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Preview on same-sex marriage — Part III, Supporting the couples

This is the third post in a four-part series on the written arguments that have been filed in the same-sex marriage cases at the Supreme Court.  This post covers the briefs filed by individuals and organizations supporting the couples’ challenge to the states’ bans, including the brief filed by the federal government.  The final post will cover the briefs supporting the states’ bans.  The first two articles in this series covered the briefs filed by the challengers and the four states defending their bans, respectively.  

When the Supreme Court takes on a high-profile case, it immediately creates a wide constituency of people and organizations that will be affected, directly or indirectly.  And each of those may add to the flood of legal briefs that their lawyers file — so-called “amicus” or “friend-of-the-Court” briefs.  If the Court policed its own rules more tightly, many of those might not be welcome.

The rules specify that amicus briefs should “bring[] to the attention of the Court relevant matter not already brought to its attention by the parties.”  Such a filing, it goes on to say, “may be of considerable help to the Court.”  But it adds, if a brief does not “serve this purpose,” it will be a burden on the Court, and “its filing is not favored.”

In reality, the Court tolerates wide overlap between the parties’ filings and those of their “friends,” and among just the friends’ briefs, the overlap is equally evident.  The Justices and their clerks will find that is true again in the same-sex marriage cases, if they dig into the seventy-two amicus briefs in support of the couples and the nearly seventy supporting the states’ bans.  There are also four other briefs that claim to support neither side, but three of those come down against same-sex marriage, while the fourth supports it.

If the couples pursuing their challenges to state bans do have an advantage — and it is not easy to measure  — it would be that the federal government has lined up on their side, at least in urging the Court to strike down the marriage bans.  The Court often relies on the Justice Department’s lawyers for legal advice, as a kind of outside counsel.  But the presence of the government is not a guarantee of victory for the position it takes.

The Obama administration has become the strongest government supporter of gay rights in history, having first fought –in court and then with repeal in Congress — for the end of the “don’t ask, don’t tell” policy limiting gays in the military.  Although it came somewhat slowly to the same-sex marriage position it now holds, having for a time defended a provision of the federal Defense of Marriage Act that barred federal benefits for already married same-sex couples, since switching positions it has not hesitated to turn every victory of same-sex couples in courts into a guarantee that they would receive full federal marital benefits, even when some doubts lingered on whether those victories were final.

The Justice Department did not take an active part in the wave of lower court rulings that followed the Supreme Court’s decision striking down the Defense of Marriage Act, which set off those rulings, but there was little doubt that, when the issue got to the Supreme Court, it would be there alongside the couples.  And it has sought to bolster the challenge to state bans on marriage by arguing that they should have to satisfy a more rigorous constitutional test, known as “heightened scrutiny,” to survive.

Although the Court in recent years had issued several gay rights decision, it has never specified what constitutional standard it was applying; it did not do so, for example, in its 2013 decision striking down the provision of the Defense of Marriage Act.

But the federal government’s brief in the same-sex marriage cases directly pleaded with the Court to declare, for the first time, that a person’s “sexual orientation” should be treated as the kind of human characteristic that has long suffered from discrimination, so that it now should be protected by a “heightened scrutiny” standard when that characteristic is targeted.

While the Justice Department is taking part in these cases only to support the challenge to the marriage bans, it makes a few passing references in its brief to its separate view that a state’s refusal to recognize a same-sex marriage performed in another state also violates the Fourteenth Amendment guarantee of equal protection of the laws.

The Department’s brief does not take a position on the second constitutional challenge to the marriage bans: that is, that they violate a fundamental right to marry in violation of the Constitution’s Due Process Clause.  There is no explanation for the omission, but it may have resulted from a caution about confronting the question of how fundamental the right may be.

One of the most vivid points emerging from six dozen amicus briefs in favor of the couples is that only a few of them separately discuss the marriage licensing and marriage recognition issues. In fact, there appear to be only one brief — by a group of law professors specializing in “conflict of laws” —  that is devoted entirely to the recognition question.

It seems obvious that most of the lawyers filing these briefs were operating on the assumption that a decision nullifying a state’s marriage ban would very likely undercut the constitutional basis for treating existing married couples differently, depending upon where their marriages were performed.

Another somewhat startling revelation in these briefs is how few of them attempt to thoroughly discredit the states’ argument that a ban on same-sex marriage is necessary to encourage opposite-sex couples to marry and have children.  To be sure, there is a brief by a UCLA professor, Gary J. Gates, that answers that claim head on based on clinical studies.

There are also a considerable stack of briefs filed by family welfare and family equality groups that take up the defense of the child in a same-sex marriage.  There are a number of employer and other business groups that complain of the impact of marriage bans on their workers and their families, and there is a similar brief by former Pentagon officials and military leaders, contending that denial of full marital benefits to military families is actually a threat to military readiness.

The most impressive effort in compiling one of these briefs was the one filed by Human Rights Campaign, which submitted to the Court a massive petition containing 207,351 signatures.

There are many special-interest groups, such as advocates for gay health arguing that discrimination imperils their physical and emotional well-being, a gay men’s chorus in Cleveland pleading for tolerance, gay college student groups, former high-ranking government officials who are Republican and gay, and mainstream religious groups arguing for religious tolerance.

Law professors, including some big names at major law schools, take up the cause to base the decision on the Due Process Clause of the Fourteenth Amendment, an argument that the Justice Department left out of its brief.

Briefs by civil rights groups abound, seeking to reacquaint the Court with the history of discrimination in America against homosexuals.

The state of Hawaii, where the first modern test case on same-sex marriage began in 1992, has filed a brief describing its move toward same-sex marriage.   And Minnesota, where a same-sex couple sought a marriage license only to be told by the Supreme Court in 1972 that their case did not raise a “substantial federal question,” has submitted a brief recounting how times have changed since then.

Recommended Citation: Lyle Denniston, Preview on same-sex marriage — Part III, Supporting the couples, SCOTUSblog (Apr. 15, 2015, 12:03 AM),