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A Taste of the Many Amicus Briefs in the Same-Sex Marriage Case

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By Mark Wilson, Esq. on April 15, 2015 9:58 AM

The same-sex marriage cases, known to posterity as DeBoer v. Synder, may very well be the biggest civil rights decision of our generation. As such, everyone wants to put their two cents into what will undoubtedly become an historic opinion.

Lots of people want in on the action. Lots. As of April 3, one hundred and thirty-seven individuals, organizations, and states have filed amicus briefs in support of one side, or neither side.

Here's a brief round-up of just some of these 137 briefs.

Weirdest Brief

"The Supreme Court must not protect gay couples' marriages, because doing so would demean marriages between gay men and their wives," Mark Joseph Stern summarized in Slate. Yes, that's the brief titled -- and this is the actual title -- "Brief of Amici Curiae Same-Sex Attracted Men and Their Wives in Support of Respondents and Affirmance."

In support of their position, the brief cites to several online "video essays" from Mormon men who are gay but have nevertheless decided to remain married to their wives.

Wait, I Thought You Disliked Discrimination

Despite its support for laws in Utah prohibiting discrimination on the basis of sexual orientation, the LDS Church joined an amicus brief with other "major religious organizations" -- mostly Evangelical Christian denominations -- in support of respondents. They claim that "[r]ecognizing a new right to same-sex marriage would harm religious liberty" because finding that "traditional marriage laws are grounded in animus would demean [them] and [their] beliefs."

A Pile of Mayors

This motley crew is composed of 226 mayors from such varied places as Salt Lake City, Boise, Cincinnati, New York, Kansas City, Santa Monica, and Boston filed an amicus brief in support of same-sex marriage. "When the freedom to marry is denied, municipalities are the first level of government to suffer the impact," they said, emphasizing that marriage is essential to community.

Longest Table of Authorities

The table of authorities in "Brief of Amici Curiae 100 Scholars of Marriage in Support of Respondents" goes on for 27 pages, 26 of which are devoted to scholarly materials like law review articles and social science papers.

Not in Favor of Either Side -- Sort Of

You'd think that Eagle Forum, the organization founded by conservative Phyllis Schlafly in the '70s (who herself is no fan at all of "the gay lobby"), would be on the respondents' side. Surprise! Eagle Forum's brief instead argues that the Court should dismiss this case for lack of jurisdiction, as determining who's qualified to have a marriage license is an issue of state -- not federal -- law. (Of course, a ruling holding that there's no federal constitutional interest at stake is tantamount to reversing all the courts to find same-sex marriage bans unconstitutional.)

But Most Surprising of All

A brief titled "Brief of Amici Curiae Kenneth B. Mehlman Et Al. Supporting Petitioners" seems innocuous enough -- until you read who the "al." are in "et al." Mehlman is the former chairman of the Republican National Committee, and the rest of the amici are a who's who of Republican politicians, including Rudy Giuliani, former Utah governor Jon Huntsman, David Koch (of Koch Brothers fame), and General Stanley McChrystal.

The Supreme Court does sometimes take arguments from amici into account -- possibly too much, The New York Times reported in 2014. We'll see whether the justices incorporate any of these 137 briefs into their questions on April 28.

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