Two same-sex marriage challenges dominate two days of arguments in the March session of the U.S. Supreme Court, and, depending on the outcome, those potential landmark cases could define the October 2012-13 term of the Roberts Court.

Hollingsworth v. Perry will be up first before the justices. The case, to be argued March 26, asks whether the 14th Amendment’s equal protection clause prohibits California from defining marriage as the union of a man and a woman as state voters did in what is known as Proposition 8. The justices on March 27 will hear U.S. v. Windsor, a challenge to the constitutionality of Section 3 of the federal Defense of Marriage Act (DOMA) which defines marriage as the union of a man and a woman for all federal purposes.

The justices have raised standing-jurisdiction questions in both cases.

Supreme Court Brief today examines the parties and lawyers who participated in the nearly 80 amicus briefs filed in the DOMA case.

All of the amicus briefs may be found here.

* * *

U.S. Bankruptcy Judge John Olson, who was denied federal benefits for his same-sex spouse because of the Defense of Marriage Act, says the law is based on irrational prejudice that equal protection will not tolerate. But New York lawyer Dovid Schwartz contends the law is justified by the government’s legitimate interest in embodying a moral standard that defines the human species.


Their conflicting positions clash in a flood of amicus briefs in U.S. v. Windsor, one of two same-sex marriage challenges to be decided in the U.S. Supreme Court this term. The briefs, nearly 80 in total, flesh out religious, political, social and legal views on one of the most important civil rights issues of the day.

The justices will hear arguments on March 27 in Windsor, which asks whether Section 3 of the Defense of Marriage Act (DOMA), defining marriage for all federal purposes as the union of a man and a woman, violates the Fifth Amendment’s guarantee of equal protection. The court has posed two additional questions: whether the Bipartisan Legal Advisory Group of the House of Representatives (BLAG), which is defending the law, has Article III standing, and whether the executive branch’s agreement with the lower court’s decision striking down the DOMA definition deprives the justices of jurisdiction to decide the case.

The justices will hear the second same-sex marriage case, Hollingsworth v. Perry, on March 26. That case asks whether the 14th Amendment’s equal protection clause prohibits California from defining marriage as the union of a man and a woman, and also whether the proponents of California Proposition 8, banning same-sex marriage, have standing to defend it.

Work on the anti-DOMA amicus briefs began last summer with Mary Bonauto, civil rights project director of Gay & Lesbian Advocates & Defenders (GLAD), assuming the lead role of coordinator. Bonauto was well qualified for the task. She and GLAD brought the challenge leading to the landmark Massachusetts Supreme Judicial Court decision in 2003 recognizing same-sex marriage in that state. She also argued and won the first federal appellate court ruling on DOMA: Gill v. Office of Personnel Management.

"Since we had the first case on appeal, I had given thought to amici briefs previously," said Bonauto. "I could play this role now because I wasn’t counsel. When you get to the Supreme Court, there is such an outpouring of support. Part of my role is channeling that support. You have to ask what do the justices really need to hear."

Unlike the anti-DOMA side, no single member of the pro-DOMA legal team coordinated the amicus briefing, but groups checked in with each other informally to avoid duplication.

Stark contrasts

Side by side, the amicus briefs present a stark contrast in terms of parties and lawyers representing them. Dominating the anti-DOMA briefs are the nation’s established organizations in the fields of law, history, political science, psychology and sociology as well as civil and libertarian rights groups. For example, there are the American Psychological Association, the Organization of American Historians, the American Bar Association and the Institute for Justice. There also are briefs by 212 members of Congress, 278 businesses, former cabinet secretaries and military officials.

Representing most of those parties are many well-known, veteran Supreme Court advocates from the country’s largest law firms. Paul Smith, head of Jenner & Block’s appellate and Supreme Court practice, was "extremely helpful" in connecting those lawyers with the types of briefs being sought, noted GLAD’s Bonauto, adding, "We also were approached by a great many firms and potential amici who wanted to participate."

Notably absent from the pro-DOMA briefs are the familiar names of the D.C.-based specialized Supreme Court bar. Apart from Paul Clement of Bancroft and John Eastman of Chapman University School of Law, most of the counsel of record may be unfamiliar to the justices or their clerks. "It says a lot about the elite D.C.-New York corridor" that dominates the Supreme Court bar, said Eastman, who is not worried that most of the veteran Supreme Court law firms are on the other side. "Paul Clement and Charles Cooper [the lead attorney in the California Proposition 8 case] are both very highly regarded by the court," Eastman said.

Eastman filed a brief on behalf of the Center for Constitutional Jurisprudence, which urges the court to give standing to the Bipartisan Legal Advisory Group "particularly when the President abrogates his duty to ‘take care that the laws be faithfully executed.’ To hold otherwise would give the President a de facto authority to suspend the law, the very concern that the Take Care Clause was designed to protect against."

The pro-DOMA amicus briefs include a number of conservative legal, social and religious organizations, such as the American Civil Rights Union, Eagle Forum Education & Legal Defense Fund, Family Research Council, U.S. Conference of Catholic Bishops and Liberty Counsel. Also filing briefs are 10 U.S. senators, including Orrin Hatch (R-Utah), 17 states, National Organization for Marriage and the Becket Fund for Religious Liberty.

The case against DOMA

In coordinating the anti-DOMA amicus briefs, Bonauto created four categories: briefs on the jurisdictional questions; merits questions and issues; standards of review; and particular voices and perspectives.

On the jurisdictional issues, a group of former senior Department of Justice officials and White House counsel, while disagreeing on other issues in the DOMA challenge, said they agree "that this Court is not divested of jurisdiction by the Executive’s decision not to proffer what it considers unreasonable arguments in support of a statute’s constitutionality, where the Executive continues to enforce the statute and appeals a judgment declaring it unconstitutional." Adds Paul R.Q. Wolfson of Wilmer Cutler Pickering Hale and Dorr, "To the contrary, amici believe that the decision not to defend a statute—under strictly limited circumstances—is a crucial prerogative for the Executive."

Bonauto said briefs that engage the defenses and justifications for DOMA were "hugely important." To that end, a brief by historians and the American Historical Association tackles the argument that DOMA is a garden-variety federal law. Catherine Connors of Pierce Atwood in Portland, Maine, writes, "Congress never took a position on a marital eligibility question preemptively so as to discredit a policy choice that a state might make. In historical perspective, DOMA appears as an attempt by Congress to single out particular state-licensed marriages for disfavored treatment."

The American Sociological Association sought its own amicus brief specifically to counter the argument in both same-sex cases that children fare better with opposite sex parents than with same sex parents. "Decades of methodologically sound social science research, especially multiple nationally representative studies and the expert evidence introduced in the district courts below, confirm that positive child wellbeing is the product of stability in the relationship between the two parents, stability in the relationship between the parents and child, and greater parental socioeconomic resources," writes Carmine Boccuzzi Jr. of New York’s Cleary Gottlieb Steen & Hamilton. "Whether a child is raised by same-sex or opposite-sex parents has no bearing on a child’s wellbeing."

There also are briefs arguing that DOMA’s Section 3 fails to pass any standard of review. Pressing for heightened scrutiny, a group of constitutional law scholars, represented by Lori McGill of Latham & Watkins, contend, "It is not seriously disputed that gay men and lesbians have experienced a history of purposeful discrimination on the basis of a characteristic that bears no relation to their ability to contribute to society. Gay men and lesbians also lack sufficient political power to protect themselves against continued discrimination. And sexual orientation is both fundamental to one’s identity, and not changeable ‘through conscious decision, therapeutic intervention or any other method.’ Laws that discriminate against gay and lesbian persons should therefore be tested by heightened judicial scrutiny."

The case for DOMA

Among DOMA supporters, several of the briefs criticize the Justice Department for reversing its views on the constitutionality of DOMA. A brief filed on behalf of Hatch and other senators who voted for DOMA in 1996 states, "If the Department believed that there was an inadequate federal interest to justify DOMA, the time to speak was in 1996.…Rather than urging the courts to give appropriate deference to an Act of Congress, as befits its proper role in our system of government, the Department now groundlessly impugns the motives of the overwhelming bipartisan majority that supported DOMA." Michael Stern, formerly a lawyer for the House of Representatives, authored the brief.

A brief for international jurists and academics asserts that reserving marriage for opposite sex-couples is "sound public policy" worldwide, usually promulgated by legislatures, not judges. Brigham Young University law professor Cole Durham, author of the brief, added a cautionary note, most likely aimed at justices who oppose looking to foreign norms in making decisions. "Of course, foreign law and practice cannot and should not determine the meaning of U.S. constitutional guarantees."

The "jarring results" for the military of constitutionalizing same-sex is the subject of a brief on behalf of the Chaplain Alliance for Religious Liberty and others. Imposing a new definition of marriage on military personnel, especially chaplains, would restrict their religious freedom – and could end their careers, if they object. "It is very likely that service members who hold traditional religious beliefs on marriage and family will face, for the first time, military policies and duties sharply hostile to their beliefs," wrote retired Army lawyer R. Bradley Lewis of Bogalusa, La.

Indiana and 16 other states, in a brief by Indiana Solicitor General Thomas Fisher, argue for rational basis review, saying, "As long as some legitimate governmental purpose exists for conferring exclusive benefits on qualified opposite- sex couples, DOMA is valid in all applications. Such a legitimate rationale is crystal-clear: opposite-sex couples are the only procreative relationships that exist, which means that such couples are the only ones the government has a need to encourage.…If this innately biological rationale is dismissed, the government has no coherent argument for denying marriage status to any number of persons who desire a committed relationship with each other."

Marcia Coyle can be contacted at mcoyle@alm.com. Tony Mauro can be contacted at tmauro@alm.com.