill of Rights to the states is as applicable
as those precedents declaring implied rights. Both examine whether the asserted
right is fundamental.
The relevant line of cases has developed since 1897. In the course of
free state, the Court continually cited American history and to America‟s English
heritage. This culminated in the 1937 test from Palko v. Connecticut, 302 U.S. 319
(1937), of whether the right was “implicit in the concept of ordered liberty.”
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By 1968, the Supreme Court adopted a new test of whether the right was
Louisiana, 391 U.S. 145 (1968). Although subsequent cases led to temporary
confusion regarding the proper test, this Court held that the Duncan test was
philosophical musings, and the Supreme Court confirmed this Court‟s analysis in
Amendment Due Process Clause. That conclusion is the inescapable result of the
elements this Court and the Supreme Court have established for finding
unenumerated rights.
First, any asserted liberty interest that purports to be a fundamental right must
be narrowly and carefully defined. This reluctance to expansively find rights arises
in part from the recognition that finding any liberty interest to be a fundamental
unenumerated rights is thus consistent with the properly limited role of unelected
judges in our democratic republic, both in the separation of powers at the federal
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level and also respecting state autonomy in our federal system. Such restraint is
the Due Process Clause. Although there is an implicit right to marry in the
one person of the opposite sex who is not a close relative. The Supreme Court
ARGUMENT
does not include same-sex couples. See Opening Brief of Dennis Hollingsworth at
47−70. For the reasons set forth in this brief, the ACRU argues that additional
authorities and recent decisions of the Supreme Court and a panel of this Court—
some of which were not yet decided at the time the instant case was briefed and
argued in the district court—further buttress and confirm the conclusion that the
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fundamental right to marry only extends to a union between one man and one
woman.
“The Supreme Court has interpreted the Due Process Clause of the
793 (9th Cir. 1995) (citations omitted). For the reasons explained in this brief, in
considering which purported individual rights are protected by the Due Process
Clause:
We begin by noting the narrow range of liberty interests that substantive due
process protects. Only those aspects of liberty that we as a society
traditionally have protected as fundamental are included within the
substantive protection of the Due Process Clause.
Id. (citing Michael H. v. Gerald D., 491 U.S. 110, 122 (1989) (plurality opinion)).
Fundamental rights are inalienable rights. These rights were referenced in the
Because “governments are instituted among men” to “secure these rights,” id., the
Amendment Due Process Clause protects such fundamental rights, which antedate
the Constitution, see United States v. Cruikshank, 92 U.S. 553, 544−45 (1876);
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Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 76, 83 (1873). It was understood
inalienable rights, McDonald v. Chicago, 130 S. Ct. 3020, 3064 (2010) (Thomas,
J., concurring in part and concurring in judgment), as also seen in the statements
e.g., CONG. GLOBE, 40th Cong., 2d Sess. 1967 (1868) (statement of Rep. Stevens)
(referencing the “inalienable right of defending liberty,” and adding that the
erodes its own institutional legitimacy when it consults sources not sanctioned by
Bruce A. Antkowiak, The Rights Question, 58 KAN. L. REV. 615, 619 (2010). If the
must look to some other source in defining the contours of the fundamental rights
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The Supreme Court has recently reiterated its longstanding holding that “the
only rights protected against state infringement by the Due Process Clause [are]
those rights „of such a nature that they are included in the conception of due
process of law.‟” McDonald, 130 S. Ct. at 3031 (quoting Twining v. New Jersey,
211 U.S. 78, 99 (1908), overruled on other grounds by Malloy v. Hogan, 378 U.S.
1, 6 (1964)) (other citations omitted). This is consistent with the Supreme Court‟s
often-cited articulation that fundamental rights applicable to the states through the
Fourteenth Amendment Due Process Clause are those that are, objectively, “deeply
rooted in this Nation‟s history and tradition, and implicit in the concept of ordered
liberty, such that neither liberty nor justice would exist if they were sacrificed.”
omitted).
and tradition. The Glucksberg Court illustrated this test by providing an example
from an earlier case that, when considering whether refusing unwanted medical
treatment was protected by heightened scrutiny, the Court inquired into whether
that right “was so rooted in our history, tradition, and practice as to require special
protection under the Fourteenth Amendment.” Id. at 721 n.17 (referencing Cruzan
American people have never embraced. The Glucksberg majority was careful to
note that some jurists “would largely abandon this restrained methodology,” Id. at
people‟s history and tradition would place far too much power in the hands of the
judiciary. As the current chief judge of this Court has explained, “[e]xpanding
personal preferences.” Silveira v. Lockyer, 328 F.3d 567, 569 (9th Cir. 2003)
Thus the judiciary has sought objective and extrinsic bases for finding rights to
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WM AND MARY L. REV. 923, 937 (2006). Examining Supreme Court precedent
reveals that:
The Justices have consulted the state of the law at the time of the framing to
ascertain the level of acceptance that a right had achieved at the time of the
Constitution‟s or amendment‟s adoption. . . . A second methodology looks at
whether the states have voluntarily recognized and protected a particular
right over time.
the Court has explored the Fourteenth Amendment Due Process Clause.
and tradition as the sine qua non of a fundamental right. This case law—spanning
more than a century since 1897—shows that only those items which have been
This case law includes the Court‟s precedents on incorporating provisions of the
Bill of Rights into the Fourteenth Amendment Due Process Clause. In 1947
incorporation case law fully became part of substantive due process. Beginning in
theory, see 332 U.S. 46, 68−123 (1947) (Black, J., dissenting), in favor of Justice
concurring). Frankfurter‟s approach was then refined into its modern form by
are incorporated into the Fourteenth Amendment. See Cohen v. Hurley, 366 U.S.
117, 154−60 (1961) (Brennan, J., dissenting). In adopting the refined Frankfurter
establishing the principle that only fundamental rights from the Bill of Rights are
extended to the states through the Fourteenth Amendment Due Process Clause. See
(2009). Thus, the test for unenumerated rights became the same test as for
this case law as well, as Justice Frankfurter required that rights found in the
“immutable principles of justice which inhere in the very idea of free government
which no member of the Union may disregard.” Twining v. New Jersey, 211 U.S.
at 102 (internal quotation marks omitted). The Court applied the test of whether the
right is “a fundamental principle of liberty and justice which inheres in the very
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idea of free government and is the inalienable right of a citizen.” Id. at 106. The
Court added that the right at issue (against self-incrimination) “has no place in the
jurisprudence of civilized and free countries outside the domain of the common
law.” Id. at 113. This statement was consistent with the Court‟s then-recent
which the Court held that the right in question was “a principle of natural equity,
recognized by all temperate and civilized governments, from a deep and universal
sense of its justice.” Chicago, Burlington & Quincy Railroad Co. v. Chicago, 166
U.S. 226, 238 (1897). After articulating this test, the Court specifically examined
the history and traditions of the Founding in assessing whether the right against
102−09. Thus history and tradition were the indicators of whether a right is “a
In 1925, when examining the right of free speech, the Court applied the
rights and „liberties‟ protected by the due process clause of the Fourteenth
Amendment from impairment by the States.” Gitlow v. New York, 268 U.S. 652,
666 (1925). This is consistent with the Court‟s subsequent application of free
speech in the context of freedom of the press, when in 1931 the Court asked
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whether the right was “essential to the nature of a free state.” Near v. Minnesota ex
During this era the Court continually returned to history and tradition in
determining whether the asserted rights were fundamental. Just three years later,
the Court described rights implicit in due process as those that are “so rooted in the
Massachusetts, 291 U.S. 97, 105 (1934). And again in 1937, the Court referenced
lie at the base of all civil and political institutions—principles which the
Fourteenth Amendment embodies in the general terms of the due process clause.”
De Jonge v. Oregon, 299 U.S. 353, 364 (1937) (citing, inter alia, Powell v.
Later that same year, the Court expounded this reasoning and announced the
well-known articulation that the Due Process Clause includes those rights that are
“implicit in the concept of ordered liberty.” Palko v. Connecticut, 302 U.S. 319,
325 (1937), overruled in part by Benton v. Maryland, 395 U.S. 784 (1969). The
Court elaborated that this concept includes rights of such a nature “that a fair and
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The Palko test became the standard formulation for declaring rights
fundamental, and thus implicit in the Due Process Clause. When the Court
extended the exclusionary rule to the states, the Court did so by applying the Palko
test of the right being “implicit in the concept of ordered liberty.” See Mapp v.
Ohio, 367 U.S. 643, 650, 655 (1961). Shortly thereafter in 1963, the Court seemed
to apply multiple tests, but these tests always referenced (or outright applied)
Palko, and coupled Palko with an examination of whether the right was seen in
American history and tradition. Considering whether the federal right to legal
counsel was fundamental, the Court invoked a previous case‟s exploration of state
from the Framing to the present. See Gideon v. Wainwright, 372 U.S. 335, 340
(1963) (quoting Betts v. Brady, 316 U.S. 455, 465 (1942)). The Court also went on
to apply the test of whether the right was among “fundamental principles of liberty
and justice which lie at the base of all our civil and political institutions,” id. at 341
(quoting Powell, 287 U.S. at 67), and “implicit in the concept of ordered liberty,”
id. at 342 (quoting Palko, 302 U.S. at 325). Similar language was used in other
cases over the following four years. See, e.g., Washington v. Texas, 388 U.S. 14,
18 (1967); Pointer v. Texas, 380 U.S. 400, 403−04 (1965); Malloy, 378 U.S. at
5−6.
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This era ended in 1968, when in declaring fundamental the Sixth Amendment
right to a jury trial, the Court did so because the right was “fundamental to an
American scheme of justice.” Duncan v. Louisiana, 391 U.S. 145, 149 (1968). The
Court elaborated this standard in a footnote as meaning that such a right “is
following year the Court applied this test from Duncan when holding that the right
in the Double Jeopardy Clause is fundamental. Benton, 395 U.S. at 794. After
applying Duncan, the Benton Court added that “[i]nsofar as it is inconsistent with
this holding, Palko v. Connecticut is overruled.” Id. Although that may seem at
first glance conclusive for the proposition that the Duncan test of “necessary to an
in the concept of ordered liberty,” such a conclusion sweeps too broadly. Palko
held that the Fifth Amendment right against double jeopardy was not fundamental,
and thus not applicable to the states through the Fourteenth Amendment. 302 U.S.
at 322. Benton held that this same right was fundamental, and as such does apply
against the states. 395 U.S. at 794. While it is clear that Benton‟s conclusion
overruled the conclusion in Palko, it is unclear whether the Duncan test employed
This confusion was compounded by a fairly recent case, wherein the Court
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two-prong test of whether the right was both “deeply rooted in this Nation‟s history
and tradition,” 521 U.S. at 721 (quoting Moore v. East Cleveland, 431 U.S. 494,
503 (1977) (plurality opinion)), and also “implicit in the concept of ordered
liberty,” meaning that “neither liberty nor justice would exist if they were
sacrificed,” id. (quoting Palko). Thus, post-Duncan and post-Benton, the Supreme
Court applied an expanded version of the Palko test (one that placed greater
emphasis on history and tradition), and did so without even considering Duncan.
Examining this case law in 2010, the Supreme Court noted that:
in some cases decided during this era the Court can be seen as having asked,
when inquiring into whether some particular procedural safeguard was
required of a State, if a civilized system could be imagined that would not
accord the particular protection.
McDonald, 130 S. Ct. at 3031 (quoting Duncan, 391 U.S. at 149 n.14) (internal
quotation marks omitted). Referring to the transition from the Palko test to the
Id. at 3034 (internal citations and footnotes omitted). At the same time, the Court
also noted that “in recent cases addressing unenumerated rights, we have required
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that a right also be „implicit in the concept of ordered liberty.‟” Id. at 3034 n.11
(citing Glucksberg, 521 U.S. at 721) (emphasis added). That need not be
understood as indicating that there is a different test for enumerated rights versus
unenumerated rights, however, as the question for both remains whether the
asserted liberty interest is a fundamental right, and the Court‟s clear holding in
C. This Court’s Nordyke opinion correctly applied the proper test for
fundamentality.
This Court recently adopted the position that the Duncan test is essential to
finding a fundamental right in Nordyke v. King, 563 F.3d 439 (9th Cir. 2009), the
panel opinion of which was recently vacated by this Court sitting en banc and
intervening McDonald decision. 611 F.3d 1015 (9th Cir. 2010).1 This Court
1
As the Nordyke panel opinion has been vacated for reconsideration, it is not presented here as
controlling authority. It is instead offered as persuasive authority, along with the assertion that nothing in
the Supreme Court‟s McDonald decision invalidates the Nordyke panel opinion, or would impede the
panel from simply reinstating the relevant part of the original opinion cited herein.
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regime of ordered liberty in incorporating the Second Amendment. See 563 F.3d at
451. This Court held that “only those institutions and rights „deeply rooted in this
due process.” Id. (quoting Moore, 431 U.S. at 503 (plurality opinion)).
This Court rejected the proposition that Palko still controlled, finding that Palko
appreciate of the meaning, the essential implications, of liberty itself.‟” Id. at 449
(quoting Palko, 302 U.S. at 326). Evidently finding such philosophical speculation
This Court then went on to hold that Duncan would also govern cases such as
rights.” Id. This Court then went on to hold that incorporation is one aspect of
451. Therefore the case law incorporating provisions of the Bill of Rights into the
process.
At the end of its October 2009 Term, in June 2010 the Supreme Court
confirmed that this Court‟s panel opinion in Nordyke correctly articulated and
applied the governing test for fundamentality. One constitutional scholar, Professor
according to the case law as it then stood, “‟[i]t is possible but unlikely that
fundamental rights or rights implicit in the concept of ordered liberty would not
also be deeply rooted in our history and tradition.” Steven G. Calabresi & Sarah E.
Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American
there is no longer any doubt that the proper test for fundamentality consults
American history and tradition to determine whether the purported right is essential
The Supreme Court in McDonald noted that over the decades the Court has
Ct. at 3032. Although it is clear that only fundamental rights are incorporated
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against the states through the Fourteenth Amendment Due Process Clause, there
was some confusion in the law regarding what the proper test is for finding a right
The Supreme Court has thus indicated that a history-focused Duncan test this is
the proper test by applying it as recently as the Court‟s last Term. See McDonald,
130 S. Ct. at 3034. The Fourteenth Amendment only extends to the states those
provisions of the Bill of Rights that entail fundamental rights. In incorporating the
Second Amendment into the Fourteenth Amendment, the Court began with a
lengthy study of American history and tradition, see McDonald, 130 S. Ct. at
3036−42, and then concluded on the basis of the widespread recognition of the
asserted right in history and tradition that “it is clear that the Framers and ratifiers
of the Fourteenth Amendment counted the right to keep and bear arms among
those fundamental rights necessary to our system of ordered liberty,” id. at 3042.
Thus, as with any asserted liberty interest, this Court must determine whether
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Same-sex marriage is not a fundamental right under the U.S. Constitution. The
12 (1967).
However, this right does not extend to any union other than that of one man
[D]efining the scope of the Due Process Clause “has at times been a
treacherous field for this Court,” giving “reason for concern lest the only
limits to . . . judicial intervention become the predilections of those who
happen at the time to be Members of this Court.”
Michael H., 491 U.S. at 121 (plurality opinion) (quoting Moore, 431 U.S. at 502
Mullins, 57 F.3d at 793 (citing Michael H., 491 U.S. at 122 (1989) (plurality
opinion); Moore, 431 U.S. 494 (1977) (plurality opinion); Calder v. Bull, 3 U.S. (3
Dall.) 386, 398−400 (1798) (opinion of Iredell, J.)). Same-sex marriage does not
satisfy the scrutiny that attends this reluctance to expand substantive due process.
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Not all important personal matters are constitutional rights protected by the
That many of the rights and liberties protected by the Due Process Clause
sound in personal autonomy does not warrant the sweeping conclusion that
any and all important, intimate, and personal decisions are so protected . . . .
Glucksberg, 521 U.S. at 727 (citation omitted). In discussing the few occasions
where the Justices have recognized fundamental rights outside the express terms of
[W]e “ha[ve] always been reluctant to expand the concept of substantive due
process because guideposts for responsible decisionmaking in this
unchartered area are scarce and open-ended.” By extending constitutional
protection to an asserted right or liberty interest, we, to a great extent, place
the matter outside the arena of public debate and legislative action. We must
therefore “exercise the utmost care whenever we are asked to break new
ground in this field,” lest the liberty protected by the Due Process Clause be
subtly transformed into the policy preferences of Members of this Court.
Id. at 720 (quoting Collins v. Harker Heights, 503 U.S. 115 (1992), and Moore,
431 U.S. at 502 (plurality opinion), respectively)) (second brackets in the original)
personal preferences in the Due Process clause is requiring that asserted liberty
interests be narrowly and carefully defined. The Supreme Court describes the
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Glucksberg, 521 at 720−21 (internal citations omitted). The latter part of the
subsequently been used to refine the former part in the McDonald opinion decided
supra.
Island Inst., 129 S. Ct. 1142, 1148 (2009) (quoting Warth v. Seldin, 422 U.S. 490,
defined requirement must be regarded as among the “several doctrines that reflect
this fundamental limitation.” Id. at 1149. Such limitations helps ensure that “there
is a real need to exercise the power of judicial review in order to protect the
War, 418 U.S. 208, 221 (1974). It “would significantly alter the allocation of
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exercise the power of judicial review to override the will of the voters unless the
Constitution absolutely commands it. See Summers, 129 S. Ct. at 1148 (quoting
United States v. Richardson, 418 U.S. 166, 188 (1974) (Powell, J., concurring))
reviewing the actions of the American people at the ballot box. Doctrines
Spencer v. Kemna, 523 U.S. 1, 11−12 (1998) (quoting Valley Forge Christian
College v. Americans United for Separation of Church and State, Inc., 454 U.S.
464, 474, 476 (1982)) (brackets in the original). The Supreme Court “never []
facts to which it is to be applied.” United States v. Raines, 362 U.S. 17, 21 (1960)
Emigration, 113 U.S. 33, 39 (1885)). Thus, when formulating the content of an
unenumerated right, courts must not define such content more broadly than what
history and tradition indicate are essential for an American regime of ordered
liberty.
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This restraint is essential for preserving the legitimacy of the courts. Prudence
counsels:
[t]hat the Court has ample precedent for the creation of new constitutional
rights should not lead it to repeat the process at will. The judiciary, including
this Court, is the most vulnerable and comes nearest to illegitimacy when it
deals with judge-made constitutional law having little or no cognizable roots
in the language or even the design of the Constitution.
Mullins, 57 F.3d at 793 (quoting Moore, 431 U.S. at 544 (White, J., dissenting))
Each time the Supreme Court considered a case wherein a party asserted to
have a right protected by the Due Process Clause, the Court “sought a careful,
specific description of the right at issue in order to determine whether that right,
(Scalia, J., concurring). Consequently when confronted with claims such as the
Appellee‟s claim in the instant case, “[this Court‟s] first task is to describe
upon dangerous ground when it proclaims rights where the people have chosen not
natural justice are regulated by no fixed standard: the ablest and the purest
men have differed upon the subject; and all that the Court could properly
say, in such an event, would be, that the Legislature (possessed of an equal
right of opinion) had passed an act which, in the opinion of the judges, was
inconsistent with the abstract principles of natural justice.
Calder, 3 U.S. (3 Dall.) at 399 (opinion of Iredell, J.). Otherwise put, “[l]aws that
transgress the terms of the Constitution should be struck down, . . . but otherwise
judges should not don the robes of the philosopher king.” Antkowiak, supra, at
621.
B. Same-sex marriage does not fall within the fundamental right of marriage.
One of the challenges with any asserted right is how broadly or narrowly to
define that right, and the same holds true for same-sex marriage. If a marriage is
defined as a relationship entered into by two consenting adults with the intent of
couples. Courts lack the power to decree such a novel definition, however.
Instead, the foregoing case law requiring a narrowly and carefully described
right does not permit same-sex marriage to come within the definition of
society.” Zablocki v. Redhail, 434 U.S. 374, 386 (1978). The Supreme Court has
held that the “freedom to marry . . . [is] essential to the orderly pursuit of happiness
by free men.” Loving, 388 U.S. at 12. Understood in the full context of the
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carefully-defined rule, it is that the “freedom to marry one unrelated person of the
Only the union of one man and one woman has formed the foundation of family
in their briefs. Case law demonstrates that only the marriage of one man with one
woman that the Supreme Court has described in a manner as to be “so rooted in the
291 U.S. at 105. “Our decisions establish that the Constitution protects the sanctity
of the family precisely because the institution of the family is deeply rooted in this
Nation‟s history and tradition.” Michael H., 491 U.S. at 123−24 (plurality opinion).
Therefore:
the legal issue in the present case reduces to whether the relationship
between persons in the situation [at issue] has been treated as a protected
family unit under the historic practices of our society, or whether, on any
other basis, it has been accorded special protection.
Id. at 124.
“While the institution of marriage is deeply rooted in the history and traditions
of our country and our State, the right to marry someone of the same sex is not.”
Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 987 (Mass. 2003) (Cordy, J.,
dissenting). It is thus not surprising that other courts have refused to hold that
same-sex marriage inheres in the fundamental right to marry. See, e.g., Smelt v.
Cnty. of Orange, 374 F. Supp. 2d 861, 879 (C.D. Cal. 2005), aff’d in part and
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vacated in part on other grounds, 447 F.3d 673 (9th Cir. 2006); Wilson v. Ake, 354
F. Supp. 2d 1298, 1307 (M.D. Fla. 2005). As a Texas appellate court stated as
In re J.B., 2010 Tex. App. LEXIS 7127, at *51 (Tex. Ct. App. Aug. 31, 2010)
whether same-sex marriage falls within the contours of the constitutional right to
marry in the negative. “What this case is really about is creating a new family unit
where none has existed before.” Mullins, 57 F.3d at 794. In that vein, to the extent
that Appellees rely upon Moore their argument fails, as this Court rejected a
entirely new family right out of whole cloth.” Id. (citation omitted). Appellee‟s
incorrect, and their consequent reliance upon Loving v. Virginia as supporting their
position in this regard is misplaced. Assuming arguendo that this argument had
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were one-man-one-woman marriages—it remains that the Supreme Court based its
decision in Loving explicitly upon the premise that the Fourteenth Amendment was
The right to marry protected by the Fourteenth Amendment Due Process Clause
is specifically a fundamental right to marry one person of the opposite sex who is
Supreme Court precedent that the asserted right be narrowly and carefully defined.
As same-sex marriage falls outside the boundaries of the right to marry thus
defined, entering into such a union does not carry the status of a fundamental right
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CONCLUSION
For the foregoing reasons, the judgment of the District Court for the Northern
Respectfully submitted,
s/ Kenneth A. Klukowski
Kenneth A. Klukowski
Counsel of Record
American Civil Rights Union
3213 Duke Street, #625
Alexandria, Virginia 22314
(703) 807-0242
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The undersigned counsel of record for amici curiae affirms and declares as
follows:
This brief complies with the type-volume limitation of Fed. R. App. P. Rule
32(a)(7) for a brief utilizing proportionally-spaced font, because the length of this
brief is 6,671 words, excluding the parts of the brief exempted by Fed. R. App. P.
Rule 32(a)(7)(B)(iii).
This brief also complies with the type-face requirements of Fed. R. App. P.
2007 in 14-point Times New Roman font, with footnotes in 11-point font.
s/ Kenneth A. Klukowski
Kenneth A. Klukowski
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NO. 10−16696
CERTIFICATE OF SERVICE
When All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing brief with the Clerk of
the Court for the United States Court of Appeals for the Ninth Circuit by using the
I certify that all participants in this case are registered CM/ECF users and that
s/ Kenneth A. Klukowski
Kenneth A. Klukowski
31