Laura Bellows

The following is the third in a four-part series to prepare readers for what to expect March 26 and 27 when the U.S. Supreme Court takes up the marriage equality cases. (Part 1; Part 2.)

When the U.S. Supreme Court prepares to tackle a major legal controversy, such as next week’s marriage equality cases, it typically invites advice from groups and legal experts. These people are not a party to the litigation itself but have an interest in the court’s decision. They are “friends of the court,” offering a little friendly advice on how they think the court should rule.

After the court announced it would hear the appeals involving Proposition 8 and the Defense of Marriage Act (DOMA), at least 176 friend-of-the-court (or amicus) briefs were submitted.

Of those briefs, 96 were filed in the Proposition 8 case—53 opposing California’s ban on marriage licenses for same-sex couples, 42 supporting it, and one taking neither side. Of the 80 filed in the DOMA case, 49 oppose the federal ban on recognition of marriages of same-sex couples, 29 support it, and two took neither side.

Forty U.S. senators and 172 members of the U.S. House joined in a brief opposing DOMA. Ten Republican senators signed onto a different brief in support of DOMA.

(The 40 senators include 38 Democrats and two Independents, as well as both senators from California and Massachusetts, Senate Majority Leader Harry Reid of Nevada, Assistant Majority Leader Dick Durbin of Illinois, Debbie Stabenow of Michigan, and openly gay Senator Tammy Baldwin of Wisconsin. The House members include all six openly LGBT members, as well as House Minority Leader Nancy Pelosi. Among the ten Republicans on the pro-DOMA brief was Saxby Chambliss of Georgia.)

Former Attorneys General Edwin Meese and John Ashcroft submitted a brief; so did the attorneys general of many states.

The American Bar Association –the organization that provides qualification ratings to the Senate Judiciary Committee on nominees to the Supreme Court—submitted a brief. It called DOMA “sweeping in its breadth and devastating in its effect.”

“…Section 3 is without precedent in federal law,” wrote ABA President Laurel Bellows. “Never before has the federal government adopted a definition of marriage that applies across the board to every federal statute and regulation and that excludes a class of people who are legally married under the laws of their States.

“…By barring a specific class of couples legally married under state law from the federal rights and responsibilities that accompany marriage, Section 3 broke with two centuries of tradition reserving the realm of domestic relations to the States.

“…More fundamentally, Section 3 thwarts the democratic process by preventing States from allowing their gay and lesbian citizens a truly equal share in the benefits and responsibilities of civil marriage. If Congress wanted to encourage the States to choose freely which marriages they would permit, it would have continued to recognize all marriages valid under state law.”

The ABA brief, like many others, was not just presenting an eloquent essay conveying the group’s position. It was also addressing specific legal issues that the nine justices must wrestle with when coming to their decision—whether the law in question really harms a class of people, whether the federal government is overstepping its constitutional authority to deny recognition to a marriage license granted by a state, and whether the law is interfering with the democratic process, to name a few.

Ironically, just five days after the ABA filed its brief, Justice Anthony Kennedy shared his concerns publicly about the “democratic process.” Kennedy is the justice many think will provide the key fifth vote for a majority in both the DOMA and Proposition 8 cases. And he was lamenting, during an appearance in Sacramento, that the Supreme Court is being asked to resolve such controversial issues.

“I think it’s a serious problem,” he said. “A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say. And I think it’s of tremendous importance for our political system to show the rest of the world — and we have to show ourselves first — that democracy works because we can reach agreement on a principle basis.” And Kennedy has been seen as a strong supporter of state sovereignty.

His focus on what democracy should be doing and his choice of words—“unelected people”—worry some marriage equality supporters because the comment echoed the mantras of marriage equality opponents.

The conservative attorneys general of Indiana and 16 other states, including Arizona, Georgia, Michigan, and Texas, expressed concern for the “democratic process” in their brief supporting DOMA.

“The Court should not cut short the robust democratic debates occurring across the country by deeming same-sex marriage to be a matter of federal constitutional law.”

DOMA, they said, “classifies on the basis of a couple’s general procreative capacity, not their sexuality as such.” They said a ruling in favor of same-sex marriage would “imply collateral invalidity of identical state definitions.”

But the attorneys general of states who support marriage equality submitted a brief in the Proposition 8 case to say that a ruling against same-sex marriage could have collateral damage on the institution of marriage itself. In six of seven states allowing same-sex marriage, they wrote, the divorce rate is at or below than the national average and marriage rates “have generally improved.” The brief was submitted by Massachusetts, Illinois, New York, Washington, D.C., Iowa and nine other states.

A brief from a group of former officials of the U.S. Federal Elections Commission identified another injury inflicted by DOMA –one that

“handicaps” the ability of gay candidates for federal office by denying them the ability to use their same-sex spouse’s assets for campaign purposes.

“The so-called ‘spouse exemptions’ under [FEC] rules free a candidate in an opposite-sex marriage to utilize for his campaign at least part of any asset owned jointly by the married couple,” notes the brief. “A candidate in a same-sex marriage is not free to do so because his spouse is not recognized as a ‘spouse’ under federal law…

“…Indeed, it is difficult to argue that gays and lesbians are not politically disadvantaged when they are impaired by the very rules that shape political involvement and speech.”

That argument –about the relative political power or powerlessness of gays and lesbians—is related to the court’s deliberation over what level of scrutiny to use in examining the laws that disadvantage gays and lesbians. It provides support for the idea that the court should use heightened scrutiny.

Each of the friend-of-the-court (amicus) briefs on both sides of both cases is aimed at shoring up support –for specific arguments and, at times, for specific justices.

Michigan Attorney General Bill Schuette submitted his own additional brief, saying that, if the Supreme Court upholds the Ninth Circuit decision in the Proposition 8 case, Michigan’s own constitutional ban on same-sex marriage would be unconstitutional. Schuette said it is “Michigan’s view” that a heterosexual marriage is the “ideal setting for the procreation and rearing of children.”

“Only in traditional marriage does the marriage contract reflect the complementarity of the sexes with the natural capacity to bear children, to provide a role model of the identity of manhood and womanhood to the children, and to enable any children born of the marriage to have a biological relationship to each parent,” stated Schuette.

Importantly, the Obama administration submitted briefs in support of marriage equality in both cases. It did not have to file any brief in the Proposition 8 case but did so, arguing that the California ban violates the equal protection clause of the constitution, that it should be subjected to heightened scrutiny, and that fails that level of scrutiny.

A coalition of 50 civil rights groups, led by the Leadership Conference on Civil Rights filed a brief in the Proposition 8 case arguing for heightened scrutiny, saying “discrimination against gay people bears the same features that earlier led to heightened scrutiny of other classifications such as those based on sex or race.” This coalition includes the ACLU, the NAACP, and the National Organization for Women, as well as many national and state LGBT groups, such as the Human Rights Campaign, the National Gay and Lesbian Task Force, MassEquality, Empire State Pride Agenda, Equal Rights Washington, and Equality Maine.

On the other side, African American groups led by the Coalition of African American Pastors submitted a brief in the Proposition 8 case saying, “racially segregated marriage is not comparable to sexually integrated marriage.”

There were also amicus briefs from dueling groups of constitutional law professors. Against Proposition 8, a group of 17 well-known constitutional law scholars, including Harvard’s Laurence Tribe and University of California’s Erwin Chermerinsky, argue that gay people, as a class, meet the four criteria set by the Supreme Court for triggering heightened scrutiny. Meanwhile, another group of 11 constitutional law professors argue that DOMA does not interfere with state’s rights.

The National Women’s Law Center joined with the Williams Institute, a UCLA-based think tank studying public policy regarding sexual orientation, in a brief that cites the Supreme Court’s 1989 decision in Price-Waterhouse and other sex discrimination cases. The brief argues that laws that disfavor gays are based on the same stereotypes about the “roles, preferences, and capacities of women and men that this Court has rejected in sex discrimination cases under the Equal Protection Clause.” Briefs from two conservative women’s groups do not discuss the Price-Waterhouse implications. Concerned Women for America’s brief says gays can’t be considered a politically powerless group, detailing page after page of political victories and support for gays in the White House, Congress, media, and public opinion polls.

Counter to that, the Organization of American Historians led a brief that provides a less upbeat of picture of gay power. It details the history of discrimination faced by gay people in the United States, starting with laws against “buggery” in colonial days and covering decades of prejudices created by religious and medical entities, as well as years of police harassment, media censorship, Congressional witch hunts, and legal barriers erected in both civilian and military arenas.

A similar brief, filed by a group of 13 political science professors, including Kenneth Sherrill at New York’s Hunter College, discuss the relative power of LGBT people in the political arena. The brief details the longstanding struggle of the LGBT minority to elect its members to political office, to fend off anti-gay measures at the ballot box, and to mount defensive campaigns against efforts by well-funded groups hostile to LGBT people. The brief urges the court not to be fooled by “isolated” successes in recent years, noting that LGBT people are still “vastly underrepresented” in political office and that the four victories on marriage equality in November “pale” in comparison to the 30 losses prior to that.

Two of the nation’s three premiere LGBT litigation organizations –Lambda Legal Defense and Gay & Lesbian Advocates & Defenders– collaborated on a brief in both cases. They urge the court to define the level of scrutiny that should be applied to laws disfavoring gay people and to define it as heightened scrutiny. But they also urge that, even if the court evaluates Proposition 8 under simple rational review, the ban still fails to achieve a legitimate governmental objective.

“Any categorical exclusion from marriage,” states the brief, “indelibly marks gay people as second-class.

The third national LGBT litigation group, the National Center for Lesbian Rights,  filed its own brief to focus on the fact that no other state has amended its state constitution to exclude gays from marriage after that state’s supreme court has ruled that marriage should be made available to gays the same as heterosexuals.

“A state constitutional amendment that purposefully excludes a particular group of citizens from the state’s guarantee of the equal protection of the laws,” states the brief, “gravely offends the federal principle of equal protection.”

And William Eskridge, a law professor at Yale and a frequent commentator on LGBT legal issues, is joined on the brief by three other law professors to argue that the equal protection clause “forbids the state from elevating social stereotypes regarding disparaged social groups into legal regimes that treat members of those groups as second-class citizens.”

“Laws segregating public schools enjoyed the support of tradition, as such laws had flourished and had been upheld throughout American history,” notes the Eskridge brief. “….Once this Court understood that the social meaning and practical effect of such laws was to entrench a racial caste system, however, this Court acted to sweep away all laws segregating the races as a matter of law.”

It was Eskridge, by the way, who was one of several essayists in the scotusblog.com symposium two years ago to argue that the same-sex marriage conflict “ought not be resolved one way or the other [by the Supreme Court] until public preferences become more settled.”

His argument was that, when the Supreme Court issues a monumental ruling too soon on an intensely controversial issue—such as the right to abortion—it raises “the stakes of politically intense issues to the detriment of our pluralism.”

The number and variety of views expressed in the amicus briefs in the DOMA and Proposition 8 cases are evidence of pluralism, but the balance of briefs in favor of striking DOMA and Proposition 8 also provide a strong impression that, if the Supreme Court does strike down both or either laws, the possibility of a prolonged Roe v. Wade-like political fallout is unlikely.