With the U.S. Supreme Court set to take up a case that will determine the fate of California’s same-sex marriage ban and perhaps have legal ramifications beyond the Golden State, it also has the somewhat unusual opportunity to consider the views of two National Football League players with strong opinions on the matter.
Baltimore Ravens linebacker Brendon Ayanbadejo and Minnesota Vikings punter Chris Kluwe—both of whom have vigorously backed state-level efforts aimed at legalizing same-sex marriage—teamed up to file an amicus curiae or "friend of the court" brief Feb. 28 urging the nation’s highest court to strike down the California law barring gay and lesbian couples from marrying.
The players—whose filing came the same day the Obama administration weighed in with its own brief calling on the Supreme Court to reverse the California ban—are being represented pro bono by Wiley Rein alum and current Emory University School of Law associate dean and professor Timothy Holbrook in Atlanta and Fish & Richardson IP partner John Dragseth in Minneapolis, the co-chairman of the firm’s appellate group.
Dragseth—an appellate litigation guru—told The Am Law Daily via email that it was Twitter that led him to join forces with Kluwe on the brief.
When the Supreme Court—after staying silent on the subject through most of last year—agreed in early December to hear two historic same-sex marriage cases, including the Hollingsworth v. Perry challenge to California’s Proposition 8 law, Kluwe tweeted news of the court’s decision. As one of the punter’s 160,700 Twitter followers, Dragseth saw the tweet and responded by suggesting to KIuwe that given his well-articulated views on the subject of gay marriage, he should submit a brief on the matter.
Dragseth, who during his morning commute would hear Kluwe occasionally appear on local talk radio, says he offered to help write the brief for free. He adds that in Kluwe, whom he says played an active role in preparing the filing, he saw somewhat of a kindred soul. "I understand that Chris is a speed reader who aced his SAT verbals—and he actually did an early draft of the brief that set the tone for it," Dragseth says. "Moreoever, he’s a über-nerd, and I’m an expert in that arena since I spend most of my time with patents and inventors."
Dragseth says that after he and Kluwe agreed to collaborate, they then brought in Holbrook, whom Dragseth got to know when the two men clerked together years ago on the U.S. Court of Appeals for the Federal Circuit, and Ayanbadejo—who has written and spoken out in support of gay marriage for years and during the NFL’s offseason is pursuing an MBA at George Washington University in Washington, D.C.
Besides hearing the Obama administration express its opposition to California’s same-sex marriage ban via U.S. solicitor general—and former Jenner & Block partner—Donald Verrilli Jr., the Supreme Court has received a blizzard of other amicus briefs.
While a number have come from large corporations, another brief that received much of the publicity over the past week was the one signed by 131 prominent Republicans, including Patton Boggs political law partner Benjamin Ginsberg (national counsel to Mitt Romney’s GOP presidential campaign) and hedge fund general counsel James Comey (a high-ranking Justice Department official during the second Bush administration), supporting freedom to marry.
Dragseth, though, thinks the brief submitted by Kluwe and Ayanbadejo is different. The two men, he notes, "live very transparent lives through social media" and have "written on a variety of topics," making them ideal candidates to weigh in before the country’s top court on an important issue with major political and societal ramifications. It doesn’t hurt, he adds, that they are widely known for playing America’s most popular professional sport.
"We had a general agreement that the brief had to be more accessible than academic," Dragseth says. "We also felt that an amicus brief was appropriate because they had something to say that all the suit-wearing folks who were likely to file the other briefs could not say. And whether you think athletes should be heard from or not, people do pay attention to them, and we tried to get that message across as clearly as possible."
Since both Kluwe and Ayanbadejo have spoken out so many times in support of same-sex marriage, Dragseth says he had a pretty good idea of what they wanted to say in their brief, thus reducing the need for line-by-line edits and long teleconference calls. "These guys know what they believe, and they don’t let PR concerns get in the way," Dragseth adds.
The Supreme Court’s nine justices are scheduled to hear oral arguments in the case on March 26 and to consider another New York case that challenges the constitutionality of the federal Defense of Marriage Act the following day. (In the latter case, a legal team led by Paul, Weiss, Rifkind, Wharton & Garrison litigation partner Roberta Kaplan and the American Civil Liberties Union are representing Edith Windsor in in her constitutional challenge to DoMA.)
Gay marriage advocates are being represented in Hollingsworth by a bipartisan legal team fronted by legal luminaries David Boies of Boies, Schiller & Flexner and Theodore Olson of Gibson, Dunn & Crutcher, whose unlikely alliance announced three years ago has resulted in a book deal. Olson and Boies face a formidable adversary in ex-solicitor general Paul Clement, who quit his former firm, King & Spalding in 2011, over the DoMA case and joined Bancroft, a bastion of legal conservatism in Washington, D.C.
U.S. District Judge Vaughn Walker in San Francisco, who has since retired, overturned California’s Prop 8 law in August 2010. Last year the U.S. Court of Appeals for the Ninth Circuit upheld Walker’s decision, ruling that the state’s Prop 8 ban on same-sex marriage was unconstitutional. The Supreme Court will now determine the law’s legality, and Kluwe and Ayanbadejo hope their opinion has an impact on the ultimate decision.
"If the Court reverses the Ninth Circuit, many professional athletes will take their cues from that," write Kluwe, Ayanbadejo, and their attorneys in the brief. "And that will cause a ripple effect as even more people follow their role models, their leaders, their heroes. Those against same-sex marriage? They will use it as yet another tool to support their preconceived idea that gay Americans, who pay their taxes, serve in our military, and by every measure of societal participation are superior neighbors and citizens, are instead second-class members of society."
Despite all the legal firepower involved in the case, Dragseth says he believes the main lesson to be gleaned from Kluwe and Ayanbadejo’s support for same-sex marriage is how it’s changed the culture of the NFL and in turn possibly affected the league’s legions of fans.
"I think people take them a bit for granted now because their message has gone over pretty well, but that was not a guaranteed thing when they started talking," Dragseth says. "They could have been pretty lonely on their teams if things had spun the other way. The fact that they are at least being allowed to talk and are being respected by their teams and teammates has led to things like the San Francisco 49ers’ swift action when one of their players made an ill-advised comment."
The 49ers sent cornerback Chris Culliver to sensitivity training for comments he made before the Super Bowl about the possibility of having a gay teammate.
"I don’t think you would have seen the team react so quickly and decisively if it didn’t already know—largely from seeing the reaction to Kluwe and Ayanbadejo—that the reaction would be received well," says Dragseth, acknowledging that more work needs to be done.
At least two rookies taking part in the NFL’s annual scouting combine have said that some teams asked them about their sexual orientation. The league itself has promised to investigate, even as executives from at least two other teams have expressed interest in knowing more about the sexuality of Notre Dame linebacker Manti Te’o, who made headlines earlier this year after being caught up in a girlfriend hoax scandal involving a friend who has admitted to being gay.
Brian Baxter writes for The Am Law Daily, a Daily Report affiliate.