November 13, 2011
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.