Kristin Perry, et al v. Arnold Schwarzenegger, et al

Filing 372

COURT ENTERED FILING: Submitted (ECF) Amicus brief for review by government or with consent per FRAP 29(a) and filed Motion to file a late brief, Motion to file oversized brief. Submitted by Gage Raley. Date of service: 11/01/2011. [7950290] (DB)

No. 10-16696
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISTIN PERRY, et al.,
Plaintiffs-Appellees,
v.
ARNOLD SCHWARZENEGGER, et al.,
Defendants,
and
DENNIS HOLLINGSWORTH, et al.,
Defendant-Intervenors-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA, CASE NO. 3:09-CV-02292
(HONORABLE VAUGHN R. WALKER)
BRIEF OF AMICUS CURIAE, GAGE RALEY,
IN SUPPORT OF DEFENDANT-INTERVENORS-APPELLANTS
URGING REVERSAL OF THE DISTRICT COURT
Gage Raley
4-5-5-E505 Kashiihama, Higashi-ku
Fukuoka-shi 813-0016, Japan
Phone: [phone]
Email: [e-mail]
In Pro Se as Amicus Curiae

TABLE OF CONTENTS
TABLE OF AUTHORITIES................................................................................... iii
INTEREST OF AMICUS CURIAE ...........................................................................1
SUMMARY OF THE ARGUMENT........................................................................1
ARGUMENT ............................................................................................................3
I. THE INSEPARABLE HISTORIC RELATIONSHIP BETWEEN MARRIAGE
AND PATERNITY ESTABLISHMENT SHOWS THAT SAME-SEX
UNIONS DO NOT “ENCOMPASS THE HISTORICAL PURPOSE AND
FORM OF MARRIAGE,” AND THUS SAME-SEX UNIONS DO NOT FALL
UNDER THE FUNDAMENTAL RIGHT TO MARRY.....................................3
A. The U.S. Supreme Court favors certain types of historical authorities when
evaluating fundamental rights claims, which the court below failed to
consult .............................................................................................................3
B. Historical sources show that paternity establishment has long been
considered a fundamental purpose of marriage in Western law and thought .7
i. Modern evolutionary theory.......................................................................8
ii. Ancient Greece .........................................................................................13
iii. Ancient Rome ...........................................................................................15
iv. Medieval Ecclesiastic Scholarship...........................................................17
v. English Law..............................................................................................20
vi. American Law ..........................................................................................34
C. “Our Nation’s history, legal traditions, and practices” show that same-sex
unions do not “encompass the historical purpose and form of marriage” ....39
II. BECAUSE THE MARITAL PRESUMPTION OF PATERNITY IS
INCOMPATIBLE WITH SAME-SEX UNIONS, THE STATE OF
CALIFORNIA HAS A RATIONAL BASIS FOR LIMITING MARRIAGE TO
A MAN AND A WOMAN ................................................................................41

i


CONCLUSION .......................................................................................................44

ii


TABLE OF AUTHORITIES
Cases
Clements v. Fashing, 457 U.S. 957 (1982)..............................................................42
Duncan v. Duncan, 10 Ohio St. 181 (1859) ............................................................35
GDK v. State Dept. of Family Services, 92 P.3d 834 (Wyo. 2004)........................16
Gomez v. Perez, 409 U.S. 535 (1973).....................................................................36
Heller v. Doe, 509 U.S. 312 (1993).........................................................................42
In re M.C., 195 Cal. App. 4th 197 (2011) ...............................................................43
In re Soeder’s Estate, 209 N.E.2d 175 (Ohio Prob. Ct. 1965).................................35
Jaffe v. Deckard, 261 S.W. 390 (Tex. Civ. App. 1924) ..........................................34
Lawrence v. Texas, 539 U.S. 558 (2003) ................................................................42
Levy v. Louisiana, 391 U.S. 68 (1968) ...................................................................36
Loving v. Virginia, 388 U.S. 1 (1967) ......................................................................3
Michael H. v. Gerald D., 491 U.S. 110 (1989)..........................................................4
Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010).............................2
PNC Bank Corp. v. Workers’ Comp. Appeals Bd. (Stamos), 831 A.2d 1269 (Pa.
Commw. 2003).....................................................................................................37
R.R.K. v. S.G.P., 507 N.E.2d 736 (Mass. 1987) .....................................................34
Reno v. Flores, 507 U.S. 292 (1993).........................................................................3
Romer v. Evans, 517 U.S. 620 (1996).....................................................................42
State v. Lash, 1 Harr. 380 (N.J. 1837) .....................................................................34
Staudenmayer v. Staudenmayer, 552 Pa. 253 (1998)..............................................35
Trimble v. Gordon, 430 U.S. 762 (1977) ................................................................36

iii


Turner v. Safley, 482 U.S. 78, 95 (1987) ..................................................................3
Umbenhower v. Labus, 97 N.E. 832 (Ohio 1912)...................................................35
Washington v. Glucksberg, 521 U.S. 702 (1997)......................................................3
Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164 (1972)...........................................36
Statutes
An Act for the Better Preventing of Clandestine Marriage, 26 Geo. II., c. 33 (1753)
..............................................................................................................................30
Cal. Fam. Code § 7540 (2011) ................................................................................43
Special Bastardy Act of 1235, 20 Hen. III, c.9 (1236) ............................................22
Constitutional Provisions
U.S. Const. amend. XIV, § 1...................................................................................42
Other Authorities
1 ARISTOTLE, POLITICS (H. G. Bohn trans., 1853) ..................................................14
1 Louise A. Tilly et. al, Women’s Work and European Fertility Patterns, 6 J. OF
INTERDISCIPLINARY HIST. 447 (1976) ..................................................................25
1 ST. THOMAS AQUINAS, SUMMA CONTRA GENTILES BOOK III (Anton C. Pegis et al.
trans., Hanover House 1957)................................................................................18
2 ARISTOTLE, THE NICOMACHEAN ETHICS (R.W. Browne trans., George Bell &
Sons 1889)............................................................................................................15
2 Louise A. Tilly et al, Women’s Work and European Fertility Patterns 28 (Center
for Research, Working Paper #95, 1974).............................................................25
2 ST. THOMAS AQUINAS, OF GOD AND HIS CREATURES (Joseph Rickaby, trans.,
Carroll Press 1950)...............................................................................................19
ADOLF BERGER, ENCYCLOPEDIC DICTIONARY OF ROMAN LAW, Volume 43 (1953)
..............................................................................................................................15

iv


Alexander Tsesis, Toward a Just Immigration Policy: Putting Ethics into
Immigration Law, 45 WAYNE L. REV. 105 (1999) ...............................................27
BARTHOLOMEW OF LUCCA ET. AL., ON THE GOVERNMENT OF RULERS: DE REGIMINE
PRINCIPUM (James M. Blythe trans., U. of Penn. Press 1997) .............................20
Belinda Meteyard, Illegitimacy and Marriage in Eighteenth-Century England, 10
J. OF INTERDISCIPLINARY HIST. 479 (1980) ..........................................................24
BERTRAND RUSSELL, MARRIAGE AND MORALS (W. W. Norton & Co., 1970)........38
CAREL P. VAN SCHAIK, INFANTICIDE BY MALES AND ITS IMPLICATIONS (2000).......11
Carlos J.R. Salvado, An Effective Personal Jurisdiction Doctrine for the Internet,
12 U. BALT. INTELL. PROP. L.J. 75 (2002)............................................................27
CENTER FOR DISEASE CONTROL AND PREVENTION, BIRTHS: FINAL DATA FOR 2008
(Dec. 8, 2010).........................................................................................................2
CHARLES MARSH, A Letter to the Public: Containing the Substance of what hath
been offered in the late Debates upon the Subject of the Act of Parliament for the
better preventing of Clandestine Marriages in THE MARRIAGE ACT OF 1753:
FOUR TRACTS (1984)............................................................................................25
CHRISTIANE KLAPISCH-ZUBER ET. AL., A HISTORY OF WOMEN IN THE WEST:
SILENCES OF THE MIDDLE AGES (1992)................................................................18
Dominik Lasok, Virginia Bastardy Laws: A Burdensome Heritage, 9 WM. & MARY
L. REV. 402 (1967-1968)......................................................................................17
E. Donald Shapiro et. al., The DNA Paternity Test: Legislating the Future
Paternity Action, 7 J.L. & HEALTH 1 (1992)........................................................21
Edward D. Re, The Roman Contribution to the Common Law, 29 FORDHAM L.
REV. 447 (1961) ...................................................................................................20
Edward R. Armstrong, Putative Fathers and the Presumption of Legitimacy-Adams
and the Forbidden Fruit: Clashes Between the Presumption of Legitimacy and
the Rights of Putative Fathers in Arkansas, 25 U. ARK. LITTLE ROCK L.REV. 369
(2003) ...................................................................................................................17
Eric E. Walker, State Action and Punitive Damages: A New Twist on an Old
Doctrine, 38 CONN. L. REV. 833 (2006) ..............................................................27

v


EVE TAVOR BANNET, THE DOMESTIC REVOLUTION: ENLIGHTENMENT FEMINISMS
AND THE NOVEL (2000) ........................................................................................26
FRANCIS HUTCHESON, A SYSTEM OF MORAL PHILOSOPHY, IN THREE BOOKS VOL. 2
(1755) ...................................................................................................................28
Gage Raley, The Paternity Establishment Theory of Marriage and Its
Ramifications for Same-Sex Marriage Constitutional Cases, 19 VA. J. SOC.
POL’Y & L. __ (2011) (forthcoming)......................................................................1
HANS KUMMER, IN QUEST OF THE SACRED BABOON: A SCIENTIST’S JOURNEY (1997)
..............................................................................................................................12
HENRICI DE BRACTON, DE LEGIBUS ET CONSUETUDINIBUS ANGLIÆ (Longman &
Co., 1878).............................................................................................................21
IAN TATTERSALL, BECOMING HUMAN (1998) ..........................................................12
JAMES KENT, COMMENTARIES ON AMERICAN LAW (Little, Brown 1901) ...............34
Jeffrey S. Koehlinger, Substantive Due Process Analysis and the Lockean Liberal
Tradition: Rethinking the Modern Privacy Cases, 65 IND. L.J. 723 (1990) ........26
John L. Locke, Language and life history: A new perspective on the development
and evolution of human language, 29 BEHAVIORAL AND BRAIN SCIENCES 259
(2006) .....................................................................................................................8
JOHN LOCKE, SECOND TREATISE OF GOVERNMENT ..................................................27
KARL GÜTERBOCK, BRACTON AND HIS RELATION TO THE ROMAN LAW: A
CONTRIBUTION TO THE HISTORY OF THE ROMAN LAW IN THE MIDDLE AGES (1866)
..............................................................................................................................21
Katharine K. Baker, Bargaining Or Biology? The History and Future of Paternity
Law and Parental Status, 14 CORNELL J.L. & PUB. POL’Y 1 (2004) ...................30
Legal Information Institute, Uniform Matrimonial and Family Laws Locator,
http://www.law.cornell.edu/uniform/vol9.html#paren ........................................37
Marvin M. Moore, The Diverse Definitions of Criminal Adultery, 30 U. KAN. CITY
L. REV. 219 (1962) ...............................................................................................17

vi


Michael Hoggan, Settled Expectations and the Takings Clause: Property and Law
Are Born and Must Die Together, 16 J. ENERGY NAT. RESOURCES & ENVTL. L.
379 (1996) ............................................................................................................26
MICHAEL P. MUEHLENBEIN, HUMAN EVOLUTIONARY BIOLOGY (2010) ..................11
MICHELA GALLAGHER ET. AL., HANDBOOK OF PSYCHOLOGY: VOL. III (2003)........10
Munonyedi Ugbode, Who's Your Daddy?: Why the Presumption of Legitimacy
Should Be Abandoned in Vermont, 34 VT. L. REV. 683 (2010) ...........................38
PETER B. GRAY & KERMYT G. ANDERSON, FATHERHOOD: EVOLUTION AND HUMAN
PATERNAL BEHAVIOR (2010) .................................................................................9
Pierre L. van den Berghe and David P. Barash, Inclusive Fitness and Human
Family Structure, 79 AM. ANTHROPOLOGIST 809 (1977).....................................11
PLATO, THE REPUBLIC (Benjamin Jowett trans., Colonial Press 1901)...................13
R.B. OUTHWAITE, CLANDESTINE MARRIAGE IN ENGLAND, 1500-1850 (1995) .30, 31
Robert P. George, Kelsen and Aquinas on “The Natural-Law Doctrine”, 75 NOTRE
DAME L. REV. 1625 (2000) ..................................................................................18
ROBERT WRIGHT, THE MORAL ANIMAL (1994) .......................................................10
Shineovich and Kemp, 229 Or.App. 670 (2009).....................................................40
SIR WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND IN FOUR
BOOKS, VOL. 1 (1753) (Childs & Peterson, eds., 1860) .......................................17
STEPHEN PARKER, INFORMAL MARRIAGE, COHABITATION AND THE LAW 9 (1990).23
SUETONIUS, THE LIVES OF THE CAESARS (Kessinger 2004) ...................................16
Susan Frelich Appleton, Presuming Women: Revisiting the Presumption of
Legitimacy in the Same-Sex Couples Era, 8 Boston L. Rev. 227 (2006) ............40
SUSAN TREGGIARI, ROMAN MARRIAGE: IUSTI CONIUGES FROM THE TIME OF CICERO
TO THE TIME OF ULPIAN (1993) ............................................................................15
Theresa Glennon, Somebody’s Child: Evaluating the Erosion of the Marital
Presumption of Paternity, 102 W. VA. L. REV. 547 (2000) .................................17

vii


William S. Brewbaker III, Found Law, Made Law and Creation: Reconsidering
Blackstone's Declaratory Theory, 22 J. L. & RELIGION 255 (2007) ....................29
ZEPHANIAH SWIFT, A SYSTEM OF THE LAWS OF THE STATE OF CONNECTICUT: IN SIX
BOOKS (1795) .......................................................................................................22

viii


INTEREST OF AMICUS CURIAE
Gage Raley (“Amicus”) recently authored a note, scheduled to published in
December, titled The Paternity Establishment Theory of Marriage and Its
Ramifications for Same-Sex Marriage Constitutional Cases.1 The note directly
addresses this case, examining how the paternity establishment narrative of
marriage might affect the due process and equal protection claims made by the
Plaintiffs-Appellees. As the author of the note, Amicus has a interest in assuring
that the arguments made therein are brought to the attention of this Court.
Both parties have granted their consent to the filing of this amicus brief.
SUMMARY OF THE ARGUMENT
This brief examines the connection between paternity establishment and
marriage, and the implications it has for same-sex marriage constitutional claims.
The brief presents a genealogy of the marital presumption of paternity, which
began in prehistoric times as an evolutionary reproductive strategy, was recognized
and co-opted by the state for legal purposes in Classical Antiquity, and continues
to establish legal paternity for over half of children born in the United States

1

19 VA. J. SOC. POL’Y & L. __ (2011) (forthcoming).
1


today.2 It ultimately shows that same-sex unions are incompatible with California’s
marital presumption of paternity.
The issue of paternity establishment is very relevant to same-sex marriage
due process and equal protection claims. As an integral part of “the history,
tradition and practice of marriage in the United States,”3 it must be considered
when evaluating whether same-sex marriage is a fundamental right for due process
purposes. As an important government interest in marriage, it must be considered
when evaluating whether the state has a rational basis for distinguishing between
same-sex and opposite-sex unions in regard to marriage.
This brief asserts that the historic relationship between marriage and
paternity establishment shows that same-sex unions do not fall under the
fundamental right to marry. It also argues that, since same-sex marriages would be
incompatible with the marital presumption of paternity, the state has a rational
basis for limiting marriage to unions between a man and a woman. For these
reasons, the brief concludes that this Court should overturn the lower court’s ruling
and find that Proposition 8 does not violate the Due Process and Equal Protection
Clauses of the U.S. Constitution.

2

CENTER FOR DISEASE CONTROL AND PREVENTION, BIRTHS: FINAL DATA FOR 2008
1 (Dec. 8, 2010) (“40.6 percent of births were to unmarried women in 2008”).
3
Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 992 (N.D. Cal. 2010).

2


ARGUMENT
I.

THE INSEPARABLE HISTORICAL RELATIONSHIP BETWEEN
MARRIAGE AND PATERNITY ESTABLISHMENT SHOWS THAT
SAME-SEX UNIONS DO NOT “ENCOMPASS THE HISTORICAL
PURPOSE AND FORM OF MARRIAGE,” AND THUS SAME-SEX
UNIONS DO NOT FALL UNDER THE FUNDAMENTAL RIGHT TO
MARRY
A. The U.S. Supreme Court favors certain types of historical authorities
when evaluating fundamental rights claims, which the court below
failed to consult
Under the concept of substantive due process, a state may not infringe upon

“fundamental” rights unless the infringement is narrowly tailored to serve a
compelling state interest.4 To determine whether a right is fundamental under the
Due Process Clause, a court inquires into whether the right is rooted in “our
Nation’s history, legal traditions, and practices.”5
The Supreme Court has held that the right to marry is a fundamental right.6
The question in same-sex marriage litigation is, as the lower court observed,
whether same-sex couples “seek to exercise the fundamental right to marry; or,
because they are couples of the same sex, whether they seek recognition of a new

4

See, e.g., Reno v. Flores, 507 U.S. 292, 301-02 (1993).
See, e.g., Washington v. Glucksberg, 521 U.S. 702, 710 (1997).
6
See, e.g., Turner v. Safley, 482 U.S. 78, 95 (1987) (“[T]he decision to marry is a
fundamental right”), citing Loving v. Virginia, 388 U.S. 1, 12 (1967) (The
“freedom to marry has long been recognized as one of the vital personal rights
essential to the orderly pursuit of happiness by free men.”).
5

3


right.”7 This inquiry requires courts to delve into the historic nature and scope of
traditional marriage to determine whether same-sex unions fulfill the same
functions and purposes.8 If so, then same-sex couples could claim the same
fundamental right to marry, and laws preventing their nuptials would be subject to
strict scrutiny review.9
The Supreme Court relies on particular historical authorities when
determining whether a right is “deeply rooted” in our history. In two of the more
recent cases containing in-depth analyses of fundamental rights claims, Michael H.
v. Gerald D.10 and Washington v. Glucksberg,11 the Supreme Court looked to
remarkably similar historical sources in considering two very different claims.
Michael H. addressed whether an “adulterous natural father” had a fundamental
right to challenge the marital presumption of paternity,12 while Glucksberg
considered whether there was a fundamental right to assisted suicide.13 In both of
these cases, the Court surveyed “over 700 years” of Anglo-American common-law
tradition, starting with the 13th century scholar Henry de Bracton, “one of the first

7

Perry, 704 F. Supp. 2d at 992.
See id. (listing the characteristics and functions marriage has retained “throughout
the history of the United States.”).
9
Id. at 994.
10
491 U.S. 110 (1989).
11
521 U.S. 702 (1997).
12
See generally Michael H., 491 U.S. 110.
13
See generally Glucksberg, 521 U.S. 702.
8

4


legal-treatise writers.”14 Glucksberg further noted that “other late-medieval treatise
writers” echoed Bracton’s writings on suicide.15 In both cases, the Court relied on
the writings of Sir William Blackstone,16,17 and noted in Glucksberg that his
“Commentaries on the Laws of England not only provided a definitive summary of
the common law but was also a primary legal authority for 18th- and 19th-century
American lawyers.”18 In both Michael H. and Glucksberg, the Court examined how
early American courts treated the issues in dispute by looking to treatise authors
such as James Kent and Zephaniah Swift.19 The Court then considered how the
states had approached each asserted right in the previous century by examining
model codes and American Law Reports.20 Finally, in both cases, the Court noted
that though technology had advanced, attitudes had softened, and circumstances
had changed, state laws had largely remained unchanged, underscoring enduring
and important policy reasons for observing the marital presumption of paternity
and for prohibiting assisted suicide.21

14

Glucksberg, 521 U.S. at 711; Michael H., 491 U.S. at 124.
Glucksberg, 521 U.S. at 711 n.10.
16
Id. at 712; Michael H., 491 U.S. at 124.
17
Michael H., 491 U.S. at 124.
18
Glucksberg, 521 U.S. at 712.
19
Id. at 713; Michael H., 491 U.S. at 125.
20
Glucksberg, 521 U.S. at 715-16; Michael H., 491 U.S. at 125-26.
21
Glucksberg, 521 U.S. at 719 (“Attitudes toward suicide itself have changed since
Bracton, but our laws have consistently condemned, and continue to prohibit,
assisting suicide. Despite changes in medical technology and notwithstanding an
increased emphasis on the importance of end-of-life decision making, we have not
15

5


The Supreme Court’s heavy reliance on these types of sources in its due
process review is not without its critics. In his dissent from Michael H., Justice
Brennen, joined by Justices Marshall and Blackmun, accused the majority opinion
of “stop[ping] at . . . Bracton, or Blackstone, or Kent” in determining whether an
right was deeply rooted in the country’s traditions,22 and of “act[ing] as though
English legal treatises and the American Law Reports always have provided the
sole source for our constitutional principles.”23 Whatever the shortcomings of this
method, however, the Court considers these materials persuasive in due process
cases, and thus these are the types of historical sources that should be consulted in
determining whether same-sex couples hold a fundamental right to marry.
The lower court, however, held that same-sex unions “encompass the
historical purpose and form of marriage”24 without consulting any of the historical
sources the Supreme Court finds authoritative. Rather, it based its findings

retreated from this prohibition.”), 728-35 (finding several continuing state interests
in prohibiting assisted suicide); Michael H., 491 U.S. at 125 (“in modern times . . .
the rigid protection of the marital family has in other respects been relaxed”), 140
(Brennen, J., dissenting) (“[T]he original reasons for the conclusive presumption of
paternity are out of place in a world in which blood tests can prove virtually
beyond a shadow of a doubt who sired a particular child”), 130 (discussing why
“the people of California” might wish to continue recognizing the marital
presumption of paternity).
22
Michael H., 491 U.S. at 137 (Brennen, J., dissenting).
23
Id. at 138 (Brennen, J., dissenting).
24
Perry, 704 F. Supp. 2d at 993.

6


primarily on testimony from a history professor.25 The lower court’s decision
makes no mention of historical authorities such as Blackstone or Bracton.
B. Historical sources show that paternity establishment has long been
considered a fundamental purpose of marriage in Western law and
thought
If the lower court had inquired into the writings of historical authorities, it
would have discovered that paternity establishment—an issue relevant only to
opposite-sex relationships—has long been considered a central function of
marriage in Western law and thought. Aristotle was one of the earliest Western
thinkers to define marriage in terms of its ability to identify a child’s father.
Ancient Rome, which borrowed heavily from Greek teachings, understood
marriage to be a relationship through which a man could identify his children.
Medieval ecclesiastical scholars, including St. Thomas Aquinas, built on
Aristotelian and Roman ideals in articulating a very lucid description of the
relationship between paternity establishment and marriage. Medieval church courts
introduced Roman marriage law and concepts into England, and those doctrines
were eventually carried over to the United States. Even today, the Roman marital
presumption of paternity is still in effect in American courts. The paternity
establishment narrative of marriage has survived for centuries, appearing in the
work of Enlightenment-era scholars such as John Locke, Frances Hutcheson and

25

Id. at 956-977 (extensively citing historian Nancy Cott).
7


Blackstone, and persists to this very day in the form of modern evolutionary
theory.
What follows is a genealogy of the modern marital presumption of paternity.
It traces the presumption’s history from its beginnings in prehistory as an
evolutionary reproductive strategy, to Classical Antiquity, when marriage’s natural
paternity establishment function was recognized and co-opted by the state for legal
purposes, and finally to present-day America, where it establishes legal paternity
for over half of the children born in this country,26 making it arguably the most
significant contemporary legal function of marriage. This history has major
implications for the lower court’s decision, as it undermines its finding that samesex unions “encompass the historical purpose and form of marriage.”27
i. Modern evolutionary theory
Some modern evolutionary theorists argue that the origins of monogamy are
traceable back to the African savanna, when prehistoric humans took their first
steps upright. When early humans began walking upright, their bodies, and
especially their hips, became more slender to accommodate this new practice.28

26

CENTER FOR DISEASE CONTROL AND PREVENTION, supra note 2.
Perry, 704 F. Supp. 2d at 993.
28
See, e.g., John L. Locke, Language and life history: A new perspective on the
development and evolution of human language, 29 BEHAVIORAL AND BRAIN
SCIENCES 259, 261 (2006) (stating that bipedalism “realigned the spine and
narrowed the pelvis”).
27

8


Unfortunately, the bipedal-suited skeletal structure was not optimal for pregnancy.
The tension between the demands of bipedalism and childbearing is known as the
“obstetrical dilemma.”29 “[T]he wider maternal pelvis that could enable more
prenatal brain growth (and hence the birth of a bigger-brained baby) simply isn’t
feasible, because of the competing demands of bipedalism on a woman’s
skeleton.”30 As a result, “[t]o be born, rather than snagged in the birth canal, a bigbrained hominin baby has to be born with a smaller head than expected.”31 This
means that for humans, “a larger proportion of brain growth compared with, say,
that of a chimpanzee baby must be postponed until after birth. The consequence is
that human babies are born more helpless.”32 These vulnerable children “command
more care, even require more care, than a mother alone can provide.”33
Because of the unique needs of human newborns, “[w]e number among the
small fraction of mammalian species in which males play important roles in raising

29

See, e.g., id. (“An important factor in the evolution of human infancy was
bipedalism, which realigned the spine and narrowed the pelvis. This change
created an unfavorable ratio between the smaller maternal birth canal and the large
fetal head – the brain of modern human neonates is larger than the brains of other
primates, even though it achieves a smaller percentage of its total growth at birth –
and this produced what Washburn called an ‘obstetrical dilemma.’ This dilemma
was eased when some amount of skull and brain growth – and motor development
– were adaptively deferred into the postnatal period, increasing infant dependency
and the need of postnatal care.”)
30
PETER B. GRAY & KERMYT G. ANDERSON, FATHERHOOD: EVOLUTION AND
HUMAN PATERNAL BEHAVIOR 20 (2010).
31
Id.
32
Id.
33
Id.

9


offspring.”34 When it comes to paternal investment, in many species, males
contribute little more than sperm.35 For human males, however, “[f]ollowing the
generic male sexual strategy—roaming around, seducing and abandoning
everything in sight—won’t do a male’s genes much good if the resulting offspring
gets eaten.”36 Due to the unusually long time that humans take to mature and their
consequent need for care and protection during infancy, a baby “seriously
compromise[d] a mother’s food gathering” in prehistoric times; this placed both
the mother and her child in a very vulnerable position.37 It thus became a better
evolutionary strategy for the human male to stick around to help raise and protect
his offspring, rather than mate with as many women as possible and hope that at
least a few of the resulting children would somehow survive to adulthood.
Natural selection, however, is strongly biased against males who invest
precious time and resources in children who may not by their biological own. “Not
long for this world,” notes one theorist, “are the genes of a man who spends his
time rearing children who aren’t his.”38 Prehistoric mothers, of course, knew
beyond a doubt that the infant she gave birth to was her biological child, and thus
had no reason to second-guess her investments in raising the child. By contrast,

34

Id. at 30.
MICHELA GALLAGHER ET. AL., HANDBOOK OF PSYCHOLOGY: VOL. III 12 (2003).
36
ROBERT WRIGHT, THE MORAL ANIMAL 58 (1994).
37
Id. Wright goes on to describe prehistoric children as basically helpless, fleshy
mounds of “tiger bait.”
38
Id. at 66.
35

10


males lacked this built-in paternity verification, and therefore had less of a natural
incentive to invest in offspring.39
A male primate will only “protect an infant, and be closely associated with it
if, on average, the likelihood of paternity is high enough to outweigh the costs” of
rearing the child.40 “Hence, in order to gain this protection . . . a female needs to
provide the male with a high enough probability of paternity to make it selectively
advantageous for the male.”41 In a species with high male parental investment,
such as humans, “adaptations should evolve to help guarantee that the female’s
offspring are also [the investing male’s] own.”42
Female monogamy—which is arguably the defining characteristic of
marriage across almost every culture43—is such an adaptation.44 Woman began
limiting themselves to one man in order to assure him of his paternity; in return,

39

MICHAEL P. MUEHLENBEIN, HUMAN EVOLUTIONARY BIOLOGY 356 (2010) (“A
direct consequence of internal fertilization is that men cannot be absolutely certain
about their paternity. . . . It is therefore not surprising that natural selection has
favored the production of behavioral mechanisms that predispose men (in general)
to invest more heavily in mating effort than paternal effort.”).
40
CAREL P. VAN SCHAIK, INFANTICIDE BY MALES AND ITS IMPLICATIONS 362
(2000).
41
Id.
42
WRIGHT, supra note 36, at 65.
43
See, e.g., Pierre L. van den Berghe and David P. Barash, Inclusive Fitness and
Human Family Structure, 79 AM. ANTHROPOLOGIST 809, 811 (1977) (stating that
“[p]olyandry. . . is extremely rare.”).
44
MUEHLENBEIN, supra note 39 (“The level of paternal investment is directly
correlated with both paternity confidence and assessment of a wife’s fidelity.”).

11


the man shared the responsibilities of child rearing.45 The father’s investment
improved the child’s chances of survival, making female monogamy an
evolutionarily-favored strategy.46
Anthropologists have pointed to paternal identification concerns to explain
why there are many examples of polygynous marriages (one husband and multiple
wives) throughout history but few examples of polyandrous marriages (one wife
and multiple husbands),47 since the biological father can be easily identified in a
polygynous marriage but not a polyandrous marriage.

45

IAN TATTERSALL, BECOMING HUMAN 120 (1998).
For further discussion of how monogamy is an evolutionarily-favored strategy
based on kin selection, see HANS KUMMER, IN QUEST OF THE SACRED BABOON: A
SCIENTIST’S JOURNEY 159-61 (1997) (“Kin selection really is not the selection of
kin, but the selection of genes that program for supporting one’s kin. A prerequisite
for kin selection is that the helper be able to distinguish his relatives from other
conspecifics. Mammals, having developed internal fertilization with all its
consequences, have had only one way to evolve a system in which a male cares for
his partner’s young: he must prevent his partner from mating with another male. . .
. Under these conditions, the child she bears must be his genetically, so it is
worthwhile for him to act as its father socially.”).
47
See, e.g., Berghe & Barash, supra note 43 (“Some three-fourths of all human
societies permit polygyny, and most of them prefer it. Monogamous societies often
have been polygynous in a more or less recent past, and typically their monogamy
is a legal fiction. [. . .] Polyandry, on the other hand, is extremely rare.”).
Consistent with the hypothesis that males are only interested in investing in
children who share their genes, Berghe and Barash found that the most frequent
form of human polyandry was fraternal polyandry, in which multiple brothers
share one wife. Id. at 812 (“In the few cases of polyandrous mating in humans, kin
selection theory would lead one to expect that if several men shared a wife and
contributed to the fitness of her offspring, they would want to maximize the
probability of the children sharing genes with them. This probability would be
maximized in the case of fraternal polyandry.”).
46

12


ii. Ancient Greece
Though humankind has only very recently begun to appreciate the role of
evolution in our behavior, the connection between paternity establishment and
marriage has been observed by Western thinkers for over two millennia. The
paternity establishment theory of marriage can be traced back as far as ancient
Greece, when Aristotle used it to dispute Socrates’ teachings on marriage.
In Plato’s Republic, Socrates had proposed a radical new system of
marriage. His proposal is best described as polisgamy: marriage to a whole city. In
Socrates’ ideal society, every man would have sexual access to every woman in the
city.48 In such a situation, it would be impossible to discern who fathered which
children.49 Socrates argued that the consequence of this ambiguity would be that all
men would assume fatherly responsibility for all children in the city since, if wives
are communal, any given child might be any man’s offspring. Social cohesion
would be high because familial links would be imputed between everyone in the

48

PLATO, THE REPUBLIC 147 (Benjamin Jowett trans., Colonial Press 1901),
available at http://books.google.com/books?id=1RgwAAAAYAAJ (“the wives . . .
are to be common”).
49
See id. at 147 (“no parent is to know his own child, nor any child his parent”)
and 152 (“how will they know who are fathers and daughters, and so on? They will
never know.”)

13


society.50 The lives of citizens in such a city, Socrates predicted, “will be as
blessed as the life of Olympic victors and yet more blessed.”51
In Politics, Aristotle attacked Socrates’ communal wives scheme. His
rebuttal was based on a “tragedy of the commons”-type argument. Because “all
men regard most what is their own, and care less for common property,”52 Aristotle
predicted that “each citizen in the state will have a thousand children but none of
them will be as the children of any individual,”53 as “it would be uncertain to
whom each child belonged and who should preserve it when born.”54 As a
consequence, fathers “will all alike neglect them.”55
Aristotle defense of monogamous marriage rested on the assertion that when
men can say “this is his own son and his own wife,”56 fathers, assured of their
paternity, are more likely to care for their children. “There are two things which
principally inspire mankind with care and love of their offspring,” Aristotle wrote;

50

Id. at 154 (“every one whom they meet will be regarded by them either as a
brother or sister, or father or mother, or son or daughter, or as the child or parent of
those who are thus connected with him.”).
51
Id. at 157.
52
1 ARISTOTLE, POLITICS 38 (H. G. Bohn trans., 1853), available at
http://books.google.com/books?id=D-4kAAAAMAAJ.
53
Id.
54
Id.
55
Id.
56
Id. at 30.

14


“knowing it is their own, and what ought to be the object of their affection.”57 This
principle, according to Aristotle, should define the contours of marriage.
iii. Ancient Rome
Aristotle’s teachings appear to have greatly influenced the Roman
understanding of marriage, as “[t]he Romans conventionally regarded marriage as
an institution designed for the production of legitimate children.”58 The Romans
considered paternity establishment to be integral function of marriage because
“marriage made possible the link between father and child. The father could
acknowledge the child as his own and undertake to rear it.”59 This concept of
marriage was adopted from the Greeks and “was ingrained in Roman
consciousness.”60

57

Id. at 32. This passage from Politics was not the only time Aristotle drew a
connection between paternal devotion and paternal certainty. In The Nicomachean
Ethics, Aristotle states that “mothers are more fond of their children than fathers
are” because “they feel more convinced that [the children] are their own.” 2
ARISTOTLE, THE NICOMACHEAN ETHICS 248 (R.W. Browne trans., George Bell &
Sons 1889), available at http://books.google.com/books?id=Mb7WAAAAMAAJ.
58
SUSAN TREGGIARI, ROMAN MARRIAGE: IUSTI CONIUGES FROM THE TIME OF
CICERO TO THE TIME OF ULPIAN 8 (1993); see also ADOLF BERGER, ENCYCLOPEDIC
DICTIONARY OF ROMAN LAW, Volume 43 563 (1953) (“Procreation of legitimate
children was the aim of a Roman marriage”).
59
TREGGIARI, supra note 58, at 13.
60
Id. at 8 (noting that there was a “parallel Greek formula” for the Roman concept
of liberorum quaerendorum causa), 185 (“the Greek background is relevant to
Roman ideas of the classical period on the nature of marriage. Greek ideas shaped
the categories in which people automatically thought.”).

15


This understanding of marriage formed the basis of Roman marital law. The
phrase liberorum quaerendorum causa (“for the reason of desiring children”) was
“a legal formula indicating that the purpose of marriage is to beget legal heirs.”61
“At the registration of citizens,” one scholar explains, “the head of a family was
asked whether he was living with a wife liberorum quaerendorum causa.”62 There
were several types of quasi-marriage relationships in Ancient Rome, such as
concubinage and relationships with slaves, but children born to women in these
relationships did not have a legal father.63 A “wife” was defined as “the woman
whom a man takes for the breeding of legitimate children.”64 This explains why a
man was asked if he was living with a woman liberorum quaerendorum causa.
“In Roman law,” marriage was “accompanied by precise legal results. Its
purpose was clear and pragmatic: the production (and consequent rearing) of
legitimate children.”65 Under the marital presumption of paternity, a Roman
doctrine that was a later incorporated into English common law, a child born into a
marriage was considered the husband’s child.66 Conversely, Roman law also held

61

SUETONIUS, THE LIVES OF THE CAESARS 27 (Kessinger 2004), available at
http://books.google.com/books?id=UrGdu3CwL2IC.
62
BERGER, supra note 58, at 563.
63
TREGGIARI, supra note 58, at 8.
64
Id.
65
Id. at 13.
66
See GDK v. State, Dept. of Family Services, 92 P.3d 834, 836 (Wyo. 2004)
(“The marital presumption was derived from Roman civil law and adopted as part
of English common law.”), citing Edward R. Armstrong, Putative Fathers and the

16


that a child born out of wedlock was nullius filius, and had no legal father.67
Paternity was established only through marriage, as the Roman maxim pater est
quem nuptiae demonstrant indicates.68 Even the Roman definition of adultery was
based on the desire to protect the integrity of the marital presumption, as Roman
law held that “a married woman committed adultery by having sexual relations
with anyone other than her mate,” while a husband “transgressed the law only if he
carnally knew another man’s wife.”69
iv. Medieval Ecclesiastic Scholarship
The central role of paternity establishment in marriage was widely endorsed
by medieval ecclesiastical philosophers, who took Aristotle’s conception of
marriage and expounded on it. During the Middle Ages, “all the commentators of
Aristotle, from Thomas Aquinas to Albert of Saxony, from Oresme to Buridanus,”

Presumption of Legitimacy-Adams and the Forbidden Fruit: Clashes Between the
Presumption of Legitimacy and the Rights of Putative Fathers in Arkansas, 25 U.
ARK. LITTLE ROCK L.REV. 369, 373 (2003).
67
See Theresa Glennon, Somebody’s Child: Evaluating the Erosion of the Marital
Presumption of Paternity, 102 W. VA. L. REV. 547, 553 (2000) (“From Ancient
Roman law to the development of English common law, children born to
unmarried parents were filius nullius, no one’s son.”).
68
Dominik Lasok, Virginia Bastardy Laws: A Burdensome Heritage, 9 WM. &
MARY L. REV. 402, 406 (1967-1968). See also SIR WILLIAM BLACKSTONE,
COMMENTARIES ON THE LAWS OF ENGLAND IN FOUR BOOKS, VOL. 1 435 (1753)
(Childs
&
Peterson,
eds.,
1860)
available
at
books.google.com/books?id=faZFAAAAcAAJ (translating pater est quem nuptiae
demonstrant as “[t]he nuptials show who is the father”).
69
Marvin M. Moore, The Diverse Definitions of Criminal Adultery, 30 U. KAN.
CITY L. REV. 219 (1962).

17


along with Giles of Rome and Ptolemy of Lucca, “recognized that female fidelity
was the only way to ensure the legitimacy of progeny and that a husband’s control
over his wife’s body was the only means of ensuring paternity.”70 Their writings
are an important link in the history of Anglo-American marriage because they
reveal the theoretical underpinnings of church doctrine, and many of our legal
traditions concerning marriage were introduced in England by medieval church
courts.
St. Thomas Aquinas, who as “the most famous and influential of all natural
law theorists”71 had a profound impact on Western thought, set out perhaps the
most well-developed medieval articulation of the paternity establishment theory.
“[I]n the case of animals among whom there is no concern on the part of the males
for their offspring,” he observed, “the male has promiscuous relations with several
females and the female with plural males.”72 However, “in every species of animal
in which the father has some concern for offspring,” monogamy is practiced.73
Because “the male in the human species has the greatest concern for offspring,” a

70

CHRISTIANE KLAPISCH-ZUBER ET. AL., A HISTORY OF WOMEN IN THE WEST:
SILENCES OF THE MIDDLE AGES 114 (1992).
71
Robert P. George, Kelsen and Aquinas on “The Natural-Law Doctrine”, 75
NOTRE DAME L. REV. 1625 (2000).
72
1 ST. THOMAS AQUINAS, SUMMA CONTRA GENTILES BOOK III § 124.3 (Anton C.
Pegis et al. trans., Hanover House 1957).
73
Id.

18


man “naturally desires to know his offspring.”74 A man’s ability to identify his
children “would be completely destroyed if there were several males for one
female,” and therefore, “that one female is for one male is a consequence of natural
instinct.”75 Aquinas reasoned that this natural instinct set the contours of the
institution of marriage, stating that “[t]he reason why a wife is not allowed more
than one husband at a time is because otherwise paternity would be uncertain.”76
He noted that, for this reason, “no law or human custom has permitted one woman
to be a wife for several husbands,”77 an observation that was confirmed centuries
later by modern anthropologists.78 Aquinas concluded that paternity establishment
is a defining function of marriage, going so far as to state that “certainty as to
offspring is the principal good which is sought in matrimony.”79
Aquinas’ contemporaries echoed this view. One historian writes that Giles of
Rome believed that a wife’s most important duties to her husband were “modesty,
chastity, and fidelity” because “nothing else could guarantee his legitimate
paternity. All other feminine virtues were in some way related to this need for

74

Id. at § 124.1.
Id.
76
2 ST. THOMAS AQUINAS, OF GOD AND HIS CREATURES 288 (Joseph Rickaby,
trans., Carroll Press 1950).
77
1 AQUINAS, supra note 72, at § 124.2.
78
See Berghe & Barash, supra note 43, at 811 (“Polyandry . . . is extremely rare.”).
79
1 AQUINAS, supra note 72, at § 124.2 (emphasis added).
75

19


assurance.”80 Medieval thought considered paternity establishment so integral to
marriage that Ptolemy of Lucca was skeptical that Socrates and Plato actually
endorsed polisgamy. After noting that the care of offspring depends on parents’
ability to identify their own children,81 Ptolemy stated that the communal wives
proposal was so absurd that “it does not seem credible that [Socrates and Plato]
could advocate such a community as the one Aristotle seemingly imputes to
them.”82
v. English Law
Medieval English marital law was largely a continuum of the Greco-Romanecclesiastical concept of marriage. Church courts imported Roman legal doctrines
concerning marriage into England.83 Bracton’s writing shows that as early as the

80

KLAPISCH-ZUBER ET. AL., supra note 70, at 114.
Ptolemy rejected Socrates’ polisgamy idea by arguing that “[c]hildren […] make
[communal wives] impossible, since in the act of generation two seeds do not
come together, but one alone, from the man.” Pointing to monogamous species in
nature such as birds, Ptolemy observed, “For this reason even animals know their
own offspring for as long as is necessary to nourish their children, especially
young birds before they can fly.” BARTHOLOMEW OF LUCCA ET. AL., ON THE
GOVERNMENT OF RULERS: DE REGIMINE PRINCIPUM 226-27 (James M. Blythe
trans.,
U.
of
Penn.
Press
1997),
available
at
http://books.google.com/books?id=aFXTbpsUMvAC.
82
Id. at 226.
83
Edward D. Re, The Roman Contribution to the Common Law, 29 FORDHAM L.
REV. 447, 486-87 (1961) (stating that ecclesiastical courts “provided a direct
channel for the infusion of . . . Roman concepts into English law and English
institutions,” and that they “possessed a vast jurisdiction over matrimonial
matters,” including marriage and legitimacy).
81

20


13th century, England had adopted the Roman marital presumption of paternity.84
English common law also borrowed the doctrine of filius nullius.85 And like Rome,
English common law defined adultery as “sexual relations between a married
woman and a man not her husband, whether the man was married or single,” a
double-standard “explained by the fact that the common law was concerned with
illicit intercourse only when it was calculated to adulterate the blood and expose a
husband to the maintenance of another man’s children and to the risk of their
inheriting his property.”86
This adaptation of Roman marital traditions would by itself show the
importance of paternity establishment to the English concept of marriage. A

84

HENRICI DE BRACTON, DE LEGIBUS ET CONSUETUDINIBUS ANGLIÆ 45 (Longman
& Co., 1878) (“[A] person is presumed to be a son from the very fact, that he is
born of a wife, because marriage proves him to be a son, and this presumption will
always hold good, until the contrary is proved.”), available at
http://books.google.com/books?id=olXSAAAAMAAJ.
See
also
KARL
GÜTERBOCK, BRACTON AND HIS RELATION TO THE ROMAN LAW: A CONTRIBUTION
TO THE HISTORY OF THE ROMAN LAW IN THE MIDDLE AGES 130 (1866) (“The Roman
presumption, pater est quem nuptiæ demonstrant, was valid in England, being thus
expressed: ‘legitimus filius est quem nuptiæ demonstrant,’ or thus: ‘nuptiæ probant
filium esse.’”), available at http://books.google.com/books?id=Sa0DAAAAQAAJ.
85
E. Donald Shapiro et. al., The DNA Paternity Test: Legislating the Future
Paternity Action, 7 J.L. & HEALTH 1, 10 (1992) (“Although Roman society
recognized the right of existence of the out-of-wedlock child, Roman law
nevertheless declared this child to be filius nullius—a child of no one—which
precluded the child from asserting both support and succession rights. . . . The
concept of filius nullius was carried over to the English common law.”).
86
Moore, supra note 69, at 219-20.

21


centuries-long debate over informal marriages, however, throws the central role of
paternity establishment concerns in English marriage law into even sharper relief.
The history of informal marriage in the Anglo tradition began with
England’s failure to adopt the Roman doctrine of legitimatio per subsequens
matrimonium. Under Roman and canon law, if a child was born before his parents
were married, the parents’ subsequent marriage would legitimate the child.87 The
church, whose marriage laws were heavily influenced by Roman tradition,
managed to introduce many of its marital principles into English law, such as the
marital presumption of paternity and the doctrine of filius nullius,88 but it failed in
its attempt to establish the doctrine of legitimatio per subsequens matrimonium.89
England’s Special Bastardy Act of 1235 declared: “He is a Bastard that is born
before the Marriage of his Parents,”90 and made no provision for the legitimization
of the child if his parents married after his birth.

87

ZEPHANIAH SWIFT, A SYSTEM OF THE LAWS OF THE STATE OF CONNECTICUT: IN SIX
BOOKS
207
(1795),
available
at
http://books.google.com/books?id=dBE4AAAAIAAJ; GÜTERBOCK, supra note 74,
at 127 (stating that the doctrine of legitimatio per subsequens matrimonium was
sanctioned by the church’s own law and by Roman law).
88
GÜTERBOCK, supra note 84, at 126 (Stating that, “owing to the Church,” Roman
laws had an indirect effect on English inheritance laws, and that “the law
concerning the legitimacy and the bastardy of children as bearing on their capacity
to inherit, presents an example of the effects of Roman influence.”).
89
Id. at 127; see also Lasok, supra note 68, at 406.
90
20 Hen. III, c.9 (1236).

22


The Special Bastardy Act posed a problem for the church. Illegitimacy was a
major concern for local parishes, and “[a] recurrent problem for most communities
was to ensure a male provider for women and children.”91 Because ex-ante
legitimacy was not recognized, the church was left with few options when an
illegitimate child was born.
To mitigate the consequences of the Special Bastardy Act and ensure that
mothers and children had a male provider, church courts began recognizing
“informal” marriages. In the late twelfth century, the English church decided that a
marriage promise—even one made privately—was sufficient to create a binding
marriage.92 This enabled the church to treat most sexual relationships resulting in
pregnancies as “clandestine” marriages, allowing the church to avoid labeling the
child illegitimate.93 “[C]onsent to intercourse and consent to marriage were not
separated analytically” by local church courts, “and were perhaps deliberately
blurred in some communities.”94 Though the church’s formally-stated preference
was for marriages to be solemnized in a church, it did not insist upon this because,

91

STEPHEN PARKER, INFORMAL MARRIAGE, COHABITATION AND THE LAW 9 (1990).
Id. at 12.
93
Id.
94
PARKER, supra note 91, at 19.
92

23


if it refused to recognize “informal” marriages, “sin would multiply at a stroke”
and many children would be left without legal fathers.95
This informal system of marriage served the country well until the Industrial
Revolution. Before that time, England was a “‘face-to-face’ society,” consisting of
many small, rural villages with relatively stable and immobile populations.96 In
these small communities, the villagers would have a good idea of who the father of
an unwed woman’s baby was, and could hold him accountable. While not all
pregnant women were eventually married to their lovers in traditional rural society,
as with transient workers who impregnated young women and then moved on,97
the retroactive attribution of informal marriage vows largely managed to mitigate
the consequences of premarital sex and out-of-wedlock pregnancies.98
By the 18th century, however, the 500-year-old practice of informal
marriage became difficult to sustain with the increase in urbanization and

95

Id. at 12-13. “Banns” are the public announcements in a church of an impending
marriage between two specified persons, the purpose of which is to enable anyone
to raise any potential canonical or legal impediment to the marriage, so as to
prevent marriages that are invalid.
96
Id. at 9.
97
Belinda Meteyard, Illegitimacy and Marriage in Eighteenth-Century England,
10 J. OF INTERDISCIPLINARY HIST. 479, 487 (1980).
98
PARKER, supra note 91, at 19 (stating that practice of retroactively attributing a
marriage promise when there was an unwed pregnancy meant that “[i]n effect for
the peasant community there was very little premarital sex.”).

24


geographical mobility brought on by the Industrial Revolution.99 Economic
conditions and the relative anonymity of urban living resulted in an increased
number of transient relationships and unwed pregnancies.100 A contemporary
writer observed that single mothers were numerous, “bastardy rampant, and

99

Meteyard, supra note 97 at 488-89. One team of historians argues that informal
marriages were not as successful in anonymous urban areas because the safeguards
that facilitated informal marriage in rural communities did not exist in cities. Many
young women came to cities for work and soon started looking for husbands, but
these girls, without a family and close-knit village community to look after her
(and its) interests, were often impregnated and abandoned by their boyfriends. In
the cities, “‘seducers could pursue their ends more easily, because they did not fear
an avenging father, often violent, ready to make them pay for the dishonor.’” 1
Louise A. Tilly et. al, Women’s Work and European Fertility Patterns, 6 J. OF
INTERDISCIPLINARY HIST. 447, 466 (1976). Economic factors also played a role in
the breakdown of marriage. As the English economy moved away from farming,
many young men, especially those in “professions marked by unstable tenure, such
as servants, traveling workers, or soldiers,” were unable to provide the steady
support that a fledgling family needed. Id. Even if a couple did intend for an
informal relationship to be permanent, “sometimes the men moved on to search for
work,” or else “poverty created unbearable emotional stress,”99 making
relationships difficult to sustain. 2 Louise A. Tilly et al, Women’s Work and
European Fertility Patterns 28 (Center for Research, Working Paper #95, 1974),
available at http://deepblue.lib.umich.edu/bitstream/2027.42/50872/1/95.pdf (last
visited March 4, 2011). Unable to support their “wives” and children, many men
facing such obstacles simply gave up on the relationships and moved on. Id. at 34.
One historian writes that “[m]arriage failed to take place for many reasons,” but
“no major change in values or mentality was necessary to create these cases of
illegitimacy.” 1 Tilly, supra, at 466-67. In many cases, young people indulged in
premarital sex with the expectation that the relationships would progress into
marriage, but those expectations went unfulfilled in the new economic context. 2
Tilly, supra, at 34.
100
Id. See also CHARLES MARSH, A Letter to the Public: Containing the Substance
of what hath been offered in the late Debates upon the Subject of the Act of
Parliament for the better preventing of Clandestine Marriages in THE MARRIAGE
ACT OF 1753: FOUR TRACTS 25 (1984) (stating that failed relationships “have
happened very frequently of late Years, to the Ruin of a Multitude.”).

25


‘licentiousness’ the rule rather than the exception.”101 Middle class observers were
disturbed by the unstable state of informal relationships, and “especially by the
increase in the numbers of abandoned pregnant women.”102
The breakdown of informal marriage in England led to a robust eighteenth
century debate about the ultimate objectives of marriage. The paternity
establishment narrative of marriage assumed a prominent position during this
debate, appearing in works by several very influential authors, including John
Locke,103 Francis Hutcheson,104 William Blackstone,105 and the author of the
influential tract A Letter to the Public.106
Locke’s understanding of marriage might be of particular interest in a
fundamental rights claim for same-sex marriage, considering that his writings
provided the inspiration for the Due Process Clause.107 Locke maintained that

101

EVE TAVOR BANNET, THE DOMESTIC REVOLUTION: ENLIGHTENMENT FEMINISMS
AND THE NOVEL 99 (2000).
102
1 Tilly, supra note 99, at 465.
103
See infra notes 108-110.
104
See infra notes 112-114.
105
See infra notes 116-117.
106
See infra notes 124-132.
107
See, e.g., Michael Hoggan, Settled Expectations and the Takings Clause:
Property and Law Are Born and Must Die Together, 16 J. ENERGY NAT.
RESOURCES & ENVTL. L. 379 (1996) (“John Locke's theory of natural law clearly
influenced the framers of the Constitution when they wrote that no person shall ‘be
deprived of life, liberty, or property, without Due Process of law.’”); Jeffrey S.
Koehlinger, Substantive Due Process Analysis and the Lockean Liberal Tradition:
Rethinking the Modern Privacy Cases, 65 IND. L.J. 723 (1990) (“Modern
substantive due process analysis and the privacy rights it purportedly protects

26


humans began entering long-term, monogamous relationships because human
infants required more parental care than the mother alone could provide.108 He
supported this argument with a long discussion of pair-bonding in animal species,
observing that long-term relationships were found only in those species whose
infants were so vulnerable that they required support from the father as well as the
mother, such as birds.109 Locke concluded that marriage was necessary for men and

reflect a liberal tradition whose backbone is a natural rights philosophy most
persuasively articulated by John Locke.”); Carlos J.R. Salvado, An Effective
Personal Jurisdiction Doctrine for the Internet, 12 U. BALT. INTELL. PROP. L.J. 75,
83 n.38 (2002) (stating that the Fourteenth Amendment “embodied John Locke's
natural-law theory.”); Alexander Tsesis, Toward a Just Immigration Policy:
Putting Ethics into Immigration Law, 45 WAYNE L. REV. 105, 146 n. 240 (1999)
(“The intellectual source of the constitutional Due Process doctrine is found in the
philosophy of John Locke.”); Eric E. Walker, State Action and Punitive Damages:
A New Twist on an Old Doctrine, 38 CONN. L. REV. 833, 837 (2006) (“The
guarantees embodied in the Fourteenth Amendment, and in the Constitution
generally, find their foundation in the natural rights philosophy of John Locke.”).
108
JOHN LOCKE, SECOND TREATISE OF GOVERNMENT, Ch. VII, § 80 (“[H]erein I
think lies the chief, if not the only reason, why the male and female in mankind are
tied to a longer conjunction than other creatures, viz. because the female is capable
of conceiving, and de facto is commonly with child again, and brings forth too a
new birth, long before the former is out of a dependency for support on his parents
help, and able to shift for himself, and has all the assistance is due to him from his
parents: whereby the father, who is bound to take care for those he hath begot, is
under an obligation to continue in conjugal society with the same woman.”
109
Id. at § 79 (Stating that “[i]n those viviparous animals which feed on grass, the
conjunction between male and female lasts no longer than the very act of
copulation; because the teat of the dam being sufficient to nourish the young, till it
be able to feed on grass, the male only begets, but concerns not himself for the
female or young, to whose sustenance he can contribute nothing.” As for birds,
however, “except some domestic ones, where plenty of food excuses the cock from
feeding, and taking care of the young brood whose young needing food in the nest,

27


women to raise children successfully, as it assured that “their interests [would be]
better united, to make provision and lay up goods for their common issue.” He
added that “uncertain mixture . . . would mightily disturb” this end.110
Frances Hutcheson was a prominent figure in the Scottish Enlightenment
and “was probably the most influential and respected moral philosopher in
eighteenth-century America.”111 In A System of Moral Philosophy, Hutcheson
turned his attention to marriage. In that treatise, he identified paternity
identification as the most important function of marriage:
The first and most necessary article [of marriage] is that the fathers
should have their offspring ascertained, and therefore the woman who
professes to bear children to any man must give the strongest
assurances that she will not at the same time cohabit with other men. .
. . In the marriage-contract therefore this is the first article.112
To prove this point, Hutcheson presented a picture of what the world would
look like without marriage. “[U]nlimited indulgences in promiscuous fornication,”
he argued, “would have this effect, that the fathers would generally be uncertain

the cock and hen continue mates, till the young are able to use their wing, and
provide for themselves.”).
110
Id. at § 80.
111
NORMAN FIERING, MORAL PHILOSOPHY AT SEVENTEENTH-CENTURY HARVARD
199 (The University of North Carolina Press 1981).
112
FRANCIS HUTCHESON, A SYSTEM OF MORAL PHILOSOPHY, IN THREE BOOKS VOL.
2 156 (1755), available at http://books.google.com/books?id=n_zQ8Przu2AC
(emphasis added).

28


about their own offspring, and have no other incitement to any cares about them
than the general tye of humanity, which we know is not sufficient.”113
In the context of the debate about informal marriage, Hutcheson suggested
that men could be prevented from abandoning their wives and children by ending
the practice of informal marriage and forcing couples to acknowledge publicly that
they were married. “[M]arriages should be publickly known,” he argued, so “that
no married persons may deny them.”114
William Blackstone’s Commentaries on the Laws of England, “arguably the
single most influential work of jurisprudence in American history,”115 also posited
that paternity establishment was the primary purpose of marriage. In the chapter on
parent-child relationships, Blackstone made this point twice. First, after noting that
the Roman rule “Pater est quem nuptiae demonstrant [‘The nuptials show who is
the father’]” was the law in England, he cited Montesquieu to assert that
the establishment of marriage in all civilized states is built on this
natural obligation of the father to provide for his children; for that
ascertains and makes known the person who is bound to fulfill this
obligation: whereas, in promiscuous and illicit conjunctions, the father
is unknown; and the mother finds a thousand obstacles in her way.116
A few paragraphs later, he noted that there was generally “very great uncertainty”

113

Id. at 154.
Id. at 169.
115
William S. Brewbaker III, Found Law, Made Law and Creation: Reconsidering
Blackstone's Declaratory Theory, 22 J. L. & RELIGION 255, 255 (2007).
116
BLACKSTONE, supra note 68, at 435.
114

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in proving who a child’s father is, and so “[t]he main end and design of marriage
[was] . . . to ascertain and fix upon some certain person [the husband] to whom the
care, the protection, the maintenance, and the education of the children should
belong.”117
While 18th-century scholars were delving into the ultimate purpose of
marriage, Lord Hardwicke proposed the Marriage Act of 1753,118 a landmark piece
of legislation which “arguably suppl[ied] the basis of modern marriage law.”119
The Act required that a relationship be formally and publicly declared a marriage
in order to gain state recognition. The Act required couples either to have their
impending nuptials announced by “banns” and celebrated formally in a church, or
else to obtain a marriage license,120 and declared that any marital contract that did

117

Id. at 443. One contemporary author argues that “one might reject Blackstone’s
view that marriage was an institution designed primarily to protect children and
instead argue that marriage was an institution designed primarily to facilitate the
orderly distribution of property.” She points out that “[i]t is far easier for a probate
court to identify the children of an intestate’s marriage than all the children whom
the intestate may have begotten.” Katharine K. Baker, Bargaining Or Biology? The
History and Future of Paternity Law and Parental Status, 14 CORNELL J.L. & PUB.
POL’Y 1, 24-25 (2004). But whether marriage’s purpose is to identify fathers in
order to assure that they care for their offspring or to make the probate courts’ task
of distributing deceased men’s property easier, Blackstone’s ultimate premise—
that the establishment of paternity is the state’s central concern—remains the same.
118
An Act for the Better Preventing of Clandestine Marriage, 26 Geo. II., c. 33
(1753).
119
R.B. OUTHWAITE, CLANDESTINE MARRIAGE IN ENGLAND, 1500-1850 xxi (1995).
120
26 Geo. II., c. 33.

30


not follow these provisions would be null and void.121 The Act also included
various provisions to ensure the accurate recognition and recording of marriages,
such as a requirement that local parishes keep marriage records on “good and
durable Paper” and that witnesses be present at the ceremony.122
The only surviving published tract that provides the rationale behind the
Marriage Act is A Letter to the Public: Containing the Substance of what hath been
offered in the late Debates upon the Subject of the Act of Parliament For the better
preventing of Clandestine Marriages.123 The tract’s arguments in support of the
Act rely heavily on the paternal establishment theory of marriage.
First, the Letter asserted that marriage’s requirement of mutual fidelity was
designed to assure a husband of his paternity: “[t]he Engagement of mutual
Constancy . . . as to the Woman’s Part . . . [is] meant to be a Security to the Man,
that her Children are his Offspring, by which Means the Father becomes interested
with the Mother in a joint Care of their Issue.” The Letter argued that marriage’s
conduciveness to the care of children “must be understood to be one of the great
political Ends of public Wisdom in the Institution of Marriage.”124

121

Id.
Id.
123
R.B. OUTHWAITE, CLANDESTINE MARRIAGE
(1995).
124
MARSH, supra note 100, at 21.
122

31


IN

ENGLAND, 1500-1850 101

The Letter used this understanding of marriage’s paternity establishment
objectives as the basis of its criticisms of informal marriage. Clandestine
marriages, it argued, facilitated casual sexual encounters.125 Such a marriage
contract “might be legally negotiated in a Tavern, or private House between the
two Parties concerned, without the Presence of a Clergyman, or any other third
Person.”126 Without public accountability, the author asked, “[w]hat can Marriages
so contracted end in, according to the natural Course of Things, but Separation of
the Parties?” Hookups may have led to long-term relationships in the past, but with
the system of informal marriage not longer functioning properly in the urban
context, many women fell into a pattern of subsequent “short-lived encounters.”127
A Letter to the Public identified this relationship volatility as a source of paternal
abandonment. “[T]he real father,” it states, “being uncertain whether he is so or
not, and likewise unconcerned in the Fate of the Woman, will not be prompted by
any natural Motive, either to assist towards her Support, or the Care of her
Offspring.”128 When this occurs, “the whole public Purpose that can be served by a
Marriage-Contract is in their Case defeated.”129

125

Id. at 23-24.
Id. at 23.
127
1 Tilly, supra note 99, at 465.
128
MARSH, supra note 100, at 21.
129
Id. at 25.
126

32


The Letter suggested that the Marriage Act would reduce instances of
abandonment and illegitimacy by creating proof of marriages. It noted that with
informal marriage, “Any Person who doth not regard the Honesty of observing a
Contract, might readily enter into all the Marriage Covenants, without the least
design of keeping any one of them, except that which relates to carnal
Knowledge,” and after a short affair, the man “might disclaim the Contract with
little Risk of being disprov’d; and thus innocent Women would be daily deluded
and abandoned to Infamy and Want, beyond a Possibility of Redress.”130 The
Letter argued that “Fraud and Surprize ought to be guarded against, as destructive
to the political Ends proposed by this Institution: And therefore the Solemnization
of Matrimony ought to be open, public, and subject to Notoriety . . . .”131 It
concluded that the Marriage Act’s new publicity measures would accomplish this
goal, because its requirements for the public celebration of marriages and the
keeping of records would “together compose a very good System to make
Marriages notorious.”132

130

Id. at 23.
Id.
132
Id. at 26.
131

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vi. American Law
Across the Atlantic, American common law imported from England the
marital presumption of paternity133 and the doctrine of nullius filius.134 Some states
adopted the Roman-English double-standard concerning adultery punishment.135
Even the English debate over informal marriage carried over into American courts.
Just as in medieval England, the desire to provide every child with a legal
father was the chief motivation for American courts’ recognition of informal
marriages. In 1912, the Ohio Supreme Court noted that “there is always a stratum
of society that prefers to shun or disregard legal ceremonies and adopt a coarser
and less conspicuous way of forming domestic ties,” and justified the recognition
of informal marriage by stating that “[i]t is the innocent offspring of such citizens

133

R.R.K. v. S.G.P., 507 N.E.2d 736, 739 (Mass. 1987) (“The presumption that a
child born in wedlock is legitimate is one of great antiquity. Several courts have
noted that it was a maxim of the Roman law which the common law copied.”),
citing Estate of Cornelious, 35 Cal.3d 461, 464 (1984), appeal dismissed sub nom.
Hall v. Taylor, 466 U.S. 967 (1984) and Kennedy v. State, 173 S.W. 842 (Ark.
1915).
134
JAMES KENT, COMMENTARIES ON AMERICAN LAW 212 (Little, Brown 1901) (“A
bastard [is], in the eye of our law, nullius filius, or as the civil law, from the
difficulty of ascertaining the father, equally concluded, patrem habere non
intelliguntur”). See also Jaffe v. Deckard, 261 S.W. 390 (Tex. Civ. App. 1924)
(stating that the mother of an illegitimate child was held responsible for the child’s
care but the father was not, and that “[t]he reason for the rule that the putative
father could not be made to support his bastard child was the uncertainty of its
paternity. No such reason could exist as to its maternity.”).
135
Moore, supra note 69, at 220, citing State v. Lash, 1 Harr. 380 (N.J. 1837)
(explaining that the reason for “the heinousness of adultery consists in exposing an
innocent husband to the maintenance of another man's children and to having them
succeed to his inheritance.”).135

34


that the law [of informal marriage] would mercifully protect,” allowing courts to
avoid labeling the children “bastards.”136
One judge complained that courts’ desire to legitimize children whenever
possible led to arbitrary standards concerning informal marriage. He observed that
“facts [were] tortured to allow a common-law marriage” when the legitimization of
children was at stake.137 “However sound the motivation,” the judge continued, “a
fact situation cannot be twisted to establish a common-law marriage where there
are children of that marriage, but to condemn a relationship as meretricious when
there is no offspring of that union.”138
Also, just as the English critics did in the mid-18th century, American courts
cited paternity establishment concerns in policy arguments against informal
marriage. These courts feared that state recognition of uncelebrated marriages
would open the door to “the imposition upon estates of suppositious heirs.”139
Because claims about the existence of informal marriages presented a “fruitful
source” of paternity fraud by false heirs, courts “closely scrutinized” claims of
common law marriage—even going so far as to view such claims “with
hostility.”140

136

Umbenhower v. Labus, 97 N.E. 832, 834 (Ohio 1912).
In re Soeder’s Estate, 209 N.E.2d 175, 177 (Ohio Prob. Ct. 1965).
138
Id.
139
Duncan v. Duncan, 10 Ohio St. 181, 188 (1859).
140
Staudenmayer v. Staudenmayer, 552 Pa. 253, 261-62 (1998).
137

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In the late 1960s and early 1970s, the Supreme Court issued a series of
decisions under the Equal Protection Clause that gave illegitimate children many of
the same rights as children born to married parents,141 effectively ending the
doctrine of filius nullius.142 In Gomez v. Perez, while stating that the “lurking
problems with respect to proof of paternity” could not be “lightly brushed aside,”
the Court held that states could not give legitimate children a judicially enforceable
right to support from their biological fathers but deny that right to illegitimate
children.143 Similarly, in Trimble v. Gordon, the Court held that laws barring
illegitimate children from inheriting their father’s estate violated the Equal
Protection Clause.144 Again expressing “sensitivity” to the difficulty of proving
paternity, the Court concluded that “[d]ifficulties of proving paternity in some

141

See Levy v. Louisiana, 391 U.S. 68 (1968) (holding that under the Equal
Protection Clause of the Fourteenth Amendment a state may not create a right of
action in favor of children for the wrongful death of a parent but deny illegitimate
children such a right); Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164 (1972)
(holding that illegitimate children may not be excluded from sharing equally with
other children in the recovery of workmen’s compensation benefits for the death of
their parent); Gomez v. Perez, 409 U.S. 535 (1973) (holding that a state cannot not
give legitimate children a judicially enforceable right to support from their
biological fathers but deny that right to illegitimate children); Trimble v. Gordon,
430 U.S. 762 (1977) (holding that a statutory disinheritance of illegitimate children
whose fathers die intestate was unconstitutional).
142
Coincidentally or not, these decisions came down soon after President
Johnson’s Great Society initiatives vastly expanded government entitlement
programs for poor mothers and their children, giving the government a greater
interest in securing paternal support for children born out of wedlock.
143
Gomez, 409 U.S. at 538.
144
See generally Trimble, 430 U.S. 762.

36


situations do not justify the total statutory disinheritance of illegitimate children
whose fathers die intestate.”145 These decisions largely eliminated the paternity
establishment concerns that had previously motivated courts to recognize informal
marriages. Indeed, the rulings led the Commonwealth Court of Pennsylvania to
conclude in 2003 that the circumstances creating a need for informal marriage are
not present in today’s society, as the right to obtain child support from a father is
no longer dependent upon his marital status, and legitimacy status no longer
determines the inheritance rights of children.146
Though informal marriage and the doctrine of nullius filius are obsolete, the
marital presumption of paternity still stands. The Supreme Court has recognized it
as “a fundamental principle of the common law,”147 and the presumption has even
been codified in many states through their adoption of the Uniform Parentage
Act.148
Even though states can now compel paternal support of children born out of
wedlock, state governments continue to have a strong interest in establishing

145

Id. at 772.
PNC Bank Corp. v. Workers’ Comp. Appeals Bd. (Stamos), 831 A.2d 1269,
1279 (Pa. Commw. 2003).
147
Michael H., 491 U.S. 110 at 124.
148
See Legal Information Institute, Uniform Matrimonial and Family Laws
Locator, http://www.law.cornell.edu/uniform/vol9.html#paren.
146

37


paternity by default through marriage.149 It is difficult and expensive to track down
unwed fathers and establish their paternity through litigation, so the marital
presumption of paternity is very convenient for the state. Without it, state attorneys
general would have to file more lawsuits to establish paternity and obtain child
support judgments. Presuming a woman’s husband to be the father of her children
saves states an enormous amount of hassle and expense, as “[p]rocedure by
presumption is always cheaper and easier than individualized determination.”150

149

It could be argued that one of the state’s interests in marriage is that it fosters
“instinctive” paternal bonds. Philosopher Bertrand Russell argued that men
evolved to recognize their wife’s children as their biological own, stating that “if a
man remains with his wife during pregnancy and child-birth”—a practice scientists
refer to as “mate-guarding”—“he has an instinctive tendency to be fond of the
child when it is born, and this is the basis of the paternal sentiment.” BERTRAND
RUSSELL, MARRIAGE AND MORALS 13 (W. W. Norton & Co., 1970). Russell’s
hypothesis has been confirmed by modern research, which has found that
“[h]uman male biology does respond in an interesting manner to pair bonding and
fatherhood. Such behaviors are characterized by elevated prolactin and suppressed
testosterone levels in men. Combined, these may function to decrease interest and
effort in acquiring new mates as well as facilitate interest in paternal behaviors.”
MUEHLENBEIN, supra note 39, at 357. A mere paternity test may not be sufficient
to inspire paternal bonding at an instinctual level. If marriage promotes generous,
voluntary paternal investment, while DNA testing and child support orders
produces only begrudging, forced paternal investment, the state would have an
interest in encouraging the former.
150
Munonyedi Ugbode, Who’s Your Daddy?: Why the Presumption of Legitimacy
Should Be Abandoned in Vermont, 34 VT. L. REV. 683 (2010).

38


C. “Our Nation’s history, legal traditions, and practices” show that
same-sex unions do not “encompass the historical purpose and form
of marriage”
The history of marriage in the Anglo-American tradition reveals that
marriage has functions that are incompatible with same-sex relationships. First of
all, the writings of Aristotle, Thomas Aquinas, John Locke, William Blackstone,
modern evolutionary theorists, and many other prominent scholars shows that
paternity establishment has long been, and continues to be, seen as a central
function of marriage in the Western tradition. Second, through the writings of
sources such as Bracton, Blackstone, Kent, and Swift, the modern marital
presumption of paternity can be traced all the way back to ancient Rome, showing
that our marriage laws are rooted in a legal tradition that considered paternity
establishment to be the primary purpose of marriage. Finally, the tortured history
of informal marriage in both England and the United States reveals that paternity
establishment concerns have long dictated which relationships the government
recognizes as marriages and which it did not.
The “history, legal traditions, and practices”151 concerning marriage and
paternity establishment show that the lower court erred in finding that same-sex
unions “encompass the historical purpose and form of marriage.”152 The lower
court noted that “[m]arriage has retained certain characteristics throughout the

151
152

Glucksberg, 521 U.S. at 710.
Perry, 704 F. Supp. 2d at 993.
39


history of the United States,”153 but it failed to recognize that paternity
establishment is one of them. The history of marriage in the Anglo-American
tradition is inseparably intertwined with paternity establishment concerns.
Furthermore, paternity establishment is not some antiquated function of marriage
that has been discarded; it continues to be perhaps the most significant legal
function of marriage, as it provides a legal father to over half of the children born
in the United States today.154
The paternity establishment function of marriage is incompatible with samesex unions. The marital presumption of paternity is one of biological paternity.155
The fact that the presumption has always been rebuttable with evidence that the
husband is not the biological father156 makes the connection between the
presumption and biology clear. Awareness of a biological connection is what
drives men to instinctually care for their children, and this reality provides the state

153

Id. at 992.
CENTER FOR DISEASE CONTROL AND PREVENTION, supra note 2.
155
See, e.g., Shineovich and Kemp, 229 Or.App. 670 (2009) (stating that the
marital presumption of paternity “creates a presumption as to who is the biological
parent of a child. By the very terms of the statute, for the presumption of parentage
to apply, it must be at least possible that the person is the biological parent of the
child.”).
156
See, e.g., Susan Frelich Appleton, Presuming Women: Revisiting the
Presumption of Legitimacy in the Same-Sex Couples Era, 8 Boston L. Rev. 227,
251 (2006) (“The conclusive presumption did not apply unless the husband and
wife were cohabiting . . . [T]he presumption never applied when the husband was
sterile or impotent or when he was “beyond the four seas” for more than nine
months. Perhaps more significantly, a child whose race did not match the
husband’s was not covered by the presumption.”)
154

40


with its justification for imposing the marital presumption of paternity.157 Because
a child cannot be the biological child of both partners of a same-sex union, such
unions do not promote the same ends that marriage traditionally has. Contrary to
what the lower court found, a spouse’s sex is “relevant to the state in determining
spouses’ obligations to each other and to their dependents.”158 The marital
presumption of paternity is based on a recognition of the dynamics of an oppositesex relationship—dynamics that are simply not present in a same-sex relationship.
Because paternity establishment is “part of the historical core of the
institution of marriage,”159 the lower court erred in finding that same-sex
relationships “are consistent with the core of the history, tradition and practice of
marriage in the United States.”160 This Court should overturn the lower court’s due
process ruling and find that same-sex marriages is not a fundamental right.
II.

BECAUSE THE MARITAL PRESUMPTION OF PATERNITY IS
INCOMPATIBLE WITH SAME-SEX UNIONS, THE STATE OF
CALIFORNIA HAS A RATIONAL BASIS FOR LIMITING
MARRIAGE TO A MAN AND A WOMAN

157

This justification for imposing the responsibilities of parenthood would not
exist in same-sex marriages. If the state recognized a presumption of parentage in
same-sex marriages, the presumption would have be “that the non-biological
partner consented to the other partner either conceiving or giving birth to a child.”
Lewis v. Harris, 188 N.J. 415, 450 n.18 (2006).
158
Perry, 704 F. Supp. 2d at 993.
159
Id.
160
Id.

41


The Equal Protection Clause of the Fourteenth Amendment provides that no
state shall “deny to any person within its jurisdiction the equal protection of the
laws.”161 This guarantee of equal protection coexists with the reality that some
legislation makes legitimate and necessary distinctions between groups of
individuals.162 If a law targets a group that has been defined as a “suspect class,”
courts will apply heightened scrutiny in their review of the law, finding it invalid
unless the government can show that the law advances a compelling state
interest.163 When a law creates a classification that does not target a suspect class,
however, it is presumptively valid, and courts will uphold it as long as it is
rationally related to some legitimate government interest.164
The Supreme Court “has never ruled that sexual orientation is a suspect
classification for equal protection purposes.”165 Further, the Court indicated in
Lawrence v. Texas that it was unlikely to do so, stating that “there is no
longstanding history in this country of laws directed at homosexual conduct as a
distinct matter.”166 This conclusion seems to preclude the application of strict

161

U.S. Const. amend. XIV, § 1.
See Romer v. Evans, 517 U.S. 620, 631 (1996).
163
See, e.g., Clements v. Fashing, 457 U.S. 957, 963 (1982) (stating that the Court
will depart from the usual rational basis review when a challenged statute places
burdens upon “suspect classes” of persons or on a constitutional right that is
deemed to be “fundamental.”).
164
See, e.g., Heller v. Doe, 509 U.S. 312, 319-320 (1993).
165
Citizens for Equal Protection v. Bruning, 455 F.3d 859, 866 (8th Cir. 2006).
166
Lawrence v. Texas, 539 U.S. 558, 559 (2003).
162

42


scrutiny review. In light of this fact, the lower court struck down Proposition 8 as a
violation of the Equal Protection Clause by finding that it cannot withstand even
rational basis review.167
The lower court erred, however, in finding that, “[r]elative gender
composition aside, same-sex couples are situated identically to opposite-sex
couples” in regard to the legal functions of marriage.168 Same-sex unions are
incompatible with existing California marriage doctrines. California’s statutorilyenshrined marital presumption of paternity states “the child of a wife cohabiting
with her husband, who is not impotent or sterile, is conclusively presumed to be a
child of the marriage” unless a blood test shows otherwise.169 The California Court
of Appeals has held that “a gender neutral reading of [the marital presumption
statute], which presumes a husband is capable of impregnating his wife, would be
absurd as applied to a same-sex cohabiting couple.”170
Because application of the existing presumption to same-sex marriages
would lead to inequitable, illogical outcomes, if California were to recognize samesex marriages, the state would either have to exempt for them from the

167

See Perry, 704 F. Supp. 2d at 997 (“[T]he Equal Protection Clause renders
Proposition 8 unconstitutional under any standard of review. Accordingly, the
court need not address the question whether laws classifying on the basis of sexual
orientation should be subject to a heightened standard of review.”).
168
Id. at 993.
169
Cal. Fam. Code § 7540 (2011).
170
In re M.C., 195 Cal. App. 4th 197, 217 n.9 (2011).

43


presumption or create a separate presumption for same-sex marriages, based on
consent rather than biology.171 In either case, one set of laws would apply to
opposite-sex marriages and another would apply to same-sex marriages. This
makes it clear that same-sex and opposite-sex couples are not similarly situated in
regard to this crucial function of marriage.
Because same-sex unions are incompatible with a central legal function of
marriage, the state of California has a rational basis for limiting marriage to a man
and a woman.
CONCLUSION
For the reasons stated above, Amicus respectfully asks this Court to reverse
the lower court’s decision and hold that Proposition 8 does not violate the Due
Process and Equal Protection Clauses of the U.S. Constitution.

171

See Lewis, 188 N.J. at 450 n.18 (“The presumption of parentage would apply
differently for same-sex partners inasmuch as both partners could not be the
biological parents of the child. It appears that the presumption in such
circumstances would be that the non-biological partner consented to the other
partner either conceiving or giving birth to a child.”).

44


Respectfully submitted,

4-5-5-E505 Kashiihama, Higashi-ku
Fukuoka-shi 813-0016, Japan
Phone: [phone]
Email: [e-mail]
In Pro Se as Amicus Curiae
Date: October 27, 2011

45


CERTIFICATE OF COMPLIANCE
This brief is accompanied by a motion for leave to exceed the type-volume
limitation pursuant to Circuit Rule 32-2 and contains 11,420 words, excluding the
portions exempted by Fed. R. App. P. 32(a)(7)(B)(iii), as determined by the word
processing system used to generate the brief.
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proportionally spaced typeface using Microsoft Word
in fourteen-point Times New Roman.

In Pro Se as Amicus Curiae
Date: October 27, 2011

46


CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Ninth Circuit by using the
appellate CM/ECF system on October 27, 2011.
Participants in the case who are registered CM/ECF users will be served by
the appellate CM/ECF system. I further certify that some of the participants in the
case are not registered CM/ECF users. I have mailed the foregoing document by
First-Class Mail, postage prepaid, or have dispatched it to a third party commercial
carrier for delivery within 3 calendar days to the following non-CM/ECF
participants:
Anita L. Staver
Liberty Counsel
P.O. Box 540774
Orlando, FL 32854
Anthony R. Picarello Jr.
United States Catholic Conference
202-541-3300
3211 Fourth Street, N.E.
Washington, DC 20017
Arthur Bailey Jr.
HAUSFELD LLP
44 Montgomery Street
Suite 3400
San Francisco, CA 94104
Lincoln C. Oliphant
Columbus School of Law
The Catholic University of America

47


Washington, DC 20064
Mathew D. Staver
LIBERTY COUNSEL
2nd Floor
1055 Maitland Center Commons
Maitland, FL 32751
Michael F. Moses
United States Catholic Conference
3211 Fourth Street, N.E.
Washington, DC 20017
Thomas Brejcha
Thomas More Society
Suite 440
29 S. La Salle Street
Chicago, IL 60603

In Pro Se as Amicus Curiae
Date: October 27, 2011

48