Amicus Briefs from Unlikely Sources Submitted in Same-Sex Marriage Cases

By: Cody Perkins

When the Supreme Court announced on December 7, 2012 that it would take up two prominent same-sex marriage cases in its next session, Hollingsworth v. Perry and United States v. Windsor, Americans from all facets of life responded with their two cents, in newspapers, online, and in daily conversations within their communities.  Recently, some of those opinions have taken the form of official amicus briefs, filed with the Supreme Court from some unlikely sources and representing a plethora of viewpoints as to how and why same-sex marriage is a good thing for the United States.  The very fact that these sources cared enough to file a brief such as this shows how the case for same-sex marriage has expanded far beyond the partisan, religious arguments that used to dominate the discussion.

One such surprising amicus brief came from the business sector, including numerous Fortune 500 companies.  Over 100 corporations signed onto an amicus brief submitted to the Supreme Court on Thursday, February 28, 2013, and authors of the brief reported having to turn more companies away in order to meet the filing deadline.  Such support and intervention from Corporate America on a civil rights issue is unprecedented, as businesses have largely stayed away from movements and cases not directly related to their bottom line.  However, in their amicus brief, corporations such as Nike, Google, Facebook, eBay, and others cite numerous business interests in legalizing same-sex marriage, such as simplifying taxes and benefits, lowering administrative costs, and boosting employee morale and respect in the workplace.  As of the filing deadline, no businesses had filed amicus briefs opposing same-sex marriage, thus strengthening the symbolic significance of this action from American corporations.

Another unlikely amicus brief was filed in the Hollingsworth v. Perry (“Prop 8”) case on Thursday by football players Chris Kluwe of the Minnesota Vikings and Brendon Ayanbadejo of the Baltimore Ravens, perhaps in response to controversial homophobic statements by fellow NFL players such as those espoused by Chris Culliver of the San Franciso 49ers.  Both Kluwe and Ayanbadejo are from states where gay rights has recently been on the ballot, with Minnesota voting against a constitutional amendment banning same-sex marriage and Maryland voting to legalize same-sex marriage in the November 2012 election.  Their brief focuses on the societal impact of the Prop 8 case, and emphasizes that professional athletes and other role models with influence will take their cue from the Court’s ruling. The brief also likens discrimination based on sexual orientation to racial discrimination. Brendan Ayanbadejo has spoken additionally about how his parents, an interracial couple, would not have been able to marry in many states only decades ago.  This kind of action in support of same-sex marriage from the sports world is rare, as homophobia is still extremely present in professional sports and no active male athlete in a major U.S. sport has come out publicly.  However, this “mainstream” perspective may prove crucial to demonstrating the interest and attention being paid to this case by the straight public.

Perhaps the most surprising and most influential amicus brief in support of same-sex marriage is that which has been signed by over 130 prominent Republicans (and counting), a distinct departure from the generally anti-same-sex marriage stance espoused by many in the GOP in the November 2012 election.  Signatories include former top Republican officials, such as former governors John Huntsman (UT), William Weld and Jane Swift (MA), Deborah Pryce (OH) and Christine Todd Whitman (NJ), and former Congress member Charles Bass (NH), as well as top advisors to former President George W. Bush, top aides and advisors to Mitt Romney, and two Representatives still serving in Congress, Richard Hanna (NY) and Ileana Ros-Lehtinen (FL).  The brief makes the conservative, constitutional case for same-sex marriage, citing the championed conservative cases of Citizens United and District of Columbia v. Heller.  Many speculate that this brief more than all the others could make the difference in this conservative Court.  In emphasizing bipartisan support for same-sex marriage and demonstrating the very real changes in opinion that are happening all around the country (as many signatories had espoused views opposing same-sex marriage in the past), this brief could be crucial in showing the Court exactly how public opinion is trending towards acceptance of same-sex couples and their families.

Finally (and perhaps least surprising, but nonetheless incredibly influential) is the amicus brief submitted by the current Presidential Administration in support of same-sex marriage.  President Obama ordered the U.S. Department of Justice to cease defending the Defense of Marriage Act in 2011, and the President has since expressed his own support for same-sex marriage in interviews, speeches, and most recently in his second inaugural address.  The Administration’s amicus brief calls specifically for the legal standard of heightened scrutiny to be applied in the Prop 8 case, and argues that Prop 8 violates the Equal Protection Clause of the of the Fourteenth Amendment.  No sitting President has ever voiced support for same-sex marriage before, and as the elected head of the country, his active and official support for this issue is incredibly indicative of the views and beliefs of the American public.

Of course, these briefs are only a few of the dozens submitted in both the Windsor and Prop 8 cases, from states, unions, and individuals on both sides.  However, they represent a very clear trend toward acceptance and tolerance on behalf of diverse parts of the American public, and should be given due weight in the Supreme Court’s decisions.  Same-sex marriage is an issue that speaks to the ideals and freedoms the United States was founded upon, and while only the constitutionality of Prop 8 and DOMA is before the Court, the impact on society as a whole should be taken into consideration.  Along with the growing number of states in which same-sex marriage is now legal, these amicus briefs demonstrate that discrimination against gay and lesbian people is more and more becoming a thing of the past.

Sources:

http://espn.go.com/nfl/story/_/id/9000545/chris-kluwe-brendon-ayanbadejo-file-amicus-brief-california-favoring-same-sex-marriage

http://www.afer.org/wp-content/uploads/2013/02/12-144-bsac-KluweAyanbadejo.pdf

http://www.nytimes.com/2013/02/26/us/politics/prominent-republicans-sign-brief-in-support-of-same-sex-marriage.html

http://www.thedailybeast.com/articles/2013/02/27/david-frum-why-i-signed-the-republican-brief-supporting-same-sex-marriage.html

http://www.huffingtonpost.com/2013/02/26/republicans-same-sex-marriage-supreme-court_n_2764743.html

http://www.nytimes.com/2013/03/02/business/businesses-refuse-to-arrive-late-on-same-sex-marriage.html?emc=eta1

http://www.washingtonpost.com/politics/obama-urges-supreme-court-to-overturn-calif-same-sex-marriage-ban/2013/02/28/519b0d18-81ec-11e2-b99e-6baf4ebe42df_story_2.html

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