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Prop 8 Amicus Briefs, Brought to You by the Lunatic Fringe

Jim Burroway

January 30th, 2013

Dozens of organizations and individuals have filed Amicus Curiae briefs with the U.S. Supreme Court arguing either for or against California’s Proposition 8. A couple of them are worth looking at, if for no other reason than for their entertainment value. For example, there’s this brief filed by Margie Phelps for Westboro
Baptist Church. Amicus Curiae briefs are expected to follow several conventions, and the ways in which Westboro’s brief observes them is indicative of Westboro’s highly entertaining approach to things.

First, instead of being a brief in support of petitioners (the pro-Prop 8 side) or respondents (the side that wants to overturn Prop 8), Westboro’s brief is filed “in support of neither party.” Okay.

And then there’s the Table of Authorities. A typical brief will be loaded up with citations to case law, along with other citations to “other authorities,” which would include sources like studies, articles, books, speeches, transcripts, etc. Of Westboro’s 66 citations under “Other Authorities,” 36 of them are Bible quotes. Which means that there are several pages with nothing but reproduced bible passages, including five pages devoted to the entire story of Sodom and Gomorrah. (“This historical event described in Genesis 19:1-28, Holy Bible, must be considered at this hour…”) The brief also has a lengthy retelling of the Great Flood (“The description of the complete destruction of all mankind – a population as or bigger than today’s population…”).

And after all that, Westboro concludes:

Same-sex marriage will destroy this nation. If the leaders of this country treat what God has called abominable as something to be respected, revered,and blessed with the seal of approval of the government, that will cross a final line with God. The harm that will befall this nation, when the condign destructive wrath of God pours out on a nation that purposefully, in a calculating manner, institutionalizes marriage licenses for same-sex unions, is the ultimate harm to the health, welfare and safety of the people. The government is duty bound – in this Christian nation – to institute the standard of God on marriage, and pass and uphold laws that forbid same-sex marriage.

By the way, Westboro filed an identical brief for United States v Windsor, which challenges the constitutionality of the Defense of Marriage Act. If nothing else, I guess that ensures both consistency as well as economy.

Another interesting brief (PDF: 127KB/ 14 pages) calling for the court to uphold Prop 8 comes from a man by the name of David Benkoff. It’s been nearly four years since we last heard from him. Here’s how Timothy Kincaid introduced him to BTB readers in 2008:

David Benkof has been getting a bit of attention lately.

And at first glace David appears to be a young gay man who believes that there are better options for gay couples than marriage, that the community should join him in prioritizing other more pressing issues, that the marriage discussion is harming the efforts of gay couples in red states to get recognition for their unions, and that he wants to help. We’d also think that he’s a gay columnist, that he speaks for an influential collection of gay thinkers, and that he is part of the gay and lesbian community and shares our goals and dreams.

None of that is true.

During the Prop 8 campaign, he trotted out his gay/straight/bi/Idunno-guy-against-same-sex-marriage schtick with a web site called “Gays Defend Marriage,” in which he claimed to be a “gay columnist” who was against same-sex marriage. Timothy Kincaid exposed the charade, Benkoff doubled down, and then he abruptly left the scene, saying he “recently learned quite a bit of disturbing information that makes it impossible for me to continue supporting a movement I no longer respect.”

Well, he’s back now. And for this amicus brief, Benkof teamed up with Robert Oscar Lopez (described as a bisexual man who was raised by two lesbian mothers and who is currently heterosexually married), and Doug Mainwaring (a man who raised two teenage sons after separating from his wife and coming out gay.) Again, we see a familiar pattern: people with life credentials which are supposed to demonstrate their connection to the gay community but who are arguing that the gay community needs to be shown its second-class place in society. Lopez has been playing that schtick at the Witherspoon Institute, which sponsored the flawed Regneres paper claiming to study “gay parents.” Lopez contributed an anti-gay tract at the Witherspoon Institute’s web site praising Regnerus’s paper. Mainwaring is a NOM discovery, who wrote in opposition to same-sex marriage in a tea party newsletter and, more recently, in The Christian Post. Their brief includes all of the standard NOM talking points — watered down and polited up, like NOM might be when on its very best behavior — to try to make the impression that there is an undiscovered reservoir of gay people who oppose marriage equality:

Amici  come from a variety of families of origin, we have different religious beliefs and we differ among ourselves about whether legislature should redefine marriage to include same-sex couples. We all believe, however, that Americans ought not be labeled hateful bigots for opposing redefinition.

Our position is based on a shared commitment that marriage is society’s institutional expression of a child’s right to a mother and a father. We are not alone. The ongoing debate over marriage in France has prominently featured gay people who support keeping the understanding of marriage as a union of a husband and wife.

We, and they, believe gay people should be free to love and live as they choose but we also recognize that society has a right to express a rational preference for the kind of unions necessary to the survival of the whole society, and to the well-being of children. Some gay, lesbian and bisexual people will benefit from this preference as they marry a person of the opposite sex.

As you can well guess, Benkof and friends are utterly silent about how LGB people might “benefit from this preference.” They just kind of put that out there. The rest of the brief is basically 14 pages of concern trolling amidst a complete absence of actual facts. (Interestingly, they don’t even bother to mention the Regnerus paper.) It’s much like the Westboro brief that way. Birds of a feather…



January 30th, 2013 | LINK

I wonder where they got the idea that the pre-flood population was at least as large as the modern day one?

Even setting aside whether it even happened at all, that seems to be out of nowhere.

January 30th, 2013 | LINK

Does anyone know how one would go about filing an amicus brief?

January 30th, 2013 | LINK

The correct word is “animus brief”

Michael C
January 30th, 2013 | LINK

Hyhybt, according to some creationists, not only was the population larger before the flood than it is today, but the population was also larger than it is today. Larger like taller-larger. Kent Hovind teaches that humans were probably upwards of fifteen feet tall and lived six to nine hundred years.

…talk about “out of nowhere.”

Timothy Kincaid
January 30th, 2013 | LINK

Doug Mainwaring is back living with his wife.

January 30th, 2013 | LINK

There is something really not right with Lopez. There is an obsessive quality to his writing on this topic. A few days ago, he published a lengthy formal statement calling upon the international community to intervene militarily in the United States to prevent gay marriage and gay adoption. It doesn’t read like a theatrical exercise; he really seems to believe that his statement will be taken seriously and that it is not insane.

As for the brief, the fact that it doesn’t cite cases is not really an issue. This is a purported amicus brief and these purported amici are not claiming to have any new legal perspective to air. Whatever value they bring to the table as amici would be in their perspective on the relevant facts or public policy implications of the court’s ruling. But there is nothing in their brief that says anything new. They seem to think that simply because they are gay and are repeating the appellants’ arguments, that this bestows some value on their brief. It doesn’t. I really wonder if they properly moved for leave to file this amicus brief, or if they just went ahead and filed it without permission.

Jim Burroway
January 30th, 2013 | LINK

Actually, my point wasn’t jsut that the brief didn’t cite cases, but rather that it didn’t cite facts.

Timothy Kincaid
January 30th, 2013 | LINK

Now Mr. Burroway, are you suggesting that the Bible is not a encyclopedia of historical facts that can be relied upon to accurately supply dates and details of events from the past?

Sigh, I would argue with you but my stegosaurus gets cranky if I don’t walk him.

January 30th, 2013 | LINK

Thanks for mentioning that bit about Lopez. Ive noticed it too. You can read alot of his old writings at American Thinker. There is a spit fire quality to the writing. Its very hard to follow. It seems that he had a very difficult time in his teens and twenties, and he still carries around alot of anger from it.

John D
January 30th, 2013 | LINK


If you want to file an amicus brief, you need to either be a lawyer (Marjorie Phelps, for example, is counsel on the Westboro brief) or work with a lawyer (as these three did).

If you’re thinking of submitting an amicus in support of striking down Prop 8, I’d advise you to save your time.

I just finished reading “Flagrant Conduce,” Dale Carpenter’s book on “Lawrence v. Texas.” One thing that hurt the Texas case was the number of crazy briefs sent in by anti-gay amici. All they did was point out how the Texas arguments were tied to animus against gay people.

January 30th, 2013 | LINK

Crap, had a really informative comment just about done, coughed moved my finger on the iPad and lost it.

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