An explanation of the brief in _Tanco v Haslam_, submitted to the SCOTUS today.

Today was the deadline for the plaintiffs in the consolidated marriage cases to file their briefs with the Supreme Court.The second brief was filed by the lawyers for Valeria Tanco (and others), attempting to get Tennessee to recognize their out-of-state marriages.It can be found at http://ift.tt/1awzvvG the Ohio case, it deals ONLY with the question: can Tennessee refuse to recognize same-sex marriages conducted in other states?It does not directly address the related question: can Tennessee refuse to grant same-sex marriages to its citizens?The other cases consolidated with it will address that issue, but this case does not, and so neither does this brief.The plaintiffs in this case are three out-of-state couples who moved to Tennessee. Two of the couples have children. All three couples were married before moving to Tennessee.Before I proceed, I want to explain some things about the way the fourteenth amendment works. [This is cut straight out of the other analysis, so you can skip if you've already read it. :)]These things are clear to lawyers and are therefore implicit in the arguments being made, but they're not always clear to lay people, and understanding them will make understanding the arguments in the briefs easier.The fourteenth amendment generally operates to overturn state laws under one of two very different sets of theories.[1] Under one theory, the "substantive due process" theory, the state may not infringe on a "fundamental right" unless the law which does so is "narrowly tailored" to meet a "compelling state interest".How do you tell if something's a fundamental right? That's a tough question, but the basic answer is that the right has to be deeply rooted in the nation's history and tradition. The freedom to travel from place to place is a fundamental right, for example, but the freedom to blow through a vuvuzela at midnight is not. Aside from the general idea that anything covered by the bill of rights is included, these fundamental rights are normally determined on a case by case basis - there's no real way to derive a predictable rule from the "deeply rooted" language.So much of the debate in same sex marriage cases has been about how to characterize the right. Proponents of SSM say that the right that's being fought for is marriage, which is deeply rooted in the nation's history and tradition. SSM opponents say no, it's the new right of "same-sex marriage", a creature altogether different from "marriage", and which has no basis in the nation's history and tradition.[2] Under the other theory, the "equal protection theory", the state may not explicitly discriminate against a particular group of people unless the law embodying the discrimination meets a particular standard of review which is different depending on the group being discriminated against.The background for this is complex, but basically the issue is: most laws discriminate in that they treat some people differently than others. That's ok, it's necessary to the function of government for the state to be able to treat (say) people who speed differently than people who don't speed. For the overwhelming majority of things, all the state needs to do is demonstrate that the discrimination in the law is rationally related to some legitimate state objective, and that's good enough.That's traditionally called "rational basis review".But for some discrimination, courts have good reason to suspect that the discrimination isn't based on rational connection to legitimate ends, but there's some insidious animosity underlying it, and that discrimination is what the equal protection clause was intended to prevent - cases where the state just treats people differently because they're part of a class of people that the majority dislikes.The prototypical example of this is race. Discrimination based on race is so suspect that the state can only do it if it's narrowly tailored to meet a compelling state interest. This is known as "strict scrutiny"; it's basically an impossible burden to meet. (Some other classifications fall into this category - religious beliefs being one of the most prominent).Another example is gender. Discrimination based on gender is suspect, but not as suspect as discrimination based on race, and sometimes there are good reasons to use gender to treat people differently based on their gender, because there are actual physical differences in play. So to discriminate on the basis of gender, all the state has to prove is that the discrimination is substantially related to an important government interest. (This is a lower standard than 'narrowly tailored to a compelling state interest' and a higher standard than 'rationally related to a legitimate government objective', and so it is called "intermediate scrutiny".)The Supreme Court has never really articulated in an intelligible fashion where discrimination on the basis of sexual orientation falls. It's said, in Romer v Evans, Lawrence v Texas, and Windsor v US, that it's using rational basis review, but since rational basis review simply requires that the state demonstrate a rational relationship to a legitimate state interest, and it's not hard to come up with plausible sounding legitimate state interests in some of these cases, many legal analysts have believed that the Supreme Court was essentially lying, or misleading itself, about what standard it should use.So ... back to the details of the arguments in the brief.The brief makes {X} arguments.ARGUMENT #1: Tennessee must recognize out-of-state same-sex marriages because failing to do so infringes on the couples' fundamental right to marry without a compelling state interest.the freedom to marry has long been recognized as one of the vital personal rightsthe freedom to marry is protected by the Constitution because relationship decisions implicate deeply held personal beliefs, choices, and values, which are protected (against the state's unwarranted usurpation, disregard, or disrespect) by the fourteenth amendment's due process clausethe freedom to marry includes the freedom to choose who to marrythe refusal to recognize a lawful out-of-state marriage based on the sex of the spouses interferes with that freedomthe discussion of the existence of a compelling state interest is deferred to argument #4 - but as a baseline, if it can't pass rational basis review, there can't be a narrow tailoring to a compelling state interest.ARGUMENT #2: Tennessee must recognize out-of-state same-sex marriages because failing to do so infringes on the couples' fundamental right to travel the length and breadth of the land.the right to move from place to place according to inclination is an attribute of personal liberty, and the right of free transit from or through the territory of a state is protected by the fourteenth amendment.that right encompasses the liberty to migrte, resettle, find a new job, and start a new life.that right includes the right to be free of statutes, rules, or regulations which unreasonably burden or restrict movement.by ignoring the lawful marriages of same-sex spouses travelling through or moving to Tennessee, the state imposes an unreasonable burden on their right of travelTennessee cannot force a citizen of the US to choose between travel and some other fundamental right, without a showing that such treatment is necessary to further a compelling state interest. (this was established by a decision overturning a residency requirement for voting).the non-recognition laws also unreasonably interfere with the parent-child relationship of travelling married same sex couples with children, by treating the families as second-class and by interfering with the parental rights of one of the parents.Tennessee could decline to recognize if it had a really good reason for doing so, but in this case they don't, and they don't have a history of doing so in the past - prior to the SSM issue, Tennessee always recognized out of state marriages even if they would have been not allowed in TN.ARGUMENT #3: Tennessee must recognize out-of-state same-sex marriages for the same reasons the federal government has to recognize state same-sex marriages.Windsor required 'careful consideration' of DOMA because it was clearly targeted at a discrete minority.In so doing, the Court departed from rational basis review and adopted a form of heightened scrutiny.It should do the same thing in this case, because the statute is an unusual measure departing from traditional treatment of out-of-state marriages, and because it treates a discrete group of married couples unequally.Tennessee has created two classes of out-of-state couples and discriminates against a specific group.Tennessee seeks to specifically injure the very people another state is seeking to help, in violation of basic due process and equal protection principles.This is just like Windsor and so should fail for the same reason DOMA failed in Windsor.ARGUMENT #4: Tennessee must recognize out-of-state same-sex marriages because failure to do so discriminates on the basis of gender.The law explicitly discriminates on the basis of gender!The law unreasonably reinforces broad gender-based expectations and stereotypes in a way which is harmfulARGUMENT #$: Tennesee must recognize out-of-state same-sex marriages because failure to do so discriminates on the basis of sexual orientationdiscrimination on the basis of sexual orientation should use heightened scrutiny. the Court's been doing that all along, it should come out of the closet about it.laws discriminating on the basis of sexual orientation target a cosntitutionally protected aspect of personal identity and burden individuals for exercising their constitutionally protected right to establish an enduring relationship with a partner of the same sexlaws discriminating on the basis of sexual orientation are suspect because (a) gays have historically been discriminated gaainst, (b) the basis for the discrimination is unconnected to ability to participate and contribute in society, (c) sexual orientation is an integral part of identity, and (d) gays and lesbians are politically disadvantagedlaws discriminating on the basis of sexual orientation reinforce harmful gender stereotypesall of these reasons point to heightened scrutiny.ARGUMENT #5: Tennessee must recognize out-of-state same-sex marriages because all of its purported interests actually support such recognition rather than supporting nonrecognition, and therefore its reliance on those interests is irrational and Tennessee's law can't meet rational basis review.there is no rational connection between a desire to provide stability to children and a refusal to recognize same-sex marriages. in fact, by not recognizing the marriages of same sex couples with children, the interest in providing children with stability is undermined.appeals to tradition or deference to the political process cannot justify the deprivation of fundamental rights