Case No.

: 14-1341
__________________________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

APRIL DEBOER, et. al.,
Plaintiffs/Appellees,
v.
RICHARD SNYDER, et. al.,
Defendants/Appellants.
__________________________________________________________________
On Appeal from the United States District Court
for the Eastern District of Michigan, Southern Division
Hon. Bernard Friedman

Brief of Amicus Curiae American Family Association of Michigan
In Support of Defendants-Appellants, Seeking Reversal

MARY E. McALISTER
Liberty Counsel
P.O. Box 11108
Lynchburg, VA 24506
(800) 671-1776 Telephone
email court@lc.org
Attorneys for Amicus

MATHEW D. STAVER
ANITA L. STAVER
Liberty Counsel
P.O. Box 540774
Orlando, FL 32854
(800) 671-1776 Telephone
email court@lc.org
Attorneys for Amicus


Case: 14-1341 Document: 80 Filed: 05/14/2014 Page: 1
i

CORPORATE DISCLOSURE STATEMENT
Amicus American Family Association of Michigan states, pursuant to
Fed. R. App. P. 26.1, that there is no parent corporation or publicly held
corporation that owns 10 percent or more of their stock.
/s/ Mary E. McAlister
Mary E. McAlister
Attorney for Amicus Curiae American
Family Association of Michigan


ii

TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................ ii
TABLE OF AUTHORITIES ......................................................................... iv
INTEREST OF AMICUS CURIAE ............................................................... 1
STATEMENT OF COMPLIANCE WITH RULE 29(c)(5) .......................... 1
INTRODUCTION .......................................................................................... 2
ARGUMENT .................................................................................................. 3
I. THE SUPREME COURTS VALIDATION OF MICHIGAN
VOTERS ENACTMENT OF A CONSTITUTIONAL AMENDMENT
PROHIBITING RACE-BASED PREFERENCES REQUIRES
REVERSAL OF THE DISTRICT COURTS DECISION. ....................... 6
II. THE DISTRICT COURT FAILED TO APPLY LONGSTANDING
PRECEDENTS DEFINING RATIONAL BASIS REVIEW OF CITIZEN-
INITIATED CONSTITUTIONAL AMENDMENTS. ............................... 9
III. WELL-ESTABLISHED CONCEPTS REGARDING THE NATURE
AND FUNCTION OF MARRIAGE AS A FOUNDATIONAL SOCIAL
INSTITUTION EASILY SATISFY RATIONAL BASIS. ...................... 12
A. The MMPA Memorializes More Than Two Millennia Of
Philosophical Tradition Which Has Established That Marriage The
Union Of One Man And One WomanIs The Essential Social
Institution. .............................................................................................. 14
B. The MMPA Memorializes The Willing, Organic Union Of Two
Complementary Bodies Coordinated To A Distinct And Inherently
Good Biological Purpose That Is Inherent To Marriage. ...................... 20
C. The MMPA Memorializes That The Essence Of Marriage Is A
Permanent, Exclusive Commitment That Is Beneficial For Societal
Stability. ................................................................................................. 24
D. The MMPA Memorializes That Marriage Is A Moral Reality With
Inherently Good Purposes And An Objective Structure........................ 25
CONCLUSION ............................................................................................. 29
CERTIFICATE OF COMPLIANCE WITH FRAP 32(a)(7)(C).................. 30
iii

CERTIFICATE OF SERVICE ................................................................... 311


iv

TABLE OF AUTHORITIES
Cases
Bond v. United States,
131 S.Ct. 2355 (2011) ................................................................................. 7
Breck v. State of Mich.,
203 F.3d 392 (6th Cir. 2000) ..................................................................... 12
Brown v. Buhman,
947 F.Supp.2d 1170 (D. Utah 2013). ........................................................ 19
Gregory v. Ashcroft,
501 U.S. 452 (1991) .......................................................................... 6, 9, 10
Griswold v. Connecticut,
381 U.S. 479 (1965) ................................................................................ 4, 5
Honnett v. Honnett,
33 Ark. 156 (1878) .................................................................................... 20
Johnson v. Bredesen,
624 F.3d 742 (6th Cir. 2010) ..................................................................... 12
Mallen v. Mallen,
622 S.E.2d 812 (GA 2005) ........................................................................ 20
Maynard v. Hill,
125 U. S. 190 (1888). .................................................................................. 4
Meister v. Moore,
96 U.S. 76 (1877) ...................................................................................... 12
Murphy v. Ramsey,
114 U.S. 15 (1885) .................................................................................... 13
Reynolds v. United States,
98 U.S. 145 (1878) ........................................................................................ 16
Riddell v. Edwards,
76 P.3d 847 (Alaska 2003) ........................................................................ 20

v

Schuette v. BAMN,
2014 WL 1577512 (2014) .............................................................. 3, 6-8, 28
Skinner v. Oklahoma,
316 U.S. 535 (1942) .................................................................................... 4
United States v. Cannon,
4 Utah 122 aff'd, 116 U.S. 55 (1885) ........................................................ 13
United States v. Windsor,
133 S.Ct. 2675 (2013) ............................................................................. 7, 8
Vance v. Bradley,
440 U.S. 93 (1979) .............................................................................. 10, 11
Statutes
Nev. Rev. Stat. Ann. 201.354 ..................................................................... 17
Other Authorities
A Question of Cultural Competence in the Medical Community, TEN
THINGS GAY MEN SHOULD DISCUSS WITH THEIR HEALTH
CARE PROVIDERS (July 17, 2002) ........................................................ 23
Correspondence: Anal Sex and AIDS, 360.6399 Nature 10 (Nov. 5, 1992);
Gay and Bisexual Men's Health: For Your Health: Recommendations for
A Healthier You, Centers for Disease Control and Prevention (Jan. 21,
2011) . ........................................................................................................ 22
Lesbian and Bisexual Health Fact Sheet, Womenshealth.gov (Feb. 17,
2011),. ........................................................................................................ 22
David Blankenhorn, THE FUTURE OF MARRIAGE 26 (2007) ........................... 2
David P. McWhirter & Andrew M. Mattison, THE MALE COUPLE: HOW
RELATIONSHIPS DEVELOP (1984) ............................................................... 24
Edward O. Laumann et al., THE SOCIAL ORGANIZATION OF SEXUALITY:
SEXUAL PRACTICES IN THE UNITED STATES 314-16 (1994) ....................... 25
HIV and Young Men Who Have Sex with Men, Centers for Disease Control
and Prevention (June 2012) ..................................................................... 22
vi

James Wilson, Lectures on Law: Of the Natural Rights of Individuals
(1791), reprinted in The Works of the Honourable James Wilson, L.L.D.:
Late One of the Associate Justices of the Supreme Court of the Supreme
Court of the United States, and Professor of Law in the College of
Philadelphia 476 (Bird Wilson ed., 1883) ................................................... 4
John R. Diggs, Jr., The Health Risks of Gay Sex, Catholic Education
Resource Center (2002) ............................................................................. 22
John Locke, TWO TREATISES OF GOVERNMENT 179 (1698; Cambridge, U.K.:
Cambridge University Press, 1965). ........................................................... 2
Julia Garro, Canada's healthcare system is homophobic, says group,
XTRA.CA (February 17, 2009) ................................................................ 23
Julie H. Hall & Frank D. Finchman, Psychological Distress: Precursor or
Consequence of Dating Infidelity, Personality and Social Psychology
Bulletin 1 (2009) ....................................................................................... 25
Lynn D. Wardle, Multiply and Replenish: Considering Same-Sex
Marriage in Light of State Interests in Marital Procreation, 24 HARV. J. L.
& PUB. POLY 771 (2001). ......................................................................... 27
Maggie Gallagher, What is Marriage For? The Public Purposes of Marriage
Law, 62 LA. L. REV. 773 (2002). ......................................................... 27, 28
Primary and Secondary SyphilisUnited States, 20052013. ..................... 23
Prostitution: US Federal and State Prostitution Laws and Related
Punishments, Procon.org (March 15, 2010, 1:33 PM) .............................. 17
Richard J. Riha, 2013-L-06 Op Atty Gen. 1 (Dec. 12, 2013). .................... 19
Sexually Transmitted Diseases (STDs): HPV and Men - Fact Sheet, Centers
for Disease Control and Prevention (Feb. 23, 2012) ................................. 22
Sherif Girgis et al., WHAT IS MARRIAGE? MAN AND WOMAN: A DEFENSE 50
(2012). ................................................................................................ passim
Stanley Kurtz, The End of Marriage in Scandinavia, 9.20 THE WEEKLY
STANDARD (February 2, 2004) ............................................................ 18, 20
U.S. Marriage Laws, American Marriage Ministries (2012). ...................... 16
vii

Constitutional Provisions
Mich. Const 1963, art 1, 25 ....................................................................... 14



1

INTEREST OF AMICUS CURIAE
Amicus Curiae American Family Association of Michigan (AFA-Michigan)
has been Michigans leading voice for the preservation of traditional values and
institutions such as marriage. AFA-Michigan first proposed the Michigans
Marriage Protection Amendment in June 2003 in response to neighboring Ontario,
Canadas creation of the artificial construct of sme-sex marriage. AFA-Michigan
President Gary Glenn was one of two co-authors of the final language of the
Amendment approved by voters in the November 2004 election. As the initial
proponent, a co-author, and a leading advocate of the Amendment, AFA-Michigan
submits this brief to assist the Court in reviewing the district courts analysis and
articulating the bases for memorializing marriage as the union of one man and one
woman in the Michigan Constitution.
This Brief is submitted pursuant to Rule 29(a) of the Federal Rules of
Appellate Procedure with the consent of all parties.
STATEMENT OF COMPLIANCE WITH RULE 29(C)(5)
No partys counsel authored this Brief in whole or in part; no party or
partys counsel contributed money that was intended to fund preparing or
submitting the Brief; and no person other than Amicus Curiae AFA-Michigan, its
members, or its counsel contributed money that was intended to fund preparing or
submitting the Brief.
2

INTRODUCTION
As a co-author of the language of the Michigan Marriage Protection
Amendment and leader in the effort to secure its passage, AFA-Michigan helped
spearhead Michigans effort to continue to honor and respect the transcendent
nature of marriage, what John Locke described as the First Society.
1
Locke
defined marriage as:
[A] voluntary Compact between Man and Woman; and tho [sic] it
consist chiefly in such a Communion and Right in one anothers
Bodies, as is necessary to its chief end, Procreation; yet it draws with
it mutual Support, and Assistance, and a Community of Interest too,
as necessary to unite not only their Care and Affection, but also
necessary to their common Off-spring, who have a right to be
nourished and maintained by them, till they are able to provide for
themselves.
2

In other words, marriage, i.e., the union of one man and one woman, is the
institution upon which society is built. As a foundational social institution,
marriage fosters stability, permanency, fidelity, and the continuation of society
itself.
These myriad societal goods provide a multitude of rational bases on which
the people of Michigan could have and many in fact did rely on in overwhelmingly
passing the MMPA. Consequently, the MMPA easily satisfies rational basis. While

1
David Blankenhorn, THE FUTURE OF MARRIAGE 26 (2007) (citing John
Locke, TWO TREATISES OF GOVERNMENT 179 (1698; Cambridge, U.K.: Cambridge
University Press, 1965)).
2
Id.
3

the lower court correctly identified rational basis as the appropriate standard, it
incorrectly defined the standard by shifting the burden of persuasion from the
Plaintiffs to the state Defendants. Utilizing that incorrect definition, the lower court
improperly concluded that the MMPA does not satisfy rational basis and then
struck it down as violative of Equal Protection.
ARGUMENT
In leading the effort to draft and enact the MMPA, AFA-Michigan was
participating in the exercise of the citizens privilege to enact laws as a basic
exercise of their democratic power. Schuette v. BAMN, 2014 WL 1577512 at *15
(April 22, 2014). Michigan voters exercised that power to overwhelmingly affirm
what the United States Supreme Court has consistently confirmed, i.e., that
marriage is a fundamental social institution which, by definition, is the union of
one man and one woman. The MMPA, like similar amendments and statutes
throughout the country, memorializes but does not create the definition.
Marriage is defined by its nature and predates government, which is limited to
regulating marriage in accordance with its natural, historical definition. James
Wilson, a signer of the Declaration of Independence and Constitution and one of
the United States first justices, said:
Whether we consult the soundest deductions of reason, or resort to the
best information conveyed to us by history, or listen to the undoubted
intelligence communicated in holy writ, we shall find, that to the
institution of marriage the true origin of society must be traced. ...
4

[T]o that institution, more than any other, have mankind been
indebted for the share of peace and harmony which has been
distributed among them. ... The most ancient traditions of every
country ascribe to its first legislators and founders, the regulations
concerning the union between the sexes.
3

Marriage is, has always been, and forever will be a comprehensive union of one
man and one woman that fosters responsible procreation and child-rearing, and
therefore is fundamental to the very existence and survival of the race. Skinner v.
Oklahoma, 316 U.S. 535, 541 (1942). Marriage is an institution in the
maintenance of which in its purity the public is deeply interested, for it is the
foundation of the family and of society, without which there would be neither
civilization nor progress. Maynard v. Hill, 125 U. S. 190 (1888).
Marriage is not merely a creation of any one civilization or its statutes, but is
an institution older than the Constitution and indeed of any laws of any nation. See
Griswold v. Connecticut, 381 U.S. 479, 486 (1965).
We deal with a right of privacy older than the Bill of Rights older
than our political parties, older than our school system. Marriage is a
coming together for better or for worse, hopefully enduring, and
intimate to the degree of being sacred. It is an association that
promotes a way of life, not causes; a harmony in living, not political
faiths; a bilateral loyalty, not commercial or social projects. Yet it is
an association for as noble a purpose as any involved in our prior
decisions.

3
James Wilson, Lectures on Law: Of the Natural Rights of Individuals
(1791), reprinted in The Works of the Honourable James Wilson, L.L.D.: Late One
of the Associate Justices of the Supreme Court of the Supreme Court of the United
States, and Professor of Law in the College of Philadelphia 476 (Bird Wilson ed.,
1883) (emphasis added).
5

Id. The purpose of Michigans efforts to memorialize that marriage, by nature, is
between one man and one woman, is that marriage has innate value.
4
Marriage is
more than the name that society gives to the relationship that matters most between
two adults.
Marriage is, of its essence, a comprehensive union: a union of will (by
consent) and body (by sexual union); inherently ordered to
procreation and thus the broad sharing of family life; and calling for
permanent and exclusive commitment, ... it is also a moral reality: a
human good with an objective structure, which is inherently good for
us to live out.
5

This inherent ordering of marriage toward procreation transcends any private
desires of the parties. Thus, regardless of whether the parties intend to have a
family, the natural structure of marriage is such that it is directed toward the
common good of procreation. Legal recognition makes sense only where
regulation does: these are inseparable. The law, which deals in generalities, can
regulate only relationships with a definite structure. Such regulation is justified
only where more than private interests are at stake, and where it would not obscure
distinctions between bonds that the common good relies on.
6

These transcendental concepts and the societal benefits that emanate from
them are legitimate purposes that more than satisfy the rational basis standard for

4
Sherif Girgis et al., WHAT IS MARRIAGE? MAN AND WOMAN: A DEFENSE 50
(2012).
5
Id. at 6.
6
Id. at 92.
6

an Equal Protection challenge to a citizen-enacted constitutional amendment.
Gregory v. Ashcroft, 501 U.S. 452, 471 (1991). As was true about the enactment of
Missouris mandatory retirement law in Gregory and Michigans prohibition on
race-based preferences in Schuette, Michigans enactment of the MMPA is
reasonably related to numerous legitimate interests and does not violate Equal
Protection. Gregory, 501 U.S. at 471; Schuette, 2014 WL 1577512 at *17.
I. THE SUPREME COURTS VALIDATION OF MICHIGAN VOTERS
ENACTMENT OF A CONSTITUTIONAL AMENDMENT
PROHIBITING RACE-BASED PREFERENCES REQUIRES
REVERSAL OF THE DISTRICT COURTS DECISION.
As recently as last month, the Supreme Court confirmed that Michigan
voters rights to amend their Constitution must be respected and protected against
attempts to judicially repeal enactments that some find politically unpopular.
Schuette, 2014 WL 1577512 at *15-*17. In Schuette as in this case, Michigan
voters amended their Constitution in response to governmental actions that were
contrary to the citizens public policy determinations. Id. at *15. Schuette involved
an issue as socially and politically controversial, or perhaps more controversial,
than the issue of memorializing the definition of marriage, i.e., affirmative action
in governmental programs. Id. The Supreme Court upheld the citizen-enacted
constitutional amendment that prohibited racial preferences in public education,
hiring and contracting. Id. at *7. As Plaintiffs do in this case, in Schuette the
plaintiffs sought invalidation of the amendment on the grounds that it violated
7

Equal Protection. Id. The Court found no Equal Protection violation and cited to
federalism standards it had utilized when it overturned Section 3 of DOMA in
United States v. Windsor, 133 S.Ct. 2675 (2013), the case upon which Plaintiffs
rely in seeking judicial repeal of the MMPA. Id.
This case addresses the question of whether voters may determine
whether a policy of race-based preferences should be continued. By
approving Proposal 2 and thereby adding 26 to their State
Constitution, the Michigan voters exercised their privilege to enact
laws as a basic exercise of their democratic power. In the federal
system States respond, through the enactment of positive law, to the
initiative of those who seek a voice in shaping the destiny of their own
times. Bond [v. United States, 131 S.Ct. 2355, 2359 (2011)] 564
U.S., at (slip op., at 9). Michigan voters used the initiative
system to bypass public officials who were deemed not responsive to
the concerns of a majority of the voters with respect to a policy of
granting race-based preferences that raises difficult and delicate
issues.
Id. at *15. Likewise here, Michigan voters used the initiative system to ensure that
the concerns of the majority regarding the abandonment of marriage in favor of an
artificial construct of same-sex marriage were appropriately addressed and the
definition of marriage memorialized in the Constitution. As the Supreme Court
said in Schuette:
Freedom embraces the right, indeed the duty, to engage in a rational,
civic discourse in order to determine how best to form a consensus to
shape the destiny of the Nation and its people. These First
Amendment dynamics would be disserved if this Court were to say
that the question here at issue is beyond the capacity of the voters to
debate and then to determine.

8

Id. at *16. Similarly here, this Court should not disrupt the First Amendment
dynamics that were exercised by the people of Michigan.
This case is not about how the debate about racial preferences should
be resolved. It is about who may resolve it. There is no authority in
the Constitution of the United States or in this Courts precedents for
the Judiciary to set aside Michigan laws that commit this policy
determination to the voters.

Id. at *17. Likewise, in this case, the question is not about how the debate about
affirming or redefining marriage is to be resolved, but who may resolve it. The
Supreme Court answered that question in Windsor regulation of domestic
relations is an area that has long been regarded as a virtually exclusive province of
the States.133 S.Ct. at 2691. Because Section 3 of DOMA interfered with that
exclusive province of the State of New York, it was invalid. Id. at 2696. Here, the
MMPA is the embodiment of state regulation of domestic relations, the polar
opposite of Section 3 of DOMA. Under Windsor and Schuette, the voters exercise
of their reserved power must be preserved and protected, not overturned.
As did the Michigan voters in Schuette, voters here exercised their privilege
to enact laws as a basic exercise of their democratic power when they
overwhelmingly approved the MMPA. Schuette, 2014 WL 1577512 at *15.
Neither the Constitution nor Supreme Court precedent authorizes judicial
invalidation of the voters determination. In fact, Schuette and Windsor specifically
require that the MMPA be upheld against Plaintiffs request for judicial repeal.
9

II. THE DISTRICT COURT FAILED TO APPLY LONGSTANDING
PRECEDENTS DEFINING RATIONAL BASIS REVIEW OF
CITIZEN-INITIATED CONSTITUTIONAL AMENDMENTS.
The historical understanding of the primacy of marriage as a foundational
social institution, its inherent good, and the societal benefits emanating from
protecting and preserving it exceed the rational basis necessary to survive
constitutional scrutiny. The district court misapplied rational basis when it engaged
in a factual review that impermissibly narrowed the inquiry to a few purposes
articulated by the State and then effectively applied a heightened scrutiny analysis
that placed upon the State the burden to present and prove legitimate interests in
memorializing the definition of marriage as the union of one man and one woman.
Contrary to the district courts analysis, it is the parties raising an Equal
Protection challenge, i.e., in this case Appellees, that bear the burden of
demonstrating that the challenged classification is in no way related to the
achievement of any combination of legitimate purposes. Gregory, 501 U.S. at 471.
In Gregory, a case substantially similar to this case, the Supreme Court
emphasized the herculean task that challengers have when trying to invalidate a
citizen-enacted constitutional amendment. Id. The Courts analysis in Gregory
demonstrates the error in the district courts conclusion that the Amendment
violates Equal Protection. As is true here, in Gregory the Court was dealing not
merely with government action, but with a state constitutional provision approved
10

by the people of Missouri as a whole. Id. This constitutional provision reflects
both the considered judgment of the state legislature that proposed it and that of the
citizens of Missouri who voted for it. Id. We will not overturn such a law unless
the varying treatment of different groups or persons is so unrelated to the
achievement of any combination of legitimate purposes that we can only conclude
that the peoples actions were irrational. Id. In an equal protection case of this
type ... those challenging the ... judgment [of the people] must convince the court
that the ... facts on which the classification is apparently based could not
reasonably be conceived to be true by the ... decisionmaker. Id. at 473 (citing
Vance v. Bradley, 440 U.S. 93, 111 (1979)) In applying that liberal standard to the
constitutional amendment at issue in Gregory, the Court concluded that [t]he
people of Missouri rationally could conclude that the threat of deterioration at age
70 is sufficiently great, and the alternatives for removal sufficiently inadequate,
that they will require all judges to step aside at age 70. This classification does not
violate the Equal Protection Clause. Id. Similarly here, as discussed more fully
below, the people of Michigan rationally could conclude that the foundational
social institution upon which society is built and that promotes fidelity,
permanency, more healthful relationships and complementary child-rearing
warrants memorializing the definition of marriage as the union of one man and one
woman in the Constitution.
11

In Vance, the Court specifically rejected the kind of fact finding in which the
district court here engaged. The District Court's responsibility for making
findings of fact certainly does not authorize it to resolve conflicts in the evidence
against the legislatures conclusion or even to reject the legislative judgment on the
basis that without convincing statistics in the record to support it, the legislative
viewpoint constitutes nothing more than what the District Court in this case said
was pure speculation. Vance, 440 U.S. at 111 (citations omitted). The appellees
challenging the mandatory retirement statute in Vance had to demonstrate that
Congress had no reasonable basis for believing that conditions overseas generally
are more demanding than conditions in the United States and that at age 60 or
before many persons begin something of a decline in mental and physical
reliability. Id. The appellees there did not meet their burden. Id. Neither have they
here. As the following detailed discussion of the foundational and essential nature
of marriage and its many attributes describes, there is more than a reasonable basis
for believing that the acknowledgment that marriage as the union of one man and
one woman should be memorialized in the state Constitution.
This Court has fully embraced the Vance standard for rational basis review
and will not strike down a statute on equal protection grounds unless the varying
treatment of different groups or persons is so unrelated to the achievement of any
combination of legitimate purposes that we can only conclude that the legislatures
12

actions were irrational. Johnson v. Bredesen, 624 F.3d 742, 747 (6th Cir. 2010).
Rational basis review only requires a state of facts that provide a conceivable
basis for the classification. Breck v. State of Mich., 203 F.3d 392, 395 (6th Cir.
2000). Rational basis review does not assess the wisdom of the challenged
regulation, as the district court did here. Id. Furthermore, as the district court
failed to recognize, whether the identified legitimate state interests were actually
considered or improvidently chosen is irrelevant. Id. at 396. As the ensuing
discussion demonstrates, history, sociology and biology as well as legal precedent
provide myriad bases for memorializing marriage as the union of one man and one
woman in the Michigan Constitution.
III. WELL-ESTABLISHED CONCEPTS REGARDING THE NATURE
AND FUNCTION OF MARRIAGE AS A FOUNDATIONAL SOCIAL
INSTITUTION EASILY SATISFY RATIONAL BASIS.
The United States Supreme Court has recognized, since the early days of the
Republic, that marriage is the foundational social institution. Statutes regulate the
mode of entering into the contract, but they do not confer the right. Meister v.
Moore, 96 U.S. 76, 78-79 (1877).
For, certainly, no legislation can be supposed more wholesome and
necessary in the founding of a free, self-governing commonwealth, fit
to take rank as one of the co-ordinate states of the Union, than that
which seeks to establish it on the basis of the idea of the family, as
consisting in and springing from the union for life of one man and one
woman in the holy estate of matrimony; the sure foundation of all that
is stable and noble in our civilization; the best guaranty of that
reverent morality which is the source of all beneficent progress in
13

social and political improvement.

Murphy v. Ramsey, 114 U.S. 15, 45 (1885) (emphasis added). Marriage is the
foundation of the home, and upon it is builded [sic] the entire superstructure of
society. United States v. Cannon, 4 Utah 122, 7 P. 369, 382 aff'd, 116 U.S. 55
(1885). It finds its defense in every human heart, which jealously guards the one
object of its affection. Id.
There is far more to the marriage relation than the mere gratification
of passion, or the procreation of children. The wife, taking her place
by her husband's side, his equal, his counselor, his friend, makes of
him a perfect man. Together they share the sorrows of life; together
they enjoy its blessings. When each is true to the other, they present a
union not made by man, and as they pass along lifes pathway their
very example is of infinite benefit to mankind.

Id. (emphasis added). Memorializing marriage into the statutory and common law
is a reflection of the fact that [a]nything which tends to bring this relation into
disrepute is an injury to the world. Id. The Supreme Court, lower courts and the
various states, including Michigan, have acted in accordance with the adage that
[a]nything which lowers the popular appreciation of the relation, and destroys the
good that marriage does the world by mere example, is an evil which the law
should correct. Id. Society, with all its ramifications, being founded upon
marriage, it is upon grounds of public policy that it is regulated and protected. Id.
The MMPA echoes these commonsense purposes of preserving and
promoting the social benefits of marriage in its very text: To secure and preserve
14

the benefits of marriage for our society and for future generations of children, the
union of one man and one woman in marriage shall be the only agreement
recognized as a marriage or similar union for any purpose. Const 1963, art 1, 25
(emphasis added). To hold that the MMPA does not even pass rational basis is to
hold that 2.7 million Michigan voters acted with animus in voting for the
Amendment. Such an assertion is absurd.
7

A. The MMPA Memorializes More Than Two Millennia Of
Philosophical Tradition Which Has Established That
Marriage The Union Of One Man And One WomanIs
The Essential Social Institution.

The principle that marriage is the foundation of society did not originate
with the Supreme Court, but reflects a 2,400 year philosophical tradition that has
[] distinguished those uniquely comprehensive unions consummated by coitus
from all others.
8
In fact, legal and philosophical traditions have, significantly,
long termed [coitus] the generative act, as without coitus, organic conception is
impossible.
9
Important philosophical and legal traditions have long distinguished
friendships of all kinds from those special relationships that extend two peoples
union along the bodily dimension of their being and that are uniquely apt for, and
enriched by, reproduction and childrearing. The three great philosophers of

7
See http://ballotpedia.org/Michigan_Marriage_Amendment ,_Proposal_2
_(2004) (last accessed May 14, 2014).
8
Girgis, WHAT IS MARRIAGE? 50 (emphasis in original).
9
Id. at 26 (emphasis in original).
15

antiquity Socrates, Plato, and Aristotle as well as Xenophanes and Stoics such
as Musonius Rufus defended this view in some cases, amid highly homoerotic
cultures.
10

Instead of religion shaping marriage, as is asserted by those seeking to
redefine it, marriage the demands of a natural institution helped to shape our
religious and philosophical traditions.
11
Marriage, as a comprehensive union,
predates civil government, and is not peculiar to religion, or to any religious
tradition.
12
In fact, marriage is a natural bond that society or religion can only
solemnize.
13
While individuals connected to particular religions might be bound,
to some degree, by their religious norms, such norms have no impact on third
parties. However, a major function of marriage laws is to bind all third parties
(schools, adoption agencies, summer camps, hospitals; friends, relatives, and
strangers) presumptively to treat a man as father of his wifes children, husbands
and wives as entitled to certain privileges and sexually off-limits, and so on. This
only the state can do with any consistency.
14
Thus, marriage laws protect the
common good of health and safety and promote the common good of efficiency;
private efforts cannot adequately secure [these goods], and yet failure to secure

10
Id. at 49.
11
Id. at 11 (emphasis in original).
12
Id. at 10.
13
Id. at 2 (emphasis in original).
14
Id. at 41 (emphasis in original).
16

them has very public consequences.
15
Since the state can secure it without undue
cost, then the state may step inand should.
16

Marriage is not simply a religious tradition. In fact, when dealing with the
constitutionality of laws proscribing polygamy in Reynolds v. U.S., the Supreme
Court held:
Marriage, while from its very nature a sacred obligation, is
nevertheless, in most civilized nations, a civil contract, and usually
regulated by law. Upon it society may be said to be built, and out of
its fruits spring social relations and social obligations and duties, with
which government is necessarily required to deal.
Reynolds v. United States, 98 U.S. 145, 165 (1878). Thus, while some might be
motivated by religion to marry, and religious ceremonies satisfy state requirements
for solemnization,
17
the purpose of marriage transcends religion, and is to maintain
order with regard to mans social duties.
Consequently, marriage is not a legal construct with totally malleable
contoursit is not just a contract. Instead, some sexual relationships are of a
distinctive kind of bond that has its own value and structure, which the state did
not invent and has no power to redefine.
18
This is understood by the states even in
contract law, where contracts for sexual acts are not enforceable, and in criminal

15
Id.
16
Id. (emphasis in original).
17
U.S. Marriage Laws, American Marriage Ministries (2012),
http://www.theamm.org/marriage-laws.
18
Girgis, WHAT IS MARRIAGE? 80.
17

law, in that prostitution is illegal in all fifty states.
19,20
Whatever practical realities
may draw the state into recognizing marriage in the first place (e.g., childrens
needs), the state, once involved, must get marriage right to avoid obscuring the
shape of this human good.
21

Marriage should be reserved for procreative sexual unions that cannot be
achieved by a mere contract. To some degree, every state prohibits the exchange of
sexual relations for consideration, the primary purpose, similar to regulating
marriage, is the health, safety, and welfare of citizens through the reduction of any
incentive to have multiple sexual partners, which causes risks for the people
involved, any children their procreative acts may generate, and the state in having
to care for children conceived outside of the permanent, exclusive union of a
marriage.
22
Therefore, marriage, grounded in its objectively complementary
structure, is more than a mere contract, and sexual relationships cannot be
contracted.
There are sex-neutral means of protecting benefits for alternative
relationships.

19
Prostitution remains illegal under state law in Nevada, but is permitted in
licensed brothels in certain jurisdictions. Nev. Rev. Stat. Ann. 201.354
20
Prostitution: US Federal and State Prostitution Laws and Related
Punishments, Procon.org (March 15, 2010, 1:33 PM),
http://prostitution.procon.org/view.resource.php?resourceID=000119#2.
21
Girgis at 80 (emphasis in original).
22
Prostitution: US Federal and State Prostitution Laws and Related
Punishments.
18

People can normally secure these benefits privately, for example,
through power of attorney. ... So before we enact sex-neutral civil
unions, we should consider: What specific common good would they
serve? Would this good depend on policing entry into and exit from
such unions, as regulation does? Would it permit diluting the special
status of civil marriage? Formalizing sex-neutral unions might be
most useful where people lack the education or resources to make
private arrangements. But if such a proposal survives our objections to
the redefinition of civil marriage, that is because it is no actual
redefinition of civil marriage.
23


The more flippant the government becomes in how it defines marriage, the
less the proposed marriage policy itself accomplishes in a world where private
contracts are already available. As we deprive marriage policy of definite shape, we
deprive it of public purpose.
24
In fact, in Nordic countries this is already
happening:
Same-sex marriage has locked in and reinforced an existing
Scandinavian trend toward the separation of marriage and parenthood.
The Nordic family pattern including gay marriage is spreading
across Europe. ... The separation of marriage from parenthood was
increasing; gay marriage has widened the separation. Out-of-wedlock
birthrates were rising; gay marriage has added to the factors pushing
those rates higher. Instead of encouraging a society-wide return to
marriage, Scandinavian gay marriage has driven home the message
that marriage itself is outdated, and that virtually any family form,
including out-of-wedlock parenthood, is acceptable.
25



23
Girgis et al., WHAT IS MARRIAGE? at 85.
24
Id. at 21 (emphasis added).
25
Stanley Kurtz, The End of Marriage in Scandinavia, 9.20 THE WEEKLY
STANDARD (February 2, 2004), http://www.weeklystandard.com/Content/Public
/Articles/000/000/003/660zypwj.asp# (emphasis added).
19

Recognition of same-sex unions as marriages has prompted those who
believe that marriage is outdated and unnecessary to further complicate the legal
landscape. Advocates for other non-traditional, non-monogamous unions are filing
suits to challenge the constitutionality of laws that have been in effect for decades,
such as Utahs statute proscribing polygamy.
26
The proliferation of challenges
regarding the historical, legal, philosophical, and biblical definition of marriage has
required a myriad of complex legal questions, e.g., the North Dakota Attorney
General was required to answer whether a person in North Dakota, which has a law
defining marriage as the union of one man and one woman, could marry a person
of the opposite sex if he is married to a person of the same sex in another state.
27

To sustain an ordered society, it is crucial that the objective complementary
structure of marriage be maintained, and this importance has been recognized in all
of history even in cultures very favorable to homoerotic relationships (as in
ancient Greece), something akin to the conjugal view [marriage as a
comprehensive union] has prevailed and nothing like same-sex marriage was
even imagined.
28
European countries that have permitted same-sex couples to
marry for some time exemplify how moving away from the objective marriage
structure delegitimizes marriage not just by accepting same-sex unions as

26
Brown v. Buhman, 947 F.Supp.2d 1170 (D. Utah 2013).
27
Richard J. Riha, 2013-L-06 Op Atty Gen. 1 (Dec. 12, 2013).
28
Girgis, WHAT IS MARRIAGE? at 11.
20

marriages, but also by moving for legitimization of polygamy and complicates
the legal implications of laws regulating marriage.
29
This provides a further
rationale for MMPAs memorialization of marriage into the Michigan
Constitution, i.e., maintaining an objective marriage structure that encourages
permanence, exclusivity, and stable family life.
B. The MMPA Memorializes The Willing, Organic Union Of
Two Complementary Bodies Coordinated To A Distinct
And Inherently Good Biological Purpose That Is Inherent
To Marriage.

Marriage requires a verbal commitment by both parties engaging in the
union; historically, that verbal commitment attests to the life-long nature of the
commitment. A marriage is not valid if it is entered into by force. Rather, the
decision to enter a marital union that the civil government recognizes must be
made in accordance with the free will of two separate individuals committing to
join together as one. See, e.g, Riddell v. Edwards, 76 P.3d 847, 850-51 (Alaska
2003); Mallen v. Mallen, 622 S.E.2d 812, 815 (GA 2005); Honnett v. Honnett, 33
Ark. 156, 158-160 (1878).
In addition to a union of the wills, marriage requires a union of bodies.
While it is possible for same-sex couples to enter into a union of the wills, it is not
possible for them to join in body in the way marriage has always required. Joining
in body requires more than a sexual act. It is a natural, organic union that is

29
See Kurtz, The End of Marriage in Scandinavia.
21

coordinated toward a common biological end of the whole that they form
together.
30
By nature,
[In] coitus, and there alone, a man and a woman's bodies participate
by virtue of their sexual complementarity in a coordination that has
the biological purpose of reproduction a function that neither can
perform alone. Their coordinate action is, biologically, the first step
(the behavioral part) of the reproductive process. By engaging in it,
they are united, and do not merely touch, much as ones heart, lungs,
and other organs are united: by coordinating toward a biological good
of the whole that they form together. Here the whole is the couple; the
single biological good, their reproduction.
31


In fact, it is because of this natural aspect of a female-male union that,
historically, consummation required sexual intercourse and not simply any sexual
act between the couple the idea was to join the parts that, together, have the
potential to embody a whole.
32
Thus, laws protecting marriage as the union of one
man and one woman are advocating for a social good. The law reflected the
rational judgment that unions consummated by coitus were valuable in themselves,
and different in kind from other bonds.
33
[T]wo men, two women, and larger
groups cannot achieve organic bodily union: there is no bodily good or function
toward which their bodies can coordinate, like procreation.
34


30
Girgis, WHAT IS MARRIAGE? at 25.
31
Id. at 26.
32
Id. at 25.
33
Id.
34
Id. at 27.
22

Not only is there no bodily good or function toward which two same-sex
bodies can coordinate, but there are in fact inherent harms associated with same-
sex unions.
35
For example, homosexual males are at exponentially higher risk of
developing a variety of sexually transmitted diseases, and have increased risks of
developing various cancers and medical conditions because of the nature of same-
sex sex.
36
On May 9, 2014, the Centers for Disease Control and Prevention
published a report documenting significant increases in sexually transmitted
diseases in homosexual men for the period 2005-2013, calling the trend a major
public health concern.
37

Even advocates for same-sex marriage acknowledge that the nature of the
sexual acts in which same-sex couples engage carry health risks that are not as
prevalent, or in some cases, not present at all, in heterosexual individuals. For

35
John R. Diggs, Jr., The Health Risks of Gay Sex, Catholic Education
Resource Center (2002), http://www.catholiceducation.org/articles/
homosexuality/ho0075.html (internal citations omitted); see also HIV and Young
Men Who Have Sex with Men, Centers for Disease Control and Prevention 1 (June
2012), http://www.cdc.gov/HealthyYouth/sexualbehaviors/pdf/hiv_ factsheet_
ymsm.pdf; Richard J. Naftalln, Correspondence: Anal Sex and AIDS, 360.6399
Nature 10 (Nov. 5, 1992); Gay and Bisexual Men's Health: For Your Health:
Recommendations for A Healthier You, Centers for Disease Control and Prevention
(Jan. 21, 2011), http://www.cdc.gov/msmhealth/for-your-health.html; Lesbian and
Bisexual Health Fact Sheet, Womenshealth.gov (Feb. 17, 2011),
http://womenshealth.gov/publications/our-publications/fact-sheet/lesbian-bisexual-
health.cfm#d.
36
Id.
37
Primary and Secondary SyphilisUnited States, 20052013, available at
http://www.cdc.gov/mmwr/preview/mmwrhtml/mm6318a4.htm?s_cid=mm6318a4
_w#tab (last visited May 14, 2014).
23

example, in Canada, advocates have filed a complaint against the Canadian health
service, alleging that the organization discriminates against homosexuals because it
does not provide proper treatment for conditions which uniquely affect them.
38
The
homosexual-specific health issues that are the subject of the complaint include
lower life expectancy, suicide, higher rates of substance abuse, depression,
inadequate access to care and HIV/AIDS.
39
One of the claimants was quoted as
saying, [t]here are all kinds of health issues that are endemic to our community.
We have higher rates of anal cancer in the gay male community, lesbians have
higher rates of breast cancer. These are all issues that need to be addressed.
40
A
survey of members of the Gay and Lesbian Medical Association (GLMA) reported
on 10 health care concerns men who have sex with men (MSM) should include in
discussions with their physicians or other health care providers, including higher
rates of substance abuse, depression, HIV/AIDS, sexually transmitted diseases,
certain cancers and eating disorders.
41


38
Julia Garro, Canada's healthcare system is homophobic, says group,
XTRA.CA (February 17, 2009), available at
http://dailyxtra.com/canada/news/canadas-healthcare-system-homophobic-says-
group (last visited May 12, 2014).
39
Id.
40
Id.
41
A Question of Cultural Competence in the Medical Community, TEN
THINGS GAY MEN SHOULD DISCUSS WITH THEIR HEALTH CARE
PROVIDERS (July 17, 2002), available at
http://zone.medschool.pitt.edu/sites/lgbt/Shared%20Documents/10ThingsGay_Doc
.pdf (last visited May 12, 2014).
24

The personal, social and financial costs of these homosexual-specific health
problems concern not just those who engage in homosexual activity, but also the
larger community of citizens who help provide services and who must bear part of
the burdens imposed by the health challenges. It would be rational for the voters of
Michigan to seek to minimize the deleterious effects of these conditions on public
health, safety and welfare by affirming that marriage in Michigan remains the
union of one man and one woman.
C. The MMPA Memorializes That The Essence Of Marriage Is
A Permanent, Exclusive Commitment That Is Beneficial
For Societal Stability.

Same-sex unions and comprehensive unions are not only distinct by nature,
but also by how they are treated by those engaged in them. In the 1980s, two
homosexual professors undertook a survey of same-sex couples in an attempt to
prove homosexual unions are exclusive. However, contrary to their hypothesis, ,
not one homosexual couple of those surveyed stayed sexually exclusive longer than
five years.
42
The study showed [t]he expectation for outside sexual activity was
the rule for male couples and the exception for heterosexuals.
43
By contrast, 99
percent of heterosexual couples expect sexual exclusivity in their marriage, and
violations of it are the leading cause of divorce across 160 cultures and are one of

42
David P. McWhirter & Andrew M. Mattison, THE MALE COUPLE: HOW
RELATIONSHIPS DEVELOP 252-53 (1984) (emphasis added).
43
Id. at 253 (emphasis added).
25

the most frequent reasons that couples seek marital therapy.
44
Similarly, a U.S.
survey found that the average number of sexual partners since the age of eighteen
for men who identified as homosexual or bisexual was over two and a half times as
many as the average for heterosexual men.
45
Social science studies of the behavior
of homosexuals disprove the assertion that same-sex couples are similarly situated
to opposite-sex couples.
It would be rational for the voters of Michigan to believe that marriage as
the union of one man and one woman should be memorialized in the Constitution
as a means of upholding the norms of permanence and exclusivity inherent in
marriage that are vital to the stability of society as a whole. The studies regarding
the differences between opposite-sex and same-sex relationships provide an ample
basis for determining that redefining marriage to include same-sex couples would
erode the basis for those norms in any relationship.
46

D. The MMPA Memorializes That Marriage Is A Moral
Reality With Inherently Good Purposes And An Objective
Structure.

Marriage provides a framework for mutual benefitsfinancial, sexual and
otherwiseand for affection. Marriage and emotional unions are distinct. An

44
Julie H. Hall & Frank D. Finchman, Psychological Distress: Precursor or
Consequence of Dating Infidelity, Personality and Social Psychology Bulletin 1
(2009), available at http://psp.sagepub.com/content/35/2/143.full.pdf+html.
45
Edward O. Laumann et al., THE SOCIAL ORGANIZATION OF SEXUALITY:
SEXUAL PRACTICES IN THE UNITED STATES 314-16 (1994) (emphasis added).
46
Girgis, WHAT IS MARRIAGE? 67 (emphasis in original).
26

emotional union cannot stand on its own. People really unite by sharing a good,
but feelings are inherently private realities, which can be simultaneous but not
really shared ... feelings cannot be central to a vow, for we have no direct control
over them.
47
While emotional unions are not inherently good for structuring
families, marriage is. Moreover, families are the building blocks for a healthy
society, and for encouraging permanency and exclusivity in relationships. These
benefits, or purposes, of marriage are inherently good.
[A] good must be truly common and for the couple as a whole, but
mental states are private and benefit partners, if at all, only
individually. The good must be bodily, but pleasures as such are
aspects of experience. The good must be inherently valuable, but
pleasures are good in themselves only when they are taken in some
other, independent good. So while pleasure and delight deepen and
enrich a marital union where one exists, they cannot be its foundation.

As more people absorb the new laws lesson that marriage is
fundamentally about emotions, marriages will increasingly take on
emotions tyrannical inconsistency. Because there is no reason that
emotional unions any more than the emotions that define them, or
friendships generally should be permanent or limited to two, these
norms of marriage would make less sense.
48


In other words, once sexual complementarity becomes optional, so do
permanence and exclusivity.
49
The future of civilized society depends on protecting
permanence and exclusivity in family structure. The people of Michigan could

47
Id. at 55 (emphasis in original).
48
Id. at 27, 56.
49
Id. at 57 (emphasis added).
27

rationally find that the risks to family stability posed by redefining marriage to
include same-sex couples are not a price they are willing to pay.
Of primary importance in the analysis of the MMPA is whether, and if so,
how, adopting a new construct of same-sex marriage will contribute to
promoting the public interests in marriage, and to achieving the social policy
purposes for which laws establishing marriage have been enacted.
50
Marriage
law is not enacted to promote private, personal interests, but to protect and promote
those individual interests that are shared in common with society as a whole, i.e.,
social interests.
51
The public purpose view of marriage is designed to reinforce
key norms that are necessary to protect children and the reproduction of the family
system and society.
52

Marriage law is at its heart not simply a cluster of benefits given to
people whose taste in sex or lifestyle we happen to personally
approve; it is a set of obligations and rewards that serve important
social, not merely personal, goals. Marriage serves a pointing
function, elevating a certain type of relationshippermanent,
exclusive, normally procreativeabove all others. Marriage law
demarcates certain public boundaries which social norms can then use
to impose informal rewards or sanctions.
53


50
Lynn D. Wardle, Multiply and Replenish: Considering Same-Sex
Marriage in Light of State Interests in Marital Procreation, 24 HARV. J. L. & PUB.
POLY 771, 779 (2001).
51
Id. at 778.
52
See Maggie Gallagher, What is Marriage For? The Public Purposes of
Marriage Law, 62 LA. L. REV. 773, 778 (2002).
53
Id. at 788-89.
28

Consequently, marriage does not merely reflect individual desire, it shapes and
channels it.
54

Therefore, preserving the definition of marriage, as Michigan voters have
done through the MMPA, is not about preserving a tradition of discrimination or
exclusion, but preserving a good, the relationship upon which the future of society
rests.
55
An objective structure for marriage assists all people in a society and
understanding marriage to be a comprehensive union respects same-sex attracted
people's equal dignity and basic needs.
56

Viewed against this backdrop of history, sociology, biology and philosophy,
there can be no question that the MMPA memorialization of marriage as the union
of one man and one woman fortifies the foundation of Michigan law and the
health, safety and well-being of its citizens. As was true of the Michigan
constitutional amendment prohibiting race-based preferences upheld in Schuette,
the MMPA is a proper, rationally based exercise of the peoples privilege to enact
laws as a basic exercise of their democratic power when they overwhelmingly
approved the MMPA. 2014 WL 1577512 at *15.

54
Id. at 790.
55
Id. at 778.
56
Girgis, WHAT IS MARRIAGE? 53.
29

CONCLUSION
The MMPA is a constitutional exercise of the peoples right to amend their
Constitution. Supreme Court and Sixth Circuit precedent as well as centuries of
common law, history and philosophy establish that the definition of marriage as the
union of one man and one woman, as memorialized in the MMPA does not violate
the Constitution. This Court should overturn the district courts contrary ruling.
Dated: May 14, 2014.
/s/ Mary E. McAlister
MARY E. McALISTER
Liberty Counsel
P.O. Box 11108
Lynchburg, VA 24506
(800) 671-1776 Telephone
email court@lc.org
Attorneys for Amicus

MATHEW D. STAVER
ANITA L. STAVER
Liberty Counsel
P.O. Box 540774
Orlando, FL 32854
(800) 671-1776 Telephone
email court@lc.org
Attorneys for Amicus


30

CERTIFICATE OF COMPLIANCE WITH FRAP 32(A)(7)(C)
I hereby certify that this brief complies with the type-face and volume
limitations set forth in F.R. App. P. 32(a)(7) in that it was prepared in Times New
Roman 14 point font.
The brief contains 7,000 words according to the word count feature in
Microsoft Word 2010.

/s/ Mary E. McAlister
Mary E. McAlister



31

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was filed
electronically on May 14, 2014 via the Courts CM/ECF system. Service will be
effectuated upon all parties and counsel of record via the Courts electronic
notification system.
/s/ Mary E. McAlister
Mary E. McAlister