Nos.

14-556, 14-562, 14-571 & 14-574

IN THE
Supreme Court of the United States
________________________
JAMES OBERGEFELL, ET AL., Petitioners
v.
RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF
HEALTH, ET AL.
________________________
VALERIA TANCO, ET AL., PETITIONERS
v.
BILL HASLAM, GOVERNOR OF TENNESSEE, ET AL.
________________________
APRIL DEBOER, ET AL., PETITIONERS
v.
RICK SNYDER, GOVERNOR OF MICHIGAN, ET AL.
________________________
GREGORY BOURKE, ET AL., PETITIONERS
v.
STEVE BESHEAR, GOVERNOR OF KENTUCKY ET AL.
________________________
On Writs of Certiorari
To the United States Court of Appeals
For the Sixth Circuit
_________________________
BRIEF OF AMICI CURIAE
100 SCHOLARS OF MARRIAGE
IN SUPPORT OF RESPONDENTS
________________________

GENE C. SCHAERR
Counsel of Record
Law Offices of Gene Schaerr
332 Constitution Ave.
Washington, DC 20002
(202) 361-1061
[email protected]
 QUESTIONS PRESENTED

1. Does the Fourteenth Amendment require a

state to license a marriage between two people
of the same sex?

2. Does the Fourteenth Amendment require a

state to recognize a marriage between two peo-
ple of the same sex when their marriage was
lawfully licensed and performed out-of-state?
 ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ......................................... i

TABLE OF AUTHORITIES ....................................... iv
INTRODUCTION AND INTERESTS OF AMICI ..... 1
SUMMARY .................................................................. 3
ARGUMENT ................................................................ 4
I. The man-woman understanding of marriage
confers enormous benefits on society, especially
children of opposite-sex couples. ....................... 4
II. Removing the man-woman definition of
marriage creates enormous risks to society,
especially to children of opposite-sex couples. 13
A. These risks are amply established by
settled theoretical evidence. ...................... 14
B. Ample empirical evidence supports the
conclusion that removing the man-woman
definition would create substantial risks to
children and, hence, to society. ................. 18
III. Judicial responses to the institutional defense
have been deeply flawed. ................................. 26
IV. Man-woman marriage laws are neither
arbitrary nor driven by animus, and satisfy any
level of judicial scrutiny. .................................. 33
CONCLUSION .......................................................... 39
APPENDIX A: List of Amici ...................................... 1a
 iii

APPENDIX B: Technical Analysis of Statistics on

Marriage, Non-Marital Births and Divorce ............ 12a
 iv

TABLE OF AUTHORITIES

CASES
Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014), cert.
denied, 135 S. Ct. 316 (2014) ................................. 34
Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014), cert.
denied, 135 S. Ct. 308 (2014) ..................... 26, 29, 34
Conde-Vidal v. Garcia-Padilla, No. 14-1254 (PG)
(Oct. 21, 2014) ......................................................... 12
Grutter v. Bollinger, 539 U.S. 306 (2003) ........... 32, 33
Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014),
cert. denied, 135 S. Ct. 265 (2014) ............. 28, 29, 34
Latta v. Otter, 771 F.3d 456 (9th Cir. 2014), cert.
pending (No. 14-765) ...................................... passim
Mason v. Breit, No. 120159 (Va. Sup. Ct. 2013) ......... 7
New State Ice Co. v. Liebmann, 285 U.S. 262
(1932) ...................................................................... 36
Parents Involved in Community Schools v. Seattle
School District No. 1, 551 U.S. 701, 845 (2007) .... 38
Roe v. Wade, 410 U.S. 113 (1973) .............................. 37
United States v. Virginia, 518 U.S. 515 (1996)......... 10
United States v. Windsor, 133 S. Ct. 2675
(2013) .............................................................. passim
University of Alabama v. Garrett, 531 U.S. 356
(2001) ...................................................................... 16

STATUTES
Civil Marriage Protection Act (MD), House Bill 438
(March 1, 2012) ......................................................... 6
 v

Marriage Equality Act (NY), AB A08354 (June 24,

2011).......................................................................... 6

OTHER AUTHORITIES
Convention on the Rights of the Child 1577
U.N.T.S. 3 ................................................................. 7

SCHOLARLY MATERIALS
Allen(a), Douglas W., An Economic Assessment of
Same-Sex Marriage Laws, 29 Harvard J. Law &
Pub. Policy 949 (2006) .................................... passim
Allen(b), Douglas W., Who Should Be Allowed Into
the Marriage Franchise? 38 Drake L. Rev. 1043
(2010) ...................................................................... 14
Allen(c), Douglas W., High School Graduation Rates
among Children of Same-Sex Households, 11
Review of Economics of the Household 635
(2013) ................................................................ 26, 27
Allen(d), Douglas W., Let's Slow Down: Comments on
Same-Sex Marriage and Negative Externalities,
available on SSRN at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=
1722764 ................................................................... 20
Alvare, Helen M., The Turn Toward the Self in the
Law of Marriage & Family: Same-Sex Marriage &
Its Predecessors, 16 Stan. L. & Pol’y Rev. 135
(2005) ...................................................................... 24
Amato(a), Paul R., Parental absence during childhood
and depression in later life, 32 Soc. Q. 543 (1991) .. 9
Amato(b), Paul R., The Impact of Family Formation
Change on the Cognitive, Social, and Emotional
 vi

Well-Being of the Next Generation, 15 Future of

Children No. 2 (Fall 2005)........................................ 9
Amato(c), Paul R. & Bruce Keith, Parental Divorce
and the Wellbeing of children: A Meta-analysis, 100
Psychol. Bull. 26 (1991) ............................................ 9
Anthropological Institute of Great Britain, Notes and
Queries on Anthropology (6th ed. 1951)................... 6
Aristotle, Nicomachean Ethics, Book VIII,
section 12 .................................................................. 7
Bachman et al., Heather J., Is Maternal Marriage
Beneficial for Low Income Adolescents?, 13 Applied
Developmental Science 153 (2009) ........................ 12
Bellah et al., Robert N., The Good Society (1991) ...... 4
Berger, Peter L. & Thomas Luckmann, The Social
Construction of Reality: A Treatise in the Sociology
of Knowledge (1966).................................................. 4
Biblarz, Timothy J., & Judith Stacey, How Does the
Gender of Parents Matter?, 72 J. of Marriage &
Family 3 (2010) ....................................................... 26
Bishop, Joel Prentiss, Commentaries on the Law of
Marriage & Divorce (1st ed. 1852) ........................... 6
Bix, Brian, Reflections on the Nature of Marriage, in
Revitalizing the Institution of Marriage for the
Twenty-First Century: An Agenda for
Strengthening Marriage (Alan Hawkins et al. eds.,
2002)........................................................................ 13
Blackstone, William, 1 Commentaries on the Laws of
England (1765) ................................................. 4, 5, 6
Blankenhorn(a), David, The Future of Marriage
(2007). ............................................................. passim
 vii

Blankenhorn(b), David, Fatherless America:

Confronting Our Most Urgent Social Problem
(1995) ................................................................ 11, 16
Bolt, Angela, Do Wedding Dresses Come in Lavendar?
The Prospects and Implications of Same-Sex
Marriage, 24 Soc. Theory & Prac. 111 (1998)........ 13
Bonell et al., C., Influence of Family Type and
Parenting Behaviours on Teenage Sexual Behaviour
and Conceptions, 60 J. Epidemiology & Community
Health 502 (2006) ................................................... 12
Bouvier, John, 1 Institutes of American Law (1851) .. 6
Bowling, S. M., & Werner-Wilson, R. J., Father-
daughter Relationships and Adolescent Female
Sexuality: Paternal Qualities Associated with
Responsible Sexual Behavior, 3 J. of HIV/AIDS
Prevention and Education for Adolescents and
Children 1 (2000) .................................................... 16
Bradley, Gerard, Law and the Culture of Marriage,
18 Notre Dame J.L. Ethics & Pub. Pol’y 189
(2004) ...................................................................... 13
Brinig, Margaret F., From Contract to Covenant:
Beyond Law and Economics of the Family (2000)... 7
Brown(a), Elizabeth & Alfred Dittgen, Fertility of
Married and Unmarried Couples (2000), Paper 4.4
presented at United Nations Economic Commission
for Europe Conference, Brussells, Belgium, May
2000, available at
http://www.unece.org/fileadmin/DAM/pau/_docs/ffs/
FFS_2000_FFConf_ContriBrown-Dittgen.pdf ...... 17
Brown(b), Susan L. & Lauren N. Rinelli, Family
Structure, Family Processes, and Adolescent
 viii

Smoking and Drinking, 20 J. of Research on

Adolescence 259 (2010)..................................... 23, 24
Browning, Don & Elizabeth Marquardt, What About
the Children? Liberal Cautions on Same-Sex
Marriage, in The Meaning of Marriage 29 (Robert
P. George & Jean Bethke Elshtain eds., 2006) ....... 7
Bulanda, Ronald E. & Wendy D. Manning, Parental
Cohabitation Experiences and Adolescent
Behavioral Outcomes, 27 Population Research &
Policy Rev. 593 (2008) ............................................ 23
Byrd(a), A. Dean, Gender Complementarity and
Child-Rearing: Where Tradition and Science Agree,
6 J. L. & Fam. Stud. 213 (2004) ......................... 7, 10
Byrd(b), A. Dean & Kristen M. Byrd, Dual-Gender
Parenting: A Social Science Perspective for Optimal
Child Rearing, in Family Law: Balancing Interests
and Pursing Priorities (2007)............................. 7, 10
Cahn, Naomi & June Carbone, Red Families, Blue
Families: Legal Polarization and the Creation of
Culture 2010 ........................................................... 17
Carbado, Devon W., Straight Out of the Closet, 15
Berkeley Women’s L.J. (2000)................................ 13
Carroll, Jason S. & David C. Dollahite, “Who’s My
Daddy?” How the Legalization of Same-Sex Part-
nerships Would Further the Rise of Ambiguous Fa-
therhood in America, in What’s the Harm?: Does
Legalizing Same-Sex Marriage Really Harm Indi-
viduals, Families or Society (Lynn D. Wardle ed.,
2008)........................................................................ 14
 ix

Case, A. & C. Paxson, Mothers and Others: Who

Invests in Children’s Health? 20 J. of Health
Economics 301 (2001) ............................................. 24
Cavanagh, Shannon E. & Aletha C. Huston, Family
Instability and Children’s Early Problem Behavior,
85 Social Forces 551 (2006) .................................... 23
Centers for Disease Control and Prevention(a), “Di-
vorce Rates by State,” (available at
http://www.cdc.gov/nchs/data/dvs/state_divorce_rat
es_90_95_and_99-12.pdf) ................................. 18, 32
Centers for Disease Control and Prevention(b), “Mar-
riage Rates by State,” (available at http://www.cdc.
gov/nchs/data/dvs/state_marriage_rates_
90_95_and_99-12.pdf)................. 18, 21, 32, 15a, 27a
Centers for Disease Control(c), National Marriage
and Divorce Rate Trends, available at
http://www.cdc.gov/nchs/nvss/marriage_divorce_tab
les.htm .................................................................. 20a
Centers for Disease Control(d), Abortion
Surveillance—United States, 2011 (Nov. 28, 2014),
available at
http://www.cdc.gov/mmwr/preview/mmwrhtml/ss63
11a1.htm?s_cid=ss6311a1_w ............................... 19a
Cere, Daniel, War of the Ring, in Divorcing Marriage:
Unveiling the Dangers in Canada’s New Social
Experiment (Daniel Cere & Douglas Farrow eds.,
2004)........................................................................ 13
Cherlin(a), Andrew, The Marriage Go-Round
(2009) .................................................................... 11, 19
 x

Cherlin(b), Andrew J., Love’s Labor Lost: The Rise

and Fall of the Working-class Family in America
(2014) ...................................................................... 17
Chesterton, G.K., In Defense of Sanity: The Best
Essays of G.K. Chesterton (Dale Ahlquist, Joseph
Pearce & Aidan Mackey eds., 2011) ...................... 39
Church of Jesus Christ of Latter-day Saints, The
Family: A Proclamation to the World (Sept. 23,
1995)........................................................................ 17
Clayton, Richard R., The Family, Marriage, and
Social Change (2d ed. 1979) ................................... 13
Coltrane, Scott, Family Man (1996).......................... 10
Congregation for the Doctrine of the Faith, Donum
Vitae II.A.1 (Joseph, Cardinal Ratzinger) (Feb. 22,
1987)........................................................................ 17
Cooter, Robert, Expressive Law and Economics, 27 J.
Legal Stud. 585 (1998) ........................................... 15
Corvino, John & Maggie Gallagher, Debating Same-
Sex Marriage (2012) ................................................. 5
Culpin, I., J. Heron & R. Araya, Father Absence and
Depressive Symptoms in Adolescence: Finding from
a UK Cohort, 43 Psychological Medicine 2615
(2013) ...................................................................... 23
Curtin et al.(a), Sally C., Pregnancy Rates for U.S.
Women Continue to Drop, NCHS Data Brief No.
136 (December 2013), available at http://www.cdc.
gov/nchs/data/databriefs/db136.pdf ..................... 25a
Curtin et al.(b), Sally C., Recent Declines in
Nonmarital Childbearing in the United States,
NCHS Data Brief No. 162 (August 2014), available
 xi

at http://www.cdc.gov/nchs/data/databriefs/
db162.pdf .............................................................. 23a
Dalrymple, James, Viscount Stair, 1 The Institutions
of the Law of Scotland (1681)................................. 13
Daly, M. & M. Wilson, Child Abuse and Other Risks
of Not Living with Both Parents, 6 Ethology and
Sociobiology 197 (1985) .......................................... 24
Davis, Kingsley, The Meaning and Significance of
Marriage in Contemporary Society, in
Contemporary Marriage: Comparative Perspectives
on a Changing Institution (Kingsley Davis, ed.
1985).......................................................................... 6
de Bracton, Henri, 2 On the Laws and Customs of
England (Samuel E. Thorne, transl. 1968) ............. 4
Denham et al., Suzanne A., Prediction of
Externalizing Behavior Problems From Early to
Middle Childhood: The Role of Parental
Socialization and Emotion Expression, 12
Development and Psychopathology 23 (Winter
2000)........................................................................ 10
Dillender, Marcus, The Death of Marriage? The
Effects of New Forms of Legal Recognition on
Marriage Rates in the United States, 51
Demography 563 (2014) ................................... 19, 20
Dinno, Alexis & Chelsea Whitney, Same Sex
Marriage and the Perceived Assualt on Opposite Sex
Marriage, 8 PLOS One (June 2013) (available at
http://journals.plos.org/plosone/article? id=10.1371/
journal.pone.0065730) .......................................... 13a
Doherty et al.(a), William J., Why Marriage Matters
(2002) ........................................................................ 5
 xii

Doherty et al.(b), William J., Responsible Fathering,

60 J. Marriage & Fam. 277 (1998) ......................... 14
Dwyer, James G., Same-Sex Cynicism and the Self-
Defeating Pursuit of Social Acceptance Through
Litigation, 68 S.M.U. L. Rev. 1 (forthcoming 2015)
(available at http://papers.ssrn.com/sol3/papers.
cfm?abstract_id=2505754......................................... 8
Ellis et al., Bruce J., Does Father Absence Place
Daughters at Special Risk for Early Sexual Activity
and Teenage Pregnancy?, 74 Child Dev. 801
(2003) ...................................................................... 16
Erickson, Jenet Jacob, Fathers Don't Mother and
Mothers Don't Father: What Social Science
Research Indicates About the Distinctive
Contributions of Mothers and Fathers to Children's
Development (November 6, 2014). Available at
SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstr
act_id=2519862 ................................................... 8, 10
Eskridge(a), Jr., William N., Gaylaw: Challenging
Apartheid in the Closet (1999) ............................... 13
Eskridge(b), Jr., William N. & Darren R. Spedale,
Gay Marriage: For Better or for Worse? What We've
Learned from the Evidence (2006) ......................... 15
Esolen, Anthony, Defending Marriage: Twelve
Arguments for Sanity (2014) .................................... 7
Eurostat, Marriage and Divorce, available at
http://ec.europa.eu/eurostat/web/population-
demography-migration-projections/marriages-and-
divorces-data/main-tables .................................... 16a
Fagan, Patrick F. & Paul Sullins, Mapping
America—Number 138: "Has Had Multiple
 xiii

Abotions" by Structure of Family of Origin and

Father Figure, available at
http://downloads.frc.org/EF/EF15A112.pdf ....... 9, 16
Farrow(a), Douglas, Canada’s Romantic Mistake, in
Divorcing Marriage: Unveiling the Dangers in
Canada’s New Social Experiment (Daniel Cere &
Douglas Farrow eds., 2004).................................... 13
Farrow(b), Douglas, A Nation of Bastards: Essays on
the End of Marriage (2007) .................................... 17
Flouri, Eirini & Ann Buchanan, The Role of Father
Involvement in Children’s Later Mental Health, 26
J. Adolescence 63 (2003)................................... 11, 16
Friedman, Lawrence M., Private Lives: Families,
Individuals, and the Law (2004).............................. 8
Gallagher(a), Maggie, (How) Does Marriage Protect
Child Well-Being?, in The Meaning of Marriage:
Family, State, Market, and Morals 197 (Robert P.
George & Jean Bethke Elshtain, eds. 2006) .......... 10
Gallagher(b), Maggie, (How) Will Gay Marriage
Weaken Marriage as a Social Institution: A Reply to
Andrew Koppelman, 2 U. St. Thomas L.J. 33
(2004) ...................................................................... 13
Giddens, Anthony, The Transformation of Intimacy
(1993) ...................................................................... 26
Gillette, Meghan T. & Clinton G. Gudmunson,
Processes Linking Father Absence to Educational
Attainment Among African-American Females, 24
J. of Research on Adolescence 309 (2014).............. 23
Girgis, Sherif, Ryan T. Anderson, & Robert P. George,
What is Marriage? Man and Woman: A Defense
(2012) .......................................................... 5, 6, 8, 34
 xiv

Glendon, Mary Ann, Abortion and Divorce in Western

Law (1987) .............................................................. 24
Glenn, Norval D., The Struggle for Same-Sex
Marriage, 41 Soc’y 25 (2004) .................................. 10
Golombok, S., et al., Children with Lesbian Parents:
A Community Study, 39 Developmental Psychology
20 (2003) ................................................................. 26
Goode, William J., World Changes in Divorce Patterns
(1993) ...................................................................... 24
Graff, E.J., Retying the Knot, The Nation, June 24,
1996 ......................................................................... 15
Grossman(a), Joanna L. & Lawrence M. Friedman,
Inside the Castle: Law and the Family in 20th
Century America (2011)............................................ 8
Grossman(b), Karin et al., The Uniqueness of the
Child-Father Attachment Relationship: Fathers
Sensitive and Challenging Play as a Pivotal
Variable in a 16-year Longitudinal Study, 11 Social
Development 307 (2002) ......................................... 10
Guttmacher Institute(a), Characteristics of U.S.
Abortion Patients, 2008 (May 2010), available at
http://www.guttmacher.org/pubs/US-Abortion-
Patients.pdf................................................... 23a, 26a
Guttmacher Institute(b), State Facts About Abortion,
available at
http://www.guttmacher.org/statecenter/sfaa.html
............................................................................... 19a
Harper, Cynthia C. & Sara S. McLanahan, Father
Absence and Youth Incarceration, 14 J. Res.
Adolesence 369 (2004) ............................................ 16
 xv

Harrison, Lawrence E., Introduction, in Culture

Matters: How Values Shape Human Progress
(Lawrence E. Harrison & Samuel P. Huntington,
eds., 2000) ............................................................... 13
Hawkins, Alan S. & Jason S. Carroll, Beyond the
Expansion Framework: How Same-Sex Marriage
Changes the Institutional Meaning of Marriage and
Heterosexual Men’s Conception of Marriage, 28
B.Y.U. J.P. Law (forthcoming),
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=
2505234 ........................................................... passim
Hofferth(a), Sandra L., Residential Father Family
Type and Child Well-Being: Investment Versus
Selection, 43 Demography 53 (2006) ...................... 23
Hofferth et al.(b), Sandra L., The Demography of
Fathers: What Fathers Do, in Handbook of Father
Involvement: Multidisciplinary Perspectives
(Catherine Tamis-Lamonda & Natasha Cabrera
eds., 2002) ............................................................... 10
Hunter, Nan D., Marriage, Law, and Gender: A
Feminist Inquiry, 1 Law & Sexuality 9 (1991) ...... 13
Institute for American Values ("IAV") (a) (Dan Cere,
principal investigator), The Future of Family Law:
Law and the Marriage Crisis in North America
(2005) ........................................................................ 6
Institute for American Values ("IAV")(b), Marriage
and the Law: A Statement of Principles
(2006) ............................................................... 6, 8, 14
Instituto Nacional de Estadistica, Vital Statistics:
Marriages, available at
 xvi

http://www.ine.es/dynt3/inebase/en/index.htm?padr
e=1128&dh=1........................................................ 16a
Jacob, Herbert, Silent Revolution: The
Transformation of Divorce Law in the United States
(1988) ...................................................................... 30
Jennings, Marianne M., Unintended Consequences:
The Flaws in "It Doesn't Affect Anyone But Us"
Argument in Favor of Legalizing Same-Sex
Marriage, in What's the Harm? Does Legalizing
Same-Sex Marriage Really Harm Individuals,
Families or Society 69
(Lynn D. Wardle ed., 2008) ............................ 30, 24a
Jeynes, William, The Effects of Several of the Most
Common Family Structures on the Academic
Achievement of Eighth Graders, 30 Marriage &
Family Rev. 73 (2000) .............................................. 9
Kantojarvi, L., M. Joukamaa & J. Miettunen,
Childhood Family Struture and Personality
Disorders in Adulthood, 23 European Psychiatry
205 (2008) ......................................................... 12, 23
Kennedy, Sheela & Steven Ruggles, Breaking Up is
Hard to Count: The Rise of Divorce in the United
States, 1980-2010, 51 Demography 587
(2014) .................................................. 10, 17, 25, 21a
Kent, James 2 Commentaries on American Law (3d
ed. 1838) .................................................................... 6
Knapp, Stan J. & Camille S. Williams, Where Does
Queer Theory Take Us?, in Sourcebook of Family
Theory & Research 626 (Vern L. Bengston, Alan C.
Acock, Katherine R. Allen, Peggye Dilworth-
Anderson, David M. Klein eds., 2005) ................... 15
 xvii

Kohm, Lynne Marie & Rachel K. Toberty, A Fifty-

State Survey of the Cost of Family Fragmentation,
25 Regent U. L. Rev. 25 (2012) .............................. 17
Krause, Harry D. & David D. Meyer, What Family for
the 21st Century?, 50 Am. J. Comp. L. 101
(2002) ...................................................................... 23
Kuhnert, Bianca & Eberhard Nieschlag, Reproductive
Functions of the Ageing Male, 10 Hum.
Reproduction Update 327 (2004) ........................... 34
Lamb, Michael E., Fathers: Forgotten Contributors to
Child Development, 18 Human Dev. 245
(1975) .................................................................. 7, 10
Langbein, Laura & Mark A. Yost, Jr., Same-Sex
Marriage and Negative Externalities, 90 Social
Science Quarterly 292 (2009) ................................. 20
Lansford, Jennifer E., Rosario Ceballo, Antonia
Abbey, & Abigail J. Stewart, Does Family Structure
Matter? A Comparison of Adoptive, Two-Parent
Biological, Single-Mother, Stepfather, and
Stepmother Households, 63 Journal of Marriage
and Family 840 (2001).............................................. 9
Lenciauskiene, I. & A. Zaborskis, The Effects of
Family Structure, Parent-Child Relationship and
Parental Monitoring on Early Sexual Behaviour
among Adolescents in Nine European Countries, 36
Scandinavian J. of Public Health 607 (2008) ........ 24
Lerner, Robert & Althea K. Nagai, No Basis: What
the Studies Don’t Tell Us About Same-Sex
Parenting (2001) ..................................................... 26
Lessig, Lawrence, Social Meaning and Social Norms,
144 U. Pa. L. Rev. 2181 (1996) ............................... 15
 xviii

Levi-Strauss(a), Claude, The View from Afar (1985) . 4

Levi-Strauss(b), Claude, Introduction, in A History of
the Family: Distant Worlds, Ancient Worlds (vol. 1,
Andre Burguiere, et al., eds. 1996) .......................... 6
Lewis, Charlie & Michael E. Lamb, Fathers'
Influences on Children's Development: The
Evidence from Two-Parent Families, 18 European
J. of Psych. and Education 211 (2003) ................... 10
Llewellyn, Karl N., Behind the Law of Divorce, 32
Columbia L. Rev. 1281 (1932) .................................. 5
Locke, John, Second Treatise of Civil Government
(1690) .................................................................... 6, 7
Lorio, Kathryn Venturatos, The Changing Concept of
Family and its Effect on Louisiana Succession Law,
63 La. L. Rev. 1161 (2003)...................................... 23
Maccoby, Eleanor, The Two Sexes (1998) ................. 10
Malinowski, Bronislaw, Sex, Culture and Myth
(1962) ........................................................................ 5
Manning, Wendy D. & Kathleen A. Lamb, Adolescent
Well-Being in Cohabiting, Married, and Single-
Parent Families, 65 J. Marriage and Fam. 876
(2003) ................................................................ 11, 16
Marks, Loren D., Same-Sex Parenting and Children’s
Outcomes: A Closer Examination of the American
Psychological Association’s Brief on Lesbian and
Gay Parenting, 41 Social Science Research 735
(2012) ...................................................................... 26
Marquardt(a), Elizabeth, Between Two Worlds: The
Inner Lives of Children of Divorce (2005) ................ 9
Marquardt(b) et al., Elizabeth, Institute for American
Values, My Daddy’s Name is Donor: A New Study of
 xix

Young Adults Conceived Through Sperm Donation

(2010) .................................................................. 9, 16
Martin, et al., Joyce A., Ctrs. For Disease Control &
Prevention, National Vital Statistics Reports—
Births: Final Data for 2012, Table 12 (December 30,
2013), available at
http://www.cdc.gov/nchs/data/nvsr/nvsr62/nvsr62_0
9.pdf ........................................................................ 17
McClain, Linda C., Love, Marriage, and the Baby
Carriage: Revisting the Channelling Function in
Family Law, 28 Cardozo L. Rev. 2133 (2007) ......... 8
McLanahan(a), Sara & Gary D. Sandefur, Growing
up with a Single Parent: What Hurts, What Helps
(1994) .................................................................. 9, 24
McLanahan(b), Sara, Laura Tach & Daniel
Schneider, The Casual Effects of Father Absence, 39
Annual Rev. of Sociology 399 (2013) ...................... 23
McWhorter, Ladelle, Bodies and Pleasures: Foucault
and the Politics of Sexual Normalization (1999) ... 13
Mead, Margaret, Male and Female: A Study of the
Sexes in a Changing World (1949) ......................... 11
Milan, Anne, Marital Status: Overview, 2011, Com-
ponent of Statistics Canada Catalogue no. 91-209-X
(July 2013), available at
http://www.statcan.gc.ca/pub/91-209-
x/2013001/article/11788-eng.pdf .......................... 16a
Miller, Corbin & Joseph Price, The Number of
Children Being Raised by Gay or Lesbian Parents,
available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=
2497095 ........................................................... passim
 xx

Minor, Jon Barbee, 1 Institutes of Common and

Statute Law (1882) ............................................... 5, 7
Moore, Kristin Anderson, Susan M. Jekielek, & Carol
Emig, Marriage from a Child’s Perspective: How
Does Family Structure Affect Children, and What
Can We Do about It?, Child Trends Research Brief,
June 2002 .................................................................. 9
Morse(a), Jennifer Roback, Privatizing Marriage Will
Expand the Role of the State, The Public Discourse
(April 3, 2012) (available at
http://www.thepublicdiscourse.com/
2012/04/5071/) ......................................................... 17
Morse(b), Jennifer Roback, Why California’s Three
Parent Law was Inevitable, The Public Discourse
(Sept. 10, 2012) (available at
http://www.thepublicdiscourse.com/
2012/09/6197/) ......................................................... 17
Murray, Charles, Coming Apart: The State of White
America, 1960-2010 (2012) ............................... 17, 31
National Health Statistics Reports(a), First
Marriages in the United States: Data from the 2006-
2010 National Survey of Family Growth, Number
49 (March 22, 2012) (available at
http://www.cdc.gov/nchs/data/nhsr/nhsr049.pdf#x20
13;2010 National Survey of Family Growth [PDF -
419 KB</a>) .......................................................... 28a
National Health Statistics Reports(b), Infertility and
Impaired Fecundity in the United States, 1982-
2010, Number 67 (August 14, 2013) (available at
http://www.cdc.gov/nchs/data/nhsr/nhsr067.pdf) .. 34
 xxi

NationMaster, Marriage, Divorce and Children:

Marriages per Thousand People, available at
http://www.nationmaster.com/country-
info/stats/People/Marriage,-divorce-and-
children/Marriages-per-thousand-people ............ 16a
Nee, Victor & Paul Ingram, Embeddedness and
Beyond: Institutions, Exchange, and Social
Structure, in The New Institutionalism in Sociology
(Mary C. Brinton & Victor Nee eds., 1998) ........... 16
Nock, Steven L., Marriage in Men’s Lives
(1998) .............................................................. 6, 8, 14
North, Douglass C., Institutions, 5 J. Economic
Perspectives 97 (Winter 1991) ................................. 4
O’Brien, Matthew B., Why Liberal Neutrality
Prohibits Same-Sex Marriage: Rawls, Political
Liberalism, and the Family, 1 Brit. J. Am. L.
Studies 31 (Summer/Fall 2012) ............................. 12
Oman et al., Roy F., Does Family Structure Matter in
Relationships Between Youth Assets and Youth
Alcohol, Drug and Tobacco Use? 17 J. Res.
Adolescence 743 (2007)........................................... 12
Osborne, Cynthia & Sara McLanahan, Partnership
Instability and Child Well-being, 69 J. of Marriage
& Family 1065 (2007) ............................................. 23
Oxford Classical Dictionary (4th ed., Simon
Hornblower, et al., eds., 2012) ................................. 5
Pakaluk, Catherine Ruth & Joseph Price, Are
Mothers and Fathers Interchangeable? Parental
Gender and Child Flourishing, available on SSRN
at http://papers.ssrn.com/sol3/papers.cfm? ab-
stract_id=2534594 .................................................. 10
 xxii

Palkovitz, Rob, Gendered Parenting’s Implications for

Children’s Well-Being: Theory and Research in
Applied Perspective, in Gender and Parenthood:
Biological and Social Scientific Perspectives (W.
Bradford Wilcox & Kathleen Kovner Kline eds.
2013).......................................................................... 7
Parke, Ross D., Fatherhood (Developing Child Series,
Jerome Bruner et al. eds., 1996) ............................ 10
Parkman, Allen M., Good Intentions Gone Awry: No-
Fault Divorce and the American Family
(2000) .................................................... 24, 25, 30, 31
Patterson, Cynthia B., The Family in Greek History
(1998) ........................................................................ 5
Pew Research Center, Record Share of Americans
Have Never Married (September 24, 2014),
available at
http://www.pewsocialtrends.org/2014/09/24/record-
share-of-americans-have-never-married/ ............ 21a
Plato, The Republic, in Complete Works (John M.
Cooper ed., G.M.A. Grube trans., 1997) ............ 8, 11
Popenoe, David, Life Without Father: Compelling
New Evidence That Fatherhood & Marriage are
Indispensable for the Good of Children & Society
(1996) .......................................................... 10, 11, 16
Powers et al., Thomas G., Compliance and Self-
Assertion: Young Children's Responses to Mothers
Versus Fathers, 30 Dev. Psychol. 980 (1994) ......... 10
Posner, Eric A., Law and Social Norms (2000). ....... 15
Pruett(a), Kyle D., Fatherneed: Why Father Care is as
Essential as Mother Care for Your Child (2000) ..... 7
 xxiii

Pruett(b), Kyle D. & Marsha Pruett, Partnership

Parenting: How Men and Women Parent
Differently--Why It Helps Your Kids and Can
Strengthen Your Marriage (2009) ............................ 7
Quale, G. Robina, A History of Marriage Systems
(1988) ........................................................................ 4
Radcliffe-Brown, A.R., Structure and Function in
Primitive Society (1952) ........................................... 4
Raeburn, Paul, Do Fathers Matter? What Science is
Telling Us About the Parent We’ve Overlooked
(2014) ........................................................................ 7
Raz(a), Joseph, The Morality of Freedom (1986) ...... 13
Raz(b), Joseph, Ethics in the Public Domain (1994) 13
Reece, Helen, Divorcing Responsibly (2003) ............. 13
Regnerus(a), Mark D., How Different Are the Adult
Children of Parents Who Have Same-Sex
Relationships? Findings from the New Family
Structures Study, 41 Soc. Sci. Res. 752 (2012) ...... 26
Regnerus(b), Mark D., Parental Same-Sex
Relationships, Family Instability, and Subsequent
Life Outcomes for Adult Children: Answering
Critics of the New Family Structures Study with
Additional Analysis, 41 Soc. Sci. Res. 1367
(2012) ...................................................................... 26
Reid, Charles J., Marriage in Its Procreative
Dimension: The Meaning of the Institution of
Marriage Throughout the Ages, 6 U. St. Thomas
L.J. 454 (2009)........................................................... 4
Rhoads, Steven E., Taking Sex Differences Seriously
(2004) ........................................................................ 7
 xxiv

Rosenberg, Jeffrey & W. Bradford Wilcox, The

Importance of Fathers in the Healthy Development
of Children (2006) (available at
https://www.childwelfare.gov/pubPDFs/fatherhood.
pdf) ............................................................................ 9
Russell, Bertrand, Marriage and Morals (1929) ........ 5
Sarantakos, S., Children in Three Contexts: Family,
Education, and Social Development, 21 Children
Australia 23 (1996) ................................................. 26
Scafidi, Benjamin, Principal Investigator, The
Taxpayer Costs of Divorce and Unwed
Childbearing: First Ever Estimate for the Nation
and All Fifty States (2008) ..................................... 17
Schneider, Carl E., The Channeling Function in
Family Law, 20 Hofstra L. Rev. 495 (1992) ...... 8, 18
Schumm(a), Walter R., Are Two Lesbian Parents
Better Than a Mom and Dad? Logical and
Methodological Flaws in Recent Studies Affirming
the Superiority of Lesbian Parenthood, 10 Ave
Maria L. Rev. 79 (2011) .......................................... 26
Schumm(b), Walter R., Intergenerational Transfer of
Parental Sexual Orientation and Other Myths, 4
Int’l J. of the Jurisprudence of the Family 267
(2013) ...................................................................... 26
Schumm(c), Walter R., Challenges in Predicting
Child Outcomes from Different Family Structures, 3
Comprehensive Psychology 2165 (2014) ................ 26
Schumm(d), Walter R., The Institutionalization of
Marital Equality: The Case of Same-Sex Marriage,
Forthcoming in the International Journal of the
Jurisprudence of the Family, available at
 xxv

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=
2549319 ................................................................... 27
Searle, John R., Making the Social World: The
Structure of Human Civilization (2010) ................ 13
Somerville(a), Margaret, Children’s human rights
and unlinking child-parent biological bonds with
adoption, same-sex marriage and new reproductive
technologies, 13 J. Fam. Stud. 179 (2007) ............... 7
Somerville(b), Margaret, What about the Children?,
in Divorcing Marriage (Daniel Cere & Douglas
Farrow eds., 2004) ............................................ 28, 34
Spaht, Katherine Shaw, For the Sake of the Children:
Recapturing the Meaning of Marriage, 73 Notre
Dame L. Rev. 1547 (1998) ...................................... 24
Stacey, Judith, In the Name of the Family:
Rethinking Family Values in the Postmodern Age
(1996) ...................................................................... 13
Stevenson, Betsey & Justin Wolfers, Bargaining in
the Shadow of the Law: Divorce Law and Family
Distress, 121 Q.J. Econ. 267 (2006)........................ 24
Stewart(a), Monte Neil, Marriage Facts, 31 Harv. J.L.
& Pub. Pol’y 313 (2008) ...................................... 6, 18
Stewart(b), Monte Neil, Genderless Marriage,
Institutional Realities, and Judicial Elision, 1 Duke
J. Const. L & Pub. Pol’y 1 (2006) ........................... 13
Stewart(c), Monte Neil, Judicial Redefinition of
Marriage, 21 Can. J. Fam. L. 11 (2004)................. 13
Stewart(d), Monte Neil, Eliding in Washington and
California, 42 Gonzaga L. Rev. 501 (2007)............ 13
Stewart(e), Monte Neil, Marriage, Fundamental
Premises, and the California, Connecticut, and
 xxvi

Iowa Supreme Courts, 2012 B.Y.U. L. Rev. 193

(2012) ...................................................................... 13
Stoddard, Thomas B., Why Gay People Should seek
the Right to Marry, Out/Look Nat’l Gay & Lesbian
Q., Fall 1989 ........................................................... 13
Story, Joseph, Commentaries on the Conflicts of Laws
(1834) ........................................................................ 6
Sullins(a), Donald Paul, Emotional Problems among
Children with Same-Sex Parents: Difference by
Definition, British J. of Education, Society and
Behavioural Science, February 2015 (Forthcoming).
Available at SSRN:
http://ssrn.com/abstract=2500537 or
http://dx.doi.org/10.2139/ssrn.2500537) .......... 23, 26
Sullins(b), Donald Paul, Child Attention-Deficit
Hyperactivity Disorder (ADHD) in Same-Sex Parent
Families in the United States: Prevalance and
Comorbidities," 6 British J. of Medicine and
Medical Research 987 (2015) ........................... 23, 26
Sullivan, Andrew, Recognition of Same-Sex Marriage,
16 Quinnipiac L. Rev. 13 (1996)............................. 13
Sunstein(a), Cass R., On the Expressive Function of
Law, 144 U. Pa. L. Rev. 2021 (1996) ..................... 15
Sunstein(b), Cass R., Social Norms and Social Rules,
96 Colum. L. Rev. 903 (1996) ................................. 15
The World Bank, World Development Indicators:
Spain, available at
http://databank.worldbank.org/data/views/reports/t
ableview.aspx ........................................................ 16a
Trandafir(a), Mircea, The Effect of Same-Sex
Marriage Laws on Different-Sex Marriage: Evidence
 xxvii

from the Netherlands, 51 Demography 317 (2014)

......................................................................... 20, 17a
Trandafir(b), Mircea, Reply to Comment on “The Ef-
fect of Same-Sex Marriage Laws on Different-Sex
Marriage: Evidence From the Netherlands,” 51 De-
mography 2349 (2014) ............................................ 21
Trandafir(c), Mircea, Legal Recognition of Same-Sex
Couples and Family Formation, 52 Demography
113 (2015) ....................................................... 21, 17a
Turner, Heather A., David Finkelhor, Sherry L.
Hamby, et al., Family Structure, Victimization, and
Child Mental health in a Nationally Representative
Sample, 87 Social Science & Medicine 39 (June
2013)........................................................................ 24
U.S. Census Bureau, Current Population Survey,
Table 3: Children Ever Born per 1,000 Women and
Percent Childless by Age and Marital Status (June
2012), available at http://www.census.gov/hhes/
fertility/data/cps/2012.html .................................. 22a
U.S. Census Bureau, Table 27: Incorporated Placed
with 175,000 or More Inhabitants in 2010,
available at https://www.census.gov/compendia/
statab/2012/tables/12s0027.pdf ............ 22a, 24a, 25a
Velleman, J. David, Family History, 34 Philosophical
Papers 357 (November 2005) ................................... 7
Vespa, Jonathan, Jamie M. Lewis & Rose M. Kreider,
America’s Families and Living Arrangements: 2012
(August 2013) (available at http://www.census.gov/
prod/2013pubs/p20-570.pdf) ................................... 27
 xxviii

Vos, Allison E., Falling Fertility Rates: New

Challenges to the European Welfare State, 7 Socio-
Economic Rev. 485 (2009) ...................................... 17
Wainright, J. L., S. T. Russell, & C. J. Patterson,
Psychosocial Adjustment, School Outcomes, and
Romantic Relationships of Adolescents with Same-
Sex Parents, 75 Child Development 1886 (2004) .. 26
Wallerstein(a), Judith S., Children of Divorce:
Preliminary Report of a Ten-year Follow-up of
Young Children, 54 Am. J. Orthopsychiatry 444
(1984) ........................................................................ 9
Wallerstein(b), Judith S., Children of Divorce:
Preliminary Report of a Ten-year Follow-up of
Older Children and Adolescents, 24 J. Am. Acad.
Child Psychiatry 545 (1985) ..................................... 9
Wallerstein(c), Judith S., Women after Divorce:
Preliminary Report from a Ten-year Follow-up, 56
Am. J. Orthopsychiatry 65 (1986) ............................ 9
Wallerstein(d), Judith S., Children of Divorce: Report
of a Ten-year Follow-up of Early Latency-Age
Children, 57 Am. J. Orthopsychiatry 199 (1987) .... 9
Wallerstein(e), Judith S. & Sandra Blakeslee, Second
Chances: Men, Women, and Children a Decade
After Divorce (1989) .................................................. 9
Wallerstein(f), Judith S. & S.B. Corbin, Daughters of
Divorce: Report from a Ten-year Follow-up, 59 Am.
J. Orthopsychiatry 593 (1989) ................................. 9
Wallerstein et al.(g), Judith S., The Unexpected
Legacy of Divorce: The 25 Year Landmark Study
(2000) ...................................................................... 24
 xxix

Wardle(a), Lynn, D., “Multiply and Replenish”: Con-

sidering Same-Sex Marriage in Light of State Inter-
ests in Marital Procreation, 24 Harv. J. L. & Pub.
Pol’y 771 (2001)......................................... 5, 8, 12, 17
Wardle(b), Lynn D., The Fall of Marital Stability and
the Rise of Juvenile Delinquency, 10 J.L. & Fam.
Studs. 83 (2007) ...................................................... 16
Wardle(c), Lynn D., No-Fault Divorce and the Divorce
Conundrum, 1991 B.Y.U. L. Rev. 79 (1991) .......... 25
Wax(a), Amy L., Engines of Inequality: Class, Race,
and Family Structure, 41 Family L. Q. 567
(2007)(a) ........................................................ 9, 16, 17
Wax(b), Amy L., The Family Law Doctrine of
Equivalence, 107 Michigan L. Rev. 999
(2009) .............................................................. passim
Wax(c), Amy L., Diverging Family Structure and
"Rational" Behavior: The Decline in Marriage as a
Disorder of Choice, in Research Handbook on the
Economics of Family Law 15 (Lloyd R. Cohen &
Joshua D. Wright eds., 2011) ..................... 14, 29, 30
Weitzman, Lenore J., The Divorce Revolution: The
Unexpected Social and Economic Consequences for
Women and Children in America (1985) ......... 30, 31
Whitehead, Barbara Dafoe, The Divorce Culture:
Rethinking Our Commitments to Marriage and
Family (1996).......................................................... 24
Widiss, Deborah A., Changing the Marriage
Equation, 89 Wash. U.L. Rev. 721 (2012) ............. 13
Wilcox(a), W. Bradford, When Marriage Disappears:
The Retreat from Marriage in Middle America
(2010), available at http://stateofourunions.org/2010
 xxx

/SOOU2010.pdf ................................................. 17, 31

Wilcox et al.(b), W. Bradford, Why Marriage Matters:
Thirty Conclusions from the Social Sciences (3d ed.
2011).................................................................. 6, 8, 9
Wildsmith et al., Elizabeth, Childbearing Outside of
Marriage: Estimates and Trends in the United
States, Child Research Brief (Nov. 2011) .............. 17
Wilson, James Q., The Marriage Problem
(2003) .......................................................... 5, 6, 8, 11
Witherspoon Institute, Marriage and the Public
Good: Ten Principles (2008) ............................... 7, 10
Wu, Lawrence L. & Brian C. Martinson, Family
Structure and the Risk of a Premarital Birth, 54
American Sociological Rev. 210 (1993) .................. 16
Yenor, Scott, Family Politics: The Idea of Marriage in
Modern Political Thought (2011) ............................. 6
Young(a), Katherine K., The Institution of Marriage:
Mediation of Nature and Culture in Cross-Cultural
Perspective, available at
http://ssrn.com/abstract=2535458........................ 7, 8
Young(b), Katherine K. & Paul Nathanson,
Redefining Marriage or Deconstructing Society: A
Canadian Case Study, 13 J. of Family Studies 133
(2007) .............................................................. passim
Young(c), Katherine K. & Paul Nathanson, The
Future of an Experiment, in Divorcing Marriage:
Unveiling the Dangers in Canada’s New Social
Experiment (Daniel Cere & Douglas Farrow eds.,
2004)............................................................ 13, 14, 16
Zhang, Junfu & Xue Song, Fertility Difference
between Married and Cohabitating Couples: A
 xxxi

Switching Regression Analysis, IZA Discussion

Paper No. 3245 (December 2007), available at
http://ssrn.com/abstract=1136407.......................... 17

COURT DOCUMENTS
Transcript of Oral Argument at 47:19-24,
Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (No.
12-144) ...................................................................... 1
INTRODUCTION AND INTERESTS OF AMICI 1

In our brief supporting review, we highlighted the

concerns previously expressed by Justices Kennedy
and Alito about the potential harm to children of op-
posite-sex couples if states were forced to abandon
the traditional man-woman definition of marriage.
For example, during argument in Hollingsworth, Jus-
tice Kennedy noted that, in its potential impact on
children and society, imposing same-sex marriage
could be akin to jumping off a cliff—thus subjecting
society to whatever unseen dangers might lurk at the
bottom. Oral Argument at 47:19-24. Justice Alito
echoed that concern in United States v. Windsor, cit-
ing it as an important reason why evaluating the po-
tential impact of a forced redefinition of marriage
calls for “[judicial] caution and humility.” 133 S.Ct.
2675, 2715-16 (2013) (Alito, J. dissenting).

Our earlier brief also explained, to a lesser degree,

why Justices Kennedy and Alito were right to be con-
cerned about the harm from a forced redefinition—
especially to the children of opposite-sex couples—
and why federal appellate judges in the Fourth, Sev-
enth, Ninth and Tenth Circuits were wrong to dis-
miss those concerns as “irrational.” See Brief of 76
Scholars of Marriage at 3-23. Remarkably, petition-
ers and their amici—including the Department of
Justice—continue to ignore or dismiss those concerns.
See, e.g., Obergefell Brief 55-57; DeBoer Brief 36;
Bourke Brief 47-50. Like those Circuits, petitioners

1 This brief is filed with the consent of all parties. Amici and
undersigned counsel have authored this brief in whole, and no
other person or entity has funded its preparation or submission.
 2

and their amici have thus adopted—with no mean-

ingful analysis—the misleading motto of same-sex
marriage advocates that “my marriage won’t harm
your marriage.”

But the concerns expressed by Justices Kennedy

and Alito remain well founded: Any ruling compel-
ling states to redefine marriage in genderless terms
will adversely alter the whole institution of marriage.
That is not because same-sex marriages will directly
“harm” existing man-woman marriages. It is because
the forced redefinition will undermine important so-
cial norms—like the value of biological connections
between parents and children—that arise from the
man-woman understanding; that typically guide the
procreative and parenting behavior of heterosexuals;
and that are highly beneficial to their children. Ac-
cordingly, a decision imposing same-sex marriage on
the states will likely bring—or at least create an
enormous risk of—substantial long-term harm, espe-
cially to the children of man-woman unions.

Taken together, these points constitute what we

call the “institutional defense” of man-woman mar-
riage laws. That defense does not depend on particu-
lar views about sexual morality, theology or natural
law. Amici, who are scholars of marriage and the
family from various disciplines—including sociology,
psychology, economics, history, philosophy, literature,
political science, pediatrics and family law—hold var-
ious views on those matters. But we are united in
our conviction that forcing a state to redefine mar-
riage in genderless terms will seriously disserve the
vast majority of the state’s children and, hence, its
future. We therefore urge the Court to affirm the de-
cision below.
 3

SUMMARY

This brief articulates the institutional defense of

man-woman marriage laws in more detail than our
prior brief. We first discuss (Section I) the benefits of
the man-woman understanding of marriage and its
associated secular norms. Those norms bring enor-
mous benefits to the children of man-woman unions—
among other things by strongly encouraging a child’s
biological parents to remain together to raise their
child.

In Section II, we describe how redefining marriage

in genderless rather than gendered terms would un-
dermine those norms and thereby create enormous
social costs and risks. We also explain why, contrary
to claims by amici Massachusetts et al., the available
evidence demonstrates the seriousness of those risks.
Indeed, in every U.S. jurisdiction for which such data
are available, after the adoption of same-sex mar-
riage the opposite-sex marriage rate declined by least
five percent—in comparison to a national marriage
rate that, in the past few years, has been fairly sta-
ble. And if a forced redefinition of marriage caused
only a five percent permanent decline in U.S. oppo-
site-sex marriage rates, under reasonable assump-
tions and over the next fertility cycle (30 years), that
decline would result in nearly 1.3 million fewer wom-
en marrying. That would lead to an additional nearly
600,000 children born into nonmarital parenting sit-
uations, and nearly 900,000 more children aborted.

Section III elucidates the logical and scientific

flaws in recent appellate opinions—and in the briefs
of petitioners and their amici—that have denied or
downplayed these risks. As we show, all of the re-
 4

sponses to these points have relied upon diversion

and mischaracterization rather than serious analysis.

Finally, Section IV explains—in social-science ra-

ther than legal terms—why a state’s decision to re-
tain the man-woman definition is not only rational,
but narrowly tailored to compelling, secular govern-
mental interests. The Sixth Circuit’s decision should
therefore be affirmed regardless of the legal standard
the Court chooses.

ARGUMENT

I. The man-woman understanding of marriage

confers enormous benefits on society, espe-
cially children of opposite-sex couples.

Marriage is a complex social institution that pre-

exists the law, but is supported by it in virtually all
human societies. Levi-Strauss(a):40-412; Quale:2;
Reid:455; de Bracton:27; Blackstone:410; Blanken-
horn(a):100. Like other social institutions, marriage
is “a complex set of personal values, social norms, …
customs, and legal constraints,” which together
“regulate a particular intimate human relation over a
life span.” Allen(a):949-50; Bellah:10; North:97; Ber-
ger:52; Radcliffe-Brown:10-11.

Linking Marriage to Procreation. In virtually all

societies, although sex and procreation may occur in
other settings, marriage marks the boundaries of pro-

2 Because of the large number of studies cited, in-text citations

are shortened, authors with multiple articles have letters follow-
ing their last names to distinguish publications, and publica-
tions by multiple authors are identified by only the first author’s
last name. All sources appear in the Table of Authorities.
 5

creation that is socially commended. Wax(b):1012;

Girgis:38; Corvino:96. Thus, the most basic message
conveyed by the traditional institution of marriage is
that, when procreation occurs, this is the arrange-
ment society prefers.

That message helps achieve a principal purpose of

marriage: increasing the likelihood that any children
born from sex between men and women will have a
known mother and father with responsibility for car-
ing for them. Minor:375-76; Blackstone:435; Wil-
son:41; Doherty(a):8-9; Brief of Scholars Robert
George et al. That is one reason why, even in ancient
Greek and Roman societies, which encouraged same-
sex intimate relations, marriage was limited to man-
woman unions. Patterson:16-17,23-27; Oxford:902;
Wardle(a):784-85.

Thus, although marriage secondarily benefits its

adult participants, it is “designed around procrea-
tion.” Allen(a):954. As famed anthropologist
Bronislaw Malinowski emphasized, “the institution of
marriage is primarily determined by the needs of the
offspring, by the dependence of the children upon
their parents.” Malinowski:11. Indeed, as observed
by Bertrand Russell (no friend of Judeo-Christian
theology or sexual mores), “[b]ut for children, there
would be no need of any institution concerned with
sex.” Russell:77, 156; accord Llewellyn:1284.

The man-woman understanding and definition are

thus integral not only to the social institution of mar-
riage that state marriage laws are intended to sup-
port, but also to the states’ purposes in providing that
support. Story:168; Kent:76; Bouvier:113-14; Bishop:
§225. That is one reason why, until recently, states
 6

had uniformly rejected what Justice Alito has aptly

called the adult-centric, “consent-based” view of mar-
riage—focused principally on adult relationships—
and had embraced instead the “conjugal” view, based
primarily on the procreative potential of most man-
woman unions. Windsor, 133 S.Ct. at 2718; IAV(a):7-
8; Stewart(a):337; Yenor:253-73. Even today, exclud-
ing judicially-imposed definitions, most states have
implemented the conjugal view by retaining the man-
woman definition—despite decisions by some states
to redefine marriage in genderless terms, i.e., as the
union of any two otherwise qualified “persons.”3

By itself, the man-woman definition reinforces

that marriage is centered primarily on procreation
and children, which man-woman couples are uniquely
capable of producing naturally. Davis:7-8; Wilson:23;
Blackstone:422; Locke:§§78-79; Anthropological Insti-
tute:71; Wilcox(b):18-19; Girgis:38; Wax(b):1000.
That definition also conveys that one purpose of mar-
riage is to provide for children that may be created
unintentionally—an issue also unique to man-woman
couples. IAV(b):6. Most obviously, by requiring a
man and a woman, that definition communicates that
this structure is expected to have both a “masculine”
and a “feminine” aspect—with men and women com-
plementing each other. Nock:passim; Levi-
Strauss(b):5; Scholars of History Brief:I.A-B.

Specific Marital Norms. By implicitly referencing

children, unintentional procreation, masculinity and
femininity, the man-woman definition not only rein-

3E.g., Marriage Equality Act (NY), AB A08354 (June 24, 2011);

Civil Marriage Protection Act (MD), House Bill 438 (March 1,
2012).
 7

forces that society prefers that procreation occur

within marriage–it also “teaches” or reinforces cer-
tain procreation and child-related “norms,” Windsor,
133 S.Ct. at 2718, that are necessarily directed at
heterosexuals:

1. Where possible, every child has a right to be

reared by and to bond with her biological father
and mother (the “biological bonding” norm). Con-
vention on the Rights of the Child, 1577 U.N.T.S.
3, 47; Somerville(a):179-201; Aristotle:§12;
Locke:§78; Velleman:370-71; Young(b):154-55;
Browning:45; Organizations Supporting Biological
Parenting Brief. This norm also encompasses the
more mundane but important “maintenance”
norm—that every child has a right whenever pos-
sible to be supported financially by the man and
woman who brought her into the world.
Brinig:110-11; Minor:375-78; Young(a):9.

2. Where possible, a child should at least be raised

by a mother and father who are committed to each
other and to the child, even where he cannot be
raised by both biological parents (the “gender-
diversity” norm). Erickson:2-21; Esolen:29-40;
Palkovitz:234-37; Witherspoon:18; Pruett(a):17-
57; Pruett(b):15-34; Raeburn:121-158; Rhoads:8-
45; Byrd(a):227-29; Byrd(b):382-87; Young(a):9.
As a corollary, men and women who conceive to-
gether should treat marriage, and fatherhood and
motherhood within marriage, as an important ex-
pression of their masculinity or femininity. Haw-
kins:16-20; Nock:58-59; Erickson:15-18; Brief of
Organizations and Scholars of Gender Diverse
Parenting.
 8

3. Men and women should postpone procreation until

they are in a committed, long-term relationship
(the “postponement” norm). Dwyer:44-76; Gross-
man(a):10; McClain:2133-84; Friedman:9-10;
Schneider:495-532; Young(a):9. This is sometimes
called the “responsible creation” or “channeling”
norm. Schneider:498.

4. Undertaken in that setting, creation and rearing

of children are socially valuable (the “procrea-
tion/child-rearing norm”). Young(b):161-63;
Wardle(a):784-86; Girgis:44; see Scholars of Fertil-
ity Brief.

5. Men and women should limit themselves to a sin-

gle procreative partner (the “exclusivity norm”).
Wilson:32-38; Blankenhorn(a):148-50; Plato:1086.

All these norms are grounded in the more general

norm that, in all their decisions, parents and prospec-
tive parents should give the interests of their chil-
dren—present and future—equal if not higher
priority to their own (the “child-centricity” norm).
IAV(b):6.

How These Norms Benefit Children and Society.

States and their citizens—especially children—
benefit enormously when man-woman couples heed
these norms, which are central to the conjugal vision
of marriage. Common sense and much social-science
data teach that children do best emotionally, socially,
intellectually and economically when reared in an in-
tact home by both biological parents. Wilcox(b):11;
Moore; McLanahan(a):1; Lansford:842; Organizations
Supporting Biological Parenting Brief:21-24.
 9

A couple’s shared biological tie to their child deep-

ens their investments in their relationships with each
other as well as their child. Rosenberg:11. For ex-
ample, a man’s biological connection to his child not
only directly strengthens his bond with that child, it
also indirectly strengthens his bond with the child’s
mother, thereby encouraging male protection and in-
vestment in both relationships. Id. That three-way
bond is uniquely valuable because of its time-tested
tensile strength. Other families might function well
and achieve stability, but co-biological families are
most likely to function best.

Moreover, compared with children of man-woman

couples raised in any other environment, children
raised by their two biological parents in a married
family are less likely to commit crimes, experience
teen pregnancy, have multiple abortions, engage in
substance abuse, suffer from mental illness or do
poorly in school, and more likely to support them-
selves and their own children successfully in the fu-
ture.4 Accordingly, such children need less state
assistance and contribute more to the state’s economy
and tax base. Amato(b). Indeed, the evidence over-
whelmingly establishes that no other parenting ar-
rangement comes close (on average) to that of the
child’s biological mother and father. Wilcox(b):11;
Moore; McLanahan(a):1; Lansford:842.

That is true, not only because of the power of bio-

logical kinship, but also because of the value of gen-

4Jeynes:85-97; Marquardt(a); Amato(c):26-46; Amato(a):543-56;

Wallerstein(a):444-58; Wallerstein(b):545-53; Wallerstein(c):65-
77; Wallerstein(d):199-211; Wallerstein(e); Wallerstein(f):593-
604; Marquardt(b):5; Wax(a):579-80; Fagan:1-2.
 10

der diversity—having both a mom and a dad. Gross-

man(b):325; Erickson:passim; Popenoe:146; With-
erspoon:18; Glenn:27; Lamb:246; Byrd(a);
Byrd(b):382-87; Pakaluk:4; Hofferth(b):81;
Denham:23-45; Maccoby:272; Parke:7; Coltrane:54;
Lewis:213; Powers:980-89; U.S. v. Virginia, 518 U.S.
515, 533 (1996); Brief of Organizations and Scholars
of Gender Diverse Parenting. For example, one
scholar offered the following compelling explanation
of the unique importance of fathers to the healthy
sexual and social development of their sons:

What a boy gets from experiencing the dependable

love of a father is a deep personal experience of
masculinity that is pro-social, pro-woman, pro-
child...Without this personal experience of male-
ness, a boy (who … is deeply driven to seek some
meaning for masculinity) is vulnerable to a varie-
ty of peer and market-driven alternative defini-
tions of masculinity, often grounded
in…aggression, physical strength, and sexual pro-
clivities… The importance of a father in giving a
boy a deeply pro-social sense of his own masculini-
ty may be one reason why one large national
study found that boys raised outside of intact
marriages were two to three times more likely to
commit a crime leading to imprisonment. Erick-
son:20 (quoting Gallagher(a):210-11)).

The same scholar offered a similarly compelling

account of the unique importance of fathers to the
sexual development of their daughters:

[A] girl raised without a father does not come to

adolescence with the same deep experience of
what male love feels like when it is truly protec-
 11

tive, not driven primarily by a desire for sexual

gratification. … [F]atherless girls may experience
a hunger for masculine love and attention that
leaves [them] particularly vulnerable to use and
abuse by young adult males. Girls raised without
fathers are at high risk for unwed motherhood.
Id.

In short, as famed anthropologist (and atheist)

Margaret Mead noted, “[o]ne of the most important
learnings for every human child is how to be a full
member of its own sex and at the same time fully re-
late to the opposite sex. This is not an easy learning;
it requires the continuing presence of a father and a
mother ….” Mead:359.

Besides ensuring that their children have both a

father and a mother, opposite-sex parents who em-
brace the norms of child-centricity and maintenance
are also less likely to engage in behaviors—such as
physical or sexual child abuse, neglect or divorce—
that not only harm their children, but typically re-
quire state assistance or intervention. Popenoe;
Blankenhorn(b); Manning; Flouri:63. People who
embrace the procreative exclusivity norm are likewise
less likely to have children with multiple partners—a
phenomenon that leads to social, emotional and fi-
nancial difficulties for children. Cherlin(a):137; Wil-
son:32-38; Wax(b):1006-07, 1012; Blankenhorn(a):
148-50; Plato:1086. And people who embrace the
postponement norm are less likely to have children
without a second, committed parent—another well-
established predictor of psychological, emotional and
financial trouble. Oman:757; Bonell:502; Kantojar-
vi:205; Bachman:153.
 12

By contrast, people who do not appreciate the so-

cial value of creating and rearing children are less
likely to do so. And that view, if sufficiently wide-
spread, would jeopardize society’s ability to reproduce
itself—at least at levels sufficient to maintain inter-
generational welfare programs. Wardle(a):782,87-89;
O’Brien:31-32,38-41; see Scholars of Fertility Brief.
That is also why Judge Perez-Gimenez was correct in
concluding that “[t]raditional marriage”—man-
woman marriage—“is the fundamental unit of the po-
litical order. And ultimately the very survival of the
political order depends upon the procreative potential
embodied in traditional marriage.” Conde-Vidal v.
Garcia-Padilla, No. 14-1254 (PG) (Oct. 21, 2014), slip
op. at 20.

For all these reasons, the Sixth Circuit was also

correct in concluding that citizens “may well need the
government’s encouragement to create and maintain
stable relationships within which children may flour-
ish,” and that the man-woman definition of marriage
provides that encouragement. DeBoer v. Snyder, 772
F.3d 388, 405 (6th Cir. 2014). Moreover, although
these points were brought to the Court’s attention at
the petition stage, see Marriage Scholars Brief at 3-8,
petitioners and their allies have not disputed them.
That silence speaks volumes.
 13

II. Removing the man-woman definition of

marriage creates enormous risks to society,
especially to children of opposite-sex cou-
ples.

Given the social significance of man-woman mar-

riage, it’s not surprising that so many informed com-
mentators on both sides have predicted that
redefining marriage to accommodate same-sex cou-
ples—which requires removing the man-woman un-
derstanding and the associated definition—will
change the institution profoundly.5 The law can alter
institutions and hence change social norms. Harri-
son:xxviii. Thus, as Oxford’s prominent legal philos-
opher Joseph Raz observed, “the recognition of gay
marriage will effect as great a transformation in the
nature of marriage as that from … arranged to unar-
ranged marriage.” Raz(b):23.

But whereas the change to unarranged marriage

probably benefited the children of heterosexuals, a
forced redefinition of marriage in genderless terms
subjects them to enormous risks—as explained in our
prior brief and in more detail below. And here again,
despite ample opportunity, petitioners and their ami-
ci have failed to dispute the theoretical or empirical
evidence establishing the risks of a forced redefini-
tion.

5Bix:112-13; Dalrymple:1,24; Blankenhorn(a):157; Stoddard:19;

Cere:11-13; Farrow(a):1-5; McWhorter:125; Stacey:126-28;
Young(c):48-56; Bolt:114; Carbado:95-96; Gallagher(b):53;
Hunter:12-19; Sullivan:1-16; Widiss:778,781; Raz(a):161; Stew-
art(b):10-11; Searle:89-122; Reece:185; Stewart(c); Clayton:22;
Stewart(d):503; Stewart(e):239-40; Bradley:193-96;
Young(b):156-65; Eskridge(a):11.
 14

A. These risks are amply established by set-

tled theoretical evidence.

Erosion of Marital Norms. For man-woman cou-

ples, removing the procreation-focused, man-woman
definition will erode the message that society prefers
that procreation occur within marriage, as well each
of the specific norms that depend upon or are rein-
forced by that definition. IAV(b):18; Allen(b):1043.
For example, as Professors Hawkins and Carroll have
explained, such a redefinition undermines the gen-
der-diversity norm by creating a structure in which
two women (or two men) can easily raise children to-
gether as a married couple. That structure thus gives
the law’s authoritative approval to an arrangement
that systematically excludes fathers (or mothers)
from a role as primary care-givers to their biological
children. Hawkins:13-16; Carroll:59-63. It thereby
weakens the bonding or biological connection norm
inherent in the man-woman definition. See Organiza-
tions Supporting Biological Parenting Brief:24-31.

Such legal changes are especially likely to under-

mine those norms among heterosexual men, who
generally need more encouragement to marry than
women. Wax(c):60; Doherty(b):278. Such changes
convey that society no longer needs men to bond to
women to form well-functioning families or to raise
happy, well-adjusted children. Hawkins:14-16;
Nock:58-59; Young(c):50-51; Young(b):158-59.

For similar reasons, a redefinition would weaken

the expectation that biological parents should take
financial responsibility for children they create. It
would also weaken the expectation that parents will
 15

put their children’s interests ahead of their own.

Hawkins:20.

Equally important, and for similar reasons, re-

moving the gendered definition would teach that so-
ciety now considers the natural family (a woman, a
man, and their biological children), and the capacity
of a woman and a man to create human life, of no
special value. Knapp:626-28. That would inevitably
undermine the procreativity/child-rearing norm, the
exclusivity norm, and the postponement norm.

Our prediction that redefining marriage would

undermine all of these norms—and the overarching
preference that procreation occur within marriage—is
consistent with the view expressed by same-sex mar-
riage advocates like William Eskridge, who conceded
that “enlarging the concept to embrace same-sex cou-
ples would necessarily transform [the institution of
marriage] into something new.” Eskridge(b):19. In-
deed, another same-sex marriage advocate, E.J.
Graff, exulted that “[s]ame-sex marriage is a breath-
takingly subversive idea…[ If it ever] becomes legal,
[the] venerable institution [of marriage] will ever
stand for sexual choice, cutting the link between sex
and diapers,” Graff:12—that is, children.

Finally, our prediction of the negative effects of a

redefinition accords with the view oft expressed by
judges and scholars that the law can play a powerful
“teaching” function. Hawkins:20; Sunstein(a):2027-
28; Posner; Cooter; Lessig:2186-87; Sunstein(b);
Nee:19. One example is Justice Kennedy’s observa-
tion of the power of disability laws to “teach” society
the norm of treating persons with disabilities as full-
fledged citizens. University of Alabama v. Garrett,
 16

531 U.S. 356, 375 (2001) (Kennedy, J., concurring).

That same teaching principle applies to laws defining
and regulating marriage, which likewise either rein-
force or undermine the norms long associated with it.

Resulting Harms to Children and Society. Just

as these norms benefit the state, society and children,
their removal or weakening would harm the interests
of the state and its citizens. For example, as fewer
man-woman couples choose to limit procreation to
marriage relationships, and as fewer embrace the
norms of biological connection, gender diversity,
maintenance and postponement, a higher percentage
of children would be raised without both a mother
and a father—usually a father. Hawkins:18-20; Bio-
logical Parenting Brief:24-31. That would mean a
higher percentage being raised in poverty; experienc-
ing psychological or emotional problems; experiencing
teenage pregnancy; doing poorly in school; engaging
in substance abuse and committing crimes—all at
significant cost to the state.6 It would also mean a
higher percentage of girls who later undergo multiple
abortions. Fagan:1-2.

Similarly, as fewer parents embraced the norm of

child-centricity, more would make choices driven by
personal interests rather than the interests of their
children. Wax(b):1012. Many such choices would
likewise impose substantial costs on the state.
Wildsmith:5; Scafidi:9; Kohm:88. Moreover, by
breaking the procreation-parenting link, a redefini-

6 Popenoe:passim; Blankenhorn(b):passim; Manning:passim;

Flouri:63; Ellis:passim; Bowling:13; Marquardt(b):5; Wu:passim;
Wardle(b):passim; Harper:384-86; Young(c):49,52-56; Wax(a):
579-80.
 17

tion would require additional changes to the legal

and social institution of parenting—creating another
major source of societal risk. Farrow(b); Morse(a);
Morse(b).

Because a redefinition also jeopardizes aggregate

fertility—by weakening the social norms favoring re-
production and marriage—such a redefinition would
pose even greater long-term risks to society. Zhang;
Brown(a); Martin:Table12; Wardle(a):784-86. As Pro-
fessor Allen has noted, “[p]oorly designed laws”—
including laws that undermine long-standing social
norms—can “lead to… unsuccessful marriages, which
in turn lead to low fertility… and ultimately a decline
in the society.” Allen(a):956. And even a modest de-
cline in fertility can threaten the viability of inter-
generational social welfare programs. See, e.g.,
Vos:485; Scholars of Fertility Brief.

That isn’t to suggest a redefinition would affect all

social groups identically. People who are more reli-
gious, for example, generally have reasons—beyond
the “teaching” power of the law—for embracing both
the man-woman understanding of marriage and asso-
ciated social norms. Similarly, regardless of religion,
people who are well-educated and wealthy tend to
embrace the expectations and norms associated with
traditional marriage more than the poor or uneducat-
ed. Wilcox(a):53; Cahn:3,18-19,166; Murray:149,151-
57,163-67; Cherlin(b); Wax(a):570-71. Accordingly,
we would expect to see the social costs of redefining
marriage concentrated among the relatively non-
religious and less well-to-do. See Scholars of the Wel-
fare of Women Brief. As Professor Amy Wax has not-
ed, “[m]arriage’s long track record as a building block
for families and a foundation for beneficial relations
 18

between the sexes suggests that ordinary people des-

perately need the anchor of clear expectations, and
that they respond to them.” Wax(b):1012.

In short, as petitioners and their amici concede by

their silence, the institution of marriage is like a val-
uable hanging tapestry, with the man-woman defini-
tion a critical thread running through it: Remove that
thread and, over time, the tapestry unravels.
Schneider:498; Allen(a):963-65; Stewart(a):327-28.
That would be a tragedy for society and, especially,
its children.

B. Ample empirical evidence supports the

conclusion that removing the man-woman
definition would create substantial risks
to children and, hence, to society.

What does the available empirical evidence tell us

about these risks? Several pro-redefinition commen-
tators have cited Massachusetts—which adopted
genderless marriage a decade ago—in claiming that
such a change has no adverse effects. E.g., Brief of
Massachusetts et al., at 20-24. In fact, the most re-
cent evidence shows an overall increase in divorce in
the wake of Massachusetts’ decision, and an overall
decrease in marriage rates among opposite-sex cou-
ples there. See Appendix B. The same is true of the
other states—and nations—that have adopted same-
sex marriage and for which we have data. Id. More-
over, studies relying upon larger sample sizes and
more sophisticated statistical analysis strongly sug-
gest that a redefinition would have substantial ad-
verse effects—or at least presents a serious risk of
such effects.
 19

Requirements for Statistical Validity. Obviously,

one cannot fairly infer that a decision to redefine
marriage caused (or did not cause) an increase in di-
vorce or a reduction in marriage without controlling
for confounding factors. But no studies based on U.S.
data have attempted to do so, including a recent
study by Marcus Dillender purporting to find “no evi-
dence” that allowing same-sex marriage has any ef-
fect on U.S. opposite-sex marriage or divorce rates.
Dillender:582. That study has a number of fatal
methodological flaws.

One is its assumption that the full impact of rede-

fining marriage would show up in statistically mean-
ingful ways shortly after redefinition. As Justice
Alito’s remarks in Windsor suggest, that assumption
is unrealistic for an ancient and complex social insti-
tution like marriage. Windsor, 133 S.Ct. at 2715-16.
Marriage experts have frequently and correctly noted
that major social changes operate with a “cultural
lag” that often requires years—sometimes a genera-
tion or two—to be fully realized. Cherlin(a):142-43.

Another flaw is the study’s failure to examine im-

pacts on groups that might be affected differentially
by the redefinition—for example, the relatively less
religious, educated or prosperous. The religious or
wealthy could well embrace the norms associated
with man-woman marriage with greater determina-
tion during and just after a state’s decision to rede-
fine marriage. And that effect could mask a negative
impact on less religious or prosperous segments. Yet
 20

Dillender confesses he cannot test these possibilities

in his data. Dillender:568.7

The Netherlands Study. The only credible study

of which we are aware that adjusted for this problem
is a recent study of the Netherlands, which formally
adopted genderless marriage in 2001 but had adopted
same-sex civil unions in 1998. That study, by Mircea
Trandafir, shows a clear post-redefinition decline in
marriage rates among man-woman couples in urban
areas—compared to the Netherlands’ rural Bible
Belt. Trandafir(a):336. After adjusting for confound-
ing factors, the nationwide net decline in marriage
rates for women ages 18-22 was 5.0%. Id. 333.
Young women in the top four urban areas, as well as
native Dutch women nationwide, saw even larger de-
clines. Id. 336-337. This study also suggests the de-
bate surrounding genderless marriage caused a
(likely) temporary increase in marriage rates among
the more religious—which embraced traditional mar-
riage with greater fervor—and which tended to offset
temporarily the decrease in man-woman marriages
among the more urban, less religious segments. Id.
334-336.

7
A similar 2009 study concluded that the “argument that same-
sex marriage poses a negative externality on society cannot be
rationally held.” Langbein:292. However, a recent attempt to
replicate that study found that some variables had been coded
incorrectly, that the results were often not robust to alternative
estimation methods, and that the paper’s empirical strategy is
incapable of testing what the study’s authors claim they are
testing. Allen(d):1. When many of these errors are corrected,
the study’s findings disappear into the statistical haze of insuffi-
cient power—meaning nothing can be inferred from it.
 21

It was only by examining these populations sepa-

rately that Trandafir discovered this differential ef-
fect. His study thus shows that, though the more re-
religious segments of Dutch society may not have
seen a short-term reduction in man-woman marriag-
es, other segments—those lacking a strong alterna-
tive source for marital norms—saw a reduction in
opposite-sex marriage rates.8 For those segments,
that reduction will also impair the many social bene-
fits—beginning with lower rates of fatherlessness—
that man-woman marriage has long produced.

U.S. State Statistics. Contrary to the assertions of

amici Massachusetts et al., experience in U.S. states
that have adopted same-sex marriage likewise point
to a substantial risk of reduced man-woman marriage
rates, increased fatherlessness and associated ills.
As explained in Appendix B, every state that has
adopted same-sex marriage and kept the relevant da-
ta has in a short period seen a substantial decline in
the rate of opposite-sex marriages—ranging from 5.1
percent to nearly 9 percent. Conversely, from 2009
(the year Iowa and Connecticut implemented same-
sex marriage, and the first full year of same-sex mar-
riage in Connecticut) to 2012, the overall U.S. mar-
riage rate stayed the same. CDC(b).

8
More recently, Trandafir published a comment on his Nether-
lands study (Trandafir(b)), and a study of the effects of same-sex
marriage in other OECD countries. Trandafir(c). The comment
adds no new data, nor new analysis of his previous data. And
surprisingly, unlike his Netherlands study, the more recent
study (also addressed in Appendix B) does not attempt to exam-
ine the impact of marriage redefinition on various population
segments.
 22

Under reasonable assumptions, moreover, a five

percent reduction in the U.S. long-run opposite-sex
marriage rate, with half of that reduction being mar-
riage forgone rather than marriage delayed, would
likely result in an additional 1.275 million women
eschewing marriage over the next fertility cycle (30
years). See Appendix B. The mechanism is simple
and intuitive: Fewer opposite-sex marriages means
more unmarried women, more children born to un-
married mothers, fewer total children born, and more
children aborted.

Specifically, under conservative assumptions, a

mere five percent reduction in opposite-sex marriage
rates would result in nearly 600,000 more children
being born to unmarried women. See Appendix B.
That would lead to increases in the percentage of
children living in poverty, experiencing psychological
or emotional problems, suffering from teenage preg-
nancy, doing poorly in school, engaging in substance
abuse, committing crimes, and obtaining abortions—
all with adverse impacts on society. See supra at IIA.
Additionally, again under conservative assumptions
and over the next 30 years, this would lead not only
to hundreds of thousands fewer births, but also to
nearly 900,000 more abortions. See Appendix B.

Studies of the Value of Dual-Biological Parenting.

The Dillender study also ignores that a redefinition
would likely result in fewer children being raised by
their biological parents for reasons other than re-
duced marriage rates. For example, by weakening
the biological bonding and gender-diversity norms as-
sociated with traditional marriage, over time a re-
definition would likely lead more married parents
either to divorce—as appears to have happened in
 23

Massachusetts and other same-sex marriage states—

or to separate from their spouses and raise their chil-
dren in new arrangements without going through the
formality of a divorce. Similarly, by weakening the
exclusivity norm, a redefinition would likely lead
more people to engage in “serial polygamy”—having
children with multiple partners, with or without the
formalities of marriage and divorce. Krause:103; Lo-
rio:1177-78. Both of these effects would lead to more
children of man-woman couples being raised outside
the presence of one or both biological parents.

The empirical evidence further indicates that, in

the aggregate, such an outcome would be very bad for
children. All of the large-sample studies show that
children raised by their two biological parents in in-
tact marriages do better, on average, than children
raised in any other parenting arrangement, including
step-parenting, single parenting, mother-
grandmother parenting, and adoption—as valuable
and important as those fallback arrangements are.
Significant differences appear across a wide range of
outcomes, including freedom from serious emotional
and psychological problems, Sullins(a):11, Sul-
lins(b):996, McLanahan(b):399, Culpin:2615, Kan-
tojarvi:205; Hofferth(a):53; avoidance of substance
abuse, Brown(b):259; avoidance of behavioral prob-
lems generally, Osborne:1065, Cavanagh:551; and
success in school, McLanahan(b):399, Bulanda:593;
Gillette:309; Allen(a):955. Indeed, the stark differ-
ences between children raised by their two biological
parents and children raised by a biological parent
and a heterosexual step-parent demonstrate that
there is no substitute for biological connections be-
tween the child and both of her parents. McLana-
 24

han(a):1; Brown(b):259; Turner:39; Daly:197; Len-

ciauskiene:607; Case:301.

In short, given that the vast majority of parents

are heterosexuals, Miller:16, any policy that leads to
a larger percentage of their children being raised out-
side an intact marriage of two biological parents
would be catastrophic for children generally, and for
society. That is why removing the man-woman defi-
nition is so dangerous.

No-Fault Divorce. These risks are reinforced by

the history of no-fault divorce. Allen(a):965-66; Haw-
kins:6-12; Alvare:137-53. Before the no-fault divorce
movement, marriage strongly conveyed an additional
norm beyond those discussed above—a norm of per-
manence. Parkman:91-150. When no-fault divorce
was first proposed, its advocates argued it wouldn’t
undermine that norm: Only those whose marriages
were irretrievably broken would use the new, stream-
lined (and less contentious) divorce procedures. Wal-
lerstein(g); Stevenson:267. Those in happy
marriages—and hence the institution of marriage it-
self—would not be adversely affected. Hawkins:7-11;
Allen(a):966-67; Whitehead:81-90.

Such predictions proved overly optimistic. By

permitting unilateral divorce for any or no reason, no-
fault divorce soon undermined the norms of perma-
nence and child-centricity, leading directly to a di-
vorce explosion. Parkman:93-99; Allen(a):967-69;
Spaht:1547; Glendon:108; Goode:144. That led to a
host of problems for the affected children—financial,
academic, emotional and psychological. Allen(a):969.
 25

Most states, moreover, adopted no-fault divorce

without first observing its effects elsewhere for a sus-
tained period. Wardle(c). And, although some schol-
ars have argued divorce has been stable or declining,
new research shows this is true only among 20-35-
year olds—because of increased selectivity in enter-
ing marriage—and that among those over 35, divorce
rates have substantially increased. Kennedy:587.
That reality signals an apparently permanent, ad-
verse change in the marriage institution. Park-
man:91. Especially in light of that experience, many
states are understandably reluctant to adopt another
change—genderless marriage—that seems likely to
undermine not just one marital norm, but several.

In short, the available evidence reinforces Justices

Kennedy’s and Alito’s fear that, in its effects on chil-
dren, a forced redefinition of marriage may be akin to
jumping off a cliff. Although it is impossible to see
with complete clarity all the dangers at the bottom,
we know enough to confidently predict the landing
will not be soft. And here again, despite ample op-
portunity, petitioners and their amici have failed to
refute the analysis underlying this conclusion.
 26

III. Judicial responses to the institutional de-

fense have been deeply flawed.

Some of these points have been addressed oblique-

ly by the circuit judges invalidating state marriage
laws. But their opinions ignore the principal point:
Like no-fault divorce, redefining marriage in gender-
less terms will change the institution of marriage in
ways that adversely affect the behavior of heterosexu-
als— Giddens:98. It is only by ignoring a redefini-
tion’s impact on the institution that courts can
claim—as some have—that the man-woman defini-
tion does not advance the state interests described
above. E.g., Bostic v. Schaefer, 760 F.3d 352, 382-83
(4th Cir. 2014), cert. denied, 135 S. Ct. 308 (2014).

Parenting by Gays and Lesbians. Rather than ad-

dress the institutional defense head-on, most judges
have offered diversions, beginning with the sugges-
tion that it casts aspersions on gays and lesbians—
including their fitness as parents. E.g., Latta v. Ot-
ter, 771 F.3d 456, 473-74 (9th Cir. 2014), cert. pend-
ing (No. 14-765). But the institutional defense
neither depends upon nor advocates any view about
the impact of sexual orientation on parenting. To be
sure, there is a lively academic debate on the differ-
ences in outcomes for children raised by opposite-sex
versus same-sex couples9—rebutting petitioners’

9 See American College of Pediatricians Brief; Sullins(a); Sul-

lins(b); Regnerus(a):752-770; Regnerus(b):1367; Allen(c):30;
Schumm(a):79-120; Schumm(b):329-40; Schumm(c):2165;
Marks:735-51; Allen(a):955-61; Sarantakos:23-31; Lerner; com-
pare Golombok:20; Wainright:1886; Biblarz:3. The effect of pa-
rental sexual orientation is distinct from the effect of parental
gender diversity. See Brief of Organizations and Scholars of
Gender Diverse Parenting.
 27

claim that there is “scientific consensus” on that is-

sue. Bourke Brief at 51. But the institutional de-
fense focuses on something different: the impact of
removing the man-woman definition on the marriage
institution—i.e., marriage’s public meaning—and the
resulting impact on children of heterosexuals.

This misunderstanding of the institutional de-

fense is evident in Judge Reinhardt’s reaction to the
point that “[b]ecause opposite-sex couples can acci-
dentally conceive … marriage is important because it
serves to bind such couples together and to their chil-
dren.” Latta, 771 F.3d at 471. After acknowledging
that this “makes some sense,” Reinhardt still rejects
the institutional defense because (he says) it “sug-
gests that marriage’s stabilizing and unifying force is
unnecessary for same-sex couples …” Id. But that’s
not the point. Even if same-sex couples and their
children would benefit from an “any two persons” re-
definition—a point on which the evidence is inconclu-
sive (see American College of Pediatricians Brief)—no
state can responsibly ignore the impact on the far
larger population of man-woman couples and their
children. Regardless of the definition of marriage,
those children will constitute the vast majority in the
foreseeable future. Allen(c):635-58; Miller.

Indeed, for every child in the United States cur-

rently raised by at least one gay or lesbian parent
(240,000 overall, or 1/3 of one percent), there are 307
who are not (73,577,000). Miller; Vespa:Table 10.
For that reason, no state can responsibly ignore the
impact of removing the man-woman definition on the
institution of marriage. Schumm(d).
 28

Other diversions. Another diversion is Judge

Lucero’s argument that “it is wholly illogical to be-
lieve that state recognition of the love and commit-
ment between same-sex couples will alter the most
intimate and personal decisions of opposite-sex cou-
ples.” Kitchen v. Herbert, 755 F.3d 1193, 1223 (10th
Cir. 2014), cert. denied, 135 S. Ct. 265 (2014). This
ignores that legally recognizing genderless marriage
requires more than “recognition” of same-sex couples’
love and commitment. Same-sex marriage requires a
redefinition of the marital relationship that elimi-
nates its gender-complementary character—replacing
“man” and “woman” with “persons.” See supra note 3.
But this establishes (among other things) that chil-
dren have no right to be reared by both a mother and
a father, much less their biological parents. Somer-
ville(b).

For these reasons, a belief that removing the gen-

dered aspect of marriage will harm the institution is
more than “logical.” Indeed, it would be illogical to
believe that a major social institution can be rede-
fined without any collateral damage to the institution
or to those who benefit from it—especially children.

In a similar diversion, Judge Reinhardt claims

that the institutional defense assumes that “allowing
same-sex marriages will adversely affect opposite-sex
marriage ….” Latta, 771 F.3d at 469. But it’s not the
existence or even “recognition” of same-sex marriages
that is of principal concern. Again, it’s the redefini-
tion that such marriages require—replacing the man-
woman definition with “any qualified persons”—and
the resulting impact of that redefinition on the insti-
tution of marriage, as perceived and understood, over
a long period, in our social norms and values. As ex-
 29

plained, a large body of social science research af-

firms that, especially at the margins, such a radical
institutional change can and likely will, in Judge
Lucero’s words, “affect the decision of a member of an
opposite-sex couple to have a child, to marry or stay
married to a partner, or to make personal sacrifices
for a child.” Kitchen, 755 F.3d at 1223.

Equally misguided is Judge Reinhardt’s dismissal

of the idea that “a father will see a child being raised
by two women and deduce that because the state has
said it is unnecessary for that child … to have a fa-
ther, it is also unnecessary for his child to have a fa-
ther.” Latta, 771 F.3d at 470. But it’s not a father’s
“see[ing] a child being raised by two [married] wom-
en” that will reduce heterosexual males’ enthusiasm
for marriage. It’s the fact that, before they become
fathers, marriage will have already been redefined in
a way that signals their involvement is less im-
portant. Hawkins:12-20; Young(b):159. Although not
all heterosexual fathers or potential fathers will have
less interest in marriage, some—especially those at
the margins—undoubtedly will. Id.; Wax(c):57.

Similarly, when Judge Posner quips that hetero-

sexuals are “rewarded” with marriage because they
produce unwanted children while same-sex couples
who cannot produce unwanted children are “denied
the right to marry,” he misses a fundamental fact.
Bostic at 662. Marriage laws, and the gender-
complementary social institution they reinforce, have
nothing to do with gays and lesbians, either in design
or purpose. Gender-complementary marriage sprang
up in human history and has been reinforced by gov-
ernments to address the unique characteristics, bene-
 30

fits, and problems of man-woman sexual unions. See

supra 4-6; Scholars of History Brief.

Judge Reinhardt is likewise off the mark when,

referencing Judge Posner’s opinion, he sarcastically
wonders how genderless marriage would “drive oppo-
site-sex couples to sex, drugs, and rock-and-roll.”
Latta, 771 F.3d at 471 fn12. States are not generally
worried about rock-and-roll. But it is not implausible
that a movement away from the child-centric norms
of traditional marriage would weaken marriage’s role
in encouraging parents to avoid self-seeking activities
like drug use and extra-marital sex, which will likely
harm their children. One can laugh away the norms
of marriage, but undermining that ancient, benefi-
cent institution is no laughing matter.

Failure to Consider the Marginal Case. The most

basic flaw in the analyses of Judges Reinhardt,
Lucero and Posner is the classic failure to consider
the “marginal” case. Making marriage genderless
may have little impact on those who are now married
or who are well educated, well-to-do, religious and/or
otherwise committed to the marital norm of sexual
intercourse only between husband and wife. But
marginal marriage candidates—including the poor,
relatively uneducated, irreligious or others who are
highly influenced by cultural messages promoting
casual and uncommitted sex—likely will be affected.
Wax(c):60-61,71. And then the margins will likely ex-
pand, as they did with no-fault divorce. Id.:65

Indeed, when no-fault divorce was introduced, al-

most no one thought some other couple’s ability to
more easily divorce would affect their own marriage.
And no one thought no-fault divorce would reduce
 31

marriage rates. Jacob:151-52; Parkman:3; Weit-

zman:xi; Jennings:71 Now it is clear that no-fault
divorce has fundamentally altered the marriage insti-
tution—for many, making it more adult-centric—and
in the process has reduced marriage rates. It started
at the margins, but the divorce culture has now pene-
trated our marriage institution almost to the core.
See, e.g., Parkman:2-3,92,98-99,114,116-17,123-131;
Weitzman: xi-xviii. And whatever the causal factors,
one need only observe the collapse of marriage among
the poor and in our inner cities to see that the insti-
tution is fragile, and its demise devastating for chil-
dren. Murray:149,151-57,163-67; Wilcox(a):53.

Indeed, it does not take much unraveling at the

margins of marriage to affect the nation’s children
substantially. As noted, a mere five percent perma-
nent drop in the marriage rate—what young adult
women in the Netherlands experienced after it adopt-
ed genderless marriage, and at the low end of the re-
duction experienced by U.S. states that have adopted
same-sex marriage—would mean over the next 30
years, and under reasonable assumptions, nearly
600,000 more children raised outside marriage (see
Appendix B), with all the negative consequences that
follow. As social science has shown, the result will
not be pretty.

Analysis of Empirical Studies. In response to the

social risks of removing the man-woman definition
(and social understanding) of marriage, Judge Rein-
hardt cites a study suggesting that Massachusetts’
adoption of genderless marriage in 2004 had no im-
mediate impact on marriage or divorce rates there.
Latta, 771 F.3d at 469. But one decade—less than
half a generation—is not enough time for the full ef-
 32

fects of a major institutional change to be manifest.

Regardless, the study’s conclusions have been hotly
disputed. Indeed the evidence shows that, following
Massachusetts’ decision, there ensued a longer-term
increase in divorce and a decrease in opposite-sex
marriage rates. See Appendix B; CDC(a); CDC(b).10

Most important, except for the Sixth Circuit, all

the appellate opinions have disregarded Justice
Alito’s wise call for “caution and humility” in as-
sessing the impacts of a redefinition. Windsor, 133
S.Ct. at 2715. He is correct that genderless marriage
is still far too new—and the institution of marriage
too complex—for a full assessment of those impacts.
Id. at 2715-16. However, for reasons previously ex-
plained, the existing evidence shows that removal of
the man-woman definition poses real dangers to chil-
dren, to governments of all stripes, and to society.
And again, despite ample opportunity, petitioners
and their amici have not seriously disputed this.

10
Judge Posner also relies on the Dillender study without ac-
knowledging its lack of statistical rigor and unrealistic assump-
tion about the speed with which the effects of a major
institutional change will be manifest. And neither he nor Rein-
hardt addresses the much more relevant and credible Nether-
lands evidence showing a clear connection between genderless
marriage and decreased man-woman marriage rates.
 33

IV. Man-woman marriage laws are neither arbi-

trary nor driven by animus, and satisfy any
level of judicial scrutiny.

Based upon the benefits conferred on the state

and its citizens by the man-woman definition and
understanding of marriage, and the harms—or at
least risks—to the state and its citizens of eliminat-
ing that definition, a state’s decision to retain it pass-
es any legal standard. Certainly, the analysis
presented above—and the history and widespread ac-
ceptance of the man-woman limitation—forecloses
the idea that such a decision is irrational or driven by
animus or bigotry. Petitioners may not agree with
the venerable motivations behind man-woman mar-
riage, but that does not mean they have no basis in
history, common sense, or scientific fact. To the con-
trary, the man-woman definition satisfies any form of
heightened scrutiny because it is “narrowly tailored”
to achieve “compelling governmental interests.” See,
e.g., Grutter v. Bollinger, 539 U.S. 306, 326 (2003).

1. The man-woman definition substantially ad-

vances compelling state interests—including the wel-
fare of the vast majority of its children who are born
to opposite-sex couples. Miller:16. That isn’t to say
that states opting to retain the man-woman defini-
tion are unconcerned with same-sex couples or the
children they raise. But no state can responsibly ig-
nore the long-term welfare of the many when asked
to make a major change that might benefit at most a
few—no matter how valuable and important they are.

Like many advocates of genderless marriage, the

opinions by the Fourth, Seventh, Ninth and Tenth
Circuits respond, not by disputing the importance of
 34

the state’s interests, but by claiming the man-woman

definition pursues those interests in a manner that in
Judge Reinhardt’s words is “grossly over- and under-
inclusive …” Latta, 771 F.3d at 472; Bostic, 760 F.3d
at 381-82; Baskin v. Bogan, 766 F.3d 648, 661, 672
(7th Cir. 2014), cert. denied, 135 S. Ct. 316 (2014);
Kitchen, 755 F.3d at 1219-21. But from a social-
science perspective, that argument—and Judge Pos-
ner’s similar one—is wrong for multiple reasons.

First, it again ignores the real issue, which is the

impact of redefining marriage on the institution it-
self, and hence on all of the norms it reinforces. A
state can easily allow infertile man-woman couples to
marry (and avoid invading privacy) without changing
the man-woman definition and thus losing the bene-
fits of the attendant social norms. Indeed, allowing
such marriages reinforces rather than undermines
the norms of marriage for other man-woman couples
who can reproduce accidentally. Girgis:73-77; Som-
erville(b):63-78. Allowing infertile man-woman cou-
ples to marry is thus fully consistent with the
institutional norms of marriage, even if those couples
are the rare exception to the biological reality that
man-woman couples naturally procreate.11

Conversely, taking other measures to further the

state interests underlying the man-woman defini-
tion—such as Judge Reinhardt’s suggestion to “re-
scind the right of no-fault divorce, or to divorce
altogether”—would not materially reduce the adverse
impact of removing the man-woman definition. Lat-
ta, 771 F.3d at 472. Nor would it materially reduce

11
Only 1.7% of U.S. women are non-surgically sterile. NHSR(b):13. Sci-
ence has documented that male fertility extends late into life. Kuhnert:329.
 35

the resulting harms and risks to the state’s children

and the state itself. Because many of the norms and
social benefits associated with marriage flow from the
man-woman definition, removing it will have adverse
consequences no matter what else a state might do to
strengthen marriage.

Second, the underinclusiveness argument ignores

that, if it is to be effective in its objective of channel-
ing procreation into stable adult relationships, mar-
riage is underinclusive by necessity. The only way to
prove fertility would be to conceive. But that would
undermine marriage’s purpose of channeling procrea-
tion into marriage.

Third, “channeling” is just one of marriage’s pur-

poses. The analyses by Judges Reinhardt, Lucero
and Posner ignore its other social norms—including
the value of biological connections and gender diver-
sity in parenting. When those additional purposes
are considered, it becomes clear that the man-woman
definition is neither over- nor under-inclusive com-
pared to the collection of state interests it serves.

Finally, the “lack of fit” argument ignores that the

state’s choice is binary: It can either preserve the
benefits of the man-woman definition or it can re-
move it—replacing it with an “any two qualified per-
sons” definition—and risk losing those benefits. It
cannot do both. Thus, a state’s choice to preserve the
man-woman definition is narrowly tailored to the
state’s interests in preserving those benefits and in
avoiding the enormous societal risks accompanying a
genderless-marriage regime.
 36

In short, the risks outlined above—to the institu-

tion of marriage and consequently to a state’s chil-
dren and the state itself—amply justify a decision to
retain the man-woman definition. And they do so in-
dependently of any particular views on theology, nat-
ural law or sexual morality.

2. What does this imply for states that have

adopted genderless marriage through democratic
means, or who might do so in the future? As this
Court held in Windsor, they have a right to do that,
free from interference or second-guessing by the fed-
eral government.

But states that make that choice are subjecting

their children—and hence themselves—to enormous
long-term risks. Those include risks of increased fa-
therlessness, reduced parental financial support, re-
duced performance in school, increased crime,
substance abuse and abortions, and greater psycho-
logical problems—with the attendant costs to the
state and its citizens. Supra note 4.

However, a state that makes that choice on its

own—as a “laboratory” of democracy—can always
change its mind. See New State Ice Co. v. Liebmann,
285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
And if such a state later reintroduces the man-
woman definition—even if it “grandfathers” existing
same-sex marriages—over time it can likely recap-
ture the social norms that depend on that definition,
and thereby recapture the associated social benefits.

By contrast, a state ordered by a federal constitu-

tional ruling to abandon the man-woman definition
cannot simply re-enact it once the perils of the gen-
 37

derless marriage regime become more apparent. Like

a public figure falsely accused of wrongdoing, such a
state might well ask, “Where do I go to get my mar-
riage institution back?” A constitutional right to
same-sex marriage—with the consequent command
that a state redefine its understanding of marriage—
cuts off the process of voluntary experimentation that
is essential for assessing the long-term effects of ma-
jor institutional changes that, like no-fault divorce,
can have profound and even catastrophic unintended
consequences. When a court constitutionalizes such
institutional change, a state—and its people—have
no practical way to reverse those consequences once
they become apparent.

The impact of such a ruling on marriage would be

even more severe than the impact of Roe v. Wade on
the abortion debate. 410 U.S. 113 (1973). Even under
that decision, states still had leeway to be more “pro-
life” in the second and third trimesters. By contrast,
a decision mandating same-sex marriage logically re-
quires that marriage be redefined in genderless
terms—for everyone. There is no middle ground.

3. As a theoretical matter, moreover, there is no

principled ground for distinguishing other marital
innovations from same-sex marriage. For example, if
a lesbian woman has a constitutionally protected
right to marry the one woman she loves, why
wouldn’t a bisexual woman have a similar right to
marry the one woman and the one man she loves?
And why can’t each of them have a similar right to
marry her – the one other adult each of them loves?
After all, if the gender complementarity pillar of
man-woman marriage invidiously discriminates
against homosexuals, why isn’t the monogamy pillar
 38

of man-woman marriage similarly invalid against bi-

sexuals?

Social science offers no sound theoretical basis for

distinguishing between those situations. And absent
some grounding in social science, courts will have dif-
ficulty drawing a principled distinction between
them. Moreover, given that a large percentage of
parents who identify as lesbian or gay are in fact bi-
sexual (see Miller:Tables 1&2), courts across the Na-
tion will undoubtedly be forced to address this
situation if this Court establishes a right to same-sex
marriage.

Fortunately, the question presented in this case is

one on which social science, tradition, and common
sense converge: They all establish that the man-
woman understanding and definition of marriage
bring immense benefits to individuals and societies.

To be sure, some may take a different view of the

proper balance of benefits—though neither petition-
ers nor their amici have attempted to address the so-
cial costs and risks of redefining marriage to the
children of heterosexuals. But if the Court were “to
insist upon unanimity in the social science literature
before finding a compelling interest, we might never
find one.” Parents Involved in Community Schools v.
Seattle School District No. 1, 551 U.S. 701, 845 (2007)
(Breyer, J., dissenting) (emphasis added). That is all
the more reason to exercise the “judicial humility”
urged by Justice Alito, and to refrain from second-
guessing the people’s considered judgment on the ex-
istentially crucial issue of how best to define mar-
riage.
 39

CONCLUSION

What marriage reformers like Judge Reinhardt,

Judge Posner, petitioners and their amici don’t un-
derstand is that a social institution is like an ecosys-
tem—substantial changes to it can have
consequences that are unintended and slow-moving,
but still devastating. Thus G.K. Chesterton’s famous
warning applies here. “Nobody,” he said, “has any
business” to destroy or substantially modify “a social
institution until he has really seen it as an historical
institution”:

If he knows how it arose, and what purposes it

was supposed to serve, he may really be able to
say that they … are purposes which are no longer
served. But if he simply stares at the thing as a
senseless monstrosity that has somehow sprung
up in his path, it is he and not the traditionalist
who is suffering from an illusion.

Chesterton:173-74. The evidence outlined here—still

undisputed by petitioners and their amici—confirms
that the man-woman definition of marriage is not a
“senseless monstrosity.” To the contrary, it powerful-
ly advances compelling, secular state interests—
especially the aggregate welfare of the state’s chil-
dren. And it is on them that the forced abolition of
that definition would inflict enormous, irreparable
harm.

The decision below should be affirmed.

40

Respectfully submitted,

GENE C. SCHAERR
Counsel of Record
332 Constitution Ave. NE
Washington, DC 20002
(202) 361-1061
[email protected]
 APPENDIX A: List of Amici1

Aguirre, Dr. Maria S., Professor of Economics, The

Catholic University of America

Allen, Dr. Douglas W., Professor of Economics, Simon

Fraser University

Alvare, Helen M., Professor of Law, George Mason

University

Araujo, Dr. Robert John, University Professor Emeri-

tus, Loyola University Chicago

Baptist, Dr. Errol C., Clinical Professor of Pediatrics,

University of Illinois

Bateman, Dr. Michael, Assistant Professor of Pediat-

rics, University of Minnesota

Bauman, Dr. Michael E., Professor of Theology and

Culture, Hillsdale College

Benton, Dr. Thomas B.B., Adjunct Faculty in Pediat-

rics, University of Florida College of Medicine

Bleich, Dr. J. David, Professor of Jewish Law and

Ethics, Cardozo Law School, Yeshiva Universi-
ty

1 Institutions listed for identification purposes only. Opinions

expressed are those of the individual amici, and not necessarily
of their affiliated institutions.
 2a

Boone, Dr. Mark J., Assistant Professor of Philoso-

phy, Forman Christian College

Bouvier, Dr. Joseph, Clinical Assistant Professor of

Child Health (Pediatrics) and Emergency Med-
icine, University of Arizona College of Medicine

Bradford, Dr. Kay, Associate Professor of Family,

Consumer & Human Development, Utah State
University

Bradford, Dr. Nathan F., Associate Professor of Fami-

ly Medicine, AnMed Health Oglesby Center

Brakman, Dr. Sarah-Vaughan, Associate Professor of

Philsophy, Villanova University

Busby, Dr. Dean, Professor of Family Life, Brigham

Young University

Carlson, Jr., Dr. Alfred J., Associate Faculty in Pedi-

atrics, University of Pennsylvania Medical
School

Cavadini, Dr. John, Professor of Theology, University

of Notre Dame

Christensen, Dr. Bryce, Associate Professor of Eng-

lish, Southern Utah University

Colosi, Dr. Peter J., Associate Professor of Moral

Theology, Charles Borromeo Seminary

Corral, Dr. Hernan, Professor of Private Law, Uni-

versity of the Andes (Santiago, Chile)
 3a

Crosby, Dr. John F., Professor of Philosophy, Francis-

can University of Steubenville

De Jesus, Ligia M., Associate Professor of Law, Ave

Maria School of Law

Deneen, Dr. Patrick J., Associate Professor of Politi-

cal Science, University of Notre Dame

Dennis, Dr. Steven A., Professor of Human Develop-

ment, Brigham Young University-Idaho

DeWolf, David K., Professor of Law, Gonzaga Univer-

sity

Duncan, Dwight, Professor of Law, University of

Massachusetts

Esolen, Dr. Anthony M., Professor of English, Provi-

dence College

Farnsworth, Dr. Richard Y., Adjunct Associate Pro-

fessor of Pediatrics, University of Utah School
of Medicine

Field, Dr. Scott, Adjunct Faculty in Pediatrics, Uni-

versity of Alabama-Huntsville

Fields, Dr. Stephen M., Associate Professor of Theol-

ogy, Georgetown University

Fitzgibbons, Dr. Richard, Director, Institute for Mari-

tal Healing
 4a

Foley, Dr. Michael P., Associate Professor of Patris-

tics, Baylor University

Gombosi, Dr. Russell, Adjunct Professor of Pediatrics,

Commonwealth Medical University (Scranton,
PA)

Grabowski, Dr. John, Associate Professor of Moral

Theology & Ethics, The Catholic University of
America

Hafen, Bruce C., Emeritus Dean and Professor of

Law, Brigham Young University

Hancock, Dr. Ralph, Professor of Political Science,

Brigham Young University

Hartle, Dr. Ann, Professor of Philosophy, Emory Uni-

versity

Hawkins, Dr. Alan J., Professor of Family Life,

Brigham Young University

Healy, Dr. Nicholas J., Assistant Professor of Philos-

ophy, Pontifical John Paul II Institute on Mar-
riage and Family at The Catholic University of
America

Hendershott, Dr. Anne, Professor of Psychology, Soci-

ology & Social Work, Franciscan University of
Steubenville

Henry, Dr. Douglas, Associate Professor of Philoso-

phy, Baylor University
 5a

Hill, Dr. E. Jeffrey, Professor of Family Life, Brigham

Young University

Hoffman, Dr. Robert P., Professor of Pediatrics, The

Ohio State University

Holland, Dr. Matthew S., University President and

Professor of Political Science, Utah Valley Uni-
versity

Jacob, Bradley P., Associate Professor of Law, Regent

University

Jacobs, Dr. Nathan A., Visiting Lecturer in Philoso-

phy, University of Kentucky

James, Dr. Spencer, Assistant Professor of Family

Life, Brigham Young University

Jeynes, Dr. William, Professor of Education, Califor-

nia State University at Long Beach

Johnson, Dr. Byron R., Distinguished Professor of the

Social Sciences, Baylor University

Jones, Dr. Woodson S., Adjunct Professor of Pediat-

rics, University of Texas Health Science Center

Kaleida, Dr. Phillips H., Formerly Professor of Pedi-

atrics (Retired 2014), University of Pittsburgh

Kampowski, Dr. Stephan, Professor of Philosophical

Anthropology, Pontifical John Paul II Institute
on Marriage and Family at The Catholic Uni-
versity of America
 6a

Keen, Dr. Mary, Clinical Associate Professor, Loyola

University Medical School

Keys, Dr. Mary M., Associate Professor of Political

Science, University of Notre Dame

Knapp, Dr. Stan J., Associate Professor of Sociology,

Brigham Young University

Koterski, Dr. Joseph W., Associate Professor of Phi-

losophy, Fordham University

Krason, Dr. Stephen, Professor of Political Science

and Legal Studies, Franciscan University of
Steubenville

Kries, Dr. Douglas, Professor of Philosophy, Gonzaga

University

Lacy, Dr. Mark D., Associate Professor of Medicine,

Texas Tech University

Lafferriere, Dr. Jorge Nicolas, Professor of Civil Law,

Pontificia Universidad Catolica Argentina

Laughlin, Gregory K., Associate Professor of Law,

Cumberland School of Law, Samford Universi-
ty

Lindevaldsen, Rena M., Professor of Family Law,

Liberty University School of Law

Lim, Dr. Paul, Adjunct Professor of Surgery, Univer-

sity of Minnesota Medical School (Duluth)
 7a

Liu, Dr. Paul, Clinical Assistant Professor of Pediat-

rics, University of Arizona

Mansfield, Dr. Richard, Clinical Associate Professor

of Pediatrics, Georgia Health Science Universi-
ty; Assistant Professor of Pediatrics, Virginia
College of Osteopathic Medicine

Marcin, Raymond B., Emeritus Professor of Law, The

Catholic University of America

Martins, Joseph J., Assistant Professor of Law, Liber-

ty University School of Law

Matthews, Dr. Randolph, Clinical Assistant Professor

of Pediatrics, Wake Forest School of Medicine

McCarthy, Dr. Margaret, Assistant Professor of Theo-

logical Anthropology, Pontifical John Paul II
Institute at The Catholic University of America

McGehee, Dr. Frank T., Clinical Instructor in Pediat-

rics, University of Texas-Arlington

Mikochik, Stephen, Visiting Professor, Ave Maria

School of Law; Professor Emeritus, Temple
University School of Law

Miller, Dr. Jerry A., Clinical Professor of Pediatrics,

Medical College of Georgia

Morton, Dr. Charles, Clinical Professor of Pediatrics,

University of Illinois College of Medicine at
Urbana-Champaign
 8a

Nathanson, Dr. Paul, Religious Studies Faculty (re-

tired), McGill University

Nowicki, Dr. Michael J., Professor of Pediatrics, Uni-

versity of Mississippi School of Medicine

Olson, Dr. Ross, Assistant Professor of Pediatrics (re-

tired), University of Minnesota

Pearson, Dr. James M., Assistant Clinical Professor,

East Tennessee State University College of
Medicine

Pearson, Dr. Lewis, Assistant Professor of Philoso-

phy, University of St. Francis

Pecknold, Dr. C. C., Associate Professor of Theology,

The Catholic University of America

Peterson, Dr. James C., Professor of Ethics, Roanoke

College

Prudlo, Dr. Donald S., Associate Professor of Ancient

& Medieval History, Jacksonville State Uni-
versity

Pruss, Dr. Alexander, Professor of Philosophy, Baylor

University

Rane, Dr. Tom, Professor of Child Development,

Brigham Young University-Idaho

Schlueter, Dr. Nathan, Associate Professor of Philos-

ophy, Hillsdale College
 9a

Schramm, Dr. David, Associate Professor of Human

Development & Family Studies, University of
Missouri

Shaw, Dr. Bill, Assistant Professor of Pediatrics, Vir-

ginia Commonwealth University

Shelton, Dr. Jean, Associate Professor of Pediatrics,

East Virginia Medical School

Sherlock, Dr. Richard, Professor of Philosophy, Utah

State University

Silliman, Dr. Ben, Professor of Youth Development,

North Carolina State University

Smith, Dr. Christine Z., Assistant Professor of Pedi-

atrics, Texas Tech Paul Foster School of Medi-
cine

Smolin, David M., Professor of Law, Cumberland Law

School, Samford University

Sodergren, Dr. Andrew, Adjunct Assistant Professor

of Psychology, Pontifical John Paul II Institute
at The Catholic University of America

Somerville, Dr. Margaret, Professor of Law, Professor

Faculty of Medicine, McGill University

Storm, Dr. Joanna, Professor of Psychology, Francis-

can University of Steubenville
 10a

Tollefsen, Dr. Christopher, Professor of Philosophy,

University of South Carolina

Vitz, Dr. Paul C., Senior Scholar and Professor of

Psychology, The Institute for Psychological
Sciences; formerly Professor of Psychology,
New York University

Vizcarrondo, Dr. Felipe E., Associate Professor, Uni-

versity of Miami Miller School of Medicine

Walls, Dr. Jerry, Professor of Philosophy, Houston

Baptist University

Wheless, Dr. James W., Professor and Chief of Pedi-

atric Neurology, University of Tennessee

Williams, Dr. Richard N., Professor of Psychology,

Brigham Young University

Wilson, Jr., Dr. Robert, Clerkship Co-Director of Pe-

diatrics, Florida State University College of
Medicine

Yates, Dr. Ferdinand D., Professor of Clinical Pediat-

rics, State University of New York at Buffalo

Yenor, Dr. Scott, Professor of Political Science, Boise

State University

Young, Dr. Katherine K., Professor Emeritus of Reli-

gious Studies, McGill University

Zanga, Dr. Joseph, Professor of Pediatrics, Mercer

University School of Medicine; Clinical Profes-
 11a

sor of Pediatrics, Medical College of Georgia &

Philadelphia College of Osteopathic Medicine

Zaso, Dr. John, Clinical Assistant Professor of Pedi-

atrics, Hofstra NS-LIJ School of Medicine
 12a

APPENDIX B: Technical Analysis of Statistics

on Marriage, Non-Marital Births and Divorce

This appendix presents a technical analysis of is-

sues related to rates of marriage, non-marital births
and divorce in states and nations that have adopted
same-sex marriage. In so doing it evaluates several
related statements in the Brief of Amici Curiae Mas-
sachusetts et al. (“Amicus Br.”).

Marriage Rates

Statement #1: “In contrast to a pre-existing na-

tional downward trend, overall marriage rates in
States that permit same-sex couples to wed have im-
proved. Marriage rates immediately increased in all
seven States for which data are available (Connecti-
cut, the District of Columbia, Iowa, Massachusetts,
New Hampshire, New York, and Vermont).” Amicus
Br. 22.

While both sentences are technically true, the

statement is misleading because the same-sex mar-
riage (SSM) states now count same-sex marriages in
their marriage totals, boosting their overall numbers.
When only opposite-sex marriages are counted—in
the four states that kept such data for a time—a very
different picture emerges:
 13a

Opposite- Year SSM Y2 Y3 Y4 Y5 Y6

Sex Mar- Before Year
riage Rates SSM 1
per 1,0002
VT 7.9 7.5 ND ND ND ND ND
IA 6.5 6.1 6.1 6.0 6.2 5.9 ND
CT 5.5 5.2 5.1 ND ND ND ND
MA3 5.6 5.5 5.8 5.7 5.6 5.3 5.1
Note: ND = no data

Thus, as of the last year of available data for oppo-

site-sex marriage rates in the states that kept such
data, no state that had adopted SSM had opposite-sex
marriage rates equal to or higher than the pre-SSM
level. And the overall trend in all four states has
been a significant decline in measured opposite-sex
marriage rates. The following chart, consisting of the
data from the above table, makes that clear:

2 Data for Iowa and Massachusetts were obtained from those

states; data for the other states were obtained from Alexis Dinno
& Chelsea Whitney, Same Sex Marriage and the Perceived As-
sualt on Opposite Sex Marriage, 8 PLOS One (June 2013) (avail-
able at http://journals.plos.org/plosone/article?id=10.1371/
journal.pone.0065730). That study itself has serious methodolog-
ical flaws, including only a few years of same-sex marriage
(compared to same-sex civil unions), which reduces the statisti-
cal ability to find differences, as well as a complete lack of con-
trol variables for any state.
3 We have obtained four additional years of data from Massa-

chusetts, and the marriage rates are Y7 (5.2), Y8 (5.2), Y9 (5.3)

and Y10 (5.1) – the same rate as Y6.
 14a

8
Opposite-Sex Marriage Rates
7.5
7
6.5
6
5.5
5
PreSSM Year1 Year2 Year3 Year4 Year5 Year6

Vermont Iowa
Connecticut Massachusetts

In fact, the opposite-sex marriage rate for each of

these four SSM states is the lowest recorded in each
state’s history.

Statement #2: “Nor have marriage equality

States seen a dramatic decrease in the rate at which
different-sex couples in particular marry. In some,
the number of different-sex marriages increased in
the years following the State’s recognition of same-
sex marriages.” Id. at 23.

This statement is almost entirely false. As noted

above, all four SSM states with data on opposite-sex
marriages through 2009 have experienced marked
declines in the rate of opposite-sex marriages. Three
of the states have never seen opposite-sex marriages
rise to their pre-same-sex marriage level. One state
(Massachusetts) saw an initial decline, then a fleeting
increase, but then a further decline below pre-SSM
levels.

Over the entire period, Vermont experienced a

5.1% drop, Iowa a 9.2% decline, Connecticut a 7.3%
decrease, and Massachusetts an 8.9% reduction in
 15a

their respective opposite-sex marriage rates in the

last year for which data are available, compared to
the year just prior to adopting same-sex marriage.
However, from 2009 (the first year of genderless mar-
riage in Iowa and Vermont, and the second in Con-
necticut) until 2012, the marriage rate in the United
States remained stable.4

Furthermore, similar to the findings out of the

Netherlands where the country’s Bible Belt and less
religious areas experienced different effects from
adopting same-sex marriage, with the less religious
areas suffering significant declines in marriage rates,
a similar pattern is unfolding in Massachusetts.
There the more religious counties saw their marriage
rate drop from 6.2 to 6.0 (a 3.3% decline), whereas the
less religious counties saw their marriage rate reduce
from 11.6 to 9.6 (a 16.8% decline).5

14
11.6
Marriage Rate per 1,000

12
9.6
10
8 6.2 6
6
4
2
0
Year Before SSM (2003) Last Year of Data (2010)

More Religious Counties Less Religious Counties

4 CDC(b). While the national data will include same-sex mar-

riages, their numbers are so low that they would make very lit-
tle impact on the overall country-level rate.
5 Data were obtained from the state of Massachusetts.
 16a

Other western nations that have adopted same-

sex marriage have also seen subsequent declines in
their marriage rates. Perhaps the most notable is
Spain, which in the nine-year period before adopting
same-sex marriage saw marriage rates increase, and
in the nine years after has seen opposite-sex mar-
riage rates plummet by 36%.6

Spain: Before & After Adopting

Genderless Marriage
6
Marriage Rate per 1,000

5 Year of Change
4
3
2
1
0
-9 -8 -7 -6 -5 -4 -3 -2 -1 1 2 3 4 5 6 7 8 9

Belgium7 and Canada8 have seen more modest de-

clines of (respectively) 7.7% and 4.3% (6.8% if you
count from when the first provinces adopted same-sex
marriage). However, Canada and Belgium’s rates re-
flect all marriages, so they underrepresent the de-
cline of opposite-sex marriage rates.

6 Data on Spanish marriages from Instituto Nacional de Esta-

distica, and on Spanish population from the World Bank. Data
available through 2013.
7 Data from Eurostat and NationMaster. Data available through

2012.
8 Anne Milan, Marital Status: Overview, 2011 at 8, Component

of Statistics Canada Catalogue no. 91-209-X (July 2013), availa-

ble at http://www.statcan.gc.ca/pub/91-209-
x/2013001/article/11788-eng.pdf. Data available through 2008.
 17a

In addition, the Netherlands study discussed

above, using more sophisticated statistical analysis
than that presented above for the relevant U.S. states
and foreign nations, found that the nationwide de-
cline in marriage rates for Netherlands women aged
18-22 went from 2.8% to 7.8% per year in the period
after redefining marriage in genderless terms—for a
net decline in the marriage rate (after adjusting for
the pre-existing trend) of 5%. When the population
was further subdivided, the net decline in the mar-
riage rate was even larger among some populations:
a decline of 31.8 percent for young women in the four
largest urban areas, and 13.4% for all native Nether-
lands young women.9

9 Mircea Trandafir,The Effect of Same-Sex Marriage Laws on

Different-Sex Marriage: Evidence from the Netherlands, 51 De-
mography 317, 333-37 Table 3, Table 4, Table 5 (2014).
Trandafir’s more recent study (Trandafir(c)) also examines
data on Belgium and Canada—whose data are less useful be-
cause they don’t separate opposite-sex and same-sex marriag-
es—but omits Spain on the ground that it liberalized divorce at
the same time it adopted same-sex marriage. But this is merely
further evidence that the institution of man-woman marriage
can be significantly altered—and weakened—by legal changes.
By making both changes simultaneously, Spain wrought a dou-
ble whammy on marriage, likely creating an interaction effect
between the two changes. Since no country or state has seen
such a rapid decline in the man-woman marriage rate in the
wake of adopting more liberalized divorce laws, it is impossible
to attribute all or even most of the change to that. Genderless
marriage, and its interaction with easier divorce, appears to be
doing most of the work.
Further, Trandafir’s more recent study ignores in-country
heterogeneous effects discussed in his earlier study, based on
the unsupported assertion that since countries are different,
heterogeneous effects should show up at the country level. With
his analysis so limited, he finds no effect from the adoption of
 18a

Nonmarital Births

Statement #1: “Massachusetts’s nonmarital birth

rate has been well below the national average for
years, including after same-sex couples began to mar-
ry. In 2013, 12 of the 17 marriage equality States
had lower percentages of births to unmarried moth-
ers than the nationwide rate.” Amicus Br. at 23-24.

The reason the percentage of nonmarital births is

low in Massachusetts, and in many of these other
SSM states, is that their abortion rates are so high—
higher than the national average, whether measured
in number of abortions per 1,000 women aged 15-44,
or number of abortions per 1,000 live births. This is
shown in the following chart:

same-sex marriage, but would also have found no effect in his

Netherlands study if he had not looked at differences across
gender, religiosity, and ethnicity. Finally, Trandafir’s graphs in
his Figure A (121) show that in countries that have adopted
same-sex marriage, for the three years prior to the adoption the
marriage rates had leveled out, but upon adoption declined. The
other OECD nations examined in this study did not redefine
marriage soon enough for Trandafir to attempt to examine the
effects of that change, and his analysis of other legal develop-
ments (like civil unions) in those countries is irrelevant to the
analysis here.
 19a

Abortion Per Nat’l Per Nat’l

Rates, Ratios 1,000 Rank- 1,000 Rank-
& Rankings wom- ing live ing12
en10 births
11

U.S. 16.9 n/a 219 n/a

Non-SSM 12.9 n/a 168 n/a
State Avg.
SSM State 19.4 n/a 288 n/a
Avg.
MA 17.8 12 283 7
DC 28.5 3 298 6
NY 34.2 1 461 1
IA 9.7 126 34
CT 21.3 8 338 4
VT 11.7 32 223 14
NH 12.9 26 ND ND

As the chart shows, most of the SSM states have

higher abortion rates and ratios than the U.S. aver-
age—with four of the SSM states ranking in the top
10.13 Thus, in 2011, SSM states averaged 50.4%
more abortions per 1,000 women, and 71.4% more
abortions per 1,000 births.14

10 Guttmacher Institute(b), State Facts About Abortion, available

at http://www.guttmacher.org/statecenter/sfaa.html
11 CDC(d), Abortion Surveillance—United States, 2011 (Nov. 28,

2014), available at http://www.cdc.gov/mmwr/preview/

mmwrhtml/ss6311a1.htm?s_cid=ss6311a1_w.
12 New Hampshire, California, Maryland and Wyoming did not

submit data for abortion ratios per 1,000 live births.

13 While amici point to 17 states with same-sex marriage in

2013, the latest abortion data is only available from 2011, when
only 7 states had same-sex marriage.
14 19.4/12.9; 288/168.
 20a

Combining these data with the above data show-

ing a decline in opposite-sex marriages rates in the
wake of a state’s adopting same-sex marriage, we can
reasonably conclude that a nationwide rule mandat-
ing recognition of such marriages would likely be fol-
lowed in each state by some combination of increased
abortions and increased nonmarital births. And the
precise combination would depend on whether the
state’s population tends to be more pro- or anti-
abortion.15 The logic is simple and intuitive: Fewer
opposite-sex marriages means more unmarried wom-
en, which in turn means fewer children born, more
children born to unmarried mothers, and more chil-
dren aborted. See also Scholars of Fertility Brief.

Analysis of readily available data also permits us

to predict the likely magnitude of these effects. We
know, for example, that in 2012 there were 2.131 mil-
lion marriages in the U.S16--with approximately 80%
of those (1.7 million) being to those in their childbear-
ing years, i.e., ages 15-44. We also know that, at 5 to
9 percent, the raw decline thus far in opposite-sex
marriage rates in the U.S. states that have adopted
same-sex marriage are in line with (and probably
lower than) the long-term decline predicted by the
Netherlands study, which examined the impact of a
redefinition over a longer period, as well as the anal-
ysis of Spain, Belgium and Canada discussed above.

15 Of course, correlation is not causation. But the Netherlands’

data and its analysis is sufficiently sophisticated that causality
can be derived, and the Netherlands’ findings are consistent
with the descriptive state data.
16 CDC(c), National Marriage and Divorce Rate Trends, availa-

ble at http://www.cdc.gov/nchs/nvss/marriage_divorce_tables.
htm
 21a

(Recall that the decline in Canada’s marriage rate

was 4.3 percent, including same-sex marriages.)

Conservatively applying the lowest of these state

reductions, a 5% reduction in marriages among U.S.
residents aged 15-44 (from a base of 1.7 million)
means 85,000 fewer marriages per year. Over a 30-
year fertility cycle, that amounts to 2.55 million fewer
marriages. To be sure, some of those women will
simply delay marriage,17 while others will never mar-
ry. Historically, about half of those not married dur-
ing the age cohort of 25-34 will not marry before 55,
and somewhat more than half will not marry by 45,
the end of the fertility cycle for census purposes.18

Accordingly, conservatively assuming that half of

the decline in marriages over the next generation
would come from women who permanently never
marry as opposed to delaying marriage, this would
mean that 2.5% more women aged 15-44 will never
marry.19 That in turn implies that over a 30-year cy-
cle, a total of 1.275 million additional women would

17 Of course, this increases the number of children born while

out of wedlock, and reduces the number of children who will be
born overall, due to fewer pregnancies from contraception, or
fewer births due to abortion. The calculations reported below
conservatively ignore this effect of a declining marriage rate.
18 Pew Research Center, Record Share of Americans Have Never

Married (September 24, 2014), available at

http://www.pewsocialtrends.org/2014/09/24/record-share-of-
americans-have-never-married/
19 Kennedy & Ruggles observe: “With the rise of cohabitation, it

is likely that many couples who would have been at the highest
risk of divorce in the past—for example, those entering unions
as teenagers as a result of an unplanned pregnancy, or with low
levels of income and education—are forgoing marriage entirely.”
Id. at 596.
 22a

never marry—the equivalent of the entire city of Dal-

las, TX.20

What effect will this increased number of never-

married women have on children? To answer that
question we must first examine statistics on total life-
time fertility. The average number of children born
to a woman ever married during her childbearing
years (15-44) is 1.84.21 By contrast, a woman never
married during those years averages 0.46 children.
Multiplying the latter number by the 1.275 million
unmarried women who would have been married but
for nationwide same-sex marriage leads to the con-
clusion that, over a 30-year fertility cycle, we would
expect to see 586,500 children born to unmarried
mothers—nearly the population of Washington,
D.C.22

This is a very conservative prediction. As noted, it

assumes that the reduction in the marriage rate is at
the very low end of actual experience in both the U.S.
and the Netherlands. It also assumes that the expe-
rience in those jurisdictions over a small number of
years (a year or two in some cases) fully captures the
total, steady-state impact of a marriage redefinition

20 U.S. Census Bureau, Table 27: Incorporated Placed with

175,000 or More Inhabitants in 2010, available at
https://www.census.gov/compendia/statab/2012/tables/12s0027.p
df.
21 U.S. Census Bureau, Current Population Survey, Table 3:

Children Ever Born per 1,000 Women and Percent Childless by

Age and Marital Status (June 2012), available at
http://www.census.gov/hhes/fertility/data/cps/2012.html.
22 U.S. Census Bureau, Table 27: Incorporated Placed with

175,000 or More Inhabitants in 2010, available at

https://www.census.gov/compendia/statab/2012/tables/12s0027.p
df.
 23a

on opposite-sex marriage rates. It also ignores the

impact of increasing the number of women who mar-
ry but do so later in life—thus resulting in more
nonmarital childbirths as they delay marriage during
their peak childbearing years. And it assumes that,
on average, the additional women who never marry
behave more like single non-cohabiting women than
single cohabiting women—who have substantially
higher birthrates than the average for all single
women.23

Under the conservative assumptions and analysis

outlined above, it is also fair to attribute this nearly
600,000 increase in nonmarital births to a hypothet-
ical nationwide rule requiring same-sex marriage,
compared to a regime in which states are free to de-
cide—and in fact do decide—to preserve the tradi-
tional man-woman definition of marriage.24 And

23 Cohabitating women have a birth rate nearly 8 times that of

non-cohabitating single women. That number is derived as fol-
lows: Currently 58% of children born to unmarried mothers are
from women who are cohabitating, Curtin et al.(b), Recent
Declines in Nonmarital Childbearing in the United States,
NCHS Data Brief No. 162 (August 2014), available
http://www.cdc.gov/nchs/data/databriefs/db162.pdf at 4, whereas
single women who have never married are about five times
greater in number in the total population of women (cohabi-
tating, not married = 8.4%, never-married, not cohabitating =
39.7%, and previously married, not cohabitating = 8.2%).
Guttmacher Institute(a), Characteristics of U.S. Abortion Pa-
tients, 2008, available at http://www.guttmacher.org/pubs/US-
Abortion-Patients.pdf, at 6. Cohabitating women are 15% of the
unmarried women population and have 58% of the babies, and
single women are 85% of the population and have 42% of the
babies. The calculation is (58/15)/(42/85) = 7.9.
24 Granted, 17 states already have same-sex marriage through

their own initiative, and would likely continue to do so if the

Court upholds man-woman marriage laws. We would expect to
 24a

shortly after the Netherlands adopted genderless

marriage, out-of-wedlock births saw their biggest in-
crease in 40 years.25

In addition, given the difference between lifetime

fertility rates of married versus never-married wom-
en (1.84 versus 0.46), the above analysis implies that
there will be as many as 1.75 million children who
would have been born, but will not.26 This number is
larger than the population of Philadelphia.27 Some of

see a continued adverse impact in those states even if the rest of

the country does not follow, and so the differences we project
could be somewhat overstated in that sense. However, we do not
see this as a problem for two reasons. First, because these
states would be a minority, and a majority of the states would
still be under man-woman laws, the impact of same-sex mar-
riage on opposite-sex marriage rates in these minority states
would be somewhat diluted. Second, we have consistently
sought to use conservative estimates, and these likely compen-
sate for any effect of some states having already chosen same-
sex marriage on their own.
25
Jennings:75.
26 The math is as follows: 1.275 million x (1.84-0.46) =
1,759,500. But here, multiplying 1.275 million unmarried wom-
en by the difference in lifetime fertility rates between married
and unmarried women biases the prediction upward, since the
future group of unmarried women will likely have a higher pro-
portion of women cohabitating (compared to being single and not
cohabitating) than now, and those women have higher
birthrates. However, the other conservative assumptions dis-
cussed above—such as assuming a low reduction in overall mar-
riage rates and ignoring the impact of delaying but not
eliminating marriage—may offset this bias. In any event, the
number of children who would have been but will never be born
under a nationwide same-sex marriage regime is likely to be
large.
27 U.S. Census Bureau, Table 27: Incorporated Placed with

175,000 or More Inhabitants in 2010, available at

https://www.census.gov/compendia/statab/2012/tables/12s0027.p
df.
 25a

this reduction in the overall number of births will be

due to contraception. But some will be children who
are aborted before birth.

How many? Currently, there are 28.9 abortions

per 1,000 unmarried women per year (in contrast to a
rate of 6.1 for married women).28 One can calculate
the total number of abortions over an unmarried
woman’s childbearing years by averaging this rate
over her assumed 30-year fertility period. Thus, un-
married women average .87 abortions during their
lifetime.29 So, with 1.275 million women never get-
ting married, nearly 900,000 children of the next
generation will be aborted—children that would have
been born if their mothers had married.30 This is
similar in magnitude to the entire cities of Sacramen-
to and Atlanta combined being aborted over the next
generation.31 And again, this is a conservative pre-
diction of a value that is likely significantly higher.32

28 Sally C. Curtin et al.(a), Pregnancy Rates for U.S. Women

Continue to Drop, NCHS Data Brief No. 136, at 5 (December
2013), available at
http://www.cdc.gov/nchs/data/databriefs/db136.pdf.
29 28.9 abortions per 1,000 unmarried women times 30 years =

867 abortions per 1,000 unmarried women for that period, or .87
abortions per woman.
30 .87 unmarried women x 1.275 million unmarried women =

1,109,250 abortions. 6.1 abortions per 1,000 married women an-

nually is .18 abortions per married woman (6.1 x 30 / 1000).
1.275 million unmarried women x .18 abortions = 229,500.
1,109,250 – 229,500 = 879,750.
31 U.S. Census Bureau, Table 27: Incorporated Placed with

175,000 or More Inhabitants in 2010, available at

https://www.census.gov/compendia/statab/2012/tables/12s0027.p
df
32 It doesn’t count abortions from women who choose to delay

marriage during their prime childbearing years. Also, the abor-

 26a

Divorce Rates

Statement #1: “Marriage equality States have not

experienced increased rates of divorce.” Amicus Br.
23.

This is false. The divorce rates in states that have

adopted same-sex marriage increased from the year
before—the opposite of the national trend—in three
of the SSM states, and were higher in 2011 than be-
fore adopting SSM in three of the states:

tion index—a sub-group’s relative abortion rate calculated by

determining the group’s proportion of total abortions compared
to the group’s proportion of the total population—is more than
three times higher for cohabitating women (3.46) compared to
the typical woman. Guttmacher Institute(a), at 5. Non-
cohabitating single women are only slightly above average
(1.13), and married women (0.34) are well below the likelihood of
abortion for the typical woman. Hence, since a greater propor-
tion of the estimated 1.275 million additional unmarried women
over the next 30 years will likely cohabitate, the actual number
of abortions is likely to be substantially higher.
 27a

State Divorce Rate Year Prior 2010 2011

Per 1,00033 To SSM
MA 2.5 2.5 2.7
CT 3.4 2.9 3.1
IA 2.6 2.4 2.4
VT 3.6 3.8 3.6
NH 3.7 3.8 3.8
DC 2.7 2.8 2.9
NY 2.9 2.9 2.9

In fact, Massachusetts—the state with the longest

experience with same-sex marriage—has since 2008
(4 years after adopting genderless marriage) seen a
large increase in divorces, the largest of any state in
the country. This is true whether the increase is
measured in raw ratios—an increase of 0.7 per 1,000
(2.7 in 2011 versus 2.0 in 2008)—or percentages—an
increase of 35% in just three years. That this sky-
rocketing divorce rate did not start until a few years
into the adoption of genderless marriage is not sur-
prising, since changes in divorce rates will lag even
further behind changes in marriage rates when there
is an exogenous shock to the institution of marriage,
such as a redefinition.

Statement #2: “Six of the seven jurisdictions that

permitted same-sex couples to marry as of 2011 had a
divorce rate that was at or below the national aver-
age. Four of the ten States with the lowest divorce
rates in the country were marriage equality States.”
Id. at 23.

33 CDC(b), Divorce Rates by State, available at

http://www.cdc.gov/nchs/data/dvs/state_divorce_rates_90_95_an
d_ 99-12.pdf. Data for 2012, while available, are still provision-
al.
 28a

It is true that, as of 2011, four of the seven SSM

states had divorce rates below the national average.
But given that about 80% of marriages last at least
five years, and only one of those SSM states had had
same-sex marriage five years or longer in 2011,34 it
would not be surprising to see little impact so far in
the other states. In other words, more time is needed
to assess the impact on divorce rates given the lag be-
tween marriage and divorce. Also, given that these
are mostly Northeastern states, it’s unclear how well
their experience will generalize to the rest of the na-
tion.

Additionally, divorce rates are closely related to

marriage rates, and the SSM states also had lower
marriage rates. States with lower marriage rates ap-
pear to experience a “selection effect”—i.e., couples
less likely to divorce are more likely to marry, and
couples more likely to divorce are more likely cohabit
rather than marry. The end result is an unrealistic
comparison of one state with stronger marriages but
fewer of them, with another state that has (on aver-
age) weaker marriages but more of them. Of course
the state with more but weaker marriages (on aver-
age) will have a higher divorce rate. See Kennedy &
Ruggles:596. However, as between the two, for rea-
sons explained in the text, children are more likely to
flourish in the latter type of state, as long as it re-
tains a higher percentage of married biological par-
ents.

34 National Health Statistics Reports(a), First Marriages in the

United States: Data from the 2006-2010 National Survey of
Family Growth, Number 49 (March 22, 2012) (available at
http://www.cdc.gov/nchs/data/nhsr/nhsr049.pdf#x2013;2010 Na-
tional Survey of Family Growth [PDF - 419 KB</a>).