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Friend of the court, friend of the cause

DOMA trials Prop 8 trial

By Jacob Combs

Over on Towleroad, Ari Ezra Waldman has a great piece up about the significance of amicus briefs in the fight for LGBT equality.  His detailed piece is worth reading in its entirety (as they always are), but at its heart it argues for the importance of amicus briefs to our cause and points to them as a major reason for us to continue to fight for LGBT rights in the courtroom just as fervently as we strive for them legislatively.

The term “amicus curiae” literally means “friend of the court,” and amicus briefs are filed by individuals or organizations who are not parties to a particular case but have an interest in its outcome.  As Waldman points out, 70 major employers such as Microsoft and Starbucks as well as the city governments of Boston, New York and Cambridge filed amicus briefs this week as a part of the appeal in the DOMA case Gill v. OPM.  Of course, a corporation can’t argue that it’s directly disadvantaged because DOMA discriminates against gays and lesbians, but these organizations do claim (rightfully) that the law imposes unnecessary burdens to growth and development and requires companies to discriminate against their own employees.

Waldman argues that briefs like these are to our advantage, because they can have an impact on a judge’s deliberations, often making their way into the final ruling.  He points out that unlike election materials, which are often used to sow fear into the hearts of voters, amicus briefs are scrutinized in a court of law and assessed on the strength and factuality of their arguments.

Perhaps most importantly, Waldman stresses that the power of amicus briefs to build support for our cause is a crucial reason to continue to work in the judiciary to effect change.  He references the Prop 8 case specifically, arguing for the importance of continuing Perry v. Brown through the appeal process rather than returning to the ballot in 2012 and (in the best of situations) rendering the lawsuit moot.  Given the 9th Circuit’s recent refusal to rehear the Log Cabin Republicans’ DADT case, it is certainly worth considering the more far-reaching effect that a lawsuit striking down Prop 8 could have compared to a legislative repeal.


  • 1. Sagesse  |  November 13, 2011 at 9:16 am

    I agree, Waldman's analyses are excellent. One thing he does not mention… the court is free to ignore amicus briefs. It can take into account anything it finds useful and ignore the rest… like the ranting religious ramblings, rehashed lies from their propaganda pieces and bad science 'supporting' the other side.

    Just because it is submitted and accepted does not necessarily give it any weight at all. And it probably amuses the law clerks who have to read them all.

  • 2. Reformed  |  November 13, 2011 at 10:33 am

    so really, anyone who wants to live in a more free and just society could file an amicus brief if i understand correctly

    A side note, it seems to me that the latest pedophilia scandle (penn state) hasn't elicted as much anty glbt rhetoric as past crimes of this nature. I haven't heard the word gay in any of the mainstream newmedia. Is this a sign that people are starting to understand that pedophila has no relationship to and no place in the honest discussion of issues relating to the struggles of lgbt equality? I only found such rhetroric while specifically looking for it, and found it only where it was to be expected – fringe elements and hate groups as usual.

  • 3. Alan_Eckert  |  November 13, 2011 at 10:46 am

    Another point the brief stated was that companies are forced to investigate the personal lives of their employees. They must know if the spouse is opposite- or same-sex so they can do their taxes correctly.

  • 4. Sagesse  |  November 13, 2011 at 10:46 am

    Unfortunately, it was only a matter of time. See latest Quick Hit.

    Penn State Scandal: Jerry Sandusky Cited As Case Against Same-Sex Parenting By Anti-Gay Speakers (VIDEO)

  • 5. Alan_Eckert  |  November 13, 2011 at 10:47 am

    There was a show on NPR on Friday that had something about this. I'll try to find a link.

  • 6. Ronnie  |  November 14, 2011 at 7:54 am

    ; ) …….Ronnie

  • 7. Prop 8 Trial Tracker &raq&hellip  |  November 15, 2011 at 9:01 am

    […] the heels of my post from Sunday about the importance of amicus briefs, I wanted to take a moment to look at a recent amicus brief […]

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