The amicus briefs that we’ve all waited for

Timothy Kincaid

November 1st, 2010

In September the Proponents of Proposition 8 filed an appeal (along with their argument for being granted standing to appeal) and several anti-gay activist groups filed amicus (friend of the court) briefs to support their position. At the time it felt a bit lonely.

But last month the Plaintiffs in Perry v. Schwarzenegger filed their rebuttal and it was turn for advocates for equality and constitutional law to let their opinions be known. And a great many did so.

Kathleen Perrin has loaded all of the filings in this case on her Scribed site so you can read each one there. Some are well worth the time. I’ll not provide a synopsis here for each amicus brief, but rather will group them in category and provide a few of the better quotes

The numbers refer to the court document filing. In some instances some of the entities who filed together in a joint brief fit in different categories so you’ll see the number more than once. In in few cases I was completely baffled as to what these organizations had in common.


163 – American Psychological Association, The California Psychological Association, The American Psychiatric Association, and The American Association for Marriage and Family Therapy – representing nearly 250,000 mental health professionals, this very dry brief calmly lays out the methods by which one should evaluate studies, and presented “an accurate and balanced summary of the current state of scientific and professional knowledge concerning sexual orientation and the family relevant to this case.”

193 – American Anthropological Association, American Psychoanalytic Association, National Association of Social Workers, National Association of Social Workers, California Chapter, American Sociological Association, and American Academy of Pediatrics, California – wrote in to share “the psychological and social ramifications of discrimination.”


150 – Justice Donald B. King and the American Academy of Matrimonial Lawyers (N. Cal) – King is a sort of super-judge on family law issues who claims to have “authored more published opinions in family law cases than any appellate justice in California’s history”.

To assess the rationality of Proposition 8, the proper comparison is whether legal recognition of a supposedly “sub-optimal” environment would be better for the child than what the actual alternative would be. And here, the alternative is not that a child being reared by parents in a same-sex relationship is suddenly going to be swooped up and deposited into the “optimal” environment of the home of an opposite-sex married couple. The alternative is that, rather than having that child’s household environment (two loving same-sex parents) being accorded full and legitimate status in the eyes of the law, that child instead will be reared in the very same home, but with Proposition 8’s mark and brand of inferiority.

152 – Bay Area Lawyers for Individual Freedom – this is a collection of 42 organizations, including national, metropolitan, local, and minority bar associations and national and local non-profit organizations. They range in size and focus from the Los Angeles County Bar Association, with 27,000 members, to the much smaller Bay Area Association of Muslim Lawyers.

201 – Another nine groups signed on to BALIF’s arguments.

167 – California Professors of Family Law – these 26 professors teach law at USC, Stanford, UCLA, California Western, UC Davis, Santa Clara, Loyola Marymount, University of San Francisco, Whittier, Berkeley, McGeorge, Pepperdine, Hastings, and Golden Gate University.

172 – Howard University School of Law Civil Rights Clinic – Howard is among the oldest and most revered of the traditionally black universities. They spoke from a history of civil rights and made comparisons that the gay community on its own dare not claim. Read this brief. The conclusion is truly touching:

In the final analysis, there is nothing new in the arguments against same-sex couples having the freedom to marry. However much opponents of marriage for same-sex couples may insist “this time it is different,” there remains an appalling familiarity to the refrain that allowing same-sex couples the same human dignity as everyone else will threaten social order, degrade individuals, and harm children. We suffered through the same awful dirge when slave owners sought to preserve the ban against slave marriage and segregationists opposed interracial marriage. Then, as now, some claimed with all sincerity and unwavering conviction that, if African-Americans were accorded full human dignity, our society, our morality, and our faith would come to grief and lay in ruins.

But the certainty and monotony with which some will always sound the death knell for society, morality, and faith, just because two adults choose to marry cannot obscure the reality that we heard virtually the same arguments for almost three hundred years to justify preventing two black people from marrying and then a black man from marrying a white woman. Nor, when all is said and done, can these jeremiads about how marriage equality for same-sex couples will lead to our final slouching toward Gomorrah obscure the reality recognized long ago by the great African-American gay writer, James Baldwin, that it is “an inexorable law that one cannot deny the humanity of another without diminishing one’s own.”

175 – National LGBT Bar Association – an umbrella group for other local LGBT bar associations which has since 1992 been an affiliate of the American Bar Association.

187 – Professors William N. Eskridge, Jr., Rebecca L. Brown, Bruce A. Ackerman, Daniel A. Farber, Kenneth L. Karst, and Andrew Kippelman – professors of constitutional law at Yale, USC, Berkeley, UCLA, and Northwestern.

188 – Constitutional Law and Civil Procedure Professors Erwin Chemerinsky, Pamela Karlan, Arther Miller, and Judith Resnik, et al. – The “et al.” includes Bryan Adamson, Janet Cooper Alexander, Barbara A. Atwood, Barbara Babcock, Joshua P. Davis, David L. Faigman, Toni M. Massaro, David Oppenheimer, Fred Smith, and Larry Yackle. Chemerinski is the founding dean of UC Irvine School of Law. Also represented are Yale, Stanford, Seattle, University of Arizona, University of San Francisco, Hastings, Berkeley, NYU, and Boston University.

197 – ACLU Foundation of Northern California, Gay and Lesbian Advocates and Defenders, Lambda Legal Defense and Education Fund, Inc., and National Center for Lesbian Rights – these guys fought the good fight before Olson and Boies. Together, the ACLU-NC, Lambda Legal, and NCLR were counsel in In re Marriage Cases, the lawsuit which brought marriage equality to California for the summer of 2008, and GLAD was counsel in Goodridge v. Dept. of Pub. Health and Kerrigan v. Comm’r of Pub. Health, which won marriage equality for Massachusetts and Connecticut.

Proposition 8 constitutes a per se violation of the Equal Protection Clause—i.e., a law that serves no purpose other than to mark one class of citizens as inferior to others—and is unconstitutional regardless of the applicable level of scrutiny


158 – Legislators from the United States Jurisdictions that have legalized same-sex marriage – These politicians – prominent and obscure, local and state-wide – from Vermont, Connecticut, New Hampshire, Iowa, and the District of Columbia submitted numerical evidence that the “parade of horribles” which anti-gay activists fear have no basis in reality.

Since the legalization of same-sex marriage in their jurisdictions, these legislators have witnessed none of the harm to marriage and families claimed by opponents of marriage equality. They submit this brief to document the absence of any ill effects of legalizing same-sex marriage in their jurisdictions, in order to refute the argument made by the proponents of Proposition 8 and their amici that legalizing same-sex marriage results in a series of deleterious effects on heterosexual couples, the institution of marriage, and children reared in jurisdictions where same-sex couples are permitted to marry. This brief is being filed with the consent of the parties

176 – The Commonwealth of Massachusetts – not only have they not had problems, marriages have become more stable.

Since same-sex couples began marrying here in 2004, Massachusetts’ marriage rate has remained stable, its divorce rate has declined, and its nonmarital birth rate has remained well below the national average. Marriage equality has also led to greater acceptance of gays, lesbians, and their children, increased stability for gay and lesbian families, and improved public health outcomes.


198 – California Faith for Equality, California Council of Churches, General Synod of the United Church of Christ, Univeral Fellowship of Metropolitan Community Churches, The Episcopal Bishops of California and Los Angeles, Progressive Jewish Alliance, Pacific Association of Reform Rabbis, Unitarian Universalist Association, and Unitarian Universalist Legislative Ministry California – Interestingly, the Unitarians, Episcopalians, and Pilgrims (UCC) trace their roots to the earliest foundation of our nation.

Though Proponents’ amici suggest that Proposition 8’s demolition of same-sex couples’ right to marry was designed to protect Californians’ religious liberty, quite the opposite is true. The real threat to religious liberty comes from enforcing as law the religious doctrines of some sects, to outlaw marriages that others both recognize and sanctify. Clergy and congregations of the Unitarian Universalist Association, the United Church of Christ, the Universal Fellowship of Metropolitan Community Churches, Reform and Reconstructionist Rabbis, and others, proudly solemnized the legal marriages of same-sex couples – until Proposition 8 adopted other sects’ religious doctrine to outlaw those marriages. They should be free to do so again.


151 – Constitutional Accountability Center – a progressive think tank

162 – National Gay and Lesbian Task Force, Human Rights Campaign, American Humanist Association, and Courage Campaign Institute – basically Gay, Inc. … and the humanists.

172 – Americans United for the Separation of Church and State – they signed on to Howard University’s amazing brief.

181 – California Teachers Association – on behalf of their 300,000 members and 1,000 school districts in the state, they corrected the lies spread by the Proposition 8 campaign.

182 – Anti-Defamation League – perhaps drawing on the “you can blend in” experiences of Jews in our history this ardent opponent of anti-Semitism made an odd but interesting argument.

Discrimination and hate crimes against gays and lesbians are all too prevalent in our society and the segregated system required by Proposition 8 puts gays and lesbians who wish to enter state-recognized committed relationships at risk because it forces them to disclose their sexual orientation in situations where it is completely irrelevant and potentially unsafe to do so. Extending the right to marry to same-sex couples would remedy the constitutional infirmities of the segregated system and also leave the decision of when and where to disclose one’s sexual orientation to the discretion of the individual.

183 – NAACP Legal Defense & Education Fund, Inc. – as with Howard University, they draw on the history of marriage discrimination. Mildred Loving would be proud.

Over 40 years ago, in Loving v. Virginia—a case in which LDF participated as amicus—the Supreme Court was confronted with the constitutionality of prohibitions on interracial marriage, which persisted in sixteen states nearly one hundred years after the Fourteenth Amendment was adopted in 1868. In a significant step forward in our nation’s progress toward a “more perfect Union”—one that was the subject of bitter controversy, but now seems obvious—the Supreme Court tore down this lasting and notorious form of discrimination, holding that anti-miscegenation laws violate the Constitutional guarantees of Equal Protection and Due Process.

The basic Fourteenth Amendment principles addressed in Loving are not limited to race, but must be universally applied to any state action that denies a person the right to marry the person that he or she loves.

196 – The Southern Poverty Law Center – this civil rights icon added to the voices unashamed to discuss marriage in terms of the continuum of forms that discrimination has taken.

199 – Asian American Justice Center, Asian Law Caucus, Asian American Institute, Asian Pacific American Legal Center, Asian Pacific American Women Lawyers Alliance, Asian Pacific Islander Legal Outreach, API Equality, California Conference of the NAACP, Chinese for Affirmative Action, Coalition for Humane Immigrant Rights of Los Angeles, Korematsu Center at Seattle University, Mexican American Legal Defense and Education Fund, and the Zuna Institute – remind the court that all minorities are threatened when the majority is unlimited in its ability to deny fundamental rights.

Amici are concerned that enactment of Proposition 8’s ban on same-sex marriage allows a bare political majority to enshrine discrimination into the California Constitution against a class of persons otherwise accorded heightened judicial scrutiny under California law. Amici believe the use of the referendum process to deprive gay men and lesbians of a fundamental right without the protection of heightened scrutiny raises the likelihood that other classes protected under California law—including classes defined by race, ethnicity, national origin or gender—may be similarly deprived of long established civil rights. Amici share a common interest in ensuring that the fundamental right of protected classes to be free from discrimination is not at the mercy of an electoral majority’s whims.

200 – Equality California – Gay California, Inc.


166 – Jon B. Eisenberg – submitted an argument that the whole initiative and proposition process is in violation of the California Constitution because it was incorrectly implemented in 1911.

Looking back to the list of notable amici who argued for the right of the people to take away fundamental rights from an unfavored minority, they just don’t look so impressive any more.


November 1st, 2010

I’m particularly interested in the amicus curiae from Massachusetts. Thanks for sharing!

designing wally

November 1st, 2010

plain, simple, elegant…
thany you


November 1st, 2010

It lends dignity to my being, to hear such solidarity from the ‘Halls of Academia and Law’.


November 1st, 2010

Oh, my, this will keep the NRO in print for weeks. I’m sure they’ve given Maggie seven interns to comb through all these for anything they can sensationalize.

enough already

November 2nd, 2010

Goodness! Thank you for the summaries!

At a time when a significant number of Americans believe the sun orbits the earth, don’t believe global warming is relevant (or true) and consider it irrelevant, at best, whether the earth is six thousand years old or 4-6 billion, it is heart-warming to see that competent research and genuine science still have a place in the country’s governance.

Oh, forgot the biggest gap in the christianists education: The judiciary is an equal organ to the other two, not an adjunct for imposing the death penalty and processing parking tickets.

We are in for a bad Tuesday, this was a spark of reason and sanity. Again, thank you.


November 2nd, 2010

The brief from Massachusetts was well-worth reading. It deflates most of the fear-mongering speculations that our opponents throw out there.


November 2nd, 2010

Has anyone recognized that the gay issue has seemed to slipped off the radar of major issues?


November 2nd, 2010

Somebody need to send the Howard amicus special delivery to President Obama. AWESOME!!!!

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