IN THE CIRCUIT COURT OF THE ELEVENTH J UDICIAL CIRCUIT

IN AND FOR MIAMI-DADE COUNTY, FLORIDA

CATHERINA PARETO and KARLA ARGUELLO;
J UAN CARLOS RODRIGUEZ and DAVID PRICE;
VANESSA ALENIER and MELANIE ALENIER; TODD
DELMAY and J EFFREY DELMAY; SUMMER GREENE
and PAMELA FAERBER; DON PRICE J OHNSTON and
J ORGE DIAZ; and EQUALITY FLORIDA INSTITUTE,
INC.,
Plaintiffs,
v.
HARVEY RUVIN, as Clerk of the Courts of Miami-Dade
County, Florida, in his official capacity,
Defendant.



CASE NO. 2014-1661-CA-01



MEMORANDUM OF LAW OF AMICI CURIAE FLORIDA FAMILY ACTION, INC.
(FFAI), FLORIDA DEMOCRATIC LEAGUE, INC. (FDL), and PEOPLE UNITED TO
LEAD THE STRUGGLE FOR EQUALITY, INC. (PULSE) IN OPPOSITION TO
PLAINTIFFS MOTION FOR SUMMARY J UDGMENT
Filing # 14930331 Electronically Filed 06/17/2014 10:45:29 PM
i

TABLE OF CONTENTS
TABLE OF AUTHORITIES ....................................................................................................... ii
STATEMENT OF DISPUTED MATERIAL FACTS .............................................................. 1
LEGAL ARGUMENT .................................................................................................................. 6
I. PLAINTIFFS HAVE NOT MET THEIR EVIDENTIARY BURDEN OR
PROVIDED PRECEDENT TO SUPPORT THEIR POSITION THAT THE FMPA
IS UNCONSTITUTIONAL, AND THEREFORE ARE NOT ENTITLED TO
SUMMARY JUDGMENT. ............................................................................................... 6
II. SUPREME COURT PRECEDENT ESTABLISHES THAT THIS COURT MUST
UTILIZE RATIONAL BASIS REVIEW OF THE CHALLENGED LAWS. ............. 9
III. THE FMPA MEMORIALIZES MILLENNIA OF HISTORY AND THE NATURAL
CREATED ORDER WHICH HAS ESTABLISHED THAT MARRIAGETHE
UNION OF ONE MAN AND ONE WOMANIS THE FOUNDATIONAL SOCIAL
INSTITUTION. ................................................................................................................ 11
IV. FLORIDAS MEMORIALIZATION OF THE DEFINITION OF MARRIAGE AS
THE UNION OF ONE MAN AND ONE WOMAN RECOGNIZES THE
COMPLEMENTARITY OF MEN AND WOMEN, PROVIDES THE OPTIMAL
ENVIRONMENT FOR CHILD-REARING AND FOSTERS TRUE EQUALITY
AND RELATIVE VALUE OF THE SEXES. ............................................................... 22
A. Marriage, The Union Of One Man And One Woman, Reflects The Unique
And Socially Necessary Complementarity Of The Sexes. ............................ 23
B. Marriage Provides The Optimal Environment For Children. ..................... 24
C. Marriage Fosters True Equality And Recognizes The Inherent Value Of
The Sexes. .......................................................................................................... 26
V. PHYSICAL AND PSYCHOLOGICAL HARMS CAUSED BY HOMOSEXUAL
CONDUCT PROVIDE MORE THAN RATIONAL BASIS FOR NOT
CONDONING SUCH CONDUCT IN LAW. ............................................................... 28
VI. THE FMPA IS A VALID EXERCISE OF FLORIDIANS DEMOCRATIC
POWERS THAT ACHIEVES NUMEROUS LEGITIMATE AND VITAL
PURPOSES, AND THUS CANNOT BE JUDICIALLY REPEALED. ..................... 39
CONCLUSION ........................................................................................................................... 42
CERTIFICATE OF SERVICE ................................................................................................. 43



ii

TABLE OF AUTHORITIES
Dept of Agriculture v. Moreno, 413 U.S. 528 (1973) .................................................................. 10
CASES
Futch v. Wal-Mart Stores, Inc., 988 So. 2d 687 (Fla. 1st DCA 2008) ........................................... 7
Gregory v. Ashcroft, 501 U.S. 452 (1991). ..................................................................................... 9
Griswold v. Connecticut, 381 U.S. 479 (1965) ............................................................................. 14
Harr v. Hillsborough Cmty. Mental Health Ctr., 591 So. 2d 1051 (Fla. 2d DCA 1991) ............... 8
Harvey Bldg., Inc. v. Haley, 175 So. 2d 780 (Fla. 1965) ................................................................ 7
Holl v. Talcott, 191 So. 2d 40 (Fla. 1966). ......................................................................... 1, 2, 7, 8
Jones v. Stoutenburgh, 91 So. 2d 299 (Fla. 1956) .......................................................................... 8
Maynard v. Hill, 125 U. S. 190 (1888) ......................................................................................... 14
Meister v. Moore, 96 U.S. 76 (1877) ............................................................................................ 13
Moore v. Morris, 475 So. 2d 666 (Fla. 1985) ............................................................................. 1, 7
Murphy v. Ramsey, 114 U.S. 15 (1885) ........................................................................................ 13
Reynolds v. United States, 98 U.S. 145 (1878) ............................................................................. 14
Schuette v. BAMN, 134 S.Ct. 1623 (2014) .................................................................... 6, 22, 39, 40
Skinner v. Oklahoma, 316 U.S. 535 (1942). ................................................................................. 14
United States v. Cannon, 7 P. 369 (Utah 1885) ............................................................................ 13
United States v. Windsor, 133 S.Ct. 2675 (2013) ......................................................... 6, 10, 39, 41
Vance v. Bradley, 440 U.S. 93 (1979) ............................................................................................ 9
Fla. R. Civ. P. 1.510 .................................................................................................................... 1, 8
STATUTES
Nev. Rev. Stat. Ann. 201.354 ..................................................................................................... 15

iii


OTHER AUTHORITIES
A Question of Cultural Competence in the Medical Community, Ten Things Gay Men Should
Discuss With Their Health Care Providers (J uly 17, 2002), .................................................... 39
American Psychological Association, Answers to your Questions for a Better Understanding of
Sexual Orientation and Homosexuality (1998)......................................................................... 18
C. Beyer, et al., Global Epidemiology of HIV Infection in Men who have Sex with Men, 380 THE
LANCET 366-77 (J uly 28, 2012) ................................................................................................ 30
D.M. Huebner, et al., Sorting through Chickens and Eggs: A Longitudinal Examination of the
Associations between Attitudes, Norms, and Sexual Risk Behaviors, 30(1) HEALTH
PSYCHOLOGY 110-18 (2011) ..................................................................................................... 33
David P. McWhirter & Andrew M. Mattison, THE MALE COUPLE: HOW RELATIONSHIPS
DEVELOP (1984) ........................................................................................................................ 17
David Popenoe, Life without Father: Compelling New Evidence that Fatherhood and Marriage
are Indispensable for the Good for Children and Society 146 (1996) ................................. 5, 24
Edward O. Laumann et al., THE SOCIAL ORGANIZATION OF SEXUALITY: SEXUAL PRACTICES IN
THE UNITED STATES 314-16 (1994) ........................................................................................... 18
Gay and Bisexual Men's Health: For Your Health: Recommendations for A Healthier You,
Centers for Disease Control and Prevention (J an. 21, 2011),
http://www.cdc.gov/msmhealth/for-your-health.htm ......................................................... 28, 30

Gay and Bisexual Men's Health: Substance Abuse, Centers for Disease Control and Prevention
(March 22, 2013) ...................................................................................................................... 36
Gay and Bisexual Men's Health: Suicide and Violence Prevention, Centers for Disease Control
and Prevention (May 15, 2013) ................................................................................................ 34
Gregory Herek, Sexual Orientation Differences as Deficits: Science and Stigma in the History of
American Psychology, 5 PERSPECTIVES ON PSYCHOLOGICAL SCIENCE 693-99 (2010) ............ 19
HIV and Young Men Who Have Sex with Men, Centers for Disease Control and Prevention
(J une 2012)................................................................................................................................ 28
HIV Surveillance in Adolescents and Young Adults. Rep., Centers for Disease Control and
Prevention, National Center for HIV/AIDS, Viral Hepatitis, STD & TB Prevention (2011) .. 29
J ames Wilson, Lectures on Law: Of the Natural Rights of Individuals (1791), reprinted in The
Works of the Honourable James Wilson, L.L.D.: Late One of the Associate J ustices of the
Supreme Court of the Supreme Court of the United States, and Professor of Law in the
College of Philadelphia 476 (Bird Wilson ed., 1883 (emphasis added). .................................. 12
iv

J anet R. Daling, Ph.D., Human Papillomavirus, Smoking, and Sexual Practices in the Etiology of
Anal Cancer 101.2 (2004): p. 270. Wiley Online Library. Wiley Interscience, ....................... 30
J ohn Locke, TWO TREATISES OF GOVERNMENT 179 (1698; Cambridge, U.K.: Cambridge
University Press, 1965 .............................................................................................................. 12
J ohn R. Diggs, J r., The Health Risks of Gay Sex,
Catholic Education Resource Center (2002)....................................................................... 28, 32
J ordan Simonson, Toward Understanding Elevated Depression and Anxiety Symptoms in LGBQ
Youth: Integrating Minority Stress Theory and the Common Vulnerabilities Hypothesis
(J une 12, 2012).......................................................................................................................... 35
J ulia Garro, Canada's healthcare system is homophobic, says group,
XTRA.CA (February 17, 2009) ................................................................................................ 38
J ulie H. Hall & Frank D. Finchman, Psychological Distress: Precursor or Consequence of
Dating Infidelity, PERSONALITY AND SOCIAL PSYCHOLOGY BULLETIN 1 (2009), .................... 18
J ulie H. Hall & Frank D. Finchman, Psychological Distress: Precursor or Consequence of
Dating Infidelity, Personality and Social Psychology Bulletin 1 (2009), available at
http://psp.sagepub.com/content/35/2/143.full.pdf+html ........................................................... 18
Koji Ueno, Mental Health Differences between Young Adults with and without Same-Sex
Contact: A Simulaneous Examination of Underlying Mechanisms, 51(4) J ournal of Health and
Social Behavior 392, 397 (2010) .............................................................................................. 35
Lesbian and Bisexual Health Fact Sheet, Womenshealth.gov (Feb. 17, 2011 ....................... 28, 32
Lynn D. Wardle, Multiply and Replenish: Considering Same-Sex Marriage in Light of State
Interests in Marital Procreation, 24 HARV. J . L. & PUB. POLY 771, 779 (2001). ............. 21, 27
M.E. Newcomb & B. Mustanski, Moderators of the Relationship Between Internalized
Homophobia and Risky Sexual Behavior in Men who have Sex with Men: A Meta-analysis, 40
ARCHIVES OF SEXUAL BEHAVIOR 189-99 (2011) ...................................................................... 29
Maggie Gallagher, What is Marriage For? The Public Purposes of Marriage Law, 62 LA. L.
REV. 773, 778 (2002). ............................................................................................................... 21
Mark Regnerus, How Different are the Adult Children of Parents Who have Same-sex
Relationships? Findings from the New Family Structures Study, 41 J OURNAL OF SOCIAL
SCIENCE RESEARCH 752, 761 (2012). ................................................................................. 24, 25
Martha W. Waller & Rebecca P. Sanchez, The Association Between Same-Sex Romantic
Attractions and Relationships and Running Away Among a Nationally Representative Sample
of Adolescents, 28 Child Adolescent Social Work J ournal 475, 477-78 (Aug. 6, 2011) .......... 35
v

Maurice N. Gattis, Paul Sacco, & Renee M. Cunningham-Williams, Substance Use and Mental
Health Disorders Among Heterosexual Identified Men and Women Who Have Same-sex
Partners or Attraction: Results from the National Epidemiological Survey on Alcohol and
Related Conditions, 41 Archives of Sexual Behavior 1185, 1185 (2012) ................... 35, 36, 37
P. Frisell, Q. Lichtenstein, Rahman, & N. Langstrom, Psychiatric Morbidity Associated with
Same-Sex Sexual Behaviour: Influence of Minority Stress and Familial Factors ....................40
Psychological Medicine 315, 318 (2010) ..................................................................................... 35
Peplau, L., et al., The Development of Sexual Orientation in Women, 10 ANNUAL REVIEW OF SEX
RESEARCH 70-99 (1990) ........................................................................................................... 18
Primary and Secondary Syphilis, United States, 20052013, available at
http://www.cdc.gov/mmwr/preview/mmwrhtml/mm6318a4.htm?s_cid=mm6318a4_w#tab
(last visited May 14, 2014). ...................................................................................................... 29
Prostitution: US Federal and State Prostitution Laws and Related Punishments, Procon.org
(March 15, 2010 .................................................................................................................. 15, 16
R. de Graaf, T.G.M. Sandfort, & M. ten Have, Suicidality and Sexual Orientation: Differences
between Men and Women in a General Population-based Sample from the Netherlands, 35
ARCHIVES OF SEXUAL BEHAVIOR 253-62 (2006) ...................................................................... 38
R.C. Savin-Williams, K. J oyner, & G. Rieger, Prevalence and Stability of Self-Reported Sexual
Orientation Identity During Young Adulthood,
41 ARCHIVES OF SEXUAL BEHAVIOR 104 (2012). ..................................................................... 19
Richard J . Naftalln, Correspondence: Anal Sex and AIDS,
360.6399 Nature 10 (Nov. 5, 1992) .................................................................................... 28, 31
Sexually Transmitted Diseases (STDs): HPV and Men - Fact Sheet, Centers for Disease Control
and Prevention (Feb. 23, 2012) ................................................................................................. 30
Sherif Girgis et al., WHAT IS MARRIAGE? MAN AND WOMAN: A DEFENSE (2012). .............. passim
Stanley Kurtz, The End of Marriage in Scandinavia,
9.20 THE WEEKLY STANDARD (February 2, 2004) ................................................................... 17
Susan D. Cochran & Vickie M. Mays, Lifetime Prevalence of Suicide Symptoms and Affective
Disorders Among Men Reporting Same-Sex Sexual Partners: Results from NHANES III, 90
Am. J . of Pub. Health 573, 573 (Apr. 2000) ............................................................................. 33
T.G.M. Sandfort, F. Bakker, F.G. Schellevis, & I. Vanwesenbeeck, Sexual Orientation and
Mental and Physical Health Status: Findings from a Dutch Population Survey, 96 AMERICAN
J OURNAL OF PUBLIC HEALTH 1119-25 (2006) .......................................................................... 38
vi

V.M. Mays & S.D. Cochran, Mental Health Correlates of Perceived Discrimination among
Lesbian, Gay, and Bisexual Adults in the United States, 91 AMERICAN J OURNAL OF PUBLIC
HEALTH 1869-76 (2001) ........................................................................................................... 37
William C. Duncan, The State Interests in Marriage,
2 AVE MARIA L. REV. 153, 171(2004) ...................................................................................... 26
Fla. Const. Art. I, 27 ............................................................................................................ passim
CONSTITUTIONAL PROVISIONS
1

This Court should reject Plaintiffs request that it summarily declare Floridas
Constitution unconstitutional and repeal a constitutional amendment initiated by Florida citizens
and overwhelmingly approved by nearly 5 million Floridians. Plaintiffs have not even
endeavored to meet, let alone complied with, the requirements for summary judgment. Fla. R.
Civ. P. 1.510; Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985); Holl v. Talcott, 191 So. 2d 40,
44 (Fla. 1966).
STATEMENT OF DISPUTED MATERIAL FACTS
Lost in the maze of Plaintiffs unverified and embellished allegations in the Complaint is
the straightforward text of the Florida Marriage Protection Amendment (FMPA) enacted by
Florida voters on November 4, 2008: Inasmuch as marriage is the legal union of only one man
and one woman as husband and wife, no other legal union that is treated as marriage or the
substantial equivalent thereof shall be valid or recognized. Fla. Const. Art. I, 27.
1
Without offering a scintilla of evidence, Plaintiffs ask this Court to judicially repeal the
constitutional amendment and take on the task of redefining marriage to include same-sex
couples. Plaintiffs provide a laundry list of bare allegations regarding their identities and
purported harms that befall them because Florida continues to recognize that marriage is and
always has been defined as the union of one man an one woman. (Compl., 18-59). However,
With these
27 words, the people of Florida affirmed that an institution that has existed for at least several
thousand years in all or nearly all known human societies, is a foundational institution that
should be memorialized in the states foundational governing document, the Florida
Constitution.

1
Almost 8 million Floridians voted on this issue in the 2008 election, with 62.5 percent, or
4,890,883, voting yes. Florida Secretary of State, Division of Elections, November 8, 2008
General Election Results, available at
http://election.dos.state.fl.us/elections/resultsarchive/Index.asp? Election Date =11/4/2008 (last
visited February 20, 2014).
2

Plaintiffs allegations are just that, allegations, unsupported by verification of the Complaint,
answers to interrogatories, depositions, affidavits or any other form of evidentiary support
required to form the factual certainty necessary for summary judgment. Holl v. Talcott, 191 So.
2d 40, 45 (Fla. 1966). Except for the text of the Florida Constitution and statutes, all of the
facts, not just material facts, alleged by Plaintiffs are in dispute. Furthermore, even if the
allegations could be accepted as true (which they cannot), the attached declarations of J ohn
Stemberger, David Pickup and Dr. J udith Reisman provide actual evidence, not just allegations,
that dispute the facts underlying Plaintiffs allegations.
Plaintiffs claim to be same-sex couples who reside, own businesses or are employed by
others, rear children and participate in community organizations in South Florida. (Compl., 18-
23). Another Plaintiff is Equality Florida Institute, Inc., which purports to be the states largest
civil rights organization dedicated to securing full equality for Floridas lesbian, gay, bisexual,
and transgender (LGBT) community. (Compl. 24). The individual Plaintiffs claim that they
want to get married, but that they do not want to abide by the requirement that they marry a
person of the opposite sex. (Compl., 32-50). Therefore, they ask the Court to invalidate the
Florida Constitution, repeal existing law and institute a new definition for marriage that can
include same-sex relationships. (Compl., 32-50).
Plaintiffs allege but do not prove that Floridas Marriage Amendment was motivated by
impermissible animus towards homosexuals rather than any legitimate purpose. (Compl., 46;
Memorandum in Support of Summary J udgment, pp. 2, 15, 16). J ohn Stemberger, who chaired
the political action committee that officially sponsored that amendment, submits an unrebutted
Declaration that conclusively establishes otherwise. (Declaration of J ohn Stemberger, 4-11).
Mr. Stemberger testifies that the Marriage Amendment was motivated by the common sense
3

knowledge that children need both a mother and a father, and by a desire to encourage Floridians
to form organic relationships that are optimal for the rearing of children. (Stemberger
Declaration, 4-6). The very notion that the Amendments sponsors were motivated by animus
towards homosexuals is offensive and ridiculous, because at the same time he was encouraging
Floridians to vote for the Marriage Amendment, Mr. Stemberger and his family were caring in
his home for a homosexual man dying of AIDS, who had no place else to go. (Stemberger
Declaration, 8).
Plaintiffs also allege but do not prove or even identify how they are stigmatized by
Floridas continuing recognition that marriage is the union of one man and one woman (Compl.,
7). Mr. Pickup and Dr. Reisman testify that, in fact, children and adults are stigmatized in the
form of physical and psychological harm when same-sex relationships are promoted.
(Declaration of David Pickup, 30-40; Declaration of J udith Reisman, 15-34). Mr. Pickup
testifies about the indisputable fact that there are inherent harms associated with same-sex
unions, harms that can be financially and socially costly to the entire state. (Pickup Declaration,
35). As Dr. Resiman testifies, a law encouraging homosexual behaviors appears to increase
HIV risk and negative health outcomes and thus creates a danger both to the individuals
engaging in these behaviors as well as to society at large. (Reisman Declaration, 18).
Plaintiffs further allege but do not provide evidence that history has supposedly taught
that the legitimacy and vitality of marriage do not depend upon continuing to define it as the
union of one man and one woman (Compl., 10). Again, empirical evidence shows that when
societies attempt to redefine marriage its legitimacy and vitality are adversely affected. (See,
Section III, infra). Mr. Pickup testifies that studies and research revealing the inherent fluidity of
same-sex attractions, the lack of any scientific claim to immutability, and the undeniable harms
4

that result from engaging in same-sex sexual behavior, demonstrates that the Plaintiffs claims
that all same-sex unions are identical to heterosexual marriages in all relevant respects ignores
reality and scientific fact. They are not identical in all respects and are indeed harmful to the
individuals and society at large. (Pickup Declaration, 40). Similarly, Dr. Reisman testifies that
same-sex parenting is not identical to parenting by married biological parents, and those
differences are harmful to children. (Reisman Declaration, 27-34).
Plaintiffs further allege without any proof that same-sex couples are similarly situated to
opposite-sex couples in all ways that are relevant to marriage. (Compl., 47). As described
above, Mr. Pickup and Dr. Reisman testify that same-sex couples are substantially dissimilar to
opposite-sex couples in all ways that are relevant to marriage. (Pickup Declaration, 40; Reisman
Declaration, 27-34).
Plaintiffs allege but offer no evidence to support that homosexuality bears no relation to
being able to participate in society, or particularly the institution of marriage (Compl., 52b). In
fact, however, as noted above, Mr. Pickup and Dr. Reisman offer extensive testimony about the
inherent harms associated with same-sex relationships, harms that are financially and socially
costly to the entire state and society at large. (Pickup Declaration, 35; Reisman Declaration,
18).
Plaintiffs allege but offer no evidence that [s]exual orientation is a core, defining trait
that is so fundamental to ones identity and autonomy that a person may not legitimately be
required to abandon or change it. (Compl., 52c). In fact, Mr. Pickup, who himself experienced
change in this regard, testifies that:
[S]exual orientation is by no means comparable to a characteristic such as race or
biological sex, which are indisputably immutable. Thus, while same-sex
attractions may not be experienced as chosen, it is reasonable to hold that they can
be subject to conscious choices. Same-sex attractions and behaviors are not
5

strictly or primarily determined by biology or genetics and are naturally
subject to significant change, particularly in youth and early adulthood. This
should raise serious questions about the legitimacy of any claim that
homosexuality is an immutable characteristic. It is not.
(Pickup Declaration, 23). Mr. Pickup further testifies that extending legal rights on the basis
that homosexuality is an immutable characteristic has no basis in scientific fact. (Pickup
Declaration, 8).
In fact, non-heterosexual identities have been shown to be subject to significant
change for many people. Studies have shown that non-heterosexual identity is not
a fixed trait among those who report such an identity. The scientific studies and
reports showing change among non-heterosexual identities are not limited to
changes in behavior, but extend to change of identity and preference. Also, the
only sexual identity not subject to significant change is a heterosexual identity,
and evidence suggests that non-heterosexual identities, attractions, and behaviors
show movement towards a heterosexual identity over the course of the
individuals life, particularly among youth.
(Id.).
Plaintiffs also allege but provide no proof that defining marriage as the union of one man
and one woman somehow impermissibly discriminates on the basis of sex and sexual orientation
(Compl., 44), and enforces and perpetuates sex stereotypes and gender-based expectations.
(Compl., 56). Again, scientific studies show that marriage recognizes the complementarity of
the sexes in a way that fosters equality and value for all. As Dr. Reisman testifies, The two
sexes are different to the core, each is necessary -- culturally and biologically -- for the
optimal development of a human being. (Reisman Declaration, 29).
2
As detailed more fully below and in the accompanying Declarations of David Pickup and
Dr. J udith Reisman, biology, social science and medicine provide not merely rational, but
compelling, reasons why marriage is and always has been defined as the union of one man and
one woman. And J ohn Stembergers Declaration confirms that it was these compelling reasons,


2
Citing David Popenoe, Life without Father: Compelling New Evidence that Fatherhood
and Marriage are Indispensable for the Good for Children and Society 146, 197 (1996)
(emphasis added).
6

and not any impermissible animus towards homosexuals, that motivated him and others to
successfully sponsor Floridas Marriage Amendment. These facts are unrebutted because
Plaintiffs have not produced any admissible evidence to substantiate their bare allegations to the
contrary. Indeed, if summary judgment could ever be granted on the facts before the Court, it
would have to be granted against Plaintiffs. At the very least, however, these facts along with
the others detailed infra, point to the existence of genuine issues of material fact regarding the
validity of marriage as the union of one man and one woman. Summary judgment in favor of
Plaintiffs cannot be granted.
LEGAL ARGUMENT

I. PLAINTIFFS HAVE NOT MET THEIR EVIDENTIARY BURDEN OR
PROVIDED PRECEDENT TO SUPPORT THEIR POSITION THAT THE FMPA
IS UNCONSTITUTIONAL, AND THEREFORE ARE NOT ENTITLED TO
SUMMARY JUDGMENT.

This Court should reject Plaintiffs request to jettison the requirements for summary
judgment, and to simply trust them that there are no disputed material facts because the United
States Supreme Courts decision in United States v. Windsor, 133 S.Ct. 2675 (2013) supposedly
requires invalidation of the FMPA. Plaintiffs have utterly failed to meet their burden of
conclusively proving an absence of genuine issues of material facts. Furthermore, as the
discussion below and attached declarations demonstrate, there are significant issues of material
fact underlying Plaintiffs claim that the FMPA is unconstitutional. Also, the Supreme Courts
decision in Windsor, as well as its recent decision in Schuette v. BAMN, 134 S.Ct. 1623 (2014)
and myriad other precedents require the rejection of Plaintiffs attempt to subvert the expressed
will of more than 5 million Floridians.
Plaintiffs, as the parties seeking summary judgment, cannot simply state that there are no
genuine issues of material fact. The law is well settled in Florida that a party moving for
7

summary judgment must show conclusively the absence of any genuine issue of material fact.
Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985) (emphasis added); Holl v. Talcott, 191 So. 2d
40, 44 (Fla. 1966). That conclusive showing must be in the form of admissible evidence that is
competent and relevant to the issues in the case. Holl, 191 So. 2d at 45. The court will look at
any affidavits, answers to interrogatories, admissions, depositions, and other materials, as would
be admissible in evidence. Futch v. Wal-Mart Stores, Inc., 988 So. 2d 687, 690 (Fla. 1st DCA
2008).
Plaintiffs present no such evidence here. Plaintiffs did not file a verified complaint, and
there are no depositions, no answers to interrogatories and no affidavits containing any of the
sworn testimony necessary to establish (as opposed to merely allege) the material facts
necessary to obtain summary judgment. Plaintiffs have offered this Court nothing but bare
allegations. Indeed, since the Court cannot accept any unsworn and unproven factual allegation
as true on a motion for summary judgment, Harvey Bldg., Inc. v. Haley, 175 So. 2d 780, 783
(Fla. 1965), on the existing record the Court cannot even be assured of the most basic facts
pled by Plaintiffs, such as that they are supposedly same-sex couples, or that they are interested
in marriage.
Instead of providing the admissible evidence necessary to meet their burden, Plaintiffs
offer the court a single declaration from an out of state attorney requesting judicial notice of a
37-year-old newspaper article, a 17-year-old legislative committee report, a fiscal impact
statement prepared by unidentified principals of a Fiscal Impact Estimating Conference, and
the Division of Elections informational pamphlet setting forth the constitutional amendments to
be voted upon in November 2008, including the FMPA. Assuming, arguendo, that Plaintiffs
could overcome the multiple layers of hearsay inherent in the declarations exhibits, which they
8

decidedly cannot, the only relevant facts the declaration might prove would be the contents of the
full text and ballot summary for the FMPA, and that a fiscal impact statement offered some
potential effects of the FMPA. Those two facts in no way suggest, much less conclusively
establish, that the FMPA violates due process or equal protection.
Importantly, Plaintiffs evidentiary failure is not only fatal to their motion for summary
judgment, but is also incurable. Fla. R. Civ. P. 1.510(c) required Plaintiffs to provide, at the time
of filing their motion, any summary judgment evidence on which [they] rel[y] that has not
already been filed with the court. Id. Accordingly, Plaintiffs could not save their motion by
providing the missing evidence at the eleventh hour, even if such evidence could ever be
adduced. The motion must therefore be denied.
Since Plaintiffs have not met their initial burden, the opposing party is under no
obligation to show that issues do remain to be tried. Holl, 191 So.2d at 43. The rule simply is
that the burden to prove the non-existence of genuine triable issues is on the moving party, and
the burden of proving the existence of such issues is not shifted to the opposing party until
the movant has successfully met his burden. Id. at 43-44 (emphasis added). Nevertheless, out
of an abundance of caution, amici are providing the Court with evidence demonstrating that the
facts alleged by Plaintiffs do not actually exist, leaving the factual underpinnings of their case
very much at issue. Consequently, summary judgment must be denied. Where, as here, the
record reflects the existence of a genuine issue of material fact or the possibility of any such
issue, or if the record raises even the slightest doubt that an issue might exist, summary
judgment is improper. Harr v. Hillsborough Cmty. Mental Health Ctr., 591 So. 2d 1051, 1054
(Fla. 2d DCA 1991) (emphasis added) approved, 618 So. 2d 187 (Fla. 1993).
9

The Florida Supreme Court has directed that the power to enter a judgment summarily
should be exercised with a degree of circumspection in view of its potentialities for encroaching
upon our traditional processes for determining the rights of parties to a cause. Jones v.
Stoutenburgh, 91 So. 2d 299, 302 (Fla. 1956). Such circumspection is necessary here and
requires that summary judgment be denied.
II. SUPREME COURT PRECEDENT ESTABLISHES THAT THIS COURT MUST
UTILIZE RATIONAL BASIS REVIEW OF THE CHALLENGED LAWS.
Since the FMPA is a citizen-initiated constitutional amendment, Plaintiffs, as the parties
raising an Equal Protection challenge, bear the burden of demonstrating that memorializing
marriage as the union of one man and one woman is in no way related to the achievement of any
combination of legitimate purposes. Gregory v. Ashcroft, 501 U.S. 452, 471 (1991). In Gregory,
the Supreme Court emphasized the herculean task that challengers have when trying to invalidate
a citizen-enacted constitutional amendment. Id. As is true here, in Gregory the Court was
dealing not merely with government action, but with a state constitutional provision approved
by the people of Missouri as a whole. Id. The FMPA reflects the considered judgment of the
citizens of Florida who voted for it. Id. We will not overturn such a law unless the varying
treatment of different groups or persons is so unrelated to the achievement of any combination of
legitimate purposes that we can only conclude that the peoples actions were irrational. Id. In
an equal protection case of this type ... those challenging the ... judgment [of the people] must
convince the court that the ... facts on which the classification is apparently based could not
reasonably be conceived to be true by the ... decisionmaker. Id. at 473 (citing Vance v. Bradley,
440 U.S. 93, 111 (1979)). In applying that liberal standard to the constitutional amendment at
issue in Gregory, the Court concluded that [t]he people of Missouri rationally could conclude
that the threat of deterioration at age 70 is sufficiently great, and the alternatives for removal
10

sufficiently inadequate, that they will require all judges to step aside at age 70. This classification
does not violate the Equal Protection Clause. Id. Similarly here, as discussed more fully below,
the people of Florida rationally could conclude that the foundational social institution upon
which society is built and that promotes fidelity, permanency, more healthful relationships and
complementary child-rearing warrants memorializing the definition of marriage as the union of
one man and one woman in the Constitution.
The Supreme Courts invalidation of Section 3 of the federal Defense of Marriage Act
(DOMA) did not change that conclusion. Windsor, 133 S.Ct. at 2696. In fact, the majority
opinion utilized the same legitimate purposes language when it concluded that DOMA violated
Equal Protection because it imposed an impermissible federal law differentiation upon same-sex
relationships deemed marriages under New York law. Id. J ustice Scalia acknowledged that the
majority opinion does not apply strict scrutiny, and its central propositions are taken from
rational-basis cases like Moreno. Id. at 2706 (Scalia, J ., dissenting, citing Dept of Agriculture
v. Moreno, 413 U.S. 528 (1973)). As J ustice Alito said of the plaintiffs similar attempt to assert
a fundamental right to marry a person of the same sex in Windsor, Plaintiffs are seeking not the
protection of a deeply rooted right but the recognition of a very new right, i.e., the right to
same-sex marriage, a right that is not deeply rooted in this Nations history and tradition,
and therefore is not subject to the heightened scrutiny that Plaintiffs seek. Id. at 2715 (Alito, J .,
dissenting).
Gregory and Windsor require that Plaintiffs claims be subject to rational basis review,
and as the succeeding discussion demonstrates, memorializing marriage as the union of one man
and one woman easily survives that standard.

11

III. THE FMPA MEMORIALIZES MILLENNIA OF HISTORY AND THE
NATURAL CREATED ORDER WHICH HAS ESTABLISHED THAT
MARRIAGETHE UNION OF ONE MAN AND ONE WOMANIS THE
FOUNDATIONAL SOCIAL INSTITUTION.
When Florida voters exercised the power reserved to them under the Florida Constitution
to memorialize marriage as the union of one man and one woman, they affirmed millennia of
history and the natural created and observable order that marriage is a union of the two sexes that
fosters stability, permanency, fidelity and the very continuation of society. The FMPA, like
similar amendments and statutes throughout the country, memorializesbut does not createthe
definition of marriage. Marriage is defined by its nature and predates government, which is
limited to regulating marriage in accordance with its natural, historical definition.
Instead of religion shaping marriage, as is asserted by those seeking to redefine it,
marriage the demands of a natural institution helped to shape our religious and
philosophical traditions.
3
Marriage, as a comprehensive union, predates civil government, and
is not peculiar to religion, or to any religious tradition.
4
In fact, marriage is a natural bond
that society or religion can only solemnize.
5
While individuals connected to particular
religions might be bound, to some degree, by their religious norms, such norms have no impact
on third parties. However, a major function of marriage laws is to bind all third parties
(schools, adoption agencies, summer camps, hospitals; friends, relatives, and strangers)
presumptively to treat a man as father of his wifes children, husbands and wives as entitled to
certain privileges and sexually off-limits, and so on. This only the state can do with any
consistency.
6

3
Sherif Girgis et al., WHAT IS MARRIAGE? MAN AND WOMAN: A DEFENSE 11 (2012)
(emphasis in original).
Thus, marriage laws protect the common good of health and safety and promote
4
Id. at 10.
5
Id. at 2 (emphasis in original).
6
Id. at 41 (emphasis in original).
12

the common good of efficiency; private efforts cannot adequately secure [these goods], and yet
failure to secure them has very public consequences.
7
Since the state can secure it without
undue cost, then the state may step inand should.
8
Those who were instrumental in developing the founding principles of the Republic
recognized the fundamental importance of the union of one man and one woman to the building
and continuation of society In fact, J ohn Locke described the union of one man and one woman,
i.e., marriage, as the First Society.

9
[A] voluntary Compact between Man and Woman; and tho [sic] it consist chiefly
in such a Communion and Right in one anothers Bodies, as is necessary to its
chief end, Procreation; yet it draws with it mutual Support, and Assistance, and a
Community of Interest too, as necessary to unite not only their Care and
Affection, but also necessary to their common Off-spring, who have a right to be
nourished and maintained by them, till they are able to provide for themselves.
In 1698, Locke summarized the universal definition of
marriage as:
10
Similarly, J ames Wilson, a signer of the Declaration of Independence and Constitution and one
of the United States first justices, said:

Whether we consult the soundest deductions of reason, or resort to the best
information conveyed to us by history, or listen to the undoubted intelligence
communicated in holy writ, we shall find, that to the institution of marriage the
true origin of society must be traced. ... [T]o that institution, more than any other,
have mankind been indebted for the share of peace and harmony which has been
distributed among them. ... The most ancient traditions of every country ascribe to
its first legislators and founders, the regulations concerning the union between the
sexes.
11

7
Id.

8
Id. (emphasis in original).
9
J ohn Locke, TWO TREATISES OF GOVERNMENT 179 (1698; Cambridge, U.K.: Cambridge
University Press, 1965
10
Id.
11
J ames Wilson, Lectures on Law: Of the Natural Rights of Individuals (1791), reprinted in
The Works of the Honourable James Wilson, L.L.D.: Late One of the Associate J ustices of the
Supreme Court of the Supreme Court of the United States, and Professor of Law in the College
of Philadelphia 476 (Bird Wilson ed., 1883 (emphasis added).
13

In keeping with these foundational principles, the United States Supreme Court has
consistently recognized that marriage, the union of one man and one woman, is the foundational
social institution. Statutes regulate the mode of entering into the contract, but they do not confer
the right. Meister v. Moore, 96 U.S. 76, 78-79 (1877).
For, certainly, no legislation can be supposed more wholesome and necessary in
the founding of a free, self-governing commonwealth, fit to take rank as one of
the co-ordinate states of the Union, than that which seeks to establish it on the
basis of the idea of the family, as consisting in and springing from the union for
life of one man and one woman in the holy estate of matrimony; the sure
foundation of all that is stable and noble in our civilization; the best guaranty of
that reverent morality which is the source of all beneficent progress in social and
political improvement.
Murphy v. Ramsey, 114 U.S. 15, 45 (1885) (emphasis added). Marriage is the foundation of the
home, and upon it is builded [sic] the entire superstructure of society. United States v. Cannon,
4 Utah 122, 7 P. 369, 382 aff'd, 116 U.S. 55 (1885). It finds its defense in every human heart,
which jealously guards the one object of its affection. Id.
There is far more to the marriage relation than the mere gratification of passion,
or the procreation of children. The wife, taking her place by her husband's side,
his equal, his counselor, his friend, makes of him a perfect man. Together they
share the sorrows of life; together they enjoy its blessings. When each is true to
the other, they present a union not made by man, and as they pass along lifes
pathway their very example is of infinite benefit to mankind.
Id. (emphasis added). Memorializing marriage into the statutory and common law is a reflection
of the fact that [a]nything which tends to bring this relation into disrepute is an injury to the
world. Id.
The Supreme Court, lower courts and the various states, including Florida, have acted in
accordance with the adage that [a]nything which lowers the popular appreciation of the relation,
and destroys the good that marriage does the world by mere example, is an evil which the law
should correct. Id. Society, with all its ramifications, being founded upon marriage, it is upon
grounds of public policy that it is regulated and protected. Id. Marriage is, has always been, and
14

forever will be a comprehensive union of one man and one woman that fosters responsible
procreation and child-rearing, and therefore is fundamental to the very existence and survival of
the race. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). Marriage is an institution in the
maintenance of which in its purity the public is deeply interested, for it is the foundation of the
family and of society, without which there would be neither civilization nor progress. Maynard
v. Hill, 125 U.S. 190 (1888). Marriage is not merely a creation of any one civilization or its
statutes, but is an institution older than the Constitution and indeed of any laws of any nation.
See Griswold v. Connecticut, 381 U.S. 479, 486 (1965).
We deal with a right of privacy older than the Bill of Rights older than our
political parties, older than our school system. Marriage is a coming together for
better or for worse, hopefully enduring, and intimate to the degree of being
sacred. It is an association that promotes a way of life, not causes; a harmony in
living, not political faiths; a bilateral loyalty, not commercial or social projects.
Yet it is an association for as noble a purpose as any involved in our prior
decisions.
Id.
Marriage is also not simply a religious tradition. In fact, when dealing with the
constitutionality of laws proscribing polygamy, the Supreme Court held:
Marriage, while from its very nature a sacred obligation, is nevertheless, in most
civilized nations, a civil contract, and usually regulated by law. Upon it society
may be said to be built, and out of its fruits spring social relations and social
obligations and duties, with which government is necessarily required to deal.
Reynolds v. United States, 98 U.S. 145, 165 (1878). Thus, while some might be motivated by
religion to marry, and religious ceremonies satisfy state requirements for solemnization, the
purpose of marriage transcends religion, and is to maintain order with regard to mans social
duties.
15

The purpose of Floridas efforts to memorialize that marriage, by nature, is between one
man and one woman, is that marriage has innate value.
12
Marriage is, of its essence, a comprehensive union: a union of will (by consent)
and body (by sexual union); inherently ordered to procreation and thus the broad
sharing of family life; and calling for permanent and exclusive commitment, ... it
is also a moral reality: a human good with an objective structure, which is
inherently good for us to live out.
Marriage is more than the name that
society gives to the relationship that matters most between two adults.
13
This inherent ordering of marriage toward procreation transcends any private desires of
the parties. Thus, regardless of whether the parties intend to have a family, the natural structure
of marriage is such that it is directed toward the common good of procreation. Legal recognition
makes sense only where regulation does: these are inseparable. The law, which deals in
generalities, can regulate only relationships with a definite structure. Such regulation is justified
only where more than private interests are at stake, and where it would not obscure distinctions
between bonds that the common good relies on.

14
Consequently, marriage is not a legal construct with totally malleable contours it is not
just a contract. Instead, some sexual relationships are of a distinctive kind of bond that has its
own value and structure, which the state did not invent and has no power to redefine.

15
This is
understood by the states even in contract law, where contracts for sexual acts are not enforceable,
and in criminal law, in that prostitution is illegal in all fifty states.
16,17

12
Girgis WHAT IS MARRIAGE AT 50
Whatever practical
realities may draw the state into recognizing marriage in the first place (e.g., childrens needs),
13
Id. at 6.
14
Id. at 92.
15
Girgis WHAT IS MARRIAGE? at 80.
16
Prostitution remains illegal under state law in Nevada, but is permitted in licensed
brothels in certain jurisdictions. Nev. Rev. Stat. Ann. 201.354
17
Prostitution: US Federal and State Prostitution Laws and Related Punishments,
Procon.org (March 15, 2010),
http://prostitution.procon.org/view.resource.php?resourceID=000119#2.
16

the state, once involved, must get marriage right to avoid obscuring the shape of this human
good.
18
Marriage should be reserved for procreative sexual unions that cannot be achieved by a
mere contract. To some degree, every state prohibits the exchange of sexual relations for
consideration, the primary purpose, similar to regulating marriage, is the health, safety, and
welfare of citizens through the reduction of any incentive to have multiple sexual partners, which
causes risks for the people involved, any children their procreative acts may generate, and the
state in having to care for children conceived outside of the permanent, exclusive union of a
marriage.

19
There are sex-neutral means of protecting benefits for alternative relationships without
jeopardizing the social goods achieved by preserving the natural definition of marriage.
Therefore, marriage, grounded in its objectively complementary structure, is more
than a mere contract, and sexual relationships cannot be contracted.
People can normally secure these benefits privately, for example, through power
of attorney. ... So before we enact sex-neutral civil unions, we should consider:
What specific common good would they serve? Would this good depend on
policing entry into and exit from such unions, as regulation does? Would it permit
diluting the special status of civil marriage? Formalizing sex-neutral unions might
be most useful where people lack the education or resources to make private
arrangements. But if such a proposal survives our objections to the redefinition of
civil marriage, that is because it is no actual redefinition of civil marriage.
20


The FMPA acknowledges that, to sustain an ordered society, it is crucial that the
objective complementary structure of marriage be maintained, and this importance has been
recognized in all of history. [E]ven in cultures very favorable to homoerotic relationships (as in

18
Girgis at 80 (emphasis in original).
19
Prostitution: US Federal and State Prostitution Laws and Related Punishments.
20
Girgis, WHAT IS MARRIAGE? at 85.
17

ancient Greece), something akin to the conjugal view [marriage as a comprehensive union] has
prevailedand nothing like same-sex marriage was even imagined.
21
European countries that have permitted same-sex couples to marry for some time
exemplify how moving away from the objective marriage structure delegitimizes marriage not
just by accepting same-sex unions as marriages, but also by moving for legitimization of
polygamyand complicates the legal implications of laws regulating marriage.

22
In other words,
the more flippant the government becomes in how it defines marriage, the less the proposed
marriage policy itself accomplishes in a world where private contracts are already available. As
we deprive marriage policy of definite shape, we deprive it of public purpose.
23
Same-sex marriage has locked in and reinforced an existing Scandinavian trend
toward the separation of marriage and parenthood. The Nordic family pattern
including gay marriage is spreading across Europe. ... The separation of
marriage from parenthood was increasing; gay marriage has widened the
separation. Out-of-wedlock birthrates were rising; gay marriage has added to the
factors pushing those rates higher. Instead of encouraging a society-wide return to
marriage, Scandinavian gay marriage has driven home the message that
marriage itself is outdated, and that virtually any family form, including out-
of-wedlock parenthood, is acceptable.
In fact, in
Nordic countries this is already happening:
24


Same-sex unions and comprehensive unions are not only distinct by nature, but also by
how they are treated by those engaged in them. In the 1980s, two homosexual professors
undertook a survey of same-sex couples in an attempt to prove homosexual unions are exclusive.
However, contrary to their hypothesis, not one homosexual couple of those surveyed stayed

21
Id. at 11.
22
See Stanley Kurtz, The End of Marriage in Scandinavia, 9.20 THE WEEKLY STANDARD
(February 2, 2004), http://www.weeklystandard.com/Content/Public
23
Girgis at 21 (emphasis added).
24
Kurtz, The End of Marriage in Scandinavia.
18

sexually exclusive longer than five years.
25
The study showed [t]he expectation for outside
sexual activity was the rule for male couples and the exception for heterosexuals.
26
By
contrast, 99 percent of heterosexual couples expect sexual exclusivity in their marriage, and
violations of it are the leading cause of divorce across 160 cultures and are one of the most
frequent reasons that couples seek marital therapy.
27
Similarly, a U.S. survey found that the
average number of sexual partners since the age of eighteen for men who identified as
homosexual or bisexual was over two and a half times as many as the average for heterosexual
men.
28
Social science has also disproven the claims by Plaintiffs and other proponents for
redefining marriage that same-sex sexual orientation is an immutable characteristic and therefore
is akin to race for purposes of defining marriage. (Pickup Declaration, 8-29). Causatively,
then, sexual orientation is by no means comparable to a characteristic such as race or biological
sex, which are indisputably immutable. (Pickup Declaration 23). Despite Plaintiffs claims to
the contrary, even the APA has observed that to date there are no replicated scientific
studies supporting any specific biological etiology for homosexuality.
Social science studies of the behavior of homosexuals disprove the assertion that same-
sex couples are similarly situated to opposite-sex couples.
29

25
David P. McWhirter & Andrew M. Mattison, THE MALE COUPLE: HOW RELATIONSHIPS
DEVELOP 252-53 (1984) (emphasis added).
In 1999, the Peplau
et al. study summarized that more than 50 years of research has failed to demonstrate that
biological factors are a major influence in the development of womens sexual
26
Id. at 253 (emphasis added).
27
J ulie H. Hall & Frank D. Finchman, Psychological Distress: Precursor or Consequence
of Dating Infidelity, PERSONALITY AND SOCIAL PSYCHOLOGY BULLETIN 1 (2009), available at
http://psp.sagepub.com/content/35/2/143.full.pdf+html.
28
Edward O. Laumann et al., THE SOCIAL ORGANIZATION OF SEXUALITY: SEXUAL
PRACTICES IN THE UNITED STATES 314-16 (1994) (emphasis added).
29
Pickup Declaration 19, citing American Psychological Association, Answers to your
Questions for a Better Understanding of Sexual Orientation and Homosexuality (1998).
19

orientation . . . Contrary to popular belief, scientists have not convincingly demonstrated
that biology determines womens sexual orientation.
30
Thus, while same-sex attractions may not be experienced as chosen, it is
reasonable to hold that they can be subject to conscious choices. Same-sex
attractions and behaviors are not strictly or primarily determined by biology
or genetics and are naturally subject to significant change, particularly in
youth and early adulthood. This should raise serious questions about the
legitimacy of any claim that homosexuality is an immutable characteristic. It is
not.

(Pickup Declaration 23) (emphasis in original). Contrary to allegations that same-sex sexual
orientation is not related to family trauma or dysfunction, Mr. Pickup testifies that there
currently exist recent, high quality, and large-scale studies that provide empirical evidence
consistent with the theory that familial or traumatic factors potentially contribute to the
development of sexual orientation. (Pickup Declaration, 27). Mr. Pickup further testifies that:
The complex realities of sexual orientation require caution when making
significant changes in policy based on a notion of immutability that is not
consistent with scientific evidence. For example, a 2010 study by pro-
homosexual Dr. Gregory Herek, et al. reported that only 7% of gay men
reported experiencing a small amount of choice about their sexual orientation and
slightly more than 5% reported having a fair amount or great deal of choice.
31

Lesbian women reported rates of choice at 15% and 16%, respectively.
32
It is
worth noting that these statistics, which are not inconsequentially small, support
the notion that sexual orientation is not immutable and again suggest the
plausibility that modification of same-sex attractions and behaviors can and does
occur. Even more important, however, are the findings for bisexuals: 40% of
bisexual males and 44% of bisexual females reported having a fair amount or
great deal of choice in the development of their sexual orientation. This is in
addition to 22% of male bisexuals and 15% of female bisexuals who reported
having at least a small amount of choice about their sexual orientation. Other
studies confirm the particular instability of a bisexual sexual orientation.
33

30
Id., citing Peplau, L., et al., The Development of Sexual Orientation in Women, 10
ANNUAL REVIEW OF SEX RESEARCH 70-99 (1990) (emphasis added).
These
31
Pickup Declaration, 18, citing Gregory Herek, Sexual Orientation Differences as
Deficits: Science and Stigma in the History of American Psychology, 5 PERSPECTIVES ON
PSYCHOLOGICAL SCIENCE 693-99 (2010), available at 10.1177/1745691610388770.
32
Id.
33
Pickup Declaration, 18, citing R.C. Savin-Williams, K. J oyner, & G. Rieger, Prevalence
and Stability of Self-Reported Sexual Orientation Identity During Young Adulthood, 41
20

numbers create a significantly different impression about the enduring
nature of sexual orientation than the picture often painted by proponents of
same-sex marriage. The notion that non-heterosexual identity is a fixed,
immutable trait is simply incorrect and unscientific.
(Pickup 18). It is rational for the voters of Florida to believe that marriage as the union of one
man and one woman should be memorialized in the Constitution as a means of upholding the
norms of permanence and exclusivity inherent in marriage that are vital to the stability of society
as a whole. Studies regarding the differences between opposite-sex and same-sex relationships
provide an ample basis for determining that redefining marriage to include same-sex couples
would erode the basis for those norms in any relationship.
34
Marriage provides a framework for mutual benefitsfinancial, sexual and otherwiseand
for affection. Marriage and emotional unions are distinct. An emotional union cannot stand on
its own. People really unite by sharing a good, but feelings are inherently private realities, which
can be simultaneous but not really shared ... feelings cannot be central to a vow, for we have no
direct control over them.

35
[A] good must be truly common and for the couple as a whole, but mental states
are private and benefit partners, if at all, only individually. The good must be
bodily, but pleasures as such are aspects of experience. The good must be
inherently valuable, but pleasures are good in themselves only when they are
taken in some other, independent good. So while pleasure and delight deepen and
enrich a marital union where one exists, they cannot be its foundation.
While emotional unions are not inherently good for structuring
families, marriage is. Moreover, families are the building blocks for a healthy society, and for
encouraging permanency and exclusivity in relationships. These benefits, or purposes, of
marriage are inherently good.

As more people absorb the new laws lesson that marriage is fundamentally about
emotions, marriages will increasingly take on emotions tyrannical inconsistency.
Because there is no reason that emotional unions any more than the emotions

ARCHIVES OF SEXUAL BEHAVIOR 104 (2012).
34
Girgis, WHAT IS MARRIAGE? 67 (emphasis in original).
35
Id. at 55 (emphasis in original).
21

that define them, or friendships generally should be permanent or limited to
two, these norms of marriage would make less sense.
36


In other words, once sexual complementarity becomes optional, so do permanence and
exclusivity.
37
Also of particular importance in the analysis of the FMPA is whether, and if so, how,
adopting a new construct of same-sex marriage will contribute to promoting the public
interests in marriage, and to achieving the social policy purposes for which laws establishing
marriage have been enacted.
The future of civilized society depends on protecting permanence and exclusivity
in family structure. The people of Florida could rationally find that the risks to family stability
posed by redefining marriage to include same-sex couples are not a price they are willing to pay.
38
Marriage law is not enacted to promote private, personal
interests, but to protect and promote those individual interests that are shared in common with
society as a whole, i.e., social interests.
39
The public purpose view of marriage is designed to
reinforce key norms that are necessary to protect children and the reproduction of the family
system and society.
40
Marriage law is at its heart not simply a cluster of benefits given to people whose
taste in sex or lifestyle we happen to personally approve; it is a set of obligations
and rewards that serve important social, not merely personal, goals. Marriage
serves a pointing function, elevating a certain type of relationshippermanent,
exclusive, normally procreativeabove all others. Marriage law demarcates
certain public boundaries which social norms can then use to impose informal
rewards or sanctions.

41
Consequently, marriage does not merely reflect individual desire, it shapes and channels it.

42

36
Id. at 27, 56.

37
Id. at 57 (emphasis added).
38
Lynn D. Wardle, Multiply and Replenish: Considering Same-Sex Marriage in Light of
State Interests in Marital Procreation, 24 HARV. J . L. & PUB. POLY 771, 779 (2001).
39
Id. at 778.
40
See Maggie Gallagher, What is Marriage For? The Public Purposes of Marriage Law, 62
LA. L. REV. 773, 778 (2002).
41
Id. at 788-89.
42
Id. at 790.
22

Therefore, preserving the definition of marriage, as Florida voters have done through the
FMPA, is not about preserving a tradition of discrimination or exclusion, but preserving a good,
the relationship upon which the future of society rests.
43
As Mr. Stemberger testifies, this was at
the heart of the citizen initiative that result in enactment of FMPA and motivates citizens
continuing work to strengthen Florida families. (Stemberger Declaration, 4-6). An objective
structure for marriage assists all people in a society and understanding marriage to be a
comprehensive union respects same-sex attracted peoples equal dignity and basic needs.
44
Viewed against this backdrop of history, sociology, biology and philosophy, there can be
no question that the FMPA memorialization of marriage as the union of one man and one woman
fortifies the foundation of Florida law and the health, safety and well-being of its citizens. As
was true of the Michigan constitutional amendment prohibiting race-based preferences upheld in
Schuette, the FMPA is a proper, rationally based exercise of the peoples privilege to enact laws
as a basic exercise of their democratic power when they overwhelmingly approved the FMPA.
134 S.Ct. at 1636.

IV. FLORIDAS MEMORIALIZATION OF THE DEFINITION OF MARRIAGE AS
THE UNION OF ONE MAN AND ONE WOMAN RECOGNIZES THE
COMPLEMENTARITY OF MEN AND WOMEN, PROVIDES THE OPTIMAL
ENVIRONMENT FOR CHILD-REARING AND FOSTERS TRUE EQUALITY
AND RELATIVE VALUE OF THE SEXES.
Far from promoting unequal treatment of the sexes or discrimination, marriage as the
union of one man and one woman acknowledges the inherent complementarity of the sexes
which permits the perpetuation of humanity and fosters true equality and value. (Stemberger
Declaration, 4-6). These attributes are not only apparent in nature, but have also been proven
by social science research and observation.

43
Id. at 778.
44
Girgis, WHAT IS MARRIAGE? AT 53.
23

A. Marriage, The Union Of One Man And One Woman, Reflects The
Unique And Socially Necessary Complementarity Of The Sexes.
Marriage is a union of the wills that requires a union of bodies. While it is possible for
same-sex couples to enter into a union of the wills, it is not possible for them to join in body in
the way marriage has always required. J oining in body requires more than a sexual act. It is a
natural, organic union that is coordinated toward a common biological end of the whole that
they form together.
45
[In] coitus, and there alone, a man and a woman's bodies participate by virtue of
their sexual complementarity in a coordination that has the biological purpose of
reproduction a function that neither can perform alone. Their coordinate action
is, biologically, the first step (the behavioral part) of the reproductive process. By
engaging in it, they are united, and do not merely touch, much as ones heart,
lungs, and other organs are united: by coordinating toward a biological good of
the whole that they form together. Here the whole is the couple; the single
biological good, their reproduction.
By nature,
46


In fact, it is because of this natural aspect of a female-male union that, historically,
consummation required sexual intercourse and not simply any sexual act between the couple
the idea was to join the parts that, together, have the potential to embody a whole.
47
Thus, laws
protecting marriage as the union of one man and one woman are advocating for a social good.
The law reflected the rational judgment that unions consummated by coitus were valuable in
themselves, and different in kind from other bonds.
48
[T]wo men, two women, and larger
groups cannot achieve organic bodily union: there is no bodily good or function toward which
their bodies can coordinate, like procreation.
49




45
Id. at 25.
46
Id. at 26.
47
Id. at 25.
48
Id.
49
Id. at 27.
24

B. Marriage Provides The Optimal Environment For Children.
While not all unions of men and women create children, only that union can create
children without artificial assistance and provide the optimal environment in which to nurture
them into adulthood. Studies show that children raised by their wedded biological parents fare
best in:
educational achievement: literacy and graduation rates, emotional health: rates of
anxiety, depression, substance abuse, and suicide, familial and sexual
development: strong sense of identity, timing of onset of puberty, rates of teen and
out-of-wedlock pregnancy, and rates of sexual abuse, and child and adult
behavior: rates of aggression, attention deficit disorder, delinquency, and
incarceration.
50
Dr. Reisman testifies that Rutgers University sociologist David Popenoe has concluded that
The two sexes are different to the core, each is necessary -- culturally and biologically -- for
the optimal development of a human being.

51
As Dr. Reisman testifies, the peer-reviewed Regnerus study, published in the J ournal of
Social Science Research, also found that children raised by lesbian mothers (LM) and gay
fathers (GF) fared far worse than children raised by their biological intact families (IBF).

52

The Regnerus study is a population-based cross-sectional study of 3,000 young adults between
the ages of 18 and 39.
53
J ust under half of all IBFs reported being employed full-time at present, compared
with 26% of LMs. While only 8% of IBF respondents said they were currently
unemployed, 28% of LM respondents said the same. LMs were statistically less
likely than IBFs to have voted in the 2008 presidential election (41% vs. 57%),
and more than twice as likely -- 19% vs. 8% -- to report being currently (or within
the past year) in counseling or therapy for a problem connected with anxiety,
The study revealed:

50
Reisman Declaration, 28, citing Girgis What is Marriage? at 42 (emphasis in original).
51
Reisman Declaration, 29, citing Popenoe, Life without Father at 197 (emphasis added).
52
Reisman Declaration, 30, citing Mark Regnerus, How Different are the Adult Children
of Parents Who have Same-sex Relationships? Findings from the New Family Structures Study,
41 J OURNAL OF SOCIAL SCIENCE RESEARCH 752, 761 (2012).
53
Regnerus at 755, 757.
25

depression, relationships, etc., an outcome that was significantly different after
including control variables.
54
The study illustrates that children raised by biological intact families are more likely to become
productive, employed citizens who vote, are mentally stable, and have more stable relationships.

In addition, children raised by lesbians fare worse on educational attainment, family-of-
origin safety/security, negative impact of family-of-origin, a depression index, physical health,
and household incomes than to do respondents from still-intact biological families.
55
They also
think their current romantic relationships are in trouble more frequently.
56
Those raised by gay
fathers also reported less education, worse scores on the family-of-origin safety/security indexes,
greater depression, and think their current relationship is in trouble more frequently.
57
In
addition, those raised by lesbian mothers and gay fathers were more likely to smoke, have been
arrested, and to have pled guilty to non-minor offenses.
58
Thus, children appear most apt to
succeed well as adults -- on multiple counts and across a variety of domains -- when they
spend their entire childhood with their married mother and father, and especially when the
parents remain married to the present day.
59
The Regnerus study has been recognized as one of the most methodologically sound
studies on the influence of family structures on children, for its sample size and its representative
nature, but it does not purport to prove causality and is not longitudinal.

60

54
Reisman Declaration 31, citing Regnerus at 761-62.
Even so, in critiquing
the Regnerus study and analyzing its limitations, Pennsylvania State University Professor Paul
Amato maintained that the study's methodological advantages still make it probably the best
55
Resiman Declaration, 32, citing Regnerus at 763.
56
Id.
57
Reisman Declaration, 34, citing Regnerus, at 763.
58
Id., citing Regnerus at 764.
59
Id., citing Regnerus at 766 (emphasis added).
60
Id. at 766.
26

that we can hope for, at least in the near future.
61
In addition, understanding the deficiencies
of parenting by single parents, divorced parents, step-parents, and adopted parents makes clear
that same-sex parents cannot provide the optimal environment for rearing children, and treating
same-sex unions as marriages would undermine marital stability in ways that we know do hurt
children.
62
So, not only does childrearing deepen and extend a marriage; children also benefit from
marriage.

63
The state of economic and social development we call civilization depends on
healthy, upright, productive citizens; ... [thus,] civilization depends on strong marriages.
64
The vitality of mothers and fathers to the rearing of children is not merely a hypothetical
reason offered after the fact to justify the definition of marriage memorialized in the Florida
Constitution. The unrebutted Declaration of J ohn Stemberger establishes conclusively that this
eminently rational concern and not some imagined and impermissible animus was the driving
force and sole motivation for the drafting, promotion and ultimate enactment of Amendment 2.
(Stemberger Declaration, 4-11). While Plaintiffs may offer rank (and offensive) speculation of
supposed animus towards homosexuals, they have brought no admissible evidence before the
Court that might dispute Mr. Stembergers sworn Declaration.

C. Marriage Fosters True Equality And Recognizes The Inherent Value
Of The Sexes.
Encouraging parenting in an intact biological family unit does not just benefit the child,
who needs both a mother and a father, but also fosters equality and optimal health and well-being
between the sexes, an important societal goal. As Professor William Duncan explains, marriage

61
Girgis et al., What is Marriage? at 61(emphasis added).
62
Id. at 59.
63
GirgisId. at 32.
64
Id. at 38 (emphasis added).
27

is necessary to bridge the differences between the sexes on a footing of equality for both.
65
First, marriage provides an institution where men and women are valued equally.
As currently understood, there can be no marriage without both sexes. Neither
sex can be excluded without impairing the institution. This equality is not
compelled by lawsuits, as has been the case with the integration of sex-segregated
private clubs, but is intrinsic to the nature of the institution. Because the very
nature of marriage requires equal participation by men and women, it sends a
powerful message about the importance of each sex to society's fundamental unit.
Related to this reality of sex equality in marriage is the message that the law of
marriage conveys about the relative worth of men and woman, particularly in
their roles as fathers and mothers. Redefining marriage to include same-sex
couples is a legal endorsement of the fungibility of men and women, mothers and
fathers. In other words, when the state says that any two persons are equivalent
to a mother and father, it is also saying that a mother or a father makes no unique
contribution to child well-being. In the United States there are 16,473,000
children living in mother-only homes and 3,297,000 children in father-only
homes. In the face of these numbers, it is eminently reasonable for the state to
shrink from sending a legal message that men (fathers) are not essential to
marriage or that women (mothers) can be dispensed with without consequences.
Marriage advances these state interests by acknowledging that a marriage cannot
exist without both a man and a woman.

Professor Duncan observed that marriage provides two significant additional benefits to society
which justify its preservation:
66


Professor Lynn Wardle agrees that the assumption that same-sex unions are fungible
with marriages in terms of social policy is wrong.
67
In reality, not all relationships are the
same, and not all relationships are of equal value to children, to families, and to society.
68

Marriage has an ethical or moral dimension lacking in other relationships that transfigures it
into a truly unique institution and that can transform the individual men and women into caring
and other-committed husbands and wives, at the same time.
69

65
William C. Duncan, The State Interests in Marriage, 2 AVE MARIA L. REV. 153,
171(2004) (emphasis added).
Professor Wardle observed that:
66
Id. at 171-172 (emphasis added).
67
Wardle, The End of Marriage at 53.
68
Id. at 52.
69
Id.
28

The astounding thing about the argument for functional equivalence between
marriage and other partnerships is that it has developed at a time in history when
there is overwhelming evidence of the unique value and superior benefits of
marriage compared to other adult intimate relationships. Married couples live
longer, are healthier, report that they are happier, have lower rates of mental
illness, have lower rates of substance abuse, earn more, save more, have more
enjoyable sexual intercourse, [and] experience less physical and emotional
abuse.
70
Not only does marriage foster equality, but the refusal to recognize same-sex unions as
marriages does not discriminate on the basis of sex. As a rule, both men and women are
permitted to marry on equal terms. That said, many states have determined that neither men nor
women may marry persons of the same sex, more than one person, or persons in close familial
relation. These parameters for marriage apply to men and women equally.

V. PHYSICAL AND PSYCHOLOGICAL HARMS CAUSED BY HOMOSEXUAL
CONDUCT PROVIDE MORE THAN RATIONAL BASIS FOR NOT
CONDONING SUCH CONDUCT IN LAW.
In memorializing the definition of marriage as the union of one man and one woman in
the Florida Constitution, the voters of Florida acted to not only preserve and protect the social
goods of marriage, e.g. stability, permanency, fidelity, sexual equality and the continuation of
society, but also to promote health, safety and welfare. Social science, medical science, the
Centers for Disease Control and Prevention, and even homosexual rights activists have
established that there are inherent harms associated with same-sex unions,
71

70
Id. (emphasis added).
harms that would be
71
J ohn R. Diggs, J r., The Health Risks of Gay Sex, Catholic Education Resource Center
(2002), http://www.catholiceducation.org/articles/ homosexuality/ho0075.html (internal citations
omitted); see also HIV and Young Men Who Have Sex with Men, Centers for Disease Control
and Prevention 1 (J une 2012), http://www.cdc.gov/HealthyYouth/sexualbehaviors/pdf/hiv_
factsheet_ ymsm.pdf; Richard J . Naftalln, Correspondence: Anal Sex and AIDS, 360.6399
Nature 10 (Nov. 5, 1992); Gay and Bisexual Men's Health: For Your Health: Recommendations
for A Healthier You, Centers for Disease Control and Prevention (J an. 21, 2011),
http://www.cdc.gov/msmhealth/for-your-health.html; Lesbian and Bisexual Health Fact Sheet,
Womenshealth.gov (Feb. 17, 2011), http://womenshealth.gov/publications/our-publications/fact-
sheet/lesbian-bisexual-health.cfm#d.
29

financially and socially costly to the entire state. As psychologist David Pickup testifies, men
having sex with men (MSM) comprise 48% of all individuals with HIV/AIDS in the United
States, but make up only an estimated 2-4% of men in the population.
72
This is occurring in a
context where MSM are reporting higher rates of sexual risk behaviors in recent years in spite of
increasing cultural acceptance. (Pickup Declaration, 30). On May 9, 2014, the Centers for
Disease Control and Prevention published a report documenting significant increases in sexually
transmitted diseases in homosexual men for the period 2005-2013, calling the trend a major
public health concern.
73
This is in keeping with numerous other reports from the CDC cataloging health risks
associated with homosexual conduct. For example, homosexual males are at exponentially
higher risk of developing a variety of sexually transmitted diseases, and have increased risks of
developing various cancers and medical conditions because of the nature of same-sex sex.

74
As
Dr. Reisman testifies, [a]ccording to 2011 CDC statistics, we find that male-to-male sexual
contact (without any injection drug use) accounted for 90.8% of all HIV diagnoses for males
aged 20-24, and 92.8% of all HIV diagnoses for males aged 13-19.
75
[T]he rate of new HIV diagnoses among MSM is more than 44 times that of other
men, while the rate of primary and secondary syphilis among MSM is more than
Dr. Reisman also testifies
about CDC reports showing that:

72
Pickup Declaration, 30, citing M.E. Newcomb & B. Mustanski, Moderators of the
Relationship Between Internalized Homophobia and Risky Sexual Behavior in Men who have Sex
with Men: A Meta-analysis, 40 ARCHIVES OF SEXUAL BEHAVIOR 189-99 (2011).
73
Pickup Declaration, 35, citing Primary and Secondary SyphilisUnited States, 2005
2013, available at http://www.cdc.gov/mmwr/preview/mmwrhtmlmm6318a4.htm?s
_cid=mm6318a4_w#tab (last visited May 14, 2014).
74
Id.
75
Reisman Declaration, 22, citing, HIV Surveillance in Adolescents and Young Adults.
Rep., Centers for Disease Control and Prevention, National Center for HIV/AIDS, Viral
Hepatitis, STD & TB Prevention 7 (2011), available at
http://www.cdc.gov/hiv/pdf/statistics_surveillance_Adolescents.pdf.
30

46 times that of other men. Many factors contribute to the higher rates of HIV and
STDs among gay and bisexual men compared to the general population of men.
These factors include high prevalence of HIV and other STDs among MSM,
which increases the risk of disease exposure, and limits access to prevention
services. Other factors are complacency about HIV risk, particularly among
young gay and bisexual men; difficulty of consistently maintaining safe behaviors
with every sexual encounter over the course of a lifetime; and lack of awareness
of syphilis symptoms and how it can be transmitted (e.g., oral sex).
76
In addition, [g]ay and bisexual men (who have sex with other men) are about 17 times
more likely to develop anal cancer than men who only have sex with women.

77
Mr. Pickup
testifies that at least some of the greater psychiatric and health risks among sexual minorities,
are grounded in the biology of certain sexual practices. (Pickup Declaration, 37). Similarly,
Dr. Reisman testifies that psychiatric and health risks are largely grounded in the biology of
certain sexual practices. (Reisman Declaration, 19). Health risks among gay men, such as
HIV transmission, are ultimately grounded in biological reality. (Reisman Declaration, 19).
A recent comprehensive review found an overall 1.4% per-act probably of HIV transmission for
anal sex and a 40.4% per-partner probability. The authors noted, The 1.4% per-act probability is
roughly 18-times greater than that which has been estimated for vaginal intercourse.
78
Dr.
Reisman testifies about a 2004 study that showed that 88% of all anal cancer was directly tied to
human papillomavirus, a sexually transmitted disease.
79

76
Reisman Declaration, 20, citing Gay and Bisexual Men's Health: For Your Health:
Recommendations for A Healthier You, Centers for Disease Control and Prevention (J an. 21,
2011), http://www.cdc.gov/msmhealth/for-your-health.htm (emphasis added).
That same study also reported that men
77
Sexually Transmitted Diseases (STDs): HPV and Men - Fact Sheet, Centers for Disease
Control and Prevention (Feb. 23, 2012), http://www.cdc.gov/std/hpv/stdfact-hpv-and-men.htm
(emphasis added).
78
Pickup Declaration, 33; Reisman Declaration, 19, citing C. Beyer, et al., Global
Epidemiology of HIV Infection in Men who have Sex with Men, 380 THE LANCET 366-77 (J uly
28, 2012).
79
Reisman Declaration, 25, citing Daling, J anet R., Ph.D., Human Papillomavirus,
Smoking, and Sexual Practices in the Etiology of Anal Cancer 101.2 (2004): p. 270. Wiley
Online Library. Wiley Interscience, available at
http://onlinelibrary.wiley.com/doi/10.1002/cncr.20365/full.
31

who were not exclusively heterosexual were at increased risk of anal cancer. In this study, nearly
half of the men with anal cancer (47.1%) were not exclusively heterosexual, compared with
6.0% of male controls.
80
Scientists have confirmed the biological explanations for the high incidence of anal
cancer among those who engage in homosexual behavior:

[T]he colonic and rectal mucosa has a barrier function that normally prevents
overwhelming invasion by infective and toxic materials contained within the
luminal contents. ... Human semen contains at least two components in
sufficiently high concentrations to cause breakdown of the basement membrane
that supports the colonic epithelial cell layer: collagenase ... and spermine.
Spermine permeates through the colonic mucosa and neutralizes
glycoseaminoglycans within the intestinal matrix -- this triggers the activation of
endrogenous collagenases which leads to loss of mucosal barrier function -- this
allows seminal collagenase to penetrate the mucosa and hence to cause further
damage and breakdown of the barrier function. ... Thus it is apparent that the
colorectal mucosa is particularly susceptible to biochemical as well as the
normally assumed mechanical t[r]auma consequent upon anal intercourse.
81
In addition:

Anal intercourse is the sine qua non of sex for many gay men. Yet human
physiology makes it clear that the body was not designed to accommodate this
activity. The rectum is significantly different from the vagina with regard to
suitability for penetration by a penis. The vagina has natural lubricants and is
supported by a network of muscles. It is composed of a mucus membrane with a
multi-layer stratified squamous epithelium that allows it to endure friction without
damage and to resist the immunological actions caused by semen and sperm. In
comparison, the anus is a delicate mechanism of small muscles that comprise an
exit-only passage. With repeated trauma, friction and stretching, the sphincter
loses its tone and its ability to maintain a tight seal. Consequently, anal
intercourse leads to leakage of fecal material that can easily become chronic.
The potential for injury is exacerbated by the fact that the intestine has only a
single layer of cells separating it from highly vascular tissue, that is, blood.
Therefore, any organisms that are introduced into the rectum have a much easier
time establishing a foothold for infection than they would in a vagina. The single
layer tissue cannot withstand the friction associated with penile penetration,

80
Id.
81
Richard J . Naftalln, Correspondence: Anal Sex and AIDS, 360.6399 NATURE 10 (Nov. 5,
1992).
32

resulting in traumas that expose both participants to blood, organisms in feces,
and a mixing of bodily fluids.

Furthermore, ejaculate has components that are immunosuppressive. In the course
of ordinary reproductive physiology, this allows the sperm to evade the immune
defenses of the female. Rectal insemination of rabbits has shown that sperm
impaired the immune defenses of the recipient. Semen may have a similar impact
on humans.

The end result is that the fragility of the anus and rectum, along with the
immunosuppressive effect of ejaculate, make anal-genital intercourse a most
efficient manner of transmitting HIV and other infections. The list of diseases
found with extraordinary frequency among male homosexual practitioners as a
result of anal intercourse is alarming: Anal Cancer, Chlamydia trachomatis,
Cryptosporidium, Giardia lamblia, Herpes simplex virus, Human
immunodeficiency virus, Human papilloma virus, Isospora belli, Microsporidia,
Gonorrhea, Viral hepatitis types B & C, [and] Syphilis.

Sexual transmission of some of these diseases is so rare in the exclusively
heterosexual population as to be virtually unknown. Others, while found among
heterosexual and homosexual practitioners, are clearly predominated by those
involved in homosexual activity.
82
Government studies also show that some cancers and diseases are more common in lesbian and
bisexual women than in other women.

83
As Mr. Pickup and Dr. Reisman testify: New research raises the possibility that some
widely accepted theories germane to the discussion of stigma, discrimination, and health
outcomes may in fact have gotten things backwards. A longitudinal study of gay and bisexual
men found that,

in contrast to the causal predictions made by most theories of health behavior,
attitudes and norms did not predict sexual risk behavior over time. Rather, sexual
risk behavior at [the first studied interval] was associated with changes in norms
and attitudes at [at the later studied interval]. These findings are more consistent
with a small, but growing body of investigations that suggest instead that

82
J ohn R. Diggs, J r., The Health Risks of Gay Sex, Catholic Education Resource Center
(2002), http://www.catholiceducation.org/articles/homosexuality/ho0075.html (internal citations
omitted).
83
Lesbian and Bisexual Health Fact Sheet, Womenshealth.gov (Feb. 17, 2011),
http://womenshealth.gov/publications/our-publications/fact-sheet/lesbian-bisexual-health.cfm#d.
33

engaging in health behaviors can also influence attitudes and beliefs about those
behaviors.
84


Thus, safe-sex norms and attitudes did not lead to reduced unprotected anal intercourse; rather,
participants engagement in such HIV risk behavior appeared to change how they thought and
felt about the behavior and enhanced their willingness to engage in it. (Pickup Declaration, 32)
These findings raise serious concerns about the impact of encouraging or facilitating such
behaviors in the law, in that a law encouraging homosexual behaviors appears to increase HIV
risk and negative health outcomes and thus creates a danger both to the individuals engaging in
these behaviors as well as society at large. (Pickup Declaration, 32).
Mr. Pickup also testifies about the various studies that have shown that homosexuals are
also more likely to have psychological disorders than are heterosexuals. (Pickup Declaration,
39). Studies show that:
LGBQ individuals are 1.87 times as likely to have a lifetime anxiety disorder and
a full two times as likely to have a lifetime mood disorder compared to
heterosexuals. While few studies have examined rates of psychiatric disturbance
in LGBQ adolescents, preliminary evidence suggests heightened risk for both
anxiety and depressive symptoms. These symptoms are a cause for concern, as
75% of lifetime psychiatric disorders will onset in adolescence and often persist
into adulthood.
85
The CDCs National Health and Nutrition Examination Survey (NHANES) shows that lesbian
and gay youth and young adults are at greater risk for suicide ideation, suicide attempts, and


84
Pickup Declaration, 31; Reisman Declaration, 17, citing D.M. Huebner, et al., Sorting
through Chickens and Eggs: A Longitudinal Examination of the Associations between Attitudes,
Norms, and Sexual Risk Behaviors, 30(1) HEALTH PSYCHOLOGY 110-18 (2011).
85
J ordan Simonson, Toward Understanding Elevated Depression and Anxiety Symptoms in
LGBQ Youth: Integrating Minority Stress Theory and the Common Vulnerabilities Hypothesis 2
(J une 12, 2012) (internal citations omitted) (emphasis added).
34

completed suicides than their heterosexual counterparts.
86
Approximately half of homosexually experienced men reported a positive lifetime
history of at least 1 suicide-related symptom. Overall, prevalence rates of all 4
suicide symptoms were significantly greater among these men than among men
who reported exclusively opposite-sex sexual partners. These differences
remained for 3 of the 4 symptoms assessed by the Diagnostic Interview Schedule
(desire to die, suicide ideation, and suicide attempt) after statistical adjustment for
possible demographic confounding.
The NHANES III study of men age
17 to 39 revealed that:
87


NHANES III suggests that homosexuals are more than 5 times as likely to have attempted
suicide than those reporting only opposite-sex sexual partners.
88
Nevertheless, the self-
reported lifetime prevalence of a previous suicide attempt found [in NHANES III] is somewhat
lower than the rates revealed in 2 recent surveys of high school students. In one, a case-control
study of students in Minnesota, 28% of self-identified homosexual/bisexual male students
reported a history of suicide attempts. In another, a population-based survey of students in
Massachusetts, 27.5% of those with a history of same-sex sexual contact reported at least 1
previous attempt. Furthermore, 41% of men with same-sex experience reported suicide at some
point in the past in NHANES III.
89
In addition, according to NHANES III, as many as 1 in 5 homosexually active men may
have a lifetime history of an affective disorder, primary recurrent depression, and that the onset
of these depressive symptoms occurs at a younger age than in exclusively heterosexually


86
Susan D. Cochran & Vickie M. Mays, Lifetime Prevalence of Suicide Symptoms and
Affective Disorders Among Men Reporting Same-Sex Sexual Partners: Results from NHANES
III, 90 Am. J . of Pub. Health 573, 573 (Apr. 2000) (discussing the rates of suicidality in
homosexual males).
87
Id. at 575 (discussing the rates of suicidality in homosexual males).
88
Id. at 577 (discussing the rates of suicidality in homosexual males) (emphasis added).
89
Id. at 575 (discussing the rates of suicidality in homosexual males).
35

experienced men.
90
Men who have sex with men are at even greater risk for suicide attempts,
especially before the age of 25.
91
Social science research, including the National
Epidemiological Survey on Alcohol and Related Conditions (NESARC) points to higher risk of
mood disorders, anxiety disorders, and suicidality among homosexual individuals compared to
heterosexuals.
92
As expected, people with same-sex contact tended to report higher levels of both
depressive symptoms and drug use. ... People with same-sex contact generally
reported higher levels of stress exposure and lower levels of social support and
psychological resources. Further, those who reported same-sex contact showed


90
Id. at 577.
91
Gay and Bisexual Men's Health: Suicide and Violence Prevention, Centers for Disease
Control and Prevention (May 15, 2013), http://www.cdc.gov/msmhealth/suicide-violence-
prevention.htm.
92
Maurice N. Gattis, Paul Sacco, & Renee M. Cunningham-Williams, Substance Use and
Mental Health Disorders Among Heterosexual Identified Men and Women Who Have Same-sex
Partners or Attraction: Results from the National Epidemiological Survey on Alcohol and
Related Conditions, 41 ARCHIVES OF SEXUAL BEHAVIOR 1185, 1185 (2012); see also J ordan
Simonson, Toward Understanding Elevated Depression and Anxiety Symptoms in LGBQ Youth:
Integrating Minority Stress Theory and the Common Vulnerabilities Hypothesis 8 (J une 12,
2012) (internal citations omitted), Martha W. Waller & Rebecca P. Sanchez, The Association
Between Same-Sex Romantic Attractions and Relationships and Running Away Among a
Nationally Representative Sample of Adolescents, 28 Child Adolescent Social Work J ournal 475,
477-78 (Aug. 6, 2011) ("Studies of LGBTQ youth have found that the youth often have a poor
relationship with their parents (Remafedi 1987b; Rew et al. 2005; Savin-Williams 1994), a high
incidence of substance use (Garofalo et al. 1998; Russell et al. 2002), and worse mental health
outcomes such as depression, suicidal ideation and attempts, low self-esteem, conduct disorders,
and generalized anxiety disorders (Consolacion et al. 2004; DAugelli and Hershberger 1993;
Fergusson et al. 1999; Garofalo et al. 1998; Lock and Steiner 1999; Noell and Ochs 2001;
Russell et al. 2002; Russell et al. 2001)."), T. Frisell, P. Lichtenstein, Q. Rahman, & N.
Langstrom, Psychiatric Morbidity Associated with Same-Sex Sexual Behaviour: Influence of
Minority Stress and Familial Factors, 40 Psychological Medicine 315, 318 (2010) ("Both men
and women with any same-sex sexual partner had higher prevalences of psychiatric disorder than
individuals with only opposite-sex sexual partners. After adjusting for age, education and
relationship status, the risk increases remained for depression, GAD, eating disorder, alcohol
dependence and ADHD among men and women with any same-sex sexual partner compared
with individuals with only opposite-sex sexual partners.").
36

stronger self-exploratory attitudes, and their network members used drugs more
frequently and were more permissive of drug use.
93
According to the CDC, [s]tudies have shown that, when compared with the general
population, gay and bisexual men, lesbian, and transgender individuals are more likely to: Use
alcohol and drugs; [h]ave higher rates of substance abuse; [a]re less likely to abstain from
alcohol and drug use; [and,] [a]re more likely to continue heavy drinking into later life.

94
A 2009 study of a nationally representative sample showed:

Self-identified lesbians displayed greater odds of past-year marijuana use, drug
use, alcohol dependence, marijuana dependence, and other drug dependence than
heterosexual women did, and bisexual women displayed greater odds of past-year
heavy drinking, marijuana use, other drug use, and alcohol dependence compared
to heterosexual women. ... Men who identified as homosexual had higher odds of
past year marijuana use, other drug use, alcohol dependence, and other drug
dependence compared to heterosexual men. Adjusted odds of past-year other drug
use, alcohol dependence, and other drug dependence among homosexual
identified men were more than three times that of heterosexually identified men.
95
In an analysis of the data from the NESARC, researchers looked at the alcohol and drug
use and mental stability of persons in three distinct categories, homosexuals, heterosexuals, and
the discordantdefined as those who identified as heterosexual but reported being attracted to
people of the same sex (attraction discordance) or having sex with people of the same sex
(behavior discordance).

96
Rates of lifetime alcohol dependence were lower among discordant men than
among both heterosexual and gay men. ... Discordant males had lower rates of
In regard to behavior discordance in men,

93
Koji Ueno, Mental Health Differences between Young Adults with and without Same-Sex
Contact: A Simulaneous Examination of Underlying Mechanisms, 51(4) J ournal of Health and
Social Behavior 392, 397 (2010) (emphasis added).
94
Gay and Bisexual Men's Health: Substance Abuse, Centers for Disease Control and
Prevention (March 22, 2013), http://www.cdc.gov/msmhealth/substance-abuse.htm (emphasis
added).
95
Maurice N. Gattis, Paul Sacco, & Renee M. Cunningham-Williams, Substance Use and
Mental Health Disorders Among Heterosexual Identified Men and Women Who Have Same-sex
Partners or Attraction: Results from the National Epidemiological Survey on Alcohol and
Related Conditions, 41 ARCHIVES OF SEXUAL BEHAVIOR 1185, 1186 (2012) (emphasis added).
96
Id. at 1187.
37

having a lifetime depressive episode, generalized anxiety disorder, and post-
traumatic stress disorder than gay individuals, but higher than heterosexual
participants. ... Heterosexual men had the highest levels of social support and
lowest stress, while discordant men had lower support and higher stress, and
gay/bisexual men had the highest levels of stress and the lowest levels of social
support.
97
In regard to behavior discordant females,

Substance use disorders were present in higher percentages in the discordant
women than in heterosexual women; lesbians or bisexual women experienced
lifetime [substance use disorders] at the highest rates. Rates of major depressive
episode showed a similar pattern, but discordant women experienced lifetime
Generalized Anxiety Disorder and PTSD at lower rates than both heterosexual
and lesbian/bisexual women did. ... Discordant women reported higher levels of
stress than heterosexual women did, but lesbian women had the highest mean
levels of stress. ... Overall, mental health functioning was the lowest among
lesbians with progressively higher levels in discordant and heterosexual women.
98
In regard to attraction discordance in men,

Discordant men had lower rates of life-time substance use disorders than both
heterosexual and gay/bisexual men. Rates of mental health diagnoses were lower
among heterosexual men and discordant men including lifetime major depressive
episode, generalized anxiety disorder, and PTSD; higher rates were present
among gay/bisexual men. ... Discordant men drank less on average and exceeded
drinking guidelines at lower rates than both heterosexual and gay/bisexual men. ...
Discordant and gay men reported higher levels of perceived stress and lower
levels of social support than heterosexual men.
99
In regard to attraction discordance in women,

Discordant women had significantly lower rates of alcohol, stimulant, cannabis,
and inhalant disorders (lifetime) than heterosexuals and lesbians. The same
pattern was found in mental health. Discordant women had the lowest rates of
Major Depressive Episode, Generalized Anxiety Disorder, and PTSD, and few
differences were found on health measures. ... Discordant women had lower
support and perceived stress, but less mental health disability.
100

97
Id. at 1189-90 (emphasis added).

98
Id. at 1190 (emphasis added).
99
Maurice N. Gattis, Paul Sacco, & Renee M. Cunningham-Williams, Substance Use and
Mental Health Disorders Among Heterosexual Identified Men and Women Who Have Same-sex
Partners or Attraction: Results from the National Epidemiological Survey on Alcohol and
Related Conditions, 41 ARCHIVES OF SEXUAL BEHAVIOR 1185, 1192 (2012).
100
Id. at 1192.
38

Contrary to Plaintiffs unsubstantiated allegations, these increased rates of psychological
harm are not attributable to stigma or discrimination against homosexuals. (Pickup
Declaration, 39). A 2001 study by Mays and Cochran reported that discrimination experiences
attenuated but did not eliminate associations between psychiatric morbidity and sexual
orientation.
101
Men with same-sex attractions and behaviors were found to have a higher risk
for suicidal ideation and acute mental and physical health symptoms than heterosexual men in
Holland, despite that countrys highly tolerant attitude towards homosexuality.
102
Even homosexual activists acknowledge that the nature of the sexual acts in which same-
sex couples engage carry health risks that are not as prevalent, or in some cases, not present at
all, in heterosexual individuals. For example, in Canada, advocates have filed a complaint
against the Canadian health service, alleging that the organization discriminates against
homosexuals because it does not provide proper treatment for conditions which uniquely affect
them.

103
The homosexual-specific health issues that are the subject of the complaint include
lower life expectancy, suicide, higher rates of substance abuse, depression, inadequate access to
care and HIV/AIDS.
104

101
Pickup Declaration, 39, citing V.M. Mays & S.D. Cochran, Mental Health Correlates of
Perceived Discrimination among Lesbian, Gay, and Bisexual Adults in the United States, 91
AMERICAN J OURNAL OF PUBLIC HEALTH 1869-76 (2001).
One of the claimants was quoted as saying, [t]here are all kinds of
health issues that are endemic to our community. We have higher rates of anal cancer in the
102
Pickup Declaration, 39, citing T.G.M. Sandfort, F. Bakker, F.G. Schellevis, & I.
Vanwesenbeeck, Sexual Orientation and Mental and Physical Health Status: Findings from a
Dutch Population Survey, 96 AMERICAN J OURNAL OF PUBLIC HEALTH 1119-25 (2006); R. de
Graaf, T.G.M. Sandfort, & M. ten Have, Suicidality and Sexual Orientation: Differences
between Men and Women in a General Population-based Sample from the Netherlands, 35
ARCHIVES OF SEXUAL BEHAVIOR 253-62 (2006) (emphasis added).
103
J ulia Garro, Canada's healthcare system is homophobic, says group, XTRA.CA
(February 17, 2009), available at http://dailyxtra.com/canada/news/canadas-healthcare-system-
homophobic-says-group (last visited May 12, 2014).
104
Id.
39

gay male community, lesbians have higher rates of breast cancer. These are all issues that need to
be addressed.
105
A survey of members of the Gay and Lesbian Medical Association (GLMA)
reported on 10 health care concerns men who have sex with men (MSM) should include in
discussions with their physicians or other health care providers, including higher rates of
substance abuse, depression, HIV/AIDS, sexually transmitted diseases, certain cancers and
eating disorders.
106
The personal, social and financial costs of these homosexual-specific health problems
concern not just those who engage in homosexual activity, but also the larger community of
citizens who help provide services and who must bear part of the burdens imposed by the health
challenges. It is eminently rational for the voters of Florida to seek to minimize the deleterious
effects of these conditions on public health, safety and welfare by affirming that marriage in
Florida remains the union of one man and one woman.

VI. THE FMPA IS A VALID EXERCISE OF FLORIDIANS DEMOCRATIC
POWERS THAT ACHIEVES NUMEROUS LEGITIMATE AND VITAL
PURPOSES, AND THUS CANNOT BE JUDICIALLY REPEALED.
As Amici discussed in their Memorandum In Support of Intervention, of particular
importance to this Courts determination is the fact that the FMPA is a citizen-initiated
constitutional amendment which requires particularly zealous protection against attempts such as
Plaintiffs to seek judicial repeal of a politically unpopular policy decision. Schuette v. BAMN,
134 S.Ct. 1623, 1636-38 (2014); United States v. Windsor, 133 S.Ct. 2675, 2693 (2013). As
Amici stated in their Intervention Memorandum, neither Plaintiffs nor Defendant have addressed

105
Id.
106
A Question of Cultural Competence in the Medical Community, Ten Things Gay Men
Should Discuss With Their Health Care Providers (J uly 17, 2002), available at
http://zone.medschool.pitt.edu/sites/lgbt/Shared%20Documents/10ThingsGay_Doc.pdf (last
visited May 12, 2014).
40

this issue that was at the center of the Supreme Courts decision Windsor and was re-affirmed
earlier this year in Schuette.
In Schuette as in this case, voters amended their Constitution in response to governmental
actions that were contrary to the citizens public policy determinations. Id. at 1636. Schuette
involved an issue at least as socially and politically controversial as is the issue of memorializing
the definition of marriage, i.e., affirmative action in governmental programs. Id. The Supreme
Court upheld the citizen-enacted constitutional amendment that prohibited racial preferences in
public education, hiring and contracting. Id. at 1629. As Plaintiffs do in this case, in Schuette the
plaintiffs asked the Court to invalidate the amendment on the grounds that it violated Equal
Protection. Id. The Court found no Equal Protection violation and cited to federalism standards it
had utilized when it overturned Section 3 of DOMA in Windsor, the case upon which Plaintiffs
rely in seeking judicial repeal of the FMPA. Id.
This case addresses the question of whether voters may determine whether a
policy of race-based preferences should be continued. By approving Proposal 2
and thereby adding 26 to their State Constitution, the Michigan voters exercised
their privilege to enact laws as a basic exercise of their democratic power. In the
federal system States respond, through the enactment of positive law, to the
initiative of those who seek a voice in shaping the destiny of their own times.
Bond [v. United States, 131 S.Ct. 2355, 2359 (2011)] 564 U.S., at (slip op.,
at 9). Michigan voters used the initiative system to bypass public officials who
were deemed not responsive to the concerns of a majority of the voters with
respect to a policy of granting race-based preferences that raises difficult and
delicate issues.
Id. at 1636. Likewise here, Florida voters used the initiative system to ensure that the concerns
of the majority regarding the abandonment of marriage in favor of an artificial construct of
same-sex marriage were appropriately addressed and the definition of marriage memorialized
in the Constitution. As the Supreme Court said in Schuette:
Were the Court to rule that the question addressed by Michigan voters is too
sensitive or complex to be within the grasp of the electorate; or that the policies at
issue remain too delicate to be resolved save by university officials or faculties,
41

acting at some remove from immediate public scrutiny and control; or that these
matters are so arcane that the electorate's power must be limited because the
people cannot prudently exercise that power even after a full debate, that holding
would be an unprecedented restriction on the exercise of a fundamental right held
not just by one person but by all in common. It is the right to speak and debate
and learn and then, as a matter of political will, to act through a lawful electoral
process.
Id. at 1637. Similarly here, invalidating the FMPA would be an unprecedented restriction upon
the voters exercise of the fundamental right to speak, debate, learn and then, as matter of
political will, to act through the lawful electoral process to memorialize that marriage is the
union of one man and one woman.
Windsors decision invalidating Section 3 of DOMA was based upon the same principle,
and therefore supports not invalidation, but validation, of the FMPA. 133 S.Ct. at 2693. In
Windsor, the New York legislature exercised its right as policymaker and determined that
marriage in the State of New York was to be redefined to include same-sex couples. Id. at 2689.
The Supreme Court acted to protect the democratic process when it invalidated Section 3 of
DOMA, which interfered with the states exercise of its policymaking power by imposing a
superseding definition of marriage upon state residents. Id. at 2692. DOMA, because of its
reach and extent, departs from this history and tradition of reliance on state law to define
marriage. Id. In this case, the people of Florida exercised their rights as policymakers and
determined that marriage in the State of Florida shall remain the union of one man and one
woman. Plaintiffs are asking this Court to supersede the will of the people, as DOMA did in
Windsor, and to declare that the voters of Florida cannot exercise the rights reserved to them
under the Florida Constitution because they adopted a perspective with which Plaintiffs disagree.
Windsor specifically instructs this Court that it cannot act to impose another definition of
marriage unto the people of Florida, but must zealously protect the peoples fundamental First
Amendment rights as exercised in the voting booth. Id. at 2693. Likewise, Schuette requires that
42

this Court protect the First Amendment dynamic of entrusting to the people of Florida the
question of whether marriage will continue to be the union of one man and one woman. Schuette,
134 S.Ct. at 1637.
CONCLUSION
The FMPA memorializes the definition of marriage, the foundational social institution
that promotes sexual equality, complementary child-rearing, public health and societal stability.
Supreme Court precedent, including Windsor, requires that the voters exercise of their
fundamental right to determine state marriage policy be upheld against Plaintiffs challenge.
Plaintiffs have adduced no admissible evidence whatsoever to prove even the most basic, yet
bare, allegations in their Complaint, let alone to conclusively establish the absence of any
genuine dispute of any material fact.
For these reasons, the Plaintiffs Motion for Summary J udgment should be denied.
Dated: J une 17, 2014.
/s/Horatio G. Mihet
Mathew D. Staver
____________
FL Bar No. 0701092
Anita L. Staver
FL Bar No. 0611131
Horatio G. Mihet
FL Bar No. 026581
LIBERTY COUNSEL
Post Office Box 540774
Orlando, FL 32854-0774
(800) 671 1776 Telephone
(407) 875-0770 Telefacsimile
Attorneys for Amici Curiae

43

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the foregoing document is being served on J une 17, 2014 via
email generated by the Florida Courts E-Filing Portal to:

J effrey Michael Cohen
Cristina Alonso
CARLTON FIELDS J ORDEN BURT, P.A.
Miami Tower
100 Southeast 2nd Street
Suite 4200
Miami, Florida 33131
Telephone: (305) 530-0050
Facsimile: (305) 530-0055
jmcohen@cfjblaw.com
calonso@cfjblaw.com
Sylvia H. Walbolt
Luis Prats
Nancy J . Faggianelli
CARLTON FIELDS J ORDEN BURT, P.A.
4221 W. Boy Scout Blvd., Ste. 1000
Tampa, FL 33601
Telephone: (813) 223-7000
Facsimile: (813) 229-4133
swalbolt@cfjblaw.com
lprats@cfjblaw.com
nfaggianelli@cfjblaw.com
Elizabeth Schwartz
ELIZABETH F. SCHWARTZ, P.A.
690 Lincoln Road, Suite 304
Miami Beach, FL 33139
Telephone: (305) 674-9222
Facsimile: (305) 674-9002
eschwartz@sobelaw.com
Mary B. Meeks
MARY MEEKS, P.A.
P.O. Box 536758
Orlando, Florida 32853
Telephone: (407) 362-7879
marybmeeks@aol.com
Shannon P. Minter
Christopher F. Stoll
David C. Codell
NATIONAL CENTER FOR LESBIAN
RIGHTS
870 Market Street, Suite 370
San Francisco, CA 94102
Telephone: (415) 365-1335
Facsimile: (415) 392-8442
sminter@nclrights.org
cstoll@nclrights.org
dcodell@nclrights.org
Luis G. Montaldo
COUNSEL TO CLERK OF COURTS
P.O. Box 13267
Miami, FL 33101
Telephone: (305) 349-7395
Facsimile: (305) 349-7239
cocgencounsel@miamidade.gov
Eileen Ball Mehta
BILZIN SUMBERG BAENA
PRICE & AXELROD LLP
1450 Brickell Avenue
Suite 2300
Miami, FL 33131
Telephone: (305) 374-7580
Facsimile: (305) 374-7593
emehta@bilzin.com
eservice@bilzin.com
Horatio G. Mihet
/s/ Horatio G. Mihet
Attorney for Amici Curiae