I am not a lawyer and I don't play one on television. My job requires that I be somewhat conversant with certain legal concepts and that I be able to read contracts and other things written in legalese, but I don't think I ever read a legal brief for a court case until marriage equality began to become an issue.
We may be prone to think of legal briefs as obscure, dry things, making points that only the sorts of folks who care about how many angels can dance on the head of a pin could possibly find interesting. Here's the thing: we'd be wrong.
Once the battle for marriage equality began being fought in the courts, I've found myself reading all sorts of things that I never would have imagined myself reading. The current battles over California Prop 8 and the Defense of Marriage Act provides me almost endless hours of amusement (and sometimes ire, if I happen to be reading the arguments of the opposing side). And, not infrequently they afford an education.
Apart from the legal arguments filed by the attorneys on both sides, a huge number of amicus curae briefs has been filed on the Prop 8 case, particularly on the side of those who are of the opinion that Prop 8 is unconstitutional and should be overturned. The Office of the City Attorney of the City and County of San Francisco, one of the parties in the suit seeking the overturning of Prop 8 has a page on their website helpfully documenting the more than fifty amicus briefs which support their position. Many of these briefs have struck me as being worth reading and one in particular makes for some good historical perspective (not to mention a call-out against a specific party that has decided its mission consists mainly of keeping gay men and lesbians from marrying). Follow me beyond the squiggle and I will explain.
The City Attorney's site helpfully categorizes the amicus briefs by their focus. There are briefs focusing on equal protection, on due process, on, yes, "responsible procreation," on standing and procedure and a whole set given the heading of "Identity Groups (Religious, Business, Labor, Teachers, Other)." Among the latter is a brief submitted by a coalition of religious organizations including the California Council of Churches, Pacific Association of Reform Rabbis, two different councils within the United Church of Christ and, for obvious reasons, the California Network of Metropolitan Community Churches (MCCs have a mainly gay and lesbian membership and were formed mainly as a result of former rejection of LGBT individuals by mainstream Protestant denominations).
The brief includes a very interesting argument based on religious liberty (and you thought that the Catholics, the Mormons and the Evangelicals had exclusive rights to that one, didn't you?) and even more important to me, recalls the history of another important California Case related to marriage: Perez vs Sharp which, in 1948, struck down California's law against interracial marriage. I'd known of this case for quite some time as it is widely viewed as among the most important antecedents of Loving vs Virginia. The case is also significant in another respect. It turns out (and this I did NOT know) that the case was decided in part on the grounds of freedom of religion!
Back in 1947, Sylvester Davis and Angela Perez tried to get married. Davis was African-American while Perez, despite her Spanish surname, was classified as "white" under California law. The Los Angeles County Clerk refused to grant them a marriage license based on the state law prohibiting interracial marriage. The couple appealed, through their attorney, directly to the California Supreme Court. Both Davis and Perez were Catholic. As was their attorney Daniel Marshall, who was president of the Catholic Interracial Council of Los Angeles.
Because I don't seem to be able to copy and paste from the current brief I'll paraphrase here except where statements sufficiently important that a verbatim quote seemed necessary; in those latter cases I HOPE I've transcribed them accurately. The plaintiffs' attorney noted that the Catholic Church (where the couple wanted to be married) did not prohibit interracial marriages but California law, in prohibiting Davis and Perez from obtaining a marriage license, was preventing them from fully participating in their own religion. The California Supreme Court found this argument persuasive and ruled in their favor. Although the Catholic Church didn't participate in the case (the Los Angeles Archdiocese was in fact opposed to the suit), sixteen Catholic bishops and apostolic administrators filed an amicus brief later on, in Loving vs Virginia citing, in fact, the very precedent of Perez vs Sharp.
As the current brief says:
If Perez is correct, then Prop 8 is an unconstitutional abridgement of California same-sex couples' religious liberty to marry, and of their faith communities' and and clergy's right to celebrate and solemnize their marriages, just as California's law denying legal recognition to mixed-race unions violated a Catholic couple's religious liberty.And here is where it gets even more interesting. More recently, a group called "Catholics for the Common Good" filed a brief in support of Prop 8, ironically citing the role of Mr. Marshall in pursuing Perez vs Sharp. The Lovings were Baptists, yet a group of Catholic clergy found the principle of religious liberty so important that they wanted to weigh in on the right of a Baptist couple to marry within the church of their choice. All of the signatories to the brief I'm now citing support civil marriage equality and permit their clergy to solemnize the marriages of gay male and lesbian couples. The brief rightly tweaks the Catholic Church for wanting to have it both ways. It was religious liberty to permit the Lovings to marry; yet somehow the Church's rights would be inhibited if gay and lesbian couples were allowed to celebrate their marriages within religious denominations that allowed them to do so. To quote the brief again:
The Catholic bishops believed then [when Loving was being argued] that religious liberty protected the marriage right not only of Catholics but of non-Catholics as well. From its amicus brief filed in this case, however, it appears that the U.S. Conference of Catholic Bishops has since concluded that religious liberty protects only marriages that their own Church approves, and not the marriages of same-sex couples that - but for Proposition 8 - would be solemnized in Reform and Reconstructionist synagogues, and in Unitarian Universalist, United Church of Christ and Metropolitan Community churches.I find it fascinating, amusing, and somewhat delicious that the thrust of the arguments above constitute a serious tweaking the Catholic Church for, if not actual hypocrisy then at the very least a lack of logical and temporal consistency.
There are other aspects to the brief I've been discussing. It goes on to differentiate how arguments in favor of marriage equality based on freedom of religion don't implicate the arguments used against polygamy or those against the use of peyote as a religious sacrament (prohibitions against both of which have been upheld on various grounds notwithstanding appeals to freedom of religion). Those arguments are interesting but secondary to the points I find most important here; there is something to be said for a the thoroughness which the amici have used in constructing their brief.
The amici finally point out that if religious denominations wanted to argue that their freedom to disparage or discriminate against LGBT individuals is being infringed upon, Prop 8 would not be the vehicle to challenge it, as California anti-discrimination laws otherwise conferred full protection on gay, lesbian, bisexual and transgender individuals before Prop 8 was passed and continue to do so now. Many of the arguments made in favor of Prop 8 fail to consider the fact that the purported "harms" caused by same sex marriage are not at all affected by prohibiting gay and lesbian couples from obtaining the legal right to use the term "marriage" when referring to their legally-recognized relationships and that it is not the conferring of that right but its withdrawal that renders Prop 8 fatally flawed under the Constitution since it is the withdrawal of that right which is being currently being contested.
I particularly like the final statement:
Fears that same-sex couples' marriages pose grave threats to religious liberty are not grounded in reality.To sum up then, you can find great history lessons in legal briefs. You can also find where the real arguments on constitutional issues (rather than the supposed ones) actually lie. Thanks for reading.