The President hasn’t come out and said it, but it’s beginning to look like he’s getting there to support same sex marriage. This week the administration accounced it would no longer defend the Defense of Marriage Act in court.

The complete text of Attorney General Eric Holder’s letter to Speak John Boehner  announcing the change in policy and arguments for it follows this article.

In an extraordinary development this morning, Attorney General Eric Holder informed Congress that President Obama and the Justice Department have determined that sexual orientation discrimination should be subjected to heightened scrutiny in U.S. courts. As such, the United States will not defend the Defense of Marriage Act in two recently filed lawsuits, and (astonishingly) the government will urge the federal courts now considering older lawsuits to apply the high legal standard that virtually guarantees a gay rights victory.

Barring some other unexpected thunderbolt, Section Three of the Defense of Marriage Act will not survive this change in legal strategy in the federal appellate courts. But the fate of the bill, and our community’s legal status, will eventually be resolved by the U.S. Supreme Court.

This news is explosive - an historic moment in the history of the GLBT civil rights movement, where progress and setbacks usually follow the pattern of “two steps forward, one step back.” We may yet see a step back, but the President’s decision brought us forward by a mile in an instant.

Here’s a brief history of our federal fight against the 1996 Defense of Marriage Act, specifically our fight against Section Three, which creates a federal definition of marriage as the union of one man and one woman. (Section One of DOMA is its title; Section Two allows each state to maintain its own gay marriage policy.)

In March 2009, the New England-based Gay and Lesbian Advocates and Defenders filed suit in federal court in Boston, charging that Section Three violated the Equal Protection rights of married gay couples in Massachusetts, who were treated differently than their heterosexual neighbors by the U.S. government. The state of Massachusetts filed its own challenge to Section Three based on states’ rights issues and the two cases have proceeded in tandem.

Much to our communal disgust, the Obama administration chose to defend the Defense of Marriage Act using archaic anti-gay arguments in its initial brief. After a major outcry, the government changed its briefing strategy, rejecting overt hostility but continuing to defend DOMA as a legitimate expression of Congress’s desire to maintain the status quo and keep uniformity in the context of a contentious national debate.

The government also argued that the case should be evaluated under the easiest standard of legal review, the “rational basis test,” which requires only that a law be rationally related to a “legitimate” public interest.

This easy standard, which puts the burden of proof on the plaintiff, cannot apply when a fundamental right has been breached. Nor does it apply to an equal protection claim against members of a “suspect class” like race, national origin, gender and religion. In order to make its argument stick, the government maintained that sexual orientation does not comprise a protected class.

The Supreme Court has never resolved the legal status of gays and lesbians, but the U.S. Court of Appeals for the First Circuit, which includes the Boston area, has previously ruled that gays and lesbians are not a suspect class, and do not qualify for heightened legal scrutiny on this basis. 

This precedent added weight to the government’s position. But last November, GLAD and the ACLU filed two more DOMA challenges on behalf of couples from Vermont, Connecticut, New York and New Hampshire. Filed in Connecticut and New York, the cases fall under the jurisdiction of the U.S. Court of Appeals for the Second Circuit, where there is no previous ruling on the protected status of gay men and women.

In these cases, the administration would have been required to not simply fall in line behind established precedent but to affirmatively argue that sexual orientation does not satisfy the requirements of a suspect class. This is what Obama and company have now refused to do. And indeed, the government has gone much further, stating that it is the position of the President and the Justice Department that sexual orientation should indeed be protected, and as such, subjected to a high legal standard. 

The government acknowledges that the Defense of Marriage Act does not pass the higher constitutional tests, which shift the burden of proof to the defendant and which require, in their strictest form, that a law be narrowly tailored to serve a “compelling” public interest.

Holder’s letter, delivered to House Speaker John Boehner, says that the government will be prepared to present the theoretical case for DOMA under the rational basis standard if the courts in the Second Circuit request such a filing. The district judges might do so to cover their bases, but it’s hard to imagine that they or the federal appellate court would actually rule against both the plaintiff couples and the government of the United States. Indeed, the legal arguments against gay rights in this and other contexts are so weak, that it takes the power of the status quo and the weight of the state to tip the scales of justice against logic, reason and the history of American constitutional law. 

As for the Massachusetts cases (now on appeal after a gay rights victory at the district court level) Holder wrote that the government will urge the First Circuit to use a high level of scrutiny. Those cases are in the briefing stage, with GLAD’s reply to the government briefs due on March 1. I’m guessing that the Justice Department will issue a supplemental brief, or perhaps use their final brief to expound on suspect class status. Oral arguments will follow in a few months, and the appellate panel would normally rule three to six months after that.

It’s likely that a conservative Congressional faction will hire lawyers to defend the Defense of Marriage Act, but I’m not sure of the procedure for such an intervention. Holder writes that Justice Department attorneys “will also notify the courts of our interest in providing Congress with a full and fair opportunity” to participate in the Second Circuit litigation. And a statement from the Gay and Lesbian Advocates and Defenders indicates that “either chamber may step in and appoint counsel to defend DOMA.”

The deadline to file a motion to dismiss in the Second Circuit area cases is March 11. And while we know the administration will let the deadline lapse, we will soon see who (or what) will attempt to ride to DOMA’s defense. Meanwhile, the Obama administration says it will continue to enforce the Defense of Marriage Act until the law is struck by courts or repealed.

Speechless in Austin
The impact of Obama’s decision goes well beyond this case or that one. By embracing the use of higher scrutiny for gay rights cases, his administration effectively has switched to our side on any and all gay civil rights cases against the United States from now to the end of his administration.

The implications are staggering, and for all our complaints about the President’s lack of interest or energy in defending gay rights, he has, in one fell swoop, become the fiercest of champions. Only a hard right ruling from the U.S. Supreme Court could block our way, and of course, there lies the fear. 

Forgetting about the Second Circuit cases for the time being, I’m unclear as to whether a group of Congressional bad guys can insinuate themselves into the First Circuit lawsuits at this juncture. After all, the administration is still involved as an appellant in the Massachusetts cases, and although they have now pledged to urge a pro-gay ruling, they have not created a vacuum by abandoning their role in the contest.

Assuming we emerge the winner in the First Circuit, the Obama administration would not appeal the result. In theory, marriages in Massachusetts would be then be recognized by the federal government, and I can’t begin to guess how DOMA would be enforced in one section of the country, but not elsewhere. 

Would there be a mechanism to bring such an untenable result to the High Court for resolution? Maybe. I don’t know.

As for the Second Circuit cases, assuming Congress is allowed to defend the law, and assuming again we win down the road, there would certainly be an appeal to the High Court, and I imagine the justices would have to accept it.

It’s possible the Court could strike DOMA without taking a stand on suspect classifications. But I can’t see Anthony Kennedy agreeing to a dramatically antigay ruling that simultaneously upholds DOMA and denies constitutional protections based on sexual orientation. And if the Court were to agree with Obama on heightened scrutiny, it would be game, set and match.

There’s another option for the federal appellate courts, including the justices, and that is to fall back on a vague type of legal evaluation, sort of a heightened rational basis test, where laws that trample on gay civil rights are given just a little extra attention, but gays are not elevated to a suspect class.

If they heard our case today, such a compromise wouldn’t surprise me. But a year or two from now, the looming shadow of history’s future verdict on gay rights may be enough to push Kennedy and maybe Roberts over the edge into a gay version of Brown v the Board of Education.

Lawyers Ask Ninth Circuit To End Stay on Gay Marriages
Just after the Holder letter was released, the lawyers from the Olson Boies team asked the U.S. Court of Appeals for the Ninth Circuit to revisit the stay of Judge Vaughn Walker’s August ruling.

As you recall, Judge Walker struck Prop 8 as unconstitutional and ordered marriages be resumed for gay couples in the Golden State. His order was stayed by the Ninth Circuit pending what was supposed to be a speedy appeal.

But it hasn’t been speedy, and after last week, we now know that it’s going to drag on for a couple of years. First, the California Supreme Court must address the side issue of whether or not the Prop 8 proponents have standing to represent their side in court under state law. That should take the rest of this year. Then, the Ninth Circuit panel must decide whether or not the proponents have standing to appeal under federal law. There goes another three to six months. After that, who knows what further machinations will extend the case?

Given the delay, our lawyers argue, and given the fact that the Obama administration now believes a federal ban on marriage recognition is unconstitutional, it’s appropriate to reconsider whether or not to put Judge Walker’s order on hold for such a protracted period of time.

Obviously, the Obama administration was not involved in the Prop 8 suit, which was filed against the State of California. So their revised thinking on the level of legal scrutiny that applies to gay rights cases is irrelevant. But then again, it’s not irrelevant, and it will have a profound impact under the surface of many other gay cases like this one that don’t directly involve the federal government.

In Other News
All in all, it’s been a momentous day. 

Lost in the banner headlines is the Hawaii Civil Union bill that now heads to the friendly governor’s desk for signature. 

Even more dramatic is the committee vote in the Maryland senate that will send a marriage equality bill to the floor of the senate for a critical vote on Thursday. Marriage equality is expected to pass the House of Delegates if it can make it through the senate. In the senate, we have exactly the 24 votes we need to pass the bill, barring some last minute reversal.

Perhaps you’re wondering why I capitalized House of Delegates, but left senate in regular type. It’s because I generally use lower case for state legislative bodies, but House of Delegates just begs to be capitalized.

At any rate, we can now watch for the other big news that will develop over coming days; to wit the backlash over Obama’s announcement. Will it be muted? Or will it turn into a full-fledged national gay bashing session? Either way, it’s going to be quite a spectacle.

-arostow@aol.com

Letter From The Attorney General To Congress On Litigation Involving The Defense Of Marriage Act
 
WASHINGTON, Feb. 23 – The Attorney General sent the following letter today to Congressional leadership to inform them of the Department’s course of action in two lawsuits, Pedersen v. OPM and Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman. A copy of the letter is also attached.
 
The Honorable John A. Boehner
Speaker
U.S. House of Representatives
Washington, DC  20515
Re:  Defense of Marriage Act
Dear Mr. Speaker:
 
After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment.   Pursuant to 28 U.S.C. § 530D, I am writing to advise you of the Executive Branch’s determination and to inform you of the steps the Department will take in two pending DOMA cases to implement that determination. 

While the Department has previously defended DOMA against legal challenges involving legally married same-sex couples, recent lawsuits that challenge the constitutionality of DOMA Section 3 have caused the President and the Department to conduct a new examination of the defense of this provision.  In particular, in November 2011, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 of DOMA in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny.  Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.).  Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases.

These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue.  As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.
 
Standard of Review
The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation.  It has, however, rendered a number of decisions that set forth the criteria that should inform this and any other judgment as to whether heightened scrutiny applies:  (1) whether the group in question has suffered a history of discrimination; (2) whether individuals “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group”; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s “ability to perform or contribute to society.”  See Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441-42 (1985). 

Each of these factors counsels in favor of being suspicious of classifications based on sexual orientation.  First and most importantly, there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities, based on prejudice and stereotypes that continue to have ramifications today.  Indeed, until very recently, states have “demean[ed] the[] existence” of gays and lesbians “by making their private sexual conduct a crime.”  Lawrence v. Texas, 539 U.S. 558, 578 (2003).

Second, while sexual orientation carries no visible badge, a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable, see Richard A. Posner, Sex and Reason 101 (1992); it is undoubtedly unfair to require sexual orientation to be hidden from view to avoid discrimination, see Don’t Ask, Don’t Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515 (2010).

Third, the adoption of laws like those at issue in Romer v. Evans, 517 U.S. 620 (1996), and Lawrence, the longstanding ban on gays and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and “ability to attract the [favorable] attention of the lawmakers.”  Cleburne, 473 U.S. at 445.  And while the enactment of the Matthew Shepard Act and pending repeal of Don’t Ask, Don’t Tell indicate that the political process is not closed entirely to gay and lesbian people, that is not the standard by which the Court has judged “political powerlessness.”  Indeed, when the Court ruled that gender-based classifications were subject to heightened scrutiny, women already had won major political victories such as the Nineteenth Amendment (right to vote) and protection under Title VII (employment discrimination). 

Finally, there is a growing acknowledgment that sexual orientation “bears no relation to ability to perform or contribute to society.”  Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality).  Recent evolutions in legislation (including the pending repeal of Don’t Ask, Don’t Tell), in community practices and attitudes, in case law (including the Supreme Court’s holdings in Lawrence and Romer), and in social science regarding sexual orientation all make clear that sexual orientation is not a characteristic that generally bears on legitimate policy objectives.  See, e.g., Statement by the President on the Don’t Ask, Don’t Tell Repeal Act of 2010 (“It is time to recognize that sacrifice, valor and integrity are no more defined by sexual orientation than they are by race or gender, religion or creed.”)

To be sure, there is substantial circuit court authority applying rational basis review to sexual-orientation classifications.  We have carefully examined each of those decisions.  Many of them reason only that if consensual same-sex sodomy may be criminalized under Bowers v. Hardwick, then it follows that no heightened review is appropriate – a line of reasoning that does not survive the overruling of Bowers in Lawrence v. Texas, 538 U.S. 558 (2003).  Others rely on claims regarding “procreational responsibility” that the Department has disavowed already in litigation as unreasonable, or claims regarding the immutability of sexual orientation that we do not believe can be reconciled with more recent social science understandings.  And none engages in an examination of all the factors that the Supreme Court has identified as relevant to a decision about the appropriate level of scrutiny. 

Finally, many of the more recent decisions have relied on the fact that the Supreme Court has not recognized that gays and lesbians constitute a suspect class or the fact that the Court has applied rational basis review in its most recent decisions addressing classifications based on sexual orientation, Lawrence and Romer.  But neither of those decisions reached, let alone resolved, the level of scrutiny issue because in both the Court concluded that the laws could not even survive the more deferential rational basis standard.

Application to Section 3 of DOMA 
In reviewing a legislative classification under heightened scrutiny, the government must establish that the classification is “substantially related to an important government objective.”  Clark v. Jeter, 486 U.S. 456, 461 (1988).  Under heightened scrutiny, “a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded.”  United States v. Virginia , 518 U.S. 515, 535-36 (1996).  “The justification must be genuine, not hypothesized or invented post hoc in response to litigation.”  Id. at 533. 

In other words, under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review.  Instead, the United States can defend Section 3 only by invoking Congress’ actual justifications for the law.

Moreover, the legislative record underlying DOMA’s passage contains discussion and debate that undermines any defense under heightened scrutiny.  The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.  See Cleburne, 473 U.S. at 448 (“mere negative attitudes, or fear” are not permissible bases for discriminatory treatment); see also Romer, 517 U.S. at 635 (rejecting rationale that law was supported by “the liberties of landlords or employers who have personal or religious objections to homosexuality”); Palmore v. Sidotti, 466 U.S. 429, 433 (1984) (“Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”).
 
Application to Second Circuit Cases
After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny.  The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.  Given that conclusion, the President has instructed the Department not to defend the statute in Windsor and Pedersen, now pending in the Southern District of New York and the District of Connecticut.  I concur in this determination.

Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch.  To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality.  This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.  

As you know, the Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government.  However, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a “reasonable” one.  “[D]ifferent cases can raise very different issues with respect to statutes of doubtful constitutional validity,” and thus there are “a variety of factors that bear on whether the Department will defend the constitutionality of a statute.”  Letter to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996).  This is the rare case where the proper course is to forgo the defense of this statute.  Moreover, the Department has declined to defend a statute “in cases in which it is manifest that the President has concluded that the statute is unconstitutional,” as is the case here.  Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001). 

In light of the foregoing, I will instruct the Department’s lawyers to immediately inform the district courts in Windsor and Pedersen of the Executive Branch’s view that heightened scrutiny is the appropriate standard of review and that, consistent with that standard, Section 3 of DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law.  If asked by the district courts in the Second Circuit for the position of the United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3’s constitutionality may be proffered under that permissive standard.  Our attorneys will also notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases.  We will remain parties to the case and continue to represent the interests of the United States throughout the litigation.

Furthermore, pursuant to the President’s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President’s and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.

A motion to dismiss in the Windsor and Pedersen cases would be due on March 11, 2011.  Please do not hesitate to contact us if you have any questions.

Sincerely yours,
Eric H. Holder, Jr.
Attorney General
_
i DOMA Section 3 states:  “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”
 
ii See, e.g., Dragovich v. U.S. Department of the Treasury, 2011 WL 175502 (N.D. Cal. Jan. 18, 2011); Gill v. Office of Personnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010); Smelt v. County of Orange, 374 F. Supp. 2d 861, 880 (C.D. Cal.,2005); Wilson v. Ake, 354 F.Supp.2d 1298, 1308 (M.D. Fla. 2005); In re Kandu, 315 B.R. 123, 145 (Bkrtcy. W.D. Wash. 2004); In re Levenson, 587 F.3d 925, 931 (9th Cir. E.D.R. Plan Administrative Ruling 2009).
 
iii While significant, that history of discrimination is different in some respects from the discrimination that burdened African-Americans and women.  See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 216  (1995) (classifications based on race “must be viewed in light of the historical fact that the central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States,” and “[t]his strong policy renders racial classifications ‘constitutionally suspect.’”); United States v. Virginia, 518 U.S. 515, 531 (1996) (observing that “‘our Nation has had a long and unfortunate history of sex discrimination’” and pointing out the denial of the right to vote to women until 1920).  In the case of sexual orientation, some of the discrimination has been based on the incorrect belief that sexual orientation is a behavioral characteristic that can be changed or subject to moral approbation. Cf. Cleburne, 473 U.S. at 441 (heightened scrutiny may be warranted for characteristics “beyond the individual’s control” and that “very likely reflect outmoded notions of the relative capabilities of” the group at issue); Boy Scouts of America v. Dale, 530 U.S. 640 (2000) (Stevens, J., dissenting) (“Unfavorable opinions about homosexuals ‘have ancient roots.’” (quoting Bowers, 478 U.S. at 192)).
 
iv See Equality Foundation v. City of Cincinnati, 54 F.3d 261, 266–67 & n. 2. (6th Cir. 1995); Steffan v. Perry, 41 F.3d 677, 685 (D.C. Cir. 1994); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989); Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987).
 
v See, e.g., Lofton v. Secretary of the Dep’t of Children & Family Servs., 358 F.3d 804, 818 (11th Cir. 2004) (discussing child-rearing rationale); High Tech Gays v. Defense Indust. Sec. Clearance Office, 895 F.2d 563, 571 (9th Cir. 1990) (discussing immutability).  As noted, this Administration has already disavowed in litigation the argument that DOMA serves a governmental interest in “responsible procreation and child-rearing.”  H.R. Rep. No. 104-664, at 13.  As the Department has explained in numerous filings, since the enactment of DOMA, many leading medical, psychological, and social welfare organizations have concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents.
 
vi See Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866 (8th Cir. 2006); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Veney v. Wyche, 293 F.3d 726, 732 (4th Cir. 2002); Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 292-94 (6th Cir. 1997).
 
vii See, e.g., H.R. Rep. at 15–16 (judgment [opposing same-sex marriage] entails both moral disapproval of homosexuality and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality”); id. at 16 (same-sex marriage “legitimates a public union, a legal status that most people  . . . feel ought to be illegitimate” and “put[s] a stamp of approval . . . on a union that many people . . . think is immoral”); id. at 15 (“Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality”); id. (reasons behind heterosexual marriage—procreation and child-rearing—are  “in accord with nature and hence have a moral component”); id. at 31 (favorably citing the holding in Bowers that an “anti-sodomy law served the rational purpose of expressing the presumed belief . . . that homosexual sodomy is immoral and unacceptable”); id. at 17 n.56 (favorably citing statement in dissenting opinion in Romer that “[t]his Court has no business . . . pronouncing that ‘animosity’ toward homosexuality is evil”).