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The single most significant thing about the topside briefs in the same-sex marriage cases [UPDATED]

By my count, forty-two “topside” amicus briefs have been filed in the California Proposition 8 case, Hollingsworth v. Perry, and twenty-six topside amicus briefs (not including that of the Court-appointed amica) have been filed in the DOMA case, United States v. Windsor.  That’s about fifty-eight briefs total, since at least ten of them are “joint” briefs filed in both of the cases.  If you’re inclined to read them, they’re available at the SCOTUSblog case pages–just click on the links provided in the previous sentence.

The briefs contain many things of interest.  Perhaps the single most important feature of the topside amicus briefs, however, is a dog that didn’t bark — or not as loudly as might have been expected, in any event.

Forty-one states prohibit same-sex marriage.  But only twenty of those forty-one states have filed briefs in support of the constitutionality of Proposition 8:  Indiana is the lead party on a brief for nineteen states, and Michigan filed a brief of its own.  Compare this level of state participation with, for example, the amicus brief filed by all forty-nine other states in Maryland v. King (to be argued February 26), in support of Maryland’s argument that a state does not violate the Fourth Amendment by collecting and analyzing the DNA of persons who have been arrested for, but not convicted of, a criminal offense.

Moreover, of the twenty-one states that prohibit same-sex marriage but that have not filed in Perry, four have Republican attorneys generals:  Florida (Pam Bondi), Louisiana (Buddy Caldwell), New Jersey (Jeffrey Chiesa), and Ohio (Mike DeWine).  Those four and seven other non-filing states (Mississippi, Nevada, New Mexico, North Carolina, Pennsylvania, Tennessee, and Wyoming) have Republican governors, including two (Nevada and Wyoming) whose governors joined the challenge to the constitutionality of the Affordable Care Act last Term.  [UPDATE:  On February 1, 2013, after the deadline for filing had passed, Louisiana Attorney General Caldwell filed with the Clerk a self-styled “formal Letter of Support and Request of the State of Louisiana” to “join” the amicus briefs filed by Indiana in Perry and in Windsor.  It is my understanding that the traditional practice of the Clerk is not to act upon such untimely “requests to join,” and that therefore Louisiana presumably will not be noted as an amicus on the Court’s docket or in official reporting of the case.]  And of the eight states that provide virtually complete benefits to same-sex couples under “civil union” or “domestic benefits” statutes — which include Delaware, Hawaii, Illinois, New Jersey, Nevada, Oregon and Rhode Island in addition to California — none has filed to defend the constitutional authority of a state to deny such couples the status of marriage.  (To be sure, the rationale of the court of appeals in Perry applies uniquely to California’s law, as I discussed last year.  But the respondents are expected to urge the Court to issue a holding that would require recognition of same-sex marriage in all fifty states or, at a minimum, in the eight states that have already afforded same-sex couples full benefits other than the status of marriage.  Thus, all forty-one states are well aware that the Court’s decision in Perry may well govern the fate of their own marriage laws.)

It is further significant, I think, that in twelve of those twenty-one non-filing states, constitutional amendments prevent the recognition of same-sex marriage via the ordinary political process.  All but one of those amendments was ratified from 2002 through 2008, in anticipation that popular majorities might soon support a change in state law (2002:  Arkansas, Nevada; 2004:  Kentucky, Louisiana, Mississippi, Missouri, Ohio, Oregon; 2006: Tennessee; 2008:  California, Florida; 2012:  North Carolina).  In some of those states, the decision of state officials not to file in Perry might be explained, at least in part, by a judgment that the constitutional amendments that govern marriage in those states no longer reflect the views of their constituents.

Recommended Citation: Marty Lederman, The single most significant thing about the topside briefs in the same-sex marriage cases [UPDATED], SCOTUSblog (Feb. 13, 2013, 4:55 PM),