A choir of voices — ranging from business leaders, prominent Republicans and the Obama administration — are calling for a ruling in favor of the constitutional right to same-sex marriage nationwide in a series of legal briefs that have either been filed or will be filed before the U.S. Supreme Court this week.
The friend-of-the-court briefs urge the court to rule in favor of same-sex couples who filed litigation in Michigan, Ohio, Kentucky and Tennessee seeking their marriage rights. The briefs were due on Friday — one week after attorneys for plaintiffs filed their opening briefs in the case.
Here’s a breakdown of briefs that are filed or are expected.
* On Thursday, a group of 379 businesses and organizations filed a brief making the case that companies benefit from diversity and inclusion and bans on same-sex marriage places a burden on business.
“By not permitting same-sex couples to marry, states impose significant administrative burdens on businesses,” the brief says. “Although amici can, and often do, voluntarily attempt to lessen the financial inequality placed on employees, those workarounds impose additional and unnecessary business expense, while still not fully ameliorating the differential treatment of employees. And the combined burden of administrative costs and tax consequences is significant; the 2015 estimated cost of marriage inequality to the private sector is $1.3 billion.”
Signers of the briefs include major businesses like Apple, American Airlines, Dow Chemical, Marriott and Twitter as well as companies like Whey Natural! USA LLC, which produces whey protein concentrate, and Liberty Burger, a family-owned business with six locations. Other groups that have signed include Stonewall Columbus, an LGBT organization in Ohio, and the D.C.-based Civitas Public Affairs.
* The LGBT military groups OutServe-SLDN and the American Military Partner Association joined forces to file a brief maintaining the patchwork of marriage laws throughout the country harms LGBT military families. The filing makes particular note of Title 38, a federal law that precludes spousal veterans benefits from flowing to same-sex couples in non-marriage equality states.
“It is perverse for the government to grant leave to enable a same-sex couple to travel to a state where they can legally marry, for the government to recognize that marriage as valid for however many more years the service member continues to serve, and then suddenly ignore that marriage as soon as the service member retires and obtains veteran’s status,” the brief says. “Likewise, it would be inequitable to force veterans to move away from their homes to marriage equality states so they and their spouses can get the federal veterans’ benefits they earned.”
* On Friday, LGBT advocates affiliated with the Human Rights Campaign are set to deliver to the U.S. Supreme Court the “People’s Brief,” which has been online for weeks and has encouraged ordinary people to sign if they back a nationwide ruling in favor of marriage equality. According to HRC, 207,551 people had signed the brief before it was made final.
The brief was written by Roberta Kaplan, the New York attorney who successfully litigated against the Defense of Marriage Act in 2013. Edie Windsor, the plaintiff in the case, was the first person to sign the brief.
* As he previously announced, outgoing U.S. Attorney General Eric Holder affirmed in an op-ed published in USA Today the White House would filed a brief arguing that all state bans on same-sex marriage are unconstitutional.
“Nothing justifies excluding same-sex couples from the institution of marriage,” Holder writes. “Denying them the right to marry serves only to demean them and their children, to degrade the dignity of their families and to deny them the full, free and equal participation in American life to which every citizen is entitled.”
* Virginia Attorney General Mark Herring, a Democrat who aided in litigation that last year brought marriage equality to his state, filed a brief referencing Virginia’s role as a defendant in litigation that led the U.S. Supreme Court to strike bans on interracial marriage throughout the country.
* Tobias Wolff, a law professor at University of Pennsylvania, filed a brief on Thursday along with other legal scholars filed a brief that argues the justices must find a constitutional right to state recognition of same-sex marriage regardless of whether or not they find a right to outright marriage.
“Even if this court were to conclude that the Constitution permits states to discriminate against same-sex couples in their own marriage laws, the common law of conflicts and decisions of this Court together make clear that states may not discriminate against same-sex couples who have validly married in another state,” the brief says.
* A brief from the LGBT group Family Equality Council will highlight the stories of children raised in same-sex households.
The brief may stand out because U.S. Associate Justice Anthony Kennedy cited the humiliation of children raised by same-sex parents in his decision against DOMA. U.S. Circuit Judge Richard Posner of the 7th U.S. Circuit Court of Appeals also cited a brief from the Family Equality Council in his decision against marriage bans in Wisconsin and Indiana.
* Massachusetts Attorney General Maura Healey, the first openly lesbian state attorney general, filed a brief on behalf of Massachusetts and 16 other jurisdictions: California, Connecticut, Delaware, D.C., Illinois, Iowa, Maine, Maryland, New Hampshire, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington.
“These cases are about fundamental issues of fairness, equality, and dignity,” Healey said in a statement. “Hundreds of thousands of loving and committed couples around the country are treated like second-class citizens. Tens of thousands of children suffer as a result. It is time for the Supreme Court to do the right thing – to ensure marriage equality across the country once and for all.”
Together with separate briefs filed by attorneys general in Hawaii, Minnesota, and Virginia, a total of 20 states joined briefs in support of same-sex marriage.
* An unprecedented group of more 303 prominent Republicans signal supported for marriage equality by signing a brief led by Ken Mehlman, former chair of the Republican National Committee. Massachusetts Gov. Charlie Baker, a supporter of marriage equality, is a signer and the only sitting governor to pen his name.
* Congressional Democrats are expected to file a bicameral brief in support of marriage equality for same-sex couples regardless of where they live. In the House, the effort is being led by House Minority Leader Nancy Pelosi (D-Calif.), Rep. John Conyers (D-Mich.) and Rep. Jerrold Nadler (D-N.Y.); in the Senate, the effort is being led by Sen. Dianne Feinstein (D-Calif.).
* The LGBT group Freedom to Marry filed a brief, with former U.S. Solicitor General Walter Dellinger of O’Melveny & Myers as counsel of record, arguing sexual-orientation discrimination should be presumed unconstitutional, even in the absence of explicit judicial heightened scrutiny, because there is no legitimate, evidence-based justification for marriage discrimination.
“Respondents’ marriage bans discriminate against members of an historically disparaged minority — namely, gay people,” the brief says. “And they deprive gay people of personal liberty and dignity. They present quintessential examples of measures that must be presumed unconstitutional and subjected to meaningful rationality review.”
* A brief from nearly 2,000 individual faith leaders argues a ruling in favor of same-sex marriage would be consistent with principles of religious liberty. Among the signers is Rev. Gay Clark Jennings, president of the House of Deputies of the Episcopal Church and more than a dozen Bishops of the Episcopal Church in Kentucky, Michigan, Ohio, and Tennessee.
“By reversing the judgment of the court below without reliance on religiously based arguments, and by affirming the constitutional promise of equal treatment for different- and same-sex couples, this Court will ensure that civil law neither favors nor disfavors any particular religious viewpoint,”the brief says. “Requiring equal treatment for different- and same-sex couples with respect to civil marriage will, in fact, reaffirm the religious liberty fundamental to this nation’s founding identity.”
* Another brief, led by Mayors for the Freedom to Marry, was signed by the organization as well as 226 individually named mayors and 40 cities across the country. Signers include Mayor Eric Garcetti of Los Angeles; Mayor Michael Nutter of Philadelphia; Mayor Muriel Bowser of D.C.; and Knoxville (Tenn.) Mayor Madeline Rogero
“Municipalities, as the level of government most closely connected to the community they serve, bear a great burden when a target sector of their populace is denied the right to marry,” the brief says. “When the freedom to marry is denied, municipalities are the first level of government to suffer the impact.”
After this round of briefs, the next step is for state attorneys defending the bans to submit their briefs arguing in favor of the constitutionality of those laws. They’re due March 27. Friend-of-the-courts briefs in support of the states are due one week later.
On Thursday, the U.S. Supreme Court announced it would hear arguments for the marriage cases on April 28. The court is expected to render a decision on the litigation before the end of June.