A Flurry Of Briefs As Supreme Court’s Same-Sex Marriage Case Looms
By Michael Doyle, McClatchy Washington Bureau (TNS)
WASHINGTON — Many friends descended upon the Supreme Court Friday, some more welcome than others.
In a concerted show of force, same-sex marriage supporters delivered more than 70 amicus curiae briefs urging the court to find that the Constitution prohibits states from limiting marriage to that between a man and a woman.
Also known popularly as friend-of-the-court briefs, the green-covered documents that surged in by a Friday deadline will eventually be matched, in fervor if not in number, by opposing amicus briefs. Of them all, a few may actually make a difference.
“Amicus briefs are influential and can impact both the votes justices cast and the content of their opinions,” Paul M. Collins Jr., director of legal studies at the University of Massachusetts, said in an email Friday. “It is important to recognize, however, that not all amicus briefs are created equal.”
The briefs are supposed to help the court’s nine justices prepare for the April 28 oral argument, in which same-sex marriage restrictions imposed in Kentucky, Tennessee, Michigan and Ohio will be put to the test.
One brief supporting same-sex marriage, for instance, was filed on behalf of 379 companies, ranging from Amazon.com and American Airlines to The Walt Disney Co. and Xerox. Another was signed by 226 mayors.
“It shows (our) extraordinarily broad base of support,” Camilla Taylor, counsel for Lambda Legal, a civil rights advocacy group, said Friday. “It’s really a cross section of society.”
Some briefs provide non-legal research and context, such as an Organization of American Historians’ recounting of anti-gay discrimination. Another, by the American Sociological Association, cites studies concerning the health of children raised by same-sex couples.
Others, less unique and therefore less useful, essentially repeat familiar legal arguments. In part for this reason, many briefs get the brush-off. In 2012-13, research by Arnold & Porter attorneys Anthony J. Franze and R. Reeves Anderson found, the justices cited just 5 percent of the nongovernmental briefs.
In sheer volume, if nothing else, the amicus briefs are also part of an evolution in Supreme Court advocacy. Once relatively rare, amicus briefs now swarm the chambers like so many courtiers, each pleading for but a moment of a justice’s precious time.
In 1946, Supreme Court cases were accompanied by an average of less than one amicus brief. By 2007, cases were receiving an average of more than eight briefs. During the 2012 term, the cases were attracting an average of 14 amicus briefs.
All told, by the 2013 term the high court received more than 1,000 amicus briefs, though it heard oral argument in fewer than 80 cases.
“In the contemporary era, it is the rare case that is not accompanied by amicus briefs,” Collins said.
The individual record, to date, was set by the 136 amicus briefs filed during the 2012 challenge to the individual mandate of the Patient Protection and Affordable Care Act.
The two-hour oral argument on April 28 will focus on two questions, each involving the 14th Amendment to the Constitution’s guarantee of equal protection and due process.
As framed by the court, one question is whether the 14th Amendment will “require a state” to license a marriage between two people of the same sex. The other question is whether states are required to recognize same-sex marriages performed elsewhere.
“Civil marriage is a civil right, that all Americans are entitled to enjoy, whatever their religious identity or sexual orientation,” the California Council of Churches and other California-based religious organizations declared in a brief.
The last time the Supreme Court considered same-sex marriage, in 2013, a total of 96 amicus briefs representing both sides were filed over a challenge to California’s Proposition 8, which banned same-sex marriage. A related challenge to part of the federal Defense of Marriage Act brought in 80 amicus briefs.
These previous same-sex marriage cases, moreover, showed how a clever amicus brief can work. A brief led by Walter Dellinger, an emeritus professor at Duke University School of Law and a former acting solicitor general, was widely credited with helping shape the court’s 5-4 conclusion that Proposition 8’s supporters lacked the legal standing to defend the measure in court.
The brief’s reasoning was tactically deft, in part, because it provided a way for conservative Chief Justice John Roberts Jr. to effectively strike down Prop. 8 without having to rule on what the Constitution says about it.
An equally potent amicus brief signed by retired senior military officers helped persuade conservative Justice Sandra Day O’Connor in 2003 to uphold affirmative action at the University of Michigan Law School.
“High-ranking retired officers and civilian military leaders assert that a highly qualified, racially diverse officer corps is essential to national security,” O’Connor recited in her opinion.
Photo: Marriage Equality rally at the U.S. Supreme Court on First Street between Maryland Avenue and East Capitol Street, NE, Washington DC on Tuesday morning, 26 March 2013 (Elvert Barnes/Flickr)