Argument preview: Marriage and the Court’s “friends” — Part I

This is the first of two articles examining the arguments made in the Supreme Court’s two same-sex marriage cases by the “friends of the Court” — the amici who have filed written briefs, a lengthy list.  This article deals with the amici arguments in the case of California’s Proposition 8 ban on gay marriages, Hollingsworth v. Perry (12-144), to be heard at 10 a.m. on Tuesday.  Part II, to appear Monday, will cover the amici arguments on the federal Defense of Marriage Act case, United States v. Windsor (12-307), set for a hearing at 10 a.m. on Wednesday.

The role of amici

Under the Supreme Court’s rules, a brief from an amicus curiae (amicus, for short, or amici in the plural) is supposed to bring to the Court’s attention “relevant matter not already brought to its attention by the parties.”  If a brief does not do so, the rule adds, the document “burdens the Court, and its filing is not favored.”  But that is a rule that is not rigorously enforced: many amici briefs make arguments that exactly or at least closely parallel those made by the parties, and many of these briefs overlap each other.  Sometimes they speak in the narrow scope of an advocacy group’s special interests, sometimes they sweep quite broadly.  And many do, indeed, enlarge the Court’s perspective on the potential impact of this or that decision, and it is not uncommon for such a brief to be quoted directly in an opinion of the Court.  In a case with the high visibility, and potentially broad impact, of the same-sex marriage cases, scores of those briefs are filed.   There are almost ninety in the Proposition 8 case; two dozen of them apply both to that case and to the Defense of Marriage Act case.

To file an amicus brief, it is necessary to have either the consent of the parties, or consent of the Court.  In the Proposition 8 case, the parties gave blanket consent to all such briefs.   Most amici speak to the Court only through their written arguments; except for the federal government when it is acting as an amicus (as it is in this case), amici do not often get permission to take part in oral arguments.

For Tuesday’s hearing, under a one-hour schedule, the Court is not dividing the hearing between the issues of its authority to decide the case and the constitutionality of Proposition 8.  Charles J. Cooper, of the Washington, D.C., law firm of Cooper & Kirk, will appear first for the sponsors of the ballot measure, with thirty minutes of time.  He will be followed by the lawyer for the two same-sex couples who challenged that provision, Theodore B. Olson of the Washington office of Gibson, Dunn & Crutcher, with twenty minutes.  Finally, the Obama administration’s lawyer, Solicitor General Donald B. Verrilli, Jr., will have ten minutes to make the government’s case as an amicus.  The Chief Justice is likely to allow the hearing to go on beyond an hour.

All of the briefs filed in the Proposition 8 case — by the parties and the amici — can be found at this link.  Posts discussing the briefs of the sponsors of Proposition 8 can be read here and here.   A post on the brief of the two same-sex couples who challenged that measure is here.

The Court’s authority to rule

The Supreme Court simply does not have the power, constitutionally speaking, to rule on the validity of California’s Proposition 8 — or on any case — unless it is assured that there is a live “case or controversy” actually before it.   The Constitution’s Article III limits the federal courts, including the highest court, to deciding cases in which, at every stage, there is a genuine dispute between two opposing sides, each of whom had “standing” — in other words, a legal right to be there.

To have “standing,” under Article III, each side must show that it has a direct, not a theoretical, interest in the case, and that its claim is one that can be vindicated by the court, if, in the end, it were to win.

When the Court on December 7 granted review of Hollingsworth v. Perry, it told the lawyers to file briefs  and be prepared to argue orally on whether the sponsors of that ballot measure had Article III “standing” to pursue their appeal to the Supreme Court, after the Ninth Circuit Court had struck down their measure.   Those sponsors at this point are the only ones directly involved in defending Proposition 8; state officials in California refused to do so.

The Court did not appoint a special amicus to argue separately on the Article III point, as it did on jurisdictional issues in the other case, on the federal Defense of Marriage Act.   If the Court were counting on the parties in the Proposition 8 case to go deeply into the Article III issue, it may be disappointed.  In response to the Court’s addition of that question to the case, the proponents of the measure devoted fewer than five pages to that in their main brief and fewer than three pages in their reply brief; the same-sex couples’ brief offered just under four pages on it; the San Francisco local government’s brief had three pages, and the federal government’s amicus brief had no discussion at all of that issue.

When the constitutional challenge to Proposition 8 was filed in federal district court in San Francisco, the ballot measure’s sponsors were allowed to take part in the trial as intervenors to defend the measure — that is, they were in the case opposite the two same-sex couples who challenged the amendment to the California constitution.   When the sponsors then sought to take the case on to the Ninth Circuit Court after the district judge had struck down the measure, the appeals court first asked the California Supreme Court for advice on whether the sponsors could take the state’s place in defending the measure.  After the state court said yes to that question, the Circuit Court ruled that, because the state could have appealed but did not and because the sponsors “stand in the shoes” of the state, they satisfied Article III and thus were allowed to appeal to defend the measure.  It then struck down the proposition on the merits, on a narrower theory than the district judge had applied.

Amici supporting the sponsors’ role

 There are some forty amici briefs filed in support of Proposition 8, and two of them deal with the question of the ballot measure sponsors’ right to be in court to defend it.

The California-based Center for Constitutional Jurisprudence, joined by former U.S. Attorney General Edwin Meese III, devoted more than two-thirds of its brief to support “standing” for the proponents.  The brief provided a full history of the role of the people of California as citizen-legislators, and relied strongly on the state supreme court ruling allowing the sponsors to act as the state for purposes of defending the victory that the state’s voters had given them at the polls in November 2008.   The brief added that the sponsors had a special interest all of their own in defending their measure — something that the state court had not decided.  If the state attorney general had defended Proposition 8, the brief said, she would not have had to show any such special interest, but the sponsors had one, anyway, in shoring up the validity of their measure.

A group of conservative advocacy organizations, led by Citizens United and its affiliates, described as non-profit social welfare or educational organizations, bolstered the argument in favor of finding “standing” for the proponents by relying on the Constitution’s Tenth Amendment.  That provision, protecting the vast array of powers “reserved” to the states, this brief contended, gives the states the power to decide who can represent the people of that state.   Going further than others have done in supporting “standing” in the case, this filing said that the Supreme Court and other federal courts simply do not have the power to decide whether the state is properly represented by the proponents.

Amici opposing “standing”

There are almost fifty amici briefs filed in support of the same-sex couples who challenged Proposition 8, and four of them are devoted entirely or in considerable part to opposing “standing” for the measure’s backers.

Those briefs are from the state of California, former Acting U.S. Solicitor General Walter Dellinger (now a Washington lawyer), Equality California (an advocacy group for gay, lesbian, bisexual, and transgender Californians), and the Columbia Law School Sexuality and GenderLaw Clinic, joined by the Society of American Law Teachers.

Those documents generally have two themes: first, that the issue of Article III “standing” is different from the question of who, under state law, can speak for the state in court, so the California Supreme Court decision did not settle the federal issue, and, second, that the right to actually represent the state in court is reserved under Article III for those who also have the duty to enforce state laws — that is, actual government officials — because only they face a legal injury against the state if one of its laws was nullified in court.

When the state court ruled that the measure’s backers could stand in for the state, it did not rule on the separate issue of whether those individuals also had to show that they had a special interest of their own in making a defense.  That, according to these amici,  is what is missing for the proponents in their attempt to pursue the case in the Supreme Court.  As the state of California argued, the backers have only the same interest as any California voter who supported Proposition 8 at the polls, and that is not enough.  They do not have to answer to the citizens of the state, the way officials must, according to California.

The Ninth Circuit Court, that brief said, simply ignored that separate question in allowing the sponsors to appeal.   As attorney Dellinger’s brief added, the Circuit Court finding of Article III standing for the sponsors in this case would mean that “a state could authorize any citizen of the state to enforce or defend any state law in any court so long as it makes clear that the citizen is representing the state’s interest rather than his own….Neither Congress nor a state has authority to confer standing on private parties when they otherwise would not have it.”

Equality California’s brief actually provided an interpretation of the California Supreme Court ruling that would minimize the interest of the measure’s sponsors, and argued that this reduced role will not satisfy Article III.   The Columbia law clinic’s brief asserted that the Court could allow the sponsors to appeal only by “dramatically” expanding “the set of injuries that give rise” to standing under the national Constitution. The Court, that brief contended, should not make it easy for states to sidestep Article III’s requirements.

The constitutional issue

More than twelve years ago, California voters went to the polls and approved Proposition 22.  That changed a state law dealing with family relationships to provide that “only marriage between a man and a woman is valid or recognized in California.”  In May 2008, the California Supreme Court ruled that Proposition 22 violated the state’s constitution, which guaranteed equal protection of the laws.  In response, more than 18,000 same-sex couples obtained licenses and were married.

In the November 2008 election, however, the state Supreme Court ruling was overturned at the ballot box by the state’s voters’ approval of Proposition 8.  It won by a margin of 52.5% to 47.5% — about 5.4 million “yes” votes to about 4.9 million “no” votes.  That changed the state constitution (not just a state law) to read exactly as Proposition 22 would have made state law to read: “Only marriage between a man and a woman is valid or recognized in California.”  The provision went into effect the day after the election, and same-sex marriages in the state stopped.

A challenge, based upon state law, to Proposition 8’s validity then began, leading to a ruling by the state supreme court in May 2009 upholding the measure, but refusing to strike down the marriages that had occurred in the meantime.   That decision was not based in any way on federal constitutional issues.  The marriages that had occurred in the interim were the last in the state since then, because Proposition 8 remains on the books pending the outcome of the case now before the Justices.

Shortly before the California court had ruled on Proposition 8, a lesbian couple, Kristin Perry and Sandra Stier of Berkeley, and a gay couple, Jeffrey Zarrillo and Paul Katami of Burbank, who had been denied marriage licenses because of Proposition 8 began a federal constitutional challenge to the ballot measure.   In August 2010, U.S. District Judge Vaughn R. Walker of San Francisco struck down the provision, finding it violated the Constitution’s guarantees of legal equality and due process.

Judge Walker concluded that there was no need to create a new and free-standing right of same-sex marriage, declaring that the existing institution of civil marriage had to be equally available, and could not be denied on the basis of sexual identity or orientation.

After that, the measure’s sponsors took the case on to the Ninth Circuit Court, leading to a divided decision in February last year striking down Proposition 8.  The Circuit Court said it was not ruling on whether same-sex couples had to be given equal marriage rights, since the California situation was one in which those couples had once been allowed to marry, and then that was taken away — partly out of disapproval of homosexuality.  That ruling, considerably narrower than Judge Walker’s decision, was based upon a 1996 Supreme Court decision (Romer v. Evans) striking down a Colorado state constitutional amendment taking away from gays and lesbians any chance to obtain state or local laws to protect them from discrimination based on their sexual orientation.

The Circuit Court, however, put its decision on hold for the duration of appeals.  Marriages could resume if the Supreme Court were to strike down Proposition 8, but not if the Court upheld the measure.   If the Justices were to rule that the backers had no right to appeal, lower federal courts will then have to sort out what follows, including whether both the Circuit Court’s decision and Judge Walker’s ruling would be nullified.

Amici supporting Proposition 8

The more than three dozen amici briefs in support of Proposition 8 range widely over issues of science, religion, morality, politics, and law, but there are some specific dominant themes: opening marriage to same-sex couples would ruin the institution and would threaten the nation and the nation’s children, the very nature of marriage — keeping humanity going by childbearing — requires that it be confined to those who can procreate naturally, people and their state legislatures should be left alone to decide whether to allow such marriages, gays and lesbians are seeking a special right to marry rather than simple equality of access to marriage, the Court should move cautiously in creating new constitutional rights, Proposition 8 should be judged by the most tolerant constitutional standard but it could withstand even a more exacting test, and Judge Walker’s decision was based largely on flawed social science, which is often driven by political bias.

Individually, the briefs range from anxious concern about the recent trends toward more liberality on gay rights issues to core legal arguments against same-sex marriage.

Nineteen states offered the Court a brief that spans the twin threats that are perceived — one to states’ rights, the other to “marriage as we know it.”  On the first, state interests get fervent repetition: the brief said that the Ninth Circuit “overrode a state citizenry’s use of state democratic channels to address a state court’s interpretation of a state constitution on a matter of core state responsibility.” And, on the second, the brief argued that the lower court ruling will lead to “disintegration of perhaps the most fundamental and revered cultural institution of American life.”

The Marriage Anti-Defamation League’s brief defined the threats as “harassment and reprisals” against those who have the “civic courage” to seek to preserve traditional marriage, even as those who favor “redefining marriage” are gaining “significant political and cultural power.   That group expressed fear of even greater hostility if the supporters of opposite-sex marriages continued to get attacked as “irrational and bigoted.”

On purely legal grounds, there are amici who argue that the pressure for same-sex marriage is not the same as the movement to permit mixed racial marriage, or even the movement to protect the privacy of gay and lesbian sexual activity by ending anti-sodomy laws.   A group of African-American pastors stressed the first point, and an advocacy group, the American Civil Rights Union, the second.

Some of the briefs sought to warn the Court that it could not confine a ruling to Proposition 8 just to California.  The Eagle Forum Education & Legal Defense Fund, for example, argued that if Proposition 8 were to fall, that would, by implication, “undermine any preference for husband-wife marriage.”  That brief, in particular, sought to portray the movement for same-sex marriage as an attempt to establish a constitutional “right to same-sex marriage.”

A number of the briefs engaged the issue of the proper standard for constitutionality to be applied to Proposition 8, with the Concerned Women for America, for example, contending that the growing political power of gays and lesbians across the country does not justify giving them the added protection of a more demanding test of constitutionality.   There is simply no basis, that brief and others asserted, for treating the homosexual community as a special target for discrimination without the political clout necessary to defense itself.

There is a good deal of argument about the perceived religious dimension to the arguments over marriage, with the Patrick Henry College in a Virginia suburb of Washington, D.C., contending that because laws have been based on religion and morality “from the founding of the Republic to modern times,” Californians should be allowed to make a choice against homosexuality as “moral error,” and with a host of conservative religious organizations, led by the National Association of Evangelicals, arguing that what is at stake is “a fundamental conflict” over differing visions of marriage “and a demand by the proponents of one conception that this Court declare the other one unconstitutional.”

The Becket Fund for Religious Liberty forecast a “perpetual struggle without prospect of a political resolution,” if the judiciary were now to take away from the political process the conflict over same-sex marriage.  The commitments on opposite sides of that conflict, it warned, “are simply too great on both sides to impose a judicial resolution. And setting church and states permanently at odds would be bad for both.”

Some of the briefs on that side made a strong assault on the social science arguments that same-sex parents are no threat to their children’s lives or futures, such as a group of professors in that discipline arguing that the better view is the “longstanding” one that “the ideal environment for raising children is a stable biological mother and father….What is clear is that much more study must be done on these questions.”   The Institute for Marriage and Public Policy’s brief, also focusing on social science arguments, added that the behavioral sciences “have a long history of being shaped by politics and ideology.”  The Court, that group suggested, should abandon any focus on such data and decide this case solely “on the basis of the law.”

A group of conservative scholars, led by Princeton’s Robert P. George, made an effort to simplify the issue, declaring: “What we have come to call the gay marriage debate is not a debate about homosexuality, but about marriage.  It is not about whom to treat as eligible to marry, but about what marriage is.  It marks a pivotal stage in a decades-long struggle between two views of the meaning of marriage.”

Amici opposing Proposition 8

The Obama administration, which had taken no part in the Proposition 8 case as it wound through lower courts, opted to get involved after the Supreme Court agreed to rule on it.  In its role as an amicus, it chose to argue only on the constitutionality of the measure, bypassing any thoughts on the sponsors’ right to be in court.   On the constitutional issue, it took a cautious approach, urging the Court to decide the case in a way that would only extend marriage rights to same-sex couples in eight more states, in addition to the nine that already allow gay marriage.  Since that filing, another state — Colorado — has become the ninth state to move into the category of new states that would be covered by the administration’s approach.  (A post more fully discussing the government’s constitutional argument can be read here.)

Nearly four dozen merits briefs filed by other amici urging the Court to strike down Proposition 8 attempted, like those on the other side, to put before the Court a wide array of claims and they, too, touched on many of the same general fields but from sharply differing perspectives.  There is a strong progressive cast to these briefs, treating same-sex marriage as a defining new human rights issue but one that can trace its origins to other, respected and even revered civil rights movements.   There is a studied effort to portray same-sex couples as normal couples with aspirations for family life and child-rearing no different from traditional couples.   And there is a similar effort to reassure the Court that allowing gays and lesbians to marry will not shake the foundations of the Republic, or of American morality.

A brief filed by Marriage Equality USA, for example, argued that “millions of lesbian and gay Americans share the same hopes and dreams of other Americans, including finding a special person to marry, building a family and life together, and growing old with each other….And they want their marriages to have the same legal validity and official recognition that everyone else’s marriages have.”   That brief contains testimonials of the benefits that have come to same-sex couples who have been allowed to marry.

One brief that has already drawn a substantial amount of publicity was filed by a group of conservatives and libertarians, several of whom have held office in Republican administrations, recounting their own conversion of belief to “there is no legitimate, fact-based reason for denying same-sex couples the same recognition in law that is available to opposite-sex couples.”   That brief sought to make a gracious acknowledgment of the sincerity of those who continue to oppose same-sex marriage, and made a distinct effort to assure religious institutions that none of them would be compelled to foster such marriages against their own doctrines of faith.  That document fit into a general pattern of trying to ease anxiety over a ruling against Proposition 8.

There also is an attempt to suggest that the perceived trend in America toward acceptance of such marriages is but a part of a global trend, as part of a claimed “universalist vision of human rights,” as a brief from International Human Rights Advocates put it.  There are “global values such as morality and fairness,” that document said, and it argues that the Proposition 8 case calls upon the Court to implement those values through the constitutional concepts of due process and equal protection.

A group of one hundred business firms, in their brief, urged the Court to look beyond Proposition 8 itself and pave the way for striking down “all laws in all states barring couples of the same sex from marrying.”  Laws like the California measure, those companies contended, “discriminate against many of the amici‘s customers, clients, vendors, and employees.”

Although many briefs seemed determined not to aggravate fears about homosexuality, there are a few that energetically attack the campaign that led to Californians’ approval of Proposition 8.   The Southern Poverty Law Center’s brief, for one, recounted what it said was evidence that the measure emerged out of “deep-seated animus towaqrd gay men and lesbians….The record shows, without doubt, that animus toward homosexuals put Proposition 8 on the ballot and carried it to victory, which is exactly what the courts below found.”  At least part of the rationale for such arguments is that they recall the Court’s Romer decision in 1996 in Colorado, reestablishing the right of homosexuals to an equal role in seeking legislation favorable to their interests — the decision most relied upon by the Ninth Circuit in this case.

A number of the briefs sought to point the Court toward studies showing that homosexual orientation was not a human choice, but a condition with which one is born — an argument that bears upon the question of whether gays and lesbians are the targets of discrimination for who they are, not for what they are capable of doing in life.   An example was the brief of the Gay and Lesbian Medical Association.  Another, from a coalition led by the American Psychological Association, told the Court that “homosexuality is a normal expression of human sexuality” and that gays and lesbians form “stable, committed relationships that are equivalent to heterosexual relationships in essential respects.”

There also are briefs seeking to apply arguments against gender discrimination to the rights of gays and lesbians, such as the document filed by several groups led by the National Women’s Law Center and a separate one by the National Organization for Women Foundation along with the Feminist Majority Foundation.

The list of arguments against same-sex marriage that supporters of Proposition 8 make are challenged in several briefs focused directly on legal issues, such as one by a group led by the American Academy of Matrimonial Lawyers.   That filing, in particular, sought mainly to refute the argument that same-sex marriage constitutes a fundamental threat to children.  While marriage does, indeed, “foster stability for children,” that brief said, citing the other side’s main defense, that “is a powerful reason to permit marriage for same-sex couples, not to ban it.  When same-sex couples are denied the right to marry, their children suffer serious, tangible harm.”

Seeking to counter the argument that gays and lesbians were attempting to gain a right exclusive of their own to marry, amici briefs against Proposition 8 pressed the argument that marriage has long been a fundamental right, and the only issue is whether it will be available equally.   Some three dozen professors of family law and constitutional law filed such a brief, urging that the Court not confine a ruling against the ballot measure on the narrow ground that the Ninth Circuit did — the invalidity of taking away a previously existing right of marriage equality — and nullify it on the broad, due process ground that was a part of Judge Walker’s ruling in the District Court.

Another legally centered brief, by a group of political science professors, attempted to refute the argument that gays and lesbians have now acquired such significant influence in politics that they can take care of themselves legally.   Homosexuals, the document said, “are vastly underrepresented” in legislative bodies and other governing entities.

Thirteen states, some of which still have laws that ban same-sex marriage, told the Court that all of their number have been moving toward the elimination of discrimination, including that based on sexual orientation, and they argued that Proposition 8 ran directly counter to that trend by singling out same-sex couples for discriminatory treatment in California’s marriage laws.

Briefs addressing religious issues in this controversy reached the Court from a broad coalition of mainstream faith organizations to a collection of atheist and “freethinker” groups.

The competition in amici advocacy

Under the Court’s rules, the briefs of amici are filed in a sequence, with those supporting the group or individual pursuing the appeal to the Court filed first, and those in opposition coming later.  This provides something of an advantage to the later group, because they can seek to counter the earlier group’s arguments, and there is no chance for a rebuttal to their points, except in the reply brief from the party directly involved — here, the sponsors of Proposition 8.   The Court’s rules provide explicitly that the Court’s clerk “will not file a reply brief for an amicus curiae.”

There is no indication, however, that the Court is inclined to favor one wave of amici, or the other.   As the Justices move toward a decision in a case, and begin framing arguments for this or that outcome, they and their clerks will dip into the pile of amici filings to buttress those arguments, or to help them counter points by Justices who are circulating conflicting drafts.  In a case as deeply controversial as the same-sex marriage cases, the competition among amici very likely will balance out.