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Friend-of-the-court briefs filed in the Supreme Court in support o same-sex couples challenging marriage bans

LGBT Legal Cases Marriage equality Marriage Equality Trials

The amicus curiae (“friend of the court”) briefs in the Supreme Court marriage cases in favor of the same-sex couples were due last Friday. Equality Case Files has been compiling all the briefs, and I wanted to highlight a few.

UPDATE 3/10: Can’t believe I forgot this one. The Leadership Conference on Civil and Human Rights filed a brief supporting heightened judicial scrutiny for laws that discriminate against gays and lesbians. A lot of organizations joined the brief, including ours, Courage Campaign.

– Ken Mehlman and other conservatives filed a brief supporting marriage equality. The brief notes that many of the signers also joined a brief in favor of the same-sex couples challenging California’s Proposition 8, but that this brief has many more names.

– 379 employers, including large corporations, filed a brief supporting the same-sex couples.

– 167 House members and 44 Senators filed a brief.

– The Cato Institute, William Eskridge, and Steven Calabresi (the man who co-founded the socially conservative Federalist Society) filed a brief in support of the couples.

You can read the rest of them here.

Thanks to Equality Case Files for these filings

56 Comments

  • 1. hopalongcassidy  |  March 9, 2015 at 10:33 am

    Gosh, I didn't see Hobby Lobby in the list of 379 companies … must be an oversight.

    ;-o

  • 2. yyyAllenyyy  |  March 9, 2015 at 10:57 am

    Are there any Republicans on the House/Senate brief?

  • 3. Swifty819  |  March 9, 2015 at 11:05 am

    No senators, but Senators Kirk and Collins joined Mr. Mehlman's brief

  • 4. scream4ever  |  March 9, 2015 at 11:05 am

    There are but they're listed in the Republican brief.

  • 5. ijsnyder  |  March 9, 2015 at 12:10 pm

    Do we expect another brief from the Psychological and Pediatric association/academy? I thought they were extremely persuasive in Hollingsworth but I only see the sociologists' brief this time.

  • 6. guitaristbl  |  March 9, 2015 at 12:18 pm

    "…Steven Calabresi (the man who co-founded the socially conservative Federalist Society) filed a brief in support of the couples."

    What ? Are you sure this is not a mistake ? I mean…really ?

  • 7. Sagesse  |  March 9, 2015 at 12:18 pm

    Commenting on the academic briefs.

    Taking a (Scholarly) Stand [Inside Higher Ed]
    https://www.insidehighered.com/news/2015/03/09/sc

  • 8. Sagesse  |  March 9, 2015 at 12:39 pm

    Ryan Anderson outdoes himself in circular logic. 'Big business should not tell SCOTUS what they think about ME… because… states rights, the will of the people.' But because so many Big Businesses have advocated ME (which they're not supposed to do, see above), it proves LGBT people are politically powerful.' Which is why they have to sue to win rights that the will of the people would so grant them, if given the chance… Oh, wait…

    Big business overreach? Corporations push Supreme Court to legalize 'gay marriage' [Catholic News Agency]
    http://www.catholicnewsagency.com/news/big-busine

    "But Ryan Anderson, an author and scholar on marriage, religion and freedom, argued that big business should not push the Supreme Court to decide something that should be determined by the states.

    “There is nothing in the U.S. Constitution that requires the states to redefine marriage, and big business should not lobby the Supreme Court to say otherwise,” he told CNA.

    “That so many big businesses are lobbying the Court, though, puts to rest the claim that gays and lesbians are a politically powerless ‘suspect class’ that is in need of special protections from the Court,” he continued. “The debate about marriage should be worked out democratically, not cut short by the Court.”

  • 9. Sagesse  |  March 9, 2015 at 12:42 pm

    The Libertarian Cato Institute supported ME in Windsor in 2013 (and maybe Hollingsworth as well… many amicus briefs were filed in both cases, and my memory is not that good).

  • 10. Sagesse  |  March 9, 2015 at 12:43 pm

    See my comment below. An article in Inside Higher Ed lists the academic briefs, and the usual organizations are represented.

  • 11. Pat_V  |  March 9, 2015 at 12:50 pm

    "44 senators"
    After checking the list, these are actually the 2 independents + 42 of the 44 Democrats.
    The 2 Democratic senators who didn't sign the brief are Joe Manchin (not so surprising…) and Tom Udall. I'm surprised about Tom Udall because he had been supportive of marriage equality in the past.
    I am also surprised that NO Republican senator joined the brief. Didn't Rob Portman and L. Murkowski (and maybe also Susan Collins) suppoer marriage equality?

  • 12. scream4ever  |  March 9, 2015 at 1:07 pm

    Look above for an answer to your question.

  • 13. guitaristbl  |  March 9, 2015 at 1:07 pm

    But the co-founder of Federalist Society ? I truly find it surprising. Alito is basically the puppet of Federalist Society in SCOTUS. What does that mean for the way the court's opinion may go ?

  • 14. Sagesse  |  March 9, 2015 at 1:31 pm

    What's ahead for the 'religious freedom' fight. This is what happens when you turn ADF loose with their limitless resources, in a state that HAS LGBT non-discrimination protections. This site has a paywall, but permits five free articles a month.

    Gay Rights Bloom in Thorny War of Roses [National Law Journal]

    "Given the ruling, there won't be a trial in the case, for which Hillis Clark [for the plaintiffs] has devoted nearly 1,500 hours. But it's not over. Both sides are crafting an injunction order, and Alliance Defending Freedom has vowed to appeal the decision. And when it does, Scott said, "We will be handling it."
    http://www.nationallawjournal.com/home/id=1202719

  • 15. Sagesse  |  March 9, 2015 at 1:43 pm

    A Rebellion in Alabama [National Law Journal] – This site has a paywall, but permits five free articles a month.
    http://www.nationallawjournal.com/home/id=1202719

    "Should the Alabama Supreme Court's ruling last week reach the U.S. Supreme Court for review, Nan Hunter, a professor at Georgetown University Law Center, doesn't expect the state judges to find much sympathy, she said in an email.

    "The justices in Washington, divided, have refused to put Granade's order on hold while the opponents appealed. And many of the justices, Hunter said, might see the Alabama Supreme Court's actions as a challenge to their authority.

    The Alabama court, she said, "skates closer to the line of defiance of the federal judiciary than any action by a state appellate court that I have ever seen."

  • 16. Nyx  |  March 9, 2015 at 2:18 pm

    Just a reminder… Theodore Bevry Olson (Ted Olson) was also a founding member of the The Federalist Society for Law and Public Policy Studies, most frequently called simply the Federalist Society.

  • 17. hopalongcassidy  |  March 9, 2015 at 2:46 pm

    Hell, Alabama never conceded the civil war…

  • 18. Sagesse  |  March 9, 2015 at 2:47 pm

    Apologies if this has been posted and I missed it.

    BREAKING: Discriminatory H.B.56 Passes Alabama House Judiciary Committee [HRC]
    http://www.hrc.org//blog//entry//breaking-discrim

  • 19. ianbirmingham  |  March 9, 2015 at 2:48 pm

    5% chance: 7-2 best case (Scalia and Thomas vote Alabama style)
    45% chance: 6-3 possible (Alito joins them)
    50% chance: 5-4 worst case (Roberts joins them too).

  • 20. Sagesse  |  March 9, 2015 at 2:51 pm

    In response to the proposed class action amendment in Alabama:

    Alabama Attorney General Luther Strange opposes new federal order in same-sex marriage case [al.com]
    http://www.al.com/news/mobile/index.ssf/2015/03/a

  • 21. ianbirmingham  |  March 9, 2015 at 3:06 pm

    Video here of what the Supreme Court would do to Alabama:

    https://www.youtube.com/watch?v=Ognq5U4Bw9c

  • 22. DoctorHeimlich  |  March 9, 2015 at 3:46 pm

    I've only been able to read some of the amicus briefs, but I've already found several good ones. I particularly enjoyed the "92 Plaintiffs in Marriage Cases" brief, as it comes across like a "Trolling Scalia" brief. It uses history and a lot of very old precedent to make a fairly airtight case that not even a so-called Originalist should read the 14th Amendment as only guaranteeing rights that would have been recognized by its framers in 1868.

    Not that Scalia is open to persuasion, of course. But it's nice to see his hypocrisy called out.

  • 23. RnL2008  |  March 9, 2015 at 3:49 pm

    I guess it sucks to be him…..lol!!

    The ONLY chaos and confusion being created in Alabama is by the ASSC and the bigoted Probate Judges who DON'T want to do their job!!!

    I'm hoping that the Judge DOESN'T pay attention to the garbage the AG is peddling!!!

  • 24. guitaristbl  |  March 9, 2015 at 4:18 pm

    I haven't read many of the briefs but the one that I expressed my surprise above that existed (the one from the Cato Institute and the Federalist Society co founder) is probably the best I have read so far. Such a well constructed, historical analysis on the equal protection clause and what a sophisticated deconstruction of the version of originalism promoted by Scalia and his ilk. Great stuff. One of the best parts come at the beginning of the brief actually :

    "In other words, just as a “19th-century statute criminalizing the theft of goods is not ambiguous inits application to the theft of microwave ovens,”K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 323 (1988) (Scalia, J., concurring in part & dissenting in part), a 19th-century constitutional command that no state may “deny to any person within its jurisdiction the equal protection of the laws” is not ambiguous in its application to sweeping exclusions in state family law."

    Immense trolling.

  • 25. Scottie Thomaston  |  March 9, 2015 at 4:54 pm

    Not a mistake. He's been writing papers on it this past year. He recently wrote an originalist case for marriage equality in a paper.

  • 26. Decided_Voter  |  March 9, 2015 at 8:48 pm

    They lowered the bar on "scholars"?

  • 27. brandall  |  March 9, 2015 at 10:33 pm

    1) Kagan from DOMA orals: “I’m going to quote from the House report here: ‘Congress decided to reflect and honor collective moral judgment and to express moral disapproval of homosexuality.’ "

    2) Kennedy from DOMA decision: "The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.”

    3) Alabama H.B 56: "No religious organization is required to provide accommodations, facilities, advantages, privileges, services, or goods related to the recognition, solemnization, or celebration of a marriage."

    4) "an·i·mus": anəməs/Submit: noun: hostility or ill feeling

    5) "timing": ˈtīmiNG/Submit: noun: a particular point or period of time when something happens.

    6) "add fuel to the fire": add insult to injury : verb: make worse

    Your Honors, I rest my case.

  • 28. wes228  |  March 10, 2015 at 4:35 am

    Is this the first time that Senators Kirk and Collins publicly announced their support for marriage equality then? I thought Portman was the only Republican.

  • 29. RemC_Chicago  |  March 10, 2015 at 5:08 am

    No, Kirk declared his support about the time ME was battling it's way through the State House.

  • 30. RemC_Chicago  |  March 10, 2015 at 5:20 am

    I'm crushed. Somehow, my signature didn't get included in The Peoples Brief. I was so looking forward to that.

  • 31. JayJonson  |  March 10, 2015 at 6:54 am

    guitaristbl, I am also impressed by the learning and logic of the Federalist brief. Its lead author, Yale Professor William Eskridge, knows both legal history and the history of gay persecution in the United States. I love how he documents how Michigan laws have actually become even more anti-gay since Lawrence. Not only have they kept their sodomy law on the statute books, but they have actively sought to deprive gay couples of legal protection and even insurance!

    When addressing Sutton's idea that Michigan and the other states in the Sixth Circuit have just not gotten around to complete the process of evolving on the issue of same-sex marriage, Eskridge writes: "This is not a case, however, where the Respondent-States have simply been slower than others in extending the protection of the law to gay couples. Instead, each state has gone out of its way to further exclude lesbian and gay couples from family law; three of the states have even updated their constitutions to bar non-marital forms of institutional recognition of gay families, an unprecedented exclusion in U.S. family law. Remarkably, Michigan has repeatedly denied lesbian and gay employees basic contract rights to partner benefits taken for granted by married straight employees. How does acting to deny basic contract rights reflect a 'Burkean sense of caution'?"

    The conclusion is also worth quoting because it is on the one hand very conservative, but also very compelling:

    "Does the Fourteenth Amendment require states to issue marriage licenses to same-sex couples? Of course not. The Amendment doesn’t say a word about marriage licenses. Or driving licenses. Or liquor licenses, business permits, corporate status, public schools, libraries, buses, or universities.

    Indeed, the Fourteenth Amendment requires almost nothing affirmative from the states. The only benefits states must grant are the privileges or immunities of citizenship, the due process of law before depriving anyone of life, liberty, or property, and the equal protection of the laws.

    In other words, the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples only if they give them to everyone else."

  • 32. Rick55845  |  March 10, 2015 at 7:03 am

    "In other words, the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples only if they give them to everyone else."

    That is precisely what I said in a number of posts several weeks ago when SCOTUS framed those two questions. I'm happy to see some law scholars who are authorities on the subject express that same view.

  • 33. RemC_Chicago  |  March 10, 2015 at 7:09 am

    (Insert embarrassed blush here) I was looking for my name under Georgia. Found it under Illinois…Here's where I found the brief with all of the signees, Deadhead:
    |||http://www.peoplesbrief.org/#__utma=149406063.147

  • 34. RemC_Chicago  |  March 10, 2015 at 7:40 am

    Have you tried to search for your name among the pages pertaining to your state? The divisions between states are not easy to find. For me, anyway.I was disappointed to find the names of friends missing from the brief that I assumed would've jumped at the chance. I truly believe the number of signees could easily have been much, much higher.

  • 35. A_Jayne  |  March 10, 2015 at 7:43 am

    And that sets the stage for state governments to "prove" that including same-sex couples under the marriage umbrella could harm marriage itself – when recalcitrant players decide they will simply stop issuing marriage licenses at all.

  • 36. A_Jayne  |  March 10, 2015 at 7:44 am

    Based on your comment, I looked again (making sure I stayed within the columns designated for my state), and I did find my name. Thank you.

  • 37. RemC_Chicago  |  March 10, 2015 at 7:48 am

    Oh, good! Curious, though, that we both had trouble finding names we expected to find.

  • 38. A_Jayne  |  March 10, 2015 at 7:53 am

    The sheer volume was part of that, I think. I inadvertently skipped down too many pages to get toward the end of the alphabet – and ended up in a subsequent state's listings…

  • 39. DeadHead  |  March 10, 2015 at 7:53 am

    Thanks I found my name glad to see you found yours too.

  • 40. brandall  |  March 10, 2015 at 8:05 am

    I couldn't fine "DeadHead" anywhere in the signatures. I could also not find "Hoppalongcassidy," "Raga," "VIRick," and especially "WolfOfRagingFires." There were 6 "Wolf" listings. Are you all using pseudonyms?

  • 41. Rick55845  |  March 10, 2015 at 8:51 am

    Though at least one legislator in Oklahoma or Arkansas (I don't recall which) has called for eliminating state licensing of marriage, I consider it very unlikely that the citizens of any state would approve or abide such action. Even if other extremist bigots make such absurd proposals, the chances of it coming to pass are virtually nil.

  • 42. A_Jayne  |  March 10, 2015 at 9:17 am

    I do agree with you, but don't put it past some players to try. OK's governor threatened to just eliminate all marriage laws in that state when the SCOTUS denied cert to the cases from the 10th Circuit. Some others have mentioned it, but I can't remember who or where they are.

    That possibility became a frequent meme in comment sections of several sites in the last several months – it was proposed early-on (pre-Windsor?) by Justin Amash, Congressman from MN.

  • 43. RemC_Chicago  |  March 10, 2015 at 9:36 am

    I suspect they are, Brandall! (My full first name—which I dislike using—ended up on the Brief.)

  • 44. Randy Garcia  |  March 10, 2015 at 10:45 am

    Just a quick reminder.. Theodore Bevry Olson (Ted Olson) was as well a founding member of the The Federalist Society for Law and Public Policy Studies, most often called simply the Federalist Society.

  • 45. 1grod  |  March 12, 2015 at 6:03 am

    REMC_ I'm sure by now you are over it! The brief by Families with kids and by older children might sway some. Perhaps Scalia, with nine children and 33 grandkids, might write is dissenting opinion with them in mind: [ with this number of offspring ……….. ]
    http://www.washingtonblade.com/content/files/2015

  • 46. RemC_Chicago  |  March 12, 2015 at 8:52 am

    Thanks for alerting me to this brief. When we visit my father-in-law in Michigan, as the brief says, our kids, who live in a state that recognizes "marriage for same-sex couples, are not beyond the reach of these laws. For these families, setting foot in Kentucky, Michigan, Ohio, or Tennessee can suddenly erase a child’s legal relationship with his or her parent."
    As absurd a situation as it is frightening.

  • 47. A_Jayne  |  March 12, 2015 at 9:41 am

    Wow. What a powerful brief they have written.

    With that many offspring, the likelihood is significant that at least one of them is gay. Can Scalia imagine, with any real confidence, that none are? Or does he think his rejection of the idea will assure that none are? He cannot be that foolish, can he?

  • 48. Zack12  |  March 12, 2015 at 10:02 am

    Yes, some of them are that foolish.
    Jim Inhofe, one of the bigoted Senators from Oklahoma held up a picture of grandchildren(forgot the number) and proudly proclaimed that since they are a "good" family with Christian values, there are no homosexuals in his family.

  • 49. A_Jayne  |  March 12, 2015 at 10:25 am

    You may be correct that Scalia belongs in the same category as Jim Inhofe. I wonder what Scalia may think of that association…

  • 50. 1grod  |  March 15, 2015 at 2:12 pm

    REMC: your words [ erase, absurd, frightening] should alert every reader here that the Fundamental Rights of Children are at stake here as are the rights of Adults. Suggest you also read: http://www.scribd.com/doc/257986196/Scholars-of-t…. G

  • 51. VIRick  |  March 15, 2015 at 2:42 pm

    "…. 'VIRick' …….. Are you all using pseudonyms?"

    But Brandall, you already know the answer to that question.

  • 52. Wolf of Raging Fires  |  March 15, 2015 at 6:15 pm

    NO, NOT AT ALL. 😛

  • 53. davepCA  |  March 15, 2015 at 7:20 pm

    Hey! I found my name in the brief!! And an unrelated tidbit that I just gotta share with you all – Yesterday, while walking down the street in San Francisco, a small elderly woman walked past me and I suddenly realized who she was – It was Phyllis Lyon, who, with her wife, the late Del Martin, were the first LGBT couple married in California (both before and after Prop 22 was repealed). Their story is absolutely amazing and inspirational. I introduced myself and thanked her for all she had done and I had a really nice chat with her for a few minutes. She's just adorable. What a great weekend this has been.

  • 54. flyerguy77  |  March 15, 2015 at 10:01 pm

    Whats ur point?

  • 55. RemC_Chicago  |  March 16, 2015 at 6:32 am

    The lawyers for our side have wisely turned our opponents' arguments against them, stressing the need to provide ME as a way of protecting ALL children. This is an important brief.

  • 56. RemC_Chicago  |  March 16, 2015 at 6:34 am

    Fabulous. She is an awe-inspiring part of our collective history. How wonderful that you recognized her and got a chance to connect with a legend.

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