Nos.

14-3779; 14-3780
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
KYLE LAWSON, et al.,
Appellees/Cross-Appellants,
v.
ROBERT KELLY, et al.,
Appellant/Cross-Appellee,
Appeal from the United States District Court, Western District
of Missouri, The Honorable Ortrie D. Smith
REPLY AND RESPONSE BRIEF OF APPELLANT
STATE OF MISSOURI
JEREMIAH J. MORGAN
Deputy Solicitor General
P.O. Box 899
Jefferson City, MO 65102
(573) 751-1800; (573) 751-0774 (fax)
Jeremiah.Morgan@ago.mo.gov
ATTORNEY FOR APPELLANT STATE
OF MISSOURI

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TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................................................... ii
ARGUMENT ............................................................................................. 1
I.

Citizens

for

Equal

Protection

v.

Bruning

Remains

Controlling. ....................................................................................... 1
II.

States Have the Right to Define, Within Constitutional

Limits, Domestic Relationships. ...................................................... 4

III.

Windsor Does Not Support Plaintiffs Due Process

Argument.......................................................................................... 6

CONCLUSION .......................................................................................... 9
CERTIFICATE OF COMPLIANCE AND OF SERVICE ....................... 11

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TABLE OF AUTHORITIES
CASES
Baker v. Nelson,
409 U.S. 810 (1972) .............................................................. 5, 6, 8, 9
Banks v. Galbraith,
51 S.W. 105 (Mo. Div. 2, 1899) ......................................................... 4
Citizens for Equal Protection v. Bruning,
455 F.3d 859 (8th Cir. 2006).................................................. 1, 3, 5, 8
Lawrence v. Texas,
539 U.S. 558 (2003) .................................................................. 2, 8, 9
Loving v. Virginia,
388 U.S. 1 (1967) .............................................................................. 8
Pennoyer v. Neff,
95 U.S. 714 (1877) ............................................................................ 5
Robicheaux v. Caldwell,
2 F.Supp.3d 910 (E.D. La. 2014) .................................................. 2, 6
Romer v. Evans,
517 U.S. 620 (1996) ...................................................................... 2, 8

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SmithKline Beecham Corp. v. Abbott Labs.,

740 F.3d 471 (9th Cir. 2014).............................................................. 1
United States v. Johnson,
448 F.3d 1017 (8th Cir. 2006)............................................................ 3
United States v. Windsor,
133 S. Ct. 2675 (2013) ............................................................ passim
Washington v. Glucksberg,
521 U.S. 702 (1997) ...................................................................... 6, 7
Zablocki v. Redhail,
434 U.S. 374 (1978) .......................................................................... 8

CONSTITUTIONAL AND STATUTORY AUTHORITY

Art. I, 33, Mo. Const. .............................................................................. 4
Mo. Rev. Stat 451.022............................................................................. 4

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ARGUMENT
I.

Citizens for Equal Protection v. Bruning Remains

Controlling.
In Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir.

2006), this Court held that a states definition of marriage as between

one man and one woman should receive rational-basis review under
the Equal Protection Clause, and that it passes that level of scrutiny.
Id. at 866. Plaintiffs argue that United States v. Windsor, 133 S. Ct.
2675 (2013), abrogates this Courts decision in Bruning and requires
that heightened scrutiny be applied to equal protection claims involving
sexual orientation. Appellees/Cross-Appellants Brief, p. 30 (quoting
SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 481 (9th Cir.
2014)). This argument, however, is not supported by Windsor, or any
controlling precedent.
The majority in Windsor did not discuss sexual orientation as
subject to heightened scrutiny. Plaintiffs, in fact, acknowledge that
Windsor did not explicitly examine the traditional heightened scrutiny
criteria.

Appellees/Cross-Appellants

Brief,

p.

49.

And

this

is

significant. The majority noted in its introductory paragraphs that the

Department of Justice had urged, and the Second Circuit had adopted,
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heightened scrutiny for sexual orientation. Id. at 2683-84. But the

Court did not discuss, much less adopt, heightened scrutiny.
It would have been a simple matter for the Windsor Court to adopt
heightened scrutiny and conclude that the government could not meet
the

higher

standard

of

proving

substantial

or

compelling

governmental interest. Yet, the Court did not. Indeed, the Court did not
quarrel with Justice Scalias characterization of its analysis as rational
basis. See id. at 2706, Scalia, J., dissenting, (I would review this
classification only for its rationality. As nearly as I can tell, the Court
agrees with that .) (internal citations omitted). If the Supreme
Court meant to apply heightened scrutiny, it would have said so.
Robicheaux v. Caldwell, 2 F.Supp.3d 910, 917 (E.D. La. 2014) (rejecting
notion that Windsor requires heightened scrutiny).
Likewise, in Romer v. Evans, 517 U.S. 620 (1996), and Lawrence v.
Texas, 539 U.S. 558 (2003), the Supreme Court could have applied a
heightened level of scrutiny to sexual orientation. Instead, the Court in
Romer expressly applied a rational basis test under the Equal
Protection Clause, see id. at 635, and the Court in Lawrence applied the
Due Process Clause with respect to private consensual sex. Lawrence,
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539 U.S. 578-79. There is no support in Supreme Court precedent for

heightened scrutiny in this case. This Court has likewise never adopted
heightened scrutiny.
Thus, Windsor did not, as Plaintiffs suggest, abrogate or somehow
make the decision in Bruning not controlling. Appellees/CrossAppellants Brief, pp. 30 & 35. Instead, Windsor was about the states
responsibilities for the definition and regulation of marriage. Id. at
2691. The federal government simply cannot unlawfully take away
rights created by the states including same-sex marriage rights.
The citizens of Missouri have chosen to define marriage as
between one man and one woman, just as Nebraska citizens did. This
Court upheld that decision as rational in Bruning, and this Court
remains bound at this time to uphold that policy decision. See United
States v. Johnson, 448 F.3d 1017, 1018 (8th Cir. 2006) (noting that
panels are bound by prior decision of the Court unless overruled en
banc).

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II.

States Have the Right to Define, Within Constitutional

Limits, Domestic Relationships.
Consistent with the traditional power of a state to regulate

domestic relations, see Windsor, 133 S.Ct. at 2680-81, the State of

Missouri, through its legislature and its people, made the policy
decision to define marriage as between a man and a woman. Mo.
Const. Art. I, 33; Mo. Rev. Stat 451.0221/; Windsor, 133 S.Ct. at 2691
(concluding that the regulation of domestic relations is an area that
has long been regarded as a virtually exclusive province of the States );
see also Banks v. Galbraith, 51 S.W. 105, 106 (Mo. Div. 2, 1899). Though
a states power to make this policy decision could change in the current
term of the United States Supreme Court, the Supreme Court has not
held that a traditional view of marriage between one man and one
woman violates any constitutional provision. Indeed, the power of a
state to define marriage and not the federal government was the
dominant theme of Windsor.
There is no dispute that the Supreme Court in Windsor concluded
that the federal Defense of Marriage Act (DOMA) was an intervention
All references to the Missouri Revised Statutes will be to the
2013 Cumulative Supplement unless otherwise noted.
1/

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in the area of state power and authority over marriage in its refusal to
recognize certain marriages deemed lawful by the state in which the
marriage was contracted. Id. Had the Supreme Court viewed the
definition of marriage in DOMA to be merely a violation of a
fundamental right to marry between consenting persons or the
infringement of a protected classification, the Supreme Court could
have easily said so. The Supreme Court might have also referenced
Baker v. Nelson, 409 U.S. 810 (1972), at least to indicate that it was no
longer controlling on the matter or even that the decision was
inapplicable. But it did not. Instead, its decision was couched in terms
of the rights and powers of the States to define marriage without
federal interference.
This Court has likewise held that the institution of marriage has
always been, in our federal system, the predominant concern of state
government. Bruning, 455 F.3d at 867. The Supreme Court long ago
declared, and recently reaffirmed, that a State has absolute right to
prescribe the conditions upon which the marriage relation between its
own citizens shall be created, and the causes for which it may be
dissolved. Id. (quoting Pennoyer v. Neff, 95 U.S. 714, 734-35 (1877)).
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Under these circumstances, and without further guidance from

the Supreme Court, the State of Missouri is constrained to follow the
policy decisions of its legislature and its citizens.
III. Windsor Does Not Support Plaintiffs Due Process
Argument.
Much like their arguments under the Equal Protection Clause,
Plaintiffs argue that the Supreme Courts decisions since Baker,
including Windsor, changed everything for purposes of the Due Process
Clause, resulting in the doctrinal development of a fundamental right
to same-sex marriage. 2/ The Supreme Court will certainly reach this
issue in the near future, but a fair reading of controlling case law leaves
the decision to define marriage squarely with the citizens of the State of
Missouri.
The majority in Windsor did not use the words fundamental
right, nor did the majority engage in any analysis as to whether samesex marriage is a fundamental right under the Due Process Clause. The
only references to a fundamental right in Windsor are made in
Glucksberg requires a careful description, of the asserted
fundamental right, which, here, means that plaintiffs must specifically
assert a fundamental right to same-sex marriage. Robicheaux, 2
F.Supp.3d at 922.
2/

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dissent, and those are only to reaffirm that [i]t is beyond dispute that
the right to same-sex marriage is not deeply rooted in this Nations
history and tradition. Windsor, 133 S.Ct. at 2715, Alito, J. dissenting,
joined by Thomas, J.
Not only did Justices Alito and Thomas expressly conclude that
same-sex marriage is not deeply rooted in this Nations history and
tradition, but Justice Scalia also stated that the opinion does not argue
that same-sex marriage is deeply rooted in this Nations history and
tradition, Washington v. Glucksberg, 521 U.S. 702, 720-721, 117 S.Ct.
2258, 138 L.Ed.2d 772 (1997), a claim that would of course be quite
absurd. Id. at 2706-07, Scalia, J. dissenting, joined by Thomas, J. Chief
Justice Roberts also concluded in his dissent that [t]he Court does not
have before it, and the logic of its opinion does not decide, the distinct
question whether the States, in the exercise of their historic and
essential authority to define the marital relation, may continue to
utilize the traditional definition of marriage. Id. at 2696, Roberts, C.J.
dissenting. Thus, the four dissenting Justices in Windsor concluded that
the opinion does not support or address whether same-sex marriage is a
fundamental right. And the majority opinion, written by Justice
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Kennedy, recognized that [t]he limitation of lawful marriage to

heterosexual couples . . . for centuries had been deemed both necessary
and fundamental[.]133 S. Ct. at 2689.
Windsor would have provided a perfect opportunity for the
Supreme Court to determine whether same-sex marriage fits within the
fundamental right of marriage. But the Court did not. And this was not
the first time. Five years after deciding Loving v. Virginia, 388 U.S. 1
(1967), the petitioners in Baker v. Nelson, 409 U.S. 810 (1972) argued
that same-sex marriage was a fundamental right under the Due Process
Clause. The Supreme Court decided the issue on the merits, and there
is nothing in the subsequent doctrinal developments to suggest that
the Supreme Court has changed its mind. The very fact that Windsor
did not conclude, much less analyze or mention, the issue demonstrates
that the law set down in Baker remains controlling.
Likewise, this Court in Bruning, reviewed all of the cases
following Loving that the Plaintiffs rely on to support an alternative
doctrinal development namely Zablocki v. Redhail, 434 U.S. 374
(1978), Romer v. Evans, 517 U.S. 620 (1996), and Lawrence v. Texas,
539 U.S. 558 (2003) and rejected any change in the controlling case
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law. Indeed, none of the cases mention, much less casts doubt on the
decision in Baker. In the last of those decisions, in fact, Justice
Kennedy, speaking for the majority, expressly recognized that the case
does not involve whether the government must give formal recognition
to

any

relationship

that

homosexual

persons

seek

to

enter.

Lawrence, 539 U.S. at 578.

Thus, a fair reading of controlling precedent, including Windsor,
indicates that the Supreme Court has yet to reach the issue of whether
same-sex marriage is protected by the Due Process Clause, nor has it
overturned or disavowed Baker.
CONCLUSION
For the foregoing reasons, as well as those set forth in Appellants
principal brief, this Court should reverse the district court, and enter
judgment in favor of the State of Missouri.

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Respectfully submitted,
By: /s/ Jeremiah J. Morgan
Jeremiah J. Morgan
Mo. Bar #50387
Deputy Solicitor General
207 West High Street
P.O. Box 899
Jefferson City, MO 65102-0899
Phone: 573-751-1800
Fax: 573-751-0774
Jeremiah.Morgan@ago.mo.gov
ATTORNEY FOR APPELLANT
STATE OF MISSOURI

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CERTIFICATE OF COMPLIANCE AND OF SERVICE

The undersigned hereby certifies that on this 6th day of April,
2015, one true and correct copy of the foregoing brief was served
electronically, and an additional paper copy will be mailed, postage
prepaid, to:
W. Stephen Nixon
Jay D. Haden
Jackson County Counselor
415 East 12th Street
Second Floor
Kansas City, Missouri 64106
cocounselor@jacksongov.org
jhaden@jacksongov.org

Anthony E. Rothert
Andrew J. McNulty
ACLU of Missouri
Foundation
454 Whittier Street
St. Louis, Missouri 63108
Gillian R. Wilcox
ACLU of Missouri
Foundation
3601 Main Street
Kansas City, Missouri 64111

Attorneys for Defendant Robert

Kelly
Deborah J. Dewart
620 E. Sabiston Drive
Swansboro, NC 28584-9674

Joshua A. Block
American Civil Liberties
Union
125 Broad Street
18th Floor
New York, NY 10004

Attorney for Amicus Curiae

North Carolina Values Coalition
and Liberty, Life, and Law
Foundation

Attorneys for Appellees/

Cross-Appellants

Michael F. Smith
THE SMITH APPELLATE LAW FIRM
1717 Pennsylvania Ave. NW,
Ste. 1025
Washington, DC 20006
Attorney for Amicus Curiae Ryan
T. Anderson

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Anthony R. Picarello, Jr.

U.S. Conf. of Catholic Bishops
3211 Fourth St., N.E.
Washington, DC 20017
Alexander Dushku
R. Shawn Gunnarson
KIRTON MCCONKIE
60 E. South Temple
Ste. 1800
Salt Lake City, UT 84111

Marsha I. Stiles
Midwest Center for Law &
Justice
1801 W. Norton Road Suite 202
Springfield, MO 65803
Attorney for Amicus Curiae
Missouri Family Policy Council
James A. Campbell
Douglas G. Wardlow
Alliance Defending Freedom
15100 N. 90th Street
Scottsdale, AZ 85260

Carl H. Esbeck
Professor of Law
209 Hulston Hall
820 Conley Road
Columbia, MO 65211

Attorneys for Amicus Curiae

Alliance Defending Freedom
Mary E. McAlister
Liberty Counsel
P.O. Box 11108
Lynchburg, VA 24506

Attorneys for Amicus

Curiae U.S. Conference of
Catholic Bishops; National
Association of Evangelicals;
The Church of Jesus Christ
of Latter-day Saints; The
Ethics & Religious Liberty
Commission of the
Southern Baptist
Convention; and the
Lutheran Church-Missouri
Synod

Mathew D. Staver
Anita L. Staver
Horatio G. Mihet
Liberty Counsel
P.O. Box 540774
Orlando, FL 32854
Attorneys for Amicus Curiae
Liberty Counsel

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Michael K. Whitehead
WHITEHEAD LAW FIRM, LLC
1100 Main Street
Suite 2600
Kansas City, MO 64105

Prof. Anderson B. Francois

Howard University School of
Law Civil Rights Clinic
2400 Sixth Street, N.W.
Washington, DC 20059

Attorney for Amicus Curiae

Missouri Legislative
Leadership

Benjamin G. Shatz
Brad W. Seiling
MANATT, PHELPS & PHILLIPS,
LLP
11355 West Olympic Blvd.
Los Angeles, CA 90064

Gene C. Schaerr
332 Constitution Ave. NE
Washington, DC 20002

Attorneys for Amicus Curiae The

Howard University School of
Law Civil Rights Clinic

Attorney for Amicus Curiae

114 Scholars of Marriage

Abbe David Lowell

Christopher D. Man
CHADBOURNE & PARKE LLP
1200 New Hampshire Ave., N.W.
Washington, DC 20036

Lawrence J. Joseph
1250 Connecticut Ave.,
NW, Suite 200
Washington, DC 20036
Attorney for Amicus Curiae
Eagle Forum Education &
Legal Defense Fund

Attorneys for Amicus Curiae

OutServe-Servicemembers Legal
Defense Network and The
American Military Partner
Association

Carmine D. Boccuzzi, Jr.

Mark A. Lightner
Grant A. Bermann
Alexandra Eber
CLEARY GOTTLIEB STEEN &
HAMILTON LLP
One Liberty Plaza
New York, NY 10006
Attorneys for Amicus
Curiae The American
Sociological Association
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Susan Baker Manning

Michael L. Whitlock
Jawad Muaddi
Kimberley E. Lunetta
Jacquelynne M. Hamilton
MORGAN, LEWIS & BOCKIUS
LLP
2020 K Street, N.W.
Washington, DC 20006

Wade J. Henderson
Lisa M. Bornstein
THE LEADERSHIP CONFERENCE ON
CIVIL AND HUMAN RIGHTS
1629 K Street, NW
10th Floor
Washington, DC 20006
Matthew M. Hoffman
Andrew Hudson
GOODWIN PROCTER LLP
901 New York Ave., N.W.
Washington, DC 20001

Attorneys for Amicus

Curiae 24 Employers
Ayesha N. Khan
Alex J. Luchenitser
1901 L Street, NW
Suite 400
Washington, DC 20036

Attorneys for Amicus Curiae The

Leadership Conference on Civil
and Human Rights and The
Leadership Conference
Education Fund

Charles A. Rothfeld
Miriam R. Nemetz
Ricahrd B. Katskee
Scott M. Noveck
MAYER BROWN LLP
1999 K Street, NW
Washington, DC 20006

Adam P. Romero
THE WILLIAMS INSTITUTE
UCLA SCHOOL OF LAW
385 Charles E. Young Drive
Los Angeles, CA 90095
Attorneys for Amicus Curiae
Gary J. Gates

Hannah Y.S. Chanoine

MAYER BROWN LLP
1221 Avenue of the
Americas
New York, NY 10020
Attorneys for Amicus
Curiae Americans United
for Separation of Church
and State
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Geoffrey R. Stone
THE UNIVERSITY OF
CHICAGO LAW SCHOOL
1111 E. 60th Street
Chicago, IL 60637

Thomas E. Nanney
BRYAN CAVE LLP
1200 Main Street, Suite 3800
Kansas City, MO 64105
Brian C. Walsh
BRYAN CAVE LLP
211 N. Broadway, Suite 3600
St. Louis, MO 63102

Diane M. Soubly
STEVENSON KEPPELMAN
ASSOCIATES
444 S. Main
Ann Arbor, MI 48104

Attorneys for Amicus Curiae

Family Equility Council and
Colage

Lori Alvino McGill

QUINN EMANUEL URQUHART
& SULLIVAN LLP
777 6th Street, NW
11th Floor
Washington, DC 200013706

Denise D. Lieberman
PROMO
6047 Waterman Blvd.
St. Louis, MO 63112
Shane K. Blank
Keith Price
SANDBERG PHOENIX & VON
GONTARD, P.C.
600 Washington Ave.
15th Floor
St. Louis, MO 63101

Attorneys for Amicus

Curiae Constitutional Law
Scholars
Catherine E. Stetson
Erica Knievel Songer
Mary Helen Wimberly
Madeline H. Gitomer
Katherine J. Duncan
HOGAN LOVELLS US LLP
555 Thirteenth Street, NW
Washingtonn, DC 20004

Attorneys for PROMO

Attorneys for Amicus

Curiae Historians of
Antigay Discrimination

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Camilla B. Taylor
Kyle A. Palazzolo
LAMBDA LEGAL DEFENSE
AND EDUCATION FUND, INC.
105 West Adams
Suite 2600
Chicago, IL 60603-6208

Pratick A. Shah
AKIN GUMP STRAUSS HAUER &
FELD LLP
1333 New Hampshire Ave., NW
Washington, DC 20036
Daniel McNeel Lane, Jr.
AKIN GUMP STRAUSS HAUER &
FELD LLP
300 Convent Street
Suite 1600
San Antonio, TX 78205

Michael A. Ponto
Christopher H. Dolan
Emily E. Chow
Christiana M. Martenson
FAEGRE BAKER DANIELS
LLP
2200 Wells Fargo Center
90 South Seventh Street
Minneapolice, MN 55402

Jessica M. Weisel
AKIN GUMP STRAUSS HAUER &
FELD LLP
2029 Century Park East
Suite 2400
Los Angeles, CA 90067

Attorneys for Amicus

Curiae Janet Jorgensen
and Cynthia Phillips

Attorneys for Amicus Curiae

Historians of Marriage

Joesph P. Lombardo
Eric S. Silvestri
Brittany L. Viola
Sara T. Ghadiri
CHAPMAN AND CUTLER LLP
111 W. Monroe Street
Chicago, IL 60603
Attorneys for Amicus
Curiae Legal Scholars

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J. Michael Bridges
HUSCH BLACKWELL LLP
901 St. Louis Street
Suite 1800
Springfield, MO 65806

Jeffrey S. Trachtman
Norman C. Simon
Jason M. Moff
Kurt M. Denk
Michelle Ben-David
Catherine Hoge
KRAMER LEVIN NAFTALIS &
FRANKEL LLP
1177 Avenue of the Americas
New York, NY 10036

Winston Calvert, City

Counselor
City of St. Louis
1200 Market Street
City Hall, Room 314
St. Louis, MO 63103

Attorneys for Amicus Curiae

President of the House of
Deputies of the Episcopal Church
and the Episcopal Bishops of
Missouri and Nebraska; General
Synod of the United Church of
Christ; Reconstructionist
Rabbinical Association;
Reconstructionist Rabbinical
College and Jewish
Reconstructionist Communities;
Union for Reform Judaism;
Unitarian Universalist
Association; Affirmation;
Convenant Network of
Presbyterians; Friends for
Lesbian, Gay, Bisexual,
Transgender, and Queer
Concerns; Methodist Federation
for Social Action; More Light
Presbyterians; Muslims for
Progressive Values; Parity;
Reconciling Ministries Network;
Reconciling Works; Lutherans for
Full Participation; and Religious
Institute, Inc.

William Geary, City

Attorney
City of Kansas City
28th Floor, City Hall
414 E. 12th Street
Kansas City, MO 64106
Attorneys for Amicus
Curiae Mayors Francis
Slay, Sly James, Shelley
Welsch, Kyle Dorian, Chris
Coleman & Peter
Lindstrom

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The undersigned further certifies that the foregoing brief complies

with the limitations contained in Rule 32(a)(5) and 32(a)(6), and that
the brief contains 1,681 words. The undersigned further certifies that
the electronically filed brief has been scanned for viruses and are virusfree.
/s/ Jeremiah J. Morgan
Deputy Solicitor General

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