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Thursday, February 14, 2013

Courts - A look at the states filing amicus briefs in the same-sex marriage cases

In this post yesterday at SCOTUSblog, Marty Lederman takes a look at the amicus briefs filed in the same sex marriage cases:

By my count, forty-two “topside” amicus briefs have been filed in the California Proposition 8 case, Hollingsworth v. Perry, and twenty-six topside amicus briefs (not including that of the Court-appointed amica) have been filed in the DOMA case, United States v. Windsor. That’s about fifty-eight briefs total, since at least ten of them are “joint” briefs filed in both of the cases. * * *

The briefs contain many things of interest. Perhaps the single most important feature of the topside amicus briefs, however, is a dog that didn’t bark — or not as loudly as might have been expected, in any event.

Forty-one states prohibit same-sex marriage. But only twenty of those forty-one states have filed briefs in support of the constitutionality of Proposition 8: Indiana is the lead party on a brief for nineteen states, and Michigan filed a brief of its own. Compare this level of state participation with, for example, the amicus brief filed by all forty-nine other states in Maryland v. King (to be argued February 26), in support of Maryland’s argument that a state does not violate the Fourth Amendment by collecting and analyzing the DNA of persons who have been arrested for, but not convicted of, a criminal offense. * * *

It is further significant, I think, that in twelve of those twenty-one non-filing states, constitutional amendments prevent the recognition of same-sex marriage via the ordinary political process. All but one of those amendments was ratified from 2002 through 2008, in anticipation that popular majorities might soon support a change in state law (2002: Arkansas, Nevada; 2004: Kentucky, Louisiana, Mississippi, Missouri, Ohio, Oregon; 2006: Tennessee; 2008: California, Florida; 2012: North Carolina). In some of those states, the decision of state officials not to file in Perry might be explained, at least in part, by a judgment that the constitutional amendments that govern marriage in those states no longer reflect the views of their constituents.

[More] Indiana is also the lead counsel on an amicus brief in Windsor, joined by 16 other states, arguing in favor of the federal Defense of Marriage Act (DOMA). Here is the background on Windsor.

Posted by Marcia Oddi on February 14, 2013 08:17 AM
Posted to Courts in general