Case: 14-31037 Document: 00512829711 Page: 1 Date Filed: 11/07/2014

No. 14-31037
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

JONATHAN P. ROBICHEAUX; DEREK PENTON; NADINE BLANCHARD;

COURTNEY BLANCHARD,
Plaintiffs-Appellants
v.
JAMES D. CALDWELL, in his official capacity as the Louisiana Attorney
General, also known as Buddy Caldwell,
Defendant-Appellee

JONATHAN P. ROBICHEAUX; DEREK PENTON; NADINE BLANCHARD;

COURTNEY BLANCHARD; ROBERT WELLES; GARTH BEAUREGARD,
Plaintiffs-Appellants
v.
DEVIN GEORGE, in his official capacity as the State Registrar and Center
Director at Louisiana Department of Health and Hospitals; TIM BARFIELD, in his
official capacity as the Louisiana Secretary of Revenue; KATHY KLIEBERT, in
her official capacity as the Louisiana Secretary of Health and Hospitals,
Defendants-Appellees

FORUM FOR EQUALITY LOUISIANA, INCORPORATED; JACQUELINE M.

BRETTNER; M. LAUREN BRETTNER; NICHOLAS J. VAN SICKELS;
ANDREW S. BOND; HENRY LAMBERT; R. CAREY BOND; L. HAVARD
SCOTT, III; SERGIO MARCH PRIETO;
Plaintiffs-Appellants
v.
TIM BARFIELD, in his official capacity as Secretary of the Louisiana Department
of Revenue; DEVIN GEORGE, in his official capacity as Louisiana State
Registrar,
Defendants-Appellees

On Appeal from the United States District Court

for the Eastern District of Louisiana

Brief of Amicus Curiae Louisiana Family Values in Support of

Defendants-Appellees and Affirmance

Counsel Listed on Inside Cover

 Case: 14-31037 Document: 00512829711 Page: 2 Date Filed: 11/07/2014

Charles Jones, III

LOUISIANA FAMILY FORUM
655 St. Ferdinand Street
Baton Rouge, LA 70802
(225) 344-8533 (t)
(866) 931-3302 (f)
[email protected]
[email protected]

Attorney for Amicus Curiae

 Case: 14-31037 Document: 00512829711 Page: 3 Date Filed: 11/07/2014

CERTIFICATE OF INTERESTED PERSONS

Jonathan Robicheaux, et al., v. James Caldwell, et al., No. 14-31037

Pursuant to Fifth Circuit Rule 28.2.1, the undersigned counsel of record

certifies that the following listed persons and entities as described in the fourth
sentence of Rule 28.2.1 have an interest in the outcome of this case. These
representations are made in order that the judges of this court may evaluate
possible disqualification or recusal.

APPELLANTS
Jonathan P. Robicheaux, Derek Penton, Nadine Blanchard, Courtney Blanchard,
Robert Welles, Garth Beauregard, Jacqueline M. Brettner, M. Lauren Brettner,
Nicholas J. Van Sickels, Andrew S. Bond, Henry Lambert, R. Carey Bond, L.
Havard Scott, Sergio March Prieto, Forum For Equality Louisiana, Inc.

APPELLANTS‟ ATTORNEYS
Kenneth D. Upton, Jr., Paul D. Castillo, Susan L. Sommer, Karen L. Loewy, Omar
Gonzalez-Pagan, Camilla B. Taylor, Lamda Legal Defense and Education Fund,
Inc.; J. Dalton Courson, Lesli D. Harris, Stone Pigman Walther Wittmann, L.L.C.;
Richard G. Perque, Law Office of Richard G. Perque; Scott J. Spivey, Landry and
Spivey

APPELLEES
James D. “Buddy” Caldwell, Louisiana Attorney General; Tim Barfield, Louisiana
Secretary of Revenue; Devin George, Louisiana State Registrar; Kathy Kliebert,
Louisiana Secretary of Health and Hospitals

APPELLEES‟ ATTORNEYS
James D. “Buddy” Caldwell, Trey Phillips, Louisiana Department of Justice; S.
Kyle Duncan, Duncan PLLC; J. Michael Johnson, Kitchens Law Firm APLC

AMICI CURIAE IN SUPPORT OF APPELLEES

Louisiana Family Forum

AMICI CURIAE‟S ATTORNEY

Charles Jones, III

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Amicus Curiae Louisiana Family Forum has no parent corporation or any

publicly held corporation that owns 10% or more of its stock.

/s/Charles Jones, III

Charles Jones, III
Attorney of Record for Amicus Curiae

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TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS ........................................................ i

TABLE OF AUTHORITIES .................................................................................. iiv

IDENTITY AND INTEREST OF AMICUS CURIAE ..............................................1

SUMMARY OF ARGUMENT .................................................................................1

ARGUMENT .............................................................................................................4

I. Louisiana‟s Decision to Define Marriage as a Union Between One

Man and One Woman is Rationally Related to Legitimate Purposes. ............4
A. The State‟s Purpose for Promoting Marriage is to Perpetuate
and Stabilize Society. ............................................................................5

B. Man-Woman Marriage Protects and Promotes the Well-Being

of Children. ............................................................................................6

C. Man-Woman Marriage Benefits Adults and Society. ...........................9

II. Redefining Marriage to Include Homosexual Relationships Would
Bring Broad and Negative Consequences Upon Louisiana. .........................11

A. Redefining Marriage Would Seriously Weaken the Institution

of Marriage and Consequently Society.. .............................................11

B. Redefining Marriage in Louisiana Would Lead to Further

Attacks Against Our Well-Established Freedoms Such as
Religious Freedom, Freedom of Speech, and Parental
Authority. ............................................................................................16

C. Redefining Marriage Would Compound the Problems Currently

Facing Man-Woman Marriage. ...........................................................17

CONCLUSION ........................................................................................................18

CERTIFICATE OF SERVICE ................................................................................20

CERTIFICATE OF COMPLIANCE .......................................................................21

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TABLE OF AUTHORITIES

Cases

Doe v. Jindal,
851 F. Supp. 2d 995 (E.D. La. 2012) ............................................................ 11

Kimel v. Florida Bd. of Regents,

528 U.S. 62 (2000)......................................................................................... 11

Loving v. Virginia,
388 U.S. 1 (1967)............................................................................................. 5

Maynard v. Hill,
125 U.S. 190 (1888)......................................................................................... 5

Parker v. Hurley,
514 F. 3d 87 (1st Cir. 2008)........................................................................... 16

Robicheaux v. Caldwell,
2 F. Supp. 3d 910 (E.D. La. 2014)................................................................. 12

Skinner v. Oklahoma,
316 U.S. 535 (1942)......................................................................................... 5

Statutes

Louisiana Civil Code Article 86, comment (c) .......................................................... 5

Louisiana Revised Statute §9:273 ............................................................................ 18

Louisiana Revised Statute §9:275 ............................................................................ 18

Louisiana Revised Statute §9:307 ............................................................................ 18

Other Authorities

Alliance Defending Freedom, ADF Commends Wis. school for apology after
showing children same-sex marriage propaganda video, (May 23,
2014), available at
http://www.adfmedia.org/News/PRDetail/?CID=77479.........................16, 17

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Eric G. Anderson, Children, Parents, and Nonparents: Protected Interests

and Legal Standards, 1998 BYU L. Rev. 935 (1998) ..................................... 6

Elizabeth Brake, Minimal Marriage: What Political Liberalism Implies for

Marriage Law, 120 Ethics 302 (2010) .......................................................... 14

Brief of Defendants-Appellees, Robicheaux v. Caldwell, No. 14-31037 (5th

Cir. Oct. 31, 2014) ........................................................................................... 4

Victoria A. Brownworth, Something Borrowed, Something Blue: Is

Marriage Right for Queers?, in I Do/I Don’t: Queers on Marriage
(Greg Wharton & Ian Philips eds., 2004) ................................................14, 15

William C. Duncan, The State Interests in Marriage, 2 Ave Maria L. Rev.

153 (2004) ............................................................................................6, 11, 12

Maggie Gallagher, Banned in Boston: The Coming Conflict Between

Same‐Sex Marriage and Religious Liberty, The Weekly Standard
(May 15, 2006), available at
http://www.weeklystandard.com/Content/Public/Articles/000/000/012
/191kgwgh.asp. .............................................................................................. 17

Maggie Gallagher, (How) Will Gay Marriage Weaken Marriage as a Social

Institution: A Reply to Andrew Koppelman, 2 U. St. Thomas L.J. 33
(2004) ............................................................................................................... 5

Sherif Girgis et al., What is Marriage?, 34 Harv. J.L. & Pub. Policy 245
(Winter 2010), available at http://www.harvard-jlpp.com/vols-30-
34/#341. ............................................................................................... 4, 10-16

E.J. Graff, Retying the Knot, in Same Sex-Marriage: Pro and Con: A Reader
(Andrew Sullivan ed., 1997).......................................................................... 14

Sara McLanahan & Gary Sandefur, Growing Up with a Single Parent: What
Hurts, What Helps ........................................................................................... 9

Barack Obama. Speech on Fatherhood at Apostolic Church of God in

Chicago, Illinois (Jun. 15, 2008), (transcript available at
http://www.realclearpolitics.com/articles/2008/06/obamas_speech_on
_fatherhood.html) ............................................................................................ 7

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Michelangelo Signorile, Bridal Wave, Out (Dec.–Jan. 1994) ................................. 15

Katherine Shaw Spaht, Louisiana’s Covenant Marriage: Social Analysis and

Legal Implications, 59 La. L. Rev. 63 (Fall 1998) ........................................ 18

Judith Stacey, Gay and Lesbian Families: Queer Like Us, in All Our
Families: New Policies for a New Century (M. A. Mason et al. eds.,
1998) .............................................................................................................. 13

Marc D. Stern, Same‐Sex Marriage and the Churches, in Same-Sex

Marriage and Religious Liberty: Emerging Conflicts (Douglas
Laycock et al. eds., 2008) .............................................................................. 16

Andrew Sullivan, Virtually Normal: An Argument About Homosexuality

(1996) ............................................................................................................. 14

Frank Turek, Correct, Not Politically Correct: How Same-Sex Marriage

Hurts Everyone (2008) .................................................................................... 5

Ellen Willis, Can Marriage Be Saved? A Forum, The Nation (July 5, 2004) ........ 15

The Witherspoon Institute, Marriage and the Public Good: Ten Principles,
(2008), available at winst.org/wp-
content/uploads/WI_Marriage_and_the_Public_Good.pdf ............ 4, 6-13, 17

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IDENTITY AND INTEREST OF AMICUS CURIAE1

Louisiana Family Forum (“LFF”) is an organization committed to the

preservation and advancement of a culture where religious liberty and families

thrive. Through policy research, public education, and grassroots mobilization,

LFF has vigorously labored to promote life-long faithful marriages. The more a

society values marriage, LFF believes, the healthier, safer, and more productive

that society will be. For these reasons, the outcome of this case is of great

importance to Amici, and Amici has a significant interest in responding to

Plaintiffs-Appellants‟ assertions and showing the State of Louisiana‟s marriage

definition is rationally related to legitimate purposes.

SUMMARY OF ARGUMENT

The State of Louisiana has chosen to define marriage as a legal relationship

between one man and one woman. In doing so, Louisiana recognizes an institution

that has – throughout history – perpetuated and stabilized society. Man-woman

marriage is key to our nation‟s survival and existence.

The rational reasons for promoting man-woman marriage are plentiful.

These marriages encourage the raising of children in an intact, low-conflict, two-

parent home where the mother and father work together as a team to build each

1
This brief is filed with the consent of all parties. No party or party‟s counsel
authored this brief in whole or in part or financially supported this brief, and no
one other than amicus curiae, its members, or its counsel contributed money
intended to fund preparing or submitting this brief.

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other up in caring for each other and their children along with developing their

children into upright and productive adults. Studies show children benefit from

having both a mom and a dad who are married to each other and are actively

involved in their child‟s life. Children raised in married, intact families are less

likely than children in various alternative family structures to drop out of school,

live in poverty, suffer parental abuse, commit crime, or have issues with drug

abuse, depression, or suicidal thoughts. Studies show family structure is very

important to a child‟s development, and the ideal family structure for a child‟s

development is to be raised by his biological parents together in a low-conflict

marriage.

Adults and society also benefit from man-woman marriage. Married mothers

and fathers are more likely to live longer and healthier lives. The quality of the

marriage is proportionately related to the level of commitment to the marriage by

the husband and wife. Married women are less likely than unmarried women to

become victims of violent crimes, and high-quality marriages provide them with

positive psychological and physical benefits. Married men are more likely to be

law-abiding citizens, refrain from sexual promiscuity, consume less alcohol, attend

church, spend more time with family members, and work harder. When children

are raised well by their parents, and married adults enjoy healthier and longer lives,

society benefits from a government that does not have to spend as much money on

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teen pregnancy, crime, drug abuse, poverty, and health problems that result from

the breakup of the family home. Moreover, society benefits from having a future

generation that is full of law abiding and productive citizens.

On the other hand, redefining marriage to include same-sex partnerships

would bring with it many negative consequences – consequences many marriage

redefinition advocates welcome. Redefining marriage would obscure the truth that

children do best when raised by their biological parents and would thus lead to

more motherless and fatherless homes. It would take away from the long-held

belief that marriage is intrinsically related to procreation since same-sex couples

cannot have children without third party intervention. Further marriage

redefinitions could possibly occur since the basis for allowing homosexual

partnerships to be included in marriage – commitment to loving and caring for

another person – can be applied to many other relationships, which could result in

more homes without a mother and a father. Redefining marriage would result in

attacks against a number of our country‟s freedoms, including religious freedom,

freedom of speech, and parental authority regarding their child‟s education. It

would also compound the current problems (high rates of divorce, cohabitation,

and children born out of wedlock) facing man-woman marriage. For all of these

reasons, along with the Appellees‟ sound legal reasons, this Court should affirm

the district court‟s ruling.

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ARGUMENT

I. Louisiana’s Decision to Define Marriage as a Union Between One Man

and One Woman is Rationally Related to Legitimate Purposes.

Part III(A) of Appellees‟ brief correctly explained that the State of Louisiana

does not have to produce evidence to justify its marriage definition since rational

basis review is the correct standard to apply. Brief of Defendants-Appellees at 38-

52, Robicheaux v. Caldwell, No. 14-31037 (5th Cir. Oct. 31, 2014). Even if

Louisiana were required to provide evidence to show its marriage definition is not

irrational, Amici believes and seeks to show in this brief that Louisiana has an

abundance of rational – and even compelling – reasons for its man-woman

marriage definition.2

2
In doing so, much of this brief cites to two main sources, What is Marriage? by
Sherif Girgis, Robert George, and Ryan Anderson, and Marriage and the Public
Good: Ten Principles by The Witherspoon Institute. Marriage and the Public
Good was signed by seventy scholars and provides extensive research for why
man-woman marriages are important to our society. What is Marriage? addresses
the constitutional questions pertaining to redefining marriage and provides a
detailed defense for why marriage is between one man and one woman. Sherif
Girgis et al., What is Marriage?, 34 Harv. J.L. & Pub. Policy 245 (Winter 2010),
available at http://www.harvard-jlpp.com/vols-30-34/#341; The Witherspoon
Institute, Marriage and the Public Good: Ten Principles, (2008), available at.

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A. The State’s Purpose for Promoting Marriage is to Perpetuate and

Stabilize Society.3

The government‟s purpose for promoting man-woman marriage is the

perpetuation and stabilization of society. Louisiana Civil Code article 86, comment

(c) provides in part, “The marriage contract differs from other contracts in that it

creates a social status that affects not only the contracting parties, but also their

posterity and the good order of society.” La. Civ. Code article 86 cmt (c). “It

(marriage) is an institution, in the maintenance of which in its purity the public is

deeply interested, for it is the foundation of the family and of society, without

which there would be neither civilization nor progress.” Maynard v. Hill, 125 U.S.

190, 211 (1888) (brackets added). Man-woman marriage is fundamental to our

nation‟s existence and survival. Loving v. Virginia, 388 U.S. 1, 12 (1967) (citing

Skinner v. Oklahoma, 316 U.S. 535, 541 (1942); Maynard v. Hill, 125 U.S. 190

(1888)). Throughout history, cultures have recognized and relied upon man-woman

marriage in order to promote societal stability.4

3
The phrase, “perpetuate and stabilize society” comes from Dr. Frank Turek,
author of Correct, Not Politically Correct: How Same-Sex Marriage Hurts
Everyone (2008).
4
Maggie Gallagher, (How) Will Gay Marriage Weaken Marriage as a Social
Institution: A Reply to Andrew Koppelman, 2 U. St. Thomas L.J. 33, 45-46 (2004).

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B. Man-Woman Marriage Protects and Promotes the Well-Being of

Children.

Studies show man-woman marriage advances the state‟s interest by

protecting and promoting the well-being of children. Children raised in an intact,

two-parent home benefit from having a mom and a dad, and the sex of the parent

also brings distinct contributions to the child.5 Mothers are generally more

sensitive to their child‟s verbal and body language from infancy through

adolescence and, as a result, provide better emotional and physical care to their

child.6 While going through pregnancy and breastfeeding, women naturally

experience high levels of peptide oxytocin, a hormone that promotes affiliative

behaviors.7 Fathers are generally gifted in challenging their children to take on

difficult tasks, persevere through hardship, and welcome life‟s opportunities. 8

A mother and father‟s level of involvement in their child‟s life has far-

reaching impact on the child.9 Girls are more likely to engage in early sexual

behavior when their father is absent from the home providing them with little time

5
Witherspoon Institute, supra note 2, at 9; see also Eric G. Anderson, Children,
Parents, and Nonparents: Protected Interests and Legal Standards, 1998 BYU L.
Rev. 935, 998 (1998).
6
Witherspoon Institute, supra note 2, at 12.
7
Id.
8
Id.
9
William C. Duncan, The State Interests in Marriage, 2 Ave Maria L. Rev. 153,
167, 168 (2004).

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or attention.10 When living in an intact married home, girls have lower rates of

teenage pregnancy and children born out of wedlock than girls living in single-

parent or step-families.11

Boys who are not raised by their mother and father are more likely to have

issues with aggression, attention deficit disorder, crime, and school suspensions.12

They are more than twice as likely to spend time in prison.13 President Obama – at

the time a U.S. Senator - said it well on June 15, 2008, when he spoke about

fathers:

“We are called to recognize and honor how critical every father is to
th[e] foundation [of the family]. They are mentors and role models. . .
. But if we are honest with ourselves, we‟ll admit that what many
fathers also are is missing – missing from too many lives and too
many homes. . . . We know the statistics – that children who grow up
without a father are 5 times more likely to live in poverty and commit
crime; 9 times more likely to drop out of schools and 20 times more
likely to end up in prison. They are more likely to have behavioral
problems, or run away from home, or become teenage parents
themselves. And the foundations of our community are weaker
because of it. . . . We need fathers to realize that responsibility does
not end at conception. We need them to realize that what makes you a
man is not the ability to have a child – it‟s the courage to raise one.”14

10
Id. at 167. See also Witherspoon Institute, supra note 2, at 10, 12.
11
Witherspoon Institute, supra note 2, at 10.
12
Id. at 10, 11.
13
Id. at 11.
14
Barack Obama. Speech on Fatherhood at Apostolic Church of God in Chicago,
Illinois (Jun. 15, 2008), (transcript available at
http://www.realclearpolitics.com/articles/2008/06/obamas_speech_on_fatherhood.
html) (brackets added).

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Family structure is also important to a child‟s development. The

Witherspoon Institute states,

“A married mom and dad typically invest more time, affection, and
oversight into parenting than does a single parent; as importantly, they
tend to monitor and improve the parenting of one another, augmenting
one another‟s strengths, balancing one another‟s weaknesses, and
reducing the risk that a child will be abused or neglected by an ex-
hausted or angry parent. (Footnote citation omitted) The trust and
commitment associated with marriage also give a man and a woman a
sense that they have a future together, as well as a future with their
children. This horizon of commitment, in turn, motivates them to
invest practically, emotionally, and financially at higher levels in their
children than cohabiting or single parents. (Footnote citation
omitted)”15

Children in intact married homes are more likely to be involved in literacy

activities in preschool, less likely to miss or be late for class, and twice as likely to

graduate high school.16 They are less likely to attempt suicide and suffer from

alcohol abuse, drug abuse, depression, and serious psychiatric illnesses.17

A family‟s structure can have greater impact on a child‟s psychological and

behavioral outcome than poverty.18 In their book, Growing Up with a Single

Parent, sociologists Sara McLanahan and Gary Sandefur wrote,

“If we were asked to design a system for making sure that children‟s
basic needs were met, we would probably come up with something
quite similar to the two-parent ideal. Such a design, in theory, would
not only ensure that children had access to the time and money of two

15
Witherspoon Institute, supra note 2, at 11.
16
Id. at 9, 10.
17
Id. at 10.
18
Id.

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adults, it also would provide a system of checks and balances that

promoted quality parenting. The fact that both parents have a
biological connection to the child would increase the likelihood that
the parents would identify with the child and be willing to sacrifice for
that child, and it would reduce the likelihood that either parent would
abuse the child.”19

Clearly, it is rational for Louisiana to promote an institution that helps children

develop and reduces the likelihood that they will engage in socially destructive

behavior.

C. Man-Woman Marriage Benefits Adults and Society

The benefits of marriage do not just extend to children; they benefit adults

and society as well. Married heterosexual couples live longer, healthier (physically

and emotionally), and happier lives than single adults and cohabiting adults.20 The

higher the commitment by a married couple to the institution of marriage –

including the commitment to sexual faithfulness, the belief that marriage is a life-

long commitment, and the belief that an intact man-woman family is best for

children – the more likely the couple will experience a high-quality marriage than

couples who are less committed to the institution of marriage.21 Married women

are much less likely than unmarried women to become victims of violent crimes,

and high-quality marriages provide women with positive psychological and

19
Sara McLanahan & Gary Sandefur, Growing Up with a Single Parent: What
Hurts, What Helps 38 (1994).
20
Witherspoon Institute, supra note 2, at 13.
21
Id. at 14.

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physical benefits.22 Married men are more likely than unmarried men to obey the

laws of the land, refrain from sexual promiscuity, drink less, attend church, spend

more time with family members, and work harder.23

Marriage between a man and a woman is good for everyone – even those

who never marry – because everyone benefits from high-quality man-woman

marriages. One result of a culture full of healthy and thriving man-woman

marriages is that society will have smaller deficits due to there being far less

broken families.24 In a study by the Brookings Institute, it was found that from

1970 to 1996, teen pregnancy, crime, drug abuse, poverty, and health problems

resulted in $229 billion in welfare expenditures.25

In What is Marriage?, Sherif Girgis, Robert George, and Ryan Anderson

wrote that a strong man-woman marriage culture will help our society because it

produces what society needs but cannot form on its own: “upright, decent people

who make for reasonably conscientious, law‐abiding citizens.”26 Undoubtedly,

when considering the benefits of man-woman marriage to children, adults, and

society, one can safely conclude that Louisiana‟s marriage definition is rationally

related to the achievement of legitimate purposes. This Court should conclude that

22
Id. at 13.
23
Id. at 13, 14.
24
Id. at 16.
25
Id. at 16. See also Girgis et al., supra note 2, at 270.
26
Girgis et al., supra note 2, at 270.

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Louisiana‟s actions are rational. See Doe v. Jindal, 851 F. Supp. 2d 995, 1005

(E.D. La. 2012) (quoting Kimel v. Florida Bd. of Regents, 528 U.S. 62, 84 (2000)).

II. Redefining Marriage to Include Homosexual Relationships Would

Bring Broad and Negative Consequences Upon Louisiana.

If marriage was redefined to include same-sex partnerships, there would be

at least two major consequences: (1) the institution of marriage and consequently

our society would be seriously weakened, and (2) well-established freedoms in our

state would be attacked.

A. Redefining Marriage Would Seriously Weaken the Institution of

Marriage and Consequently Society.

It will take time before our society will know exactly what impact being

reared by same-sex couples has upon children, but there are some results that

would surely follow a redefinition of marriage.27 Redefining marriage would

obscure the idea that procreation is intrinsically related to marriage since same-sex

couples cannot procreate without a third-party.28 Including same-sex couples into

Louisiana‟s marriage definition would undermine the truth that children do best

when raised by their biological mother and father.29 The important and distinct

strengths a mother and father provide to the marriage would be undercut since the

27
Witherspoon Institute, supra note 2, at 18.
28
Id. See also Duncan, supra note 9, at 154-158, 165.
29
Girgis et al., supra note 2, at 262.

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state would be promoting the view that two moms or two dads are just as good for

the child as a mother and father.30

Redefining marriage could also lead to further redefinition in the future

because the same basis for allowing same-sex couples to marry can be used to

argue that other relationships should be allowed.31 The argument for redefining

marriage is that the commitment by two people to loving and caring for each other

entitles them to marry, and to prohibit this is discrimination.32 As the district court

pointed out,33 in using this logic, what is to prevent someone from marrying their

close relative if they love each other and want to marry each other? Or a sibling?

Or a minor? Or someone already married? Or more than one person? Those who

favor redefining marriage have no satisfactory answer for these questions because

“all such unions would undeniably be equally committed to love and caring for one

another.”34 And if further marriage redefinitions come, possibly more children will

not be raised by their biological mother and father because it is unlikely man-

woman marriage can flourish in places where it is undermined.35

30
Duncan, supra note 9, at 172.
31
Witherspoon Institute, supra note 2, at 21; see also Girgis et al., supra note 2, at
250-252.
32
Girgis et al., supra note 2, at 246, 248-250, 271.
33
Robicheaux v. Caldwell, 2 F. Supp. 3d 910, 926 (E.D. La. 2014).
34
Id. at 926; see also Witherspoon Institute, supra note 2, at 21. See also Girgis et
al., supra note 2, at 250-252.
35
Witherspoon Institute, supra note 2, at 22.

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Sherif Girgis, Robert George, and Ryan Anderson offered these observations

about what the world would be like if our society were to adopt a genderless

marriage regime:

“[N]o civil institution would any longer reinforce the notion that
children need both a mother and father; that men and women on
average bring different gifts to the parenting enterprise; and that boys
and girls need and tend to benefit from fathers and mothers in
different ways.”36

Indeed, weakening the institution of marriage is exactly what many same-sex

marriage advocates want. Judith Stacey expressed her desire for same-sex marriage

to promote a “pluralist expansion of the meaning, practice, and politics of family

life in the United States” where “perhaps some might dare to question the dyadic

limitations of Western marriage and seek some of the benefits of extended family

life through small group marriages.”37 Ms. Stacey is not alone in her views. In

2006, many marriage redefinition advocates signed an online statement that pushed

for legal recognition of several different relationships beyond same-sex

partnerships.38

According to Professor Elizabeth Blake, justice requires legal recognition of

various relationships in order to (1) stop heterosexual monogamy from being

36
Girgis et al., supra note 2, at 263.
37
Witherspoon Institute, supra note 2, at 19 (quoting Judith Stacey, Gay and
Lesbian Families: Queer Like Us, in All Our Families: New Policies for a New
Century 117, 128-129 (M. A. Mason et al. eds., 1998)).
38
Girgis et al., supra note 2, at 273, 276; online statement available at
http://beyondmarriage.org/ full_statement.html.

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considered the norm in our society and (2) rectify “past discrimination against

homosexuals, bisexuals, polygamists, and care networks.”39 Marriage redefinition

advocate E.J. Graff pointed out with affirmation that redefining marriage to include

same-sex partnerships will make marriage “ever after stand for sexual choice, for

cutting the link between sex and diapers.”40 Andrew Sullivan pushed for and

praised sexual infidelity in his book, Virtually Normal: An Argument About

Homosexuality, saying,

“Same‐sex unions often incorporate the virtues of friendship more

effectively than traditional marriages; and at times, among gay male
relationships, the openness of the contract makes it more likely to
survive than many heterosexual bonds. . . . [T]here is more likely to
be greater understanding of the need for extramarital outlets between
two men than between a man and a woman. . . . [S]omething of the
gay relationship‟s necessary honesty, its flexibility, and its equality
could undoubtedly help strengthen and inform many heterosexual
bonds.”41

Marriage redefinition advocate Victoria Brownsworth similarly wrote,

“[Former President George W.] Bush is correct . . . when he states that

allowing same‐sex couples to marry will weaken the institution of
marriage. It most certainly will do so, and that will make marriage a
far better concept than it previously has been.”42

39
Girgis et al., supra note 2, at 277 (quoting Elizabeth Brake, Minimal Marriage:
What Political Liberalism Implies for Marriage Law, 120 Ethics 302, 323, 336
(2010)).
40
Girgis et al., supra note 2, at 277 (quoting E.J. Graff, Retying the Knot, in Same
Sex-Marriage: Pro and Con: A Reader 134, 136 (Andrew Sullivan ed., 1997)).
41
Girgis et al., supra note 2, at 277 (quoting Andrew Sullivan, Virtually Normal:
An Argument About Homosexuality 202, 203 (1996)).
42
Girgis et al., supra note 2, at 277 (quoting Victoria A. Brownworth, Something
Borrowed, Something Blue: Is Marriage Right for Queers?, in I Do/I Don’t:

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Another professor and marriage redefinition advocate, Ellen Willis, believes that

“conferring the legitimacy of marriage on homosexual relations will introduce an

implicit revolt against the institution into its very heart.”43 Michelangelo Signorile

gave these instructions to same-sex couples:

“[F]ight for same‐sex marriage and its benefits and then, once granted,
redefine the institution of marriage completely, to demand the right to
marry not as a way of adhering to society‟s moral codes but rather to
debunk a myth and radically alter an archaic institution . . . The most
subversive action lesbians and gay men can undertake . . . is to
transform the notion of „family‟ entirely.”44

In short, a marriage redefinition will have negative societal consequences –

consequences many marriage redefinition activists welcome – as a result of

undermining a fundamental building block of civilization: marriage between one

man and one woman. Such a redefinition would hurt society by encouraging more

motherless and fatherless homes. Those consequences are rational reasons for

Louisiana‟s marriage definition.

Queers on Marriage 53, 58–59 (Greg Wharton & Ian Philips eds., 2004)) (brackets
added).
43
Girgis et al., supra note 2, at 277, 278 (quoting Ellen Willis, Can Marriage Be
Saved? A Forum, The Nation (July 5, 2004).
44
Girgis et al., supra note 2, at 278 (quoting Michelangelo Signorile, Bridal Wave,
Out, at 68, 161 (Dec.–Jan. 1994).

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B. Redefining Marriage in Louisiana Would Lead to Further

Attacks Against Our Well-Established Freedoms Such as Religious
Freedom, Freedom of Speech, and Parental Authority.

There are some scholars in support of redefining marriage who acknowledge

that redefining marriage will conflict with religious liberties.45 In fact, we are

already seeing threats to religious freedom, freedom of speech, and to parental

authority occur in our country as a result of the effort to redefine marriage. In

Massachusetts, a husband and wife sued their school district for refusing to provide

exemption or give them prior notice that their child – while in kindergarten, first

grade, and second grade - would be taught that homosexual relationships are moral

and acceptable behavior. Parker v. Hurley, 514 F. 3d 87, 90, 92 (1st Cir. 2008).

Ultimately, the court ruled for the school district and said the parents were “not

entitled to a federal judicial remedy under the U.S. Constitution.” Id. at 107.

Earlier this year in Wisconsin, a high school showed a video to its students that

promoted homosexuality and denounced views that oppose homosexuality. 46

Thankfully, the school realized it had not taken an objective approach and issued

45
Girgis et al., supra note 2, at 264 (citing Marc D. Stern, Same‐Sex Marriage and
the Churches, in Same-Sex Marriage and Religious Liberty: Emerging Conflicts 1,
11-14 (Douglas Laycock et al. eds., 2008)).
46
Alliance Defending Freedom, ADF Commends Wis. school for apology after
showing children same-sex marriage propaganda video: school should allow open
discussion, reject indoctrination, (May 23, 2014), available at
http://www.adfmedia.org/News/PRDetail/?CID=77479

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an apology for showing the video.47 More conflict in Massachusetts occurred when

a Catholic charity providing adoption services had to choose between going against

its religious principles and placing children in its adoption agency with same-sex

couples, or ending its adoption services.48 The Catholic charity chose to end its

adoption services.49 If marriage is redefined, legal attacks on all who oppose

marriage redefinition will only increase.

C. Redefining Marriage Would Compound the Problems

Currently Facing Man-Woman Marriage.

Some may point out – and correctly so – that man-woman marriage already

has many problems: high divorce rates, rising percentages of children born out of

wedlock, and increasing cohabitation rates.50 They may say these problems are

good reasons to redefine marriage, asking, “What harm can a marriage redefinition

do to marriage? Marriage is destroying itself anyway.” However, this is not a good

reason to redefine marriage because – as has been shown – redefining marriage

would create more problems and thus compound the problems already facing the

institution of marriage.

47
Id.
48
Maggie Gallagher, Banned in Boston: The Coming Conflict Between Same‐Sex
Marriage and Religious Liberty, The Weekly Standard (May 15, 2006), available
at
http://www.weeklystandard.com/Content/Public/Articles/000/000/012/191kgwgh.a
sp.
49
Id.
50
Witherspoon Institute, supra note 2, at 16-18.

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Louisiana, instead of redefining and thus further undermining marriage, is

trying to rebuild and restore marriage. In 1997, Louisiana became the first state to

pass covenant marriage legislation.51 A covenant marriage requires a couple

choosing to enter covenant marriage to receive pre-marital counseling (unless the

couple is already married). La. R.S. §9:273, §9:275. Covenant marriage lengthens

the time period before the no-fault divorce option can be exercised and, with

certain exceptions (spousal abuse and child abuse), requires a couple seeking

divorce to first take all reasonable steps to preserve the marriage (including pre-

divorce counseling). Id. at §9:307.

The goal of enacting covenant marriage is to serve the best interests of

children by helping preserve and strengthen man-woman marriage in Louisiana.52

For rational reasons, the State of Louisiana – in becoming the first state to enact

covenant marriage legislation and in recognizing man-woman marriage – is trying

to preserve an institution that is a fundamental building block to perpetuating and

stabilizing society.

CONCLUSION

Louisiana has a legitimate purpose for only promoting man-woman

marriage. Man-woman marriage is crucial for the survival and stability of our state,

51
Katherine Shaw Spaht, Louisiana’s Covenant Marriage: Social Analysis and
Legal Implications, 59 La. L. Rev. 63, 70, 71 (Fall 1998).
52
Spaht, supra note 51, at 63, 64.

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producing tremendous benefits to children, adults, and society. To redefine

marriage would obscure the idea that marriage is intrinsically connected to

procreation, encourage more motherless and fatherless homes, and lead to attacks

on recognized freedoms. For these reasons, this Court should affirm the district

court‟s ruling.

Respectfully submitted,

s/Charles Jones, III

Charles Jones, III
LOUISIANA FAMILY FORUM
655 St. Ferdinand Street
Baton Rouge, LA 70802
(225) 344-8533 (t)
(866) 931-3302 (f)
[email protected]

Attorney for Amicus Curiae

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CERTIFICATE OF SERVICE

I certify that on November 7, 2014, I filed the foregoing brief with the

Court‟s CM/ECF system, which will automatically send an electronic notice of

filing to Appellants‟ counsel of record and Appellees‟ counsel of record.

s/Charles Jones, III

Charles Jones, III

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 Case: 14-31037 Document: 00512829711 Page: 29 Date Filed: 11/07/2014

CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of Federal Rule of

Appellate Procedure 32(a)(7)(B) because this brief contains 4,378 words,

excluding the parts of the brief exempted by Federal Rule of Appellate Procedure

32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Federal Rule of

Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of

Appellate Procedure 32(a)(6) because this brief has been prepared in a

proportionally spaced typeface using Word 2007 Times New Roman 14 point font.

Date: November 7, 2014 s/Charles Jones, III

Charles Jones, III
Attorney for Amicus Curiae

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