fun with amicus briefs! [doma & the supremes]

cross-posted from the family scholars blog.

(via)

Thanks to Amy's recent post that linked to John Culhane's piece on the importance of amicus briefs, I spent a nerdy afternoon this past weekend browsing through some of the many briefs submitted to the U.S. Supreme Court in relation to the two same-sex marriage cases that will be reviewed by the court this session. They are all available to read in PDF at the American Bar Association's website; you can also find a list at the SCOTUSblog. I thought I'd share a few highlights with you. Of particular interest to the folks at Family Scholars might be the brief submitted jointly by the Family Equality Council, Colage, Our Family Coalition, Gay, Lesbian, and Straight Education Network, the Center on Children and Families,  the Child Rights Project, and Sarah Gogin. Together, they seek to represent the children raised by same-sex parents as well as young people who experience same-sex desire as they look toward a future forming adult relationships. They begin:

The voices of children raised by same-sex parents -- those who live every day within the family structure at the heart of these lawsuits -- are too often unheard in debates about same-sex couples and marriage. Their stories are too often missing from discussions of "traditional" families or "family values," and their personal experience too often discounted as irrelegant. Although those who oppose marriage for same-sex couples frequently make assumptions about the quality of the children's family lives, the children themselves are rarely asked to explain what they actually experience.

Throughout the brief, they foreground the voices of young people who are growing up with LGBT parents, and their list of "authorities" (the brief equivalent of a bibliography) offers a valuable starting point for thosee interested in learning more about the experience of people who have grown up within LGBT households. As the brief asserts,

Although the Proponents [of Proposition 8] claim an interest in stabilizing the American family structure, the elimination of marriage for same-sex couples in California and the refusal to recognize valid married couples on the federal level have the exact opposite effect. Placing an official stamp of governmental opprobrium on the relationships of same-sex parents instead serves to stigmatize and de-legitimize the relationships, and, as a result, the children themselves.

Not to mention, the children of our nation who will grow into adult same-sex desires and relationships:

By officially sanctioning their exclusion from marriage and placing existing marriages of same-sex couples in the singular position of being "not marriages" for federal law, these measures exacerbate feelings of hopelessness about the future and perpetual "different-ness" that many LGBT youth already feel and discourage them from aspiring to full participation in civic life.

As an historian, I was also pleased to see both the Organization of American Historians (OAH) and the American Historical Association  (AHA) had filed briefs discussing the history of marriage law in the United States. The AHA draws on the scholarship of its professional membership to make several key arguments: that the federal government has historically deferred to state law when determining marital status; that the meaning of marriage is not limited to procreation; that marriage practices have changed over time, and that this is a strength not a weakness of marriage as a social institution. From their summary of the arguments:

Control of marital status is reserved to the states in our federal system. Marriage has always been understood as a civil contract embodying a couple's free consent to join in long-lasting intimate and economic union. In authorizing marriage, states turn a couple's vows into a legal status, thus protecting the couple's bond and aiming moreover to advance general social and economic welfare. Throughout U.S. history, states have valued marriage as a means to benefit society. Seeing multiple purposes in marriage, states have encouraged maritally-based households as advantages to public good, whether or not minor children are present, and without regard to biological relationships of descent. ...For two centuries before 1996, state marital diversity reigned, along with serious inter-state contestation, without Congress stepping in to create marital "uniformity" for federal purposes. Congress never took a position on a marital eligibility question pre-emptively so as to discredit a policy choice that a state might make. Before DOMA, federal agencies assessed marriage validity by consulting the relevant state laws. In historical perspective, DOMA appears as an attempt by Congress to single out particular state-licensed marriages for disfavored treatment.

The OHA, in a brief filed with the American Studies Association, takes up a slightly different aspect of the case.  They outline the history of discrimination towards sexual minorities in the United States, and pointing toward legal precedent for taking history into account when assessing the full weight of discriminatory practice:

As professional organizations devoted to the study of American history and culture, amici are not before the Court to advocate a particular legal doctrine or standard. But they wish to advise the court that the historical record is clear. Gay men and lesbians in America have been subjected to generations of intense, irrational, and often violent discrimination, commencing as soon as they emerged as a group into American public consciousness and continuing today.

The NAACP Legal Defense & Educational Fund reminds the court of its historic role in guaranteeing equal protection rights to all citizens, asserting that "The role of the courts is to safeguard the rights of historically subordinated groups by applying heightened scrutiny to laws like DOMA, that disadvantage them as a class."

And finally, it was also heartening to see a number of briefs from religious organizations supporting marriage equality, including one filed on behalf of a truly heartwarming number of faith traditions: the Bishops Of The Episcopal Church In The States Of California, Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, and Washington and The District Of Columbia; The Jewish Theological Seminary Of America; Manhattan Conference Of The Metropolitan New York Synod Of The Evangelical Lutheran Church In America; The Rabbinical Assembly; The Reconstructionist Rabbinical Association; Reconstructionist Rabbinical College; Rabbi Akiva Herzfeld Of Shaarey Tphiloh; The Union For Reform Judaism; Unitarian Universalist Association; United Church Of Christ; The United Synagogue Of Conservative Judaism; Affirmation; Covenant Network Of Presbyterians; Friends For Lesbian, Gay, Bisexual, Transgender, And Queer Concerns; Methodist Federation For Social Action; More Light Presbyterians; Presbyterian Welcome; Reconciling Ministries Network; Reconciling Works: Lutherans For Full Participation; and Religious Institute, Inc. (yes really!). Their premise is:

Americans are a religious people, but diversely so. Religious adherents differ on contentious issues, and religious bodies have themselves evolved and disagreed over time -- on marriage as well as other civil rights and social issues. In view of that history and the wide range of modern religious thought on same-sex unions, it would be a mistake to elevate any one view on marriage above all others as the "Christian" or "religious" view. Indeed, it would be constitutionally inappropriate, because civil marriage is a secular institution ... and the Constitution bars the government from favoring certain religious views over others ... Religious freedom means that all voices may contribute to our national conversation, but particular religious perspectives on marriage cannot be permitted to control civil recognition of marriage for all.

These highlights represent just a handful of the perspectives filed with the court, and I encourage all of you to go explore on your own -- and share what briefs spoke to you, and why, in comments.