Marriage Equality Wins Friends–Will They Influence the Court?

If all the supporters of marriage equality who sent briefs to the Supreme Court attended a wedding, the seating plan would be a challenge. Could Clint Eastwood sit in an actual chair next to President Barack Obama without hurling insults? Would footballers Chris Kluwe and Brendon Ayanbadejo bring their NFL teams? And how do you make room for entire companies such as Apple, Walt Disney and Xerox—and the cities of New York, Los Angeles, Seattle, Baltimore and Boston?

These are good problems to have. As the Supreme Court prepares to hear two cases on marriage rights for lesbian and gay citizens, Hollingsworth v. Perry (challenging California’s Proposition 8) and United States v. Windsor (challenging the federal Defense of Marriage Act [DOMA]), the cast of characters who filed friend-of-the-court briefs in favor of equality is large and varied. Marriage equality’s many friends include more than 100 notable Republicans, dozens of major businesses, coalitions of faith leaders, scholarly organizations, family and children’s advocacy groups and our very own Feminist Majority Foundation (in a brief co-authored with the National Organization for Women). So much agreement from such disparate figures is rarely seen, especially in this era of polarized politics.

The best news is that the Obama administration weighed in on the Proposition 8 case, declaring that the U.S. Constitution protects the marriage rights of lesbian and gay citizens. The friend-of-the-court brief filed last week (PDF) by the U.S. solicitor general dismantles the main arguments advanced by the opponents of marriage equality and argues that the marriage ban violates democratic principles:

Proposition 8’s withholding of the designation of marriage is not based on an interest in promoting responsible procreation and child-rearing—petitioners’ central claimed justification for the initiative—but instead on impermissible prejudice. … Prejudice may not … be the basis for differential treatment under the law.

The U.S. government is a named participant in the DOMA case and the Department of Justice has made clear that the federal ban is unconstitutional and refuses to defend it. By taking this stand on Prop 8, the President is now on record with an even more positive stance than before in favor of marriage as a right of all citizens.

Each of the amici briefs brings a particular point of view to the table, with signers drawing on their own experience and expertise to challenge discrimination against lesbians and gay men. Football players Kluwe and Ayanbadejo use a sports analogy to inveigh against governmental intrusion into people’s private lives:

Much as a referee is to call no penalty unless there is a foul—and to let athletes play the game according to their own styles because that maximizes everyone’s enjoyment of the game—government should stay to the side until and unless it can identify a real foul that needs correcting. [PDF]

Ayanbadejo, the son of a Nigerian father and Irish-American mother, was taunted when he was a child in Chicago because of biases against his parents interracial marriage, and in the brief we are told that he “sees today’s fight to legalize same-sex marriage as the 21st century version of the fight for racial equality.”

The brief by Republicans (PDF), who identify themselves as conservatives, moderates and libertarians, contends that marriage is good for the stability of society and that granting lesbians and gay men the right to marry is consistent with a “commitment to limited government and individual freedom.” Briefs submitted to both the Prop 8 case (PDF) and the DOMA case (PDF) by businesses and cities operating in states that have legalized same-sex marriage contend that the “dual regime of DOMA” divides legally married workers into separate and unequal classes based on sexual orientation. Citing principles based on “business judgment,” these employers argue that DOMA blunts their competitive edge:

Our organizations are engaged in national and international competition—for talent, customers and business. That competition demands teamwork, and teamwork thrives when the organization minimizes distracting differences and focuses on a common mission. DOMA’s core mandate—that we single out some of our married colleagues and treat them as a lesser class—upsets this imperative.

The National Organization for Women/Feminist Majority Foundation brief makes the point that because lesbian marriages represent roughly two-thirds of all legally recognized unions, the court’s decision on marriage equality will “necessarily have a disproportionate effect on women.” This brief argues that Proposition 8 violates the Establishment Clause of the United States Constitution, which ensures the separation of church and state in legislation, detailing how the Prop 8 campaign relied heavily on religious themes and supporters:

Over half of the $40 million spent on the campaign in support of Proposition 8 was directly tied to religious organizations and their members or organs of the Church of Jesus Christ of Latter-day Saints. …

Proposition 8 has the effect of furthering the practices of those religions which are doctrinally opposed to same-sex marriage while forcing those whose religious beliefs favor same-sex marriages to conform to practices which are objectionable.

Reading these friend-of-the court briefs will give you a multidimensional view of the many reasons why marriage equality must win out in the end if America is to remain true to its democratic ideals. (DOMA case briefs may be found here; Proposition 8 briefs are available here). Be sure to check out the personal testimony briefs for moving stories about the harm caused by the marriage bans: Parents, Families and Friends of Gays and Lesbians (PFLAG–here); children of same-sex parents and LGBT youth (here); and lesbians and gay men who hope to marry (here).

Another must-read document is the plaintiff’s brief, yet another masterpiece of legal writing from the team of Theodore Olson and David Boies, who understand what it means to speak into the megaphone of history, as the eloquent concluding passage illustrates:

Plaintiffs and hundreds of thousands of gay men and lesbians in California and across the country are being excluded from one of life’s most precious relationships. They may not marry the person they love, the person with whom they wish to partner in building a family and with whom they wish to share their future and their most intimate and private dreams. Although opening to them participation in the unique and immensely valuable institution of marriage will not diminish the value or status of marriage for heterosexuals, withholding it causes infinite and permanent stigma, pain and isolation. It denies gay men and lesbians their identity and their dignity; it labels their families as second-rate. That outcome cannot be squared with the principle of equality and the unalienable right to liberty and the pursuit of happiness that is the bedrock promise of America from the Declaration of Independence to the Fourteenth Amendment, and the dream of all Americans. This badge of inferiority, separateness and inequality must be extinguished. When it is, America will be closer to fulfilling the aspirations of all its citizens.

Friends like these must surely persuade at least five Supreme Court justices to side with marriage equality. History is holding its breath.

The marriage cases go forward in a few short weeks–Proposition 8 on March 26, DOMA on March 27. The court will issue its rulings in June.

Photo courtesy of deviantART user DejanPelzel via Creative Commons


Audrey Bilger is the current president of Reed College, and previously served as vice president and dean of Pomona College. She is also a former professor of literature at Claremont McKenna College and faculty director of the Center for Writing and Public Discourse. She also teaches gender studies, and occasionally yoga. Her latest book, which she co-edited with Michele Kort, is Here Come the Brides! Reflections on Lesbian Love and Marriage (Seal Press, 2012). She is also the author of Laughing Feminism, editor of an edition of Jane Collier’s 1753 satire "An Essay on the Art of Ingeniously Tormenting," and a frequent contributor to Bitch magazine. Her work has been featured in The Paris Review, Rockrgrl, the Huffington Post and the Women's Media Center.