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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION APRIL DEBOER, et al., v

Plaintiff,

RICHARD SNYDER, et al.,

Case No. 2:12-cv-10285-BAF-MJH Hon. Bernard A. Friedman

Defendants. __________________________________________________________________________/

DEFENDANT BROWNS RESPONSE BRIEF IN SUPPORT OF SUMMARY JUDGMENT FOR PLAINTIFFS

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QUESTIONS PRESENTED: Does the Michigan Marriage Amendment violate the Fourteenth Amendment to the United States Constitution where it infringes upon the fundamental right of same-sex couples to marry?

Does the Michigan Marriage Amendment violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution where it irrationally disadvantages homosexuals for invidious reasons? Plaintiffs Answer: Yes Defendant Brown Answers: Yes State Defendants Answer: No

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MOST APPROPRIATE AUTHORITIES United States v. Windsor, 133 S.Ct. 2675 (2013). Romer v. Evans, 517 U.S. 620 (1996). Lawrence v. Texas, 539 U.S. 558 (2003). Hicks v. Miranda, 422 U.S. 332 (1975).

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I.

Introduction Defendant Brown reiterates her support of Plaintiffs Motion for

Summary Judgment. For the reasons set out below and in Defendant Browns Summary Judgment should be denied. II.

previously filed Brief in Support of Plaintiffs, the State Defendants Motion for Defendant Brown Opposes the State Defendants Motion for Summary Judgment A. The Regulation of Marriage Is Not Purely a Matter of State Law The State Defendants attempt to convince this Court that the definition

of marriage is entirely a creature of state law. State Def. Br. at 9. This, of course, is untrue. While marriage is generally treated as being within the authority and realm of the separate States, United States v. Windsor, 133 S.Ct. 2675, 2690 (2013), State laws defining and regulating marriage, of course,

must respect the constitutional rights of persons. Id. at 2691 (citing Loving v. Virginia, 388 US 1 (1967). This is because marriage is one of the basic civil at 12. rights of man, fundamental to our very existence and survival. Loving, 388 US While the Windsor court certainly discussed states rights, it did not

It did not hold that states rights concerns determine constitutional challenges
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indicate that states have unfettered authority to trample constitutional rights.

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rooted in federalism. Windsor, supra at 2692.

to laws concerning marriage.

To the contrary, Windsor was not a decision

limitations. This Court is not required to turn a blind eye to constitutional violations on the basis of states rights. B. Baker v. Nelson Does Not Control the Outcome of This Case

The State has authority to define marriage only within constitutional

dismissed a challenge to a ruling of the Minnesota Supreme Court that a same Court merely stated, without briefs or oral argument, that the appeal was dismissed for want of a substantial federal question. A summary dismissal for want of a substantial federal question sex marriage ban did not violate the Fourteenth Amendment. The Supreme

In Baker v. Nelson, 409 U.S. 810 (1971), the Supreme Court summarily

remains a decision on the merits of the precise questions presented except

when doctrinal developments indicate otherwise. Hicks v. Miranda, 422 U.S. 332, 344 (1975) (internal quotes omitted). The State Defendants argue that Baker controls the outcome of this case.

doctrinal shifts which indicate that Baker is not dispositive of the case currently before this Court. Most notably, those doctrinal shifts are
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In the four decades since Baker was decided, there have been significant

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demonstrated by Windsor, Lawrence v. Texas, 539 U.S. 558 (2003), and Romer v. Evans, 517 U.S. 620 (1996). At the time Baker was decided, states could constitutionally enact laws

decided, it was not clear that states could not constitutionally enact laws when Baker was decided, equal protection jurisprudence was so insufficiently merely to harm homosexuals. See Windsor, supra; Romer, supra. Moreover,

U.S. 558, 574 (2003)(overturned by Lawrence, supra). At the time Baker was

criminalizing consensual homosexual sodomy. See Bowers v. Hardwick, 478

gender based classifications were not quasi-suspect. See Windsor v. United development of equal protection jurisprudence. States, 699 F.3d 169, (2012). Clearly, there has been considerable doctrinal Furthermore, a summary dismissal like Baker is binding only on the

developed that intermediate scrutiny did not even exist and illegitimacy and

precise issues presented and necessarily decided. Mandel v. Bradley, 432 U.S. 173, 176 (1977)(emphasis added). Thus, after Baker, courts were not free to declare Minnesotas law prohibiting same sex marriage unconstitutional. However, it does not follow that every state law prohibiting same sex marriage is constitutional. constitutional amendment which bans both marriage and similar unions.
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Unlike the law in Baker, the MMA is a

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issues before this Court and, in any case, significant doctrinal developments call Baker into question. C. The MMA Cannot Withstand Even Rational Basis Review

Baker does not control this case because it did not decide the precise

demonstrate animus against homosexuals. Where a law is motivated by an improper purpose, such as the desire to harm a politically unpopular group, the law violates equal protection. Windsor, 133 S.Ct. at 2693; Romer, 517 U.S. purpose of this amendment was to invidiously discriminate against

the MMA was not enacted in an effort to harm homosexuals or that it does not

Notably, the State Defendants fail to make any persuasive argument that

at 634; Stemler v. City of Florence, 126 F.3d 856, 871 (6th Cir. 1997). The homosexuals.1 The Sixth Circuit holds that State action for the purpose of

Health Servs., 679 F.3d 433, 438 (6th Cir. 2012); Scarbrough v. Morgan Cnty
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harming homosexuals is a violation of equal protection. See Davis v. Prison

the arguments of the Michigan Law Professors as Amici Curiae in Support of animus. Plaintiffs demonstrating that the MMA was motivated by discriminatory

Defendant Brown relies upon her previously filed brief and also adopts

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F.3d 856, 871 (6th Cir. 1997).

Bd. of Educ., 470 F.3d 250, 261 (6th Cir. 2006); Stemler v. City of Florence, 126 The MMA fails rational basis review.

D. The MMA Violates Due Process

because there is no fundamental right to same-sex marriage.

The State Defendants argue that the MMA comports with Due Process Defendant

Brown disagrees. Plaintiffs, and all others identifying as homosexual, are guaranteed the same constitutional right to intimate association as heterosexuals. As explained in Defendant Browns previously filed Brief in Support of Plaintiffs, the fundamental right to intimate association encompasses the right to marry. There is no logically sound reason why homosexuals should be guaranteed each and every right under the umbrella of intimate association rights except for the right to marry. All individuals have the constitutional right to marry the person of their choosing, even if that rights homosexuals or same sex couples are entitled to under the Constitution.

person is of the same sex. The State may not select which intimate association Defendant Brown relies upon her previously filed Brief in Support of

Plaintiffs Motion for Summary Judgment to demonstrate that the MMA violates the Due Process Clause of the Fourteenth Amendment.
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III.

Conclusion The MMA is unconstitutional and judgment should be granted in favor

of the Plaintiffs.

By:

Dated: September 9, 2013

/s/ Andrea J. Johnson_____________ Michael L. Pitt (P24429) Beth M. Rivers (P33614) Andrea J. Johnson (P74596) Attorneys for Plaintiff 117 West Fourth Street, Suite 200 Royal Oak, Michigan 48067 (248) 398-9800

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CERTIFICATE OF SERVICE The undersigned certifies that the foregoing instrument was filed with the U.S. District Court through the ECF filing system and that all parties to the above cause was served via the ECF filing system on September 9, 2013.

Signature:

/s/ Andrea J. Johnson 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 (248) 398-9800 [email protected]

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