The most important amicus briefs supporting Prop 8

by on October 14, 2010  •  In Constitutional law, Marriage, Social science, States

I wouldn't be surprised if the appeal in Perry v. Schwarzenegger breaks a record for the number of amicus briefs filed in a Court of Appeals.  Those in support of Prop 8 are in, and there will be a gajillion more in support of the plaintiffs when that side's turn comes next month. It is doubtful that any of the judges will read more than a handful of them, and I would bet that not even their clerks will be tasked with seriously reading all of them. Most are beyond predictable.

I decided to pick from those filed so far the ones that I thought would most likely command attention and be read. I found three, each with a clear theme for its arguments: federalism, social science and moral philosophy, respectively.

The federalism amicus is the brief filed by the Attorneys General of 13 states. There is nothing remarkable about its content; I think its true message to the Ninth Circuit is – -  Back off, 45 states have laws banning same-sex marriage and 13 of us care enough about the issue to sign on to this brief. If the court upholds Judge Walker's decision, this brief will serve as a caution that the ruling should be limited to California.

I have no doubt that plaintiffs' lawyers are lining up an AGs brief for that side as well, but since they can't win by playing the numbers game, I would bet that theirs will be a the-sky-hasn't-fallen brief by the jurisdictions that have enacted equal marriage laws. Since the Prop 8 proponents have made a big deal out of arguing that all kinds of unknowable crazy things might follow if gay couples can marry, I have a hunch that the Commonwealth of Massachusetts may file an amicus saying that its experience for the last 7 years has been, well, kinda boring.

The social science brief is from the American College of Pediatricians. This legitimate sounding group is actually a breakaway organization formed by a small number of conservative pediatricians when the American Academy of Pediatrics endorsed second-parent adoptions. In its own words,

Of particular importance to the founders were (as it is today) the sanctity of human life from conception to natural death and the importance of the fundamental mother-father family (female-male) unit in the rearing of children. 

The ACP brief does not own up to this ideological provenance, however, and instead asserts that the "collective membership of the College has observed firsthand the effect of varied and changing family structures on the wellbeing of pediatric patients, and it is also familiar with the significant academic analysis and sociological data that augment understanding of these issues." Total intellectual dishonesty. The remainder of the brief presents studies that support, or appear to support, the proposition that mother-father households are best for children.

Will this brief be effective?  A good amicus on the plaintiffs' side can both call out ACP for its bias and refute their arguments by presenting the results of other and more relevant studies, as well as pointing to the flaws in some of what ACP calls social science.  Nonetheless, the ACP brief is the kind of amicus that gives a judge who wants to reverse the District Court enough noise to support a rational basis argument.

Lastly, Robert George, a professor of jurisprudence at Princeton and the intellectual guru of anti-gay marriage supporters, has filed a brief arguing that the Walker opinion incorrectly characterized Prop 8 as reflecting sectarian religious views. Instead, George asserts,

[T]he law regarding marriage – a social institution, recognized and regulated for public purposes – involves the kinds of value judgments about the common good that can be found throughout our law… and that can be ascertained without appeal to religious authority…

One might even think that…same-sex relationships are morally valuable and good but different – incapable as such of realizing the specific purposes or ends of the institution of marriage. This would be a value judgment – a conclusion about the structure of a public good – but it would state nothing about the morality of sexual conduct between same-sex partners.

The George brief is well-written, but ultimately simply restates the natural law argument that same-sex partnerships could never constitute marriage. Its job is to persuade the Court of Appeals that reliance on natural law is not the same thing as the forced adoption of religious belief through the power of the state. Again, it may give a hook to conservative judges, but I doubt it will change any minds.


One Response to The most important amicus briefs supporting Prop 8

  1. John Culhane October 21, 2010 at 1:42 PM

    The sheer volume of amicus briefs is indeed massive! There are some analyses of the arguments from some of the briefs over at; my own analysis of the Robert George brief is here: link to

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