The People's Brief

When I last dedicated a post to marriage equality, the U.S. Supreme Court had declined to hear a number of cases from multiple Circuit Courts of Appeal. Through their inaction, the Supreme Court paved the way for same-sex marriage in several new states.

Since then, the Sixth Circuit Court of Appeals released an shoddy and contrarian ruling in a group of cases from their four states -- Tennessee, Ohio, Kentucky, and Michigan. Standing against the rising tide, the Sixth Circuit ruled (by a vote of 2 to 1) that bans on same-sex marriage are constitutional. With conflicting rulings now having come from different parts of the country, the Supreme Court could no longer ignore the issue. They agreed to hear an appeal of the ruling in the Sixth Circuit cases; oral arguments will be heard in late April, leading to a ruling in June.

In advance of oral arguments in every Supreme Court case, both sides submit briefs summarizing their legal arguments. In addition, other concerned parties may submit their own amicus (friend of the court) briefs, presenting additional angles they feel were overlooked or given short shrift in the main parties' documents. As you might imagine, these supplementary legal briefs are often ignored by the Supreme Court justices. But a few times a year, an amicus brief rises above the crowd, becoming the focus of questioning during oral arguments, and/or forming the foundation of the Court's eventual ruling. When amicus briefs do matter, they matter a lot.

It should come as no surprise that a large number of amicus briefs are being submitted in these same-sex marriage cases, on both sides of the issue. But one of particular interest is being submitted by the Human Rights Campaign, and it's thought to be the first brief of its kind. The "People's Brief" is intended to represent not just a handful of people, or a company, but tens (hopefully hundreds) of thousands of Americans. Roberta Kaplan, the lawyer who won the last big Supreme Court battle over gay rights, has drafted the brief. She and the HRC are inviting anyone and everyone to affix their name and support, resulting in something part legal brief, part petition.

As with any political petition, it's hard to know if this effort will ultimately affect the outcome. But Kaplan has crafted a document highlighting the same argument with which she won the day last time, in the Windsor case striking down the Defense of Marriage Act. She points out that laws banning gay marriage reflect unconstitutional animus (the legal term being somewhat different than the conventional English definition), and must therefore be struck down.

You can read the People's Brief here, and affix your own name if you so choose. The deadline to do so is tomorrow -- Friday, February 27th, at noon, Eastern time. If you're interested in joining this tiny part of history, give yourself time today to take a look.