Previewing Prop 8 And DOMA: Part I — The Amicus Briefs
As you almost surely know, the Supreme Court will shortly hear oral arguments on two cases of monumental importance to the LGBT rights movement: Windsor v. United States (the Defense of Marriage Act case) and Hollingsworth v. Perry (the Proposition 8 case, which has undergone more name changes than Prince). By the conclusion of oral arguments on March 27, we might have a pretty good idea of which way the Justices are leaning on these cases. A decision is expected by late June. As we approach that date, I’ll be writing a series of columns explaining the legal issues from several different perspectives. (You can let me know in the comments if there’s any particular question you’d like to see explored or answered.)
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Let’s start with an issue that might not occur to you right away: amicus briefs.  The two cases have spawned an almost unfathomable number of these amicus briefs – I counted at least 80 such briefs in the Prop 8 case, and more than 40 for DOMA (with more coming in….). My guess is that this is some kind of all-time record. So, what is an amicus brief? And do they matter?
The full name of these documents is amicus curiae, Latin for “friend of the court.†They are written to provide the court with a perspective that might otherwise be missing. In the case of marriage equality, amici (the plural of “amicus,†for you non-Latin scholars) have supplied an avalanche of such perspectives: in addition to additional legal lenses not fully developed by the parties, these include (at least) sociology; biology; philosophy; politics; religion; public health; and psychology. Of course, for each of these perspectives there are, in turn, oodles (a technical term) of viewpoints, and the amicus writers seem to have expressed almost all of them. The American Bar Association has collected them all here and here.
It’s not surprising that these cases have generated so many thoughtful responses from different communities. Marriage equality is a hugely important issue all by itself, of course, but the debate also feeds into broader questions about the state of marriage more generally, and from there into still wider issues about the kind of society we want to have and to encourage.
Let’s look at three concrete examples, for context. A brief by the American Psychological Association, the American Medical Association, and other reputable professional organizations argues for marriage equality based on the accumulating pile of evidence showing that: same-sex attractions are normal expressions of human sexuality; same-sex couples form the attachments and commitments at the same depth as our heterosexual counterparts,; and kids thrive in families headed up by same-sex couples. On the other side is a brief by Princeton Professor Robert George and colleagues, which argues that extending marriage to same-sex couples will destabilize both the definition of marriage and the institution itself. The brief is a kind of hodgepodge of neo-natural law, bad social science, and raw speculation about negative long-term consequence if the same-sex marriage beast is released from its shackles.
And then there’s one of my favorites, by Dr. Maria Nieto, who is a biologist in the Cal State system. She points out that our commitment to the “two-sex only†model that supports the exclusion of same-sex couples from marriage isn’t consistent with the complex biological reality that “a not insignificant†percentage of the population expresses sex and gender in ways that don’t fit into this binary system; mostly, she’s talking about intersexed people, who may have physical and hormonal characteristics that place them somewhere between the male-female poles.
Well, this is all very interesting. (I mean, it really is! Read some of them if you have some time. You’ll learn lessons that extend far beyond the current controversy.) But, again, do any of these briefs matter?
There’s some reason to think they have mattered, in some cases. The Court considered them in some of the criminal procedure cases, for example. And occasionally such briefs are cited by the Supreme Court or by lower federal courts, a sign that they might have had at least some influence on the decision. To speak (ahem) about my own involvement for a moment: The federal court of appeals in Windsor cited an amicus brief by Family Law professors (including me!) in which we pointed out that DOMA is the first time that Congress butted in to the state law issue of who’s married, and who isn’t, by defining marriage as limited to the union of a man and a woman. (As you probably know, DOMA means that even if you’re married under your state’s law, your union doesn’t count for federal purposes.) Update: I just found this statement from former Justice O’Connor, taken from last night’s appearance on The Rachel Maddow Show (and thanks to David Badash for alerting me to this):
If [an amicus brief] gives you an intelligent look at the legal  issues, then it might be of some value to you, as a Justice.
And she said she read them! Whether they’ll affect the Justices’ thinking in these cases is anyone’s guess, though. If it’s true that it’s all up to Justice Kennedy, then perhaps he’s sitting up nights, briefs stacked on a table next to his chair, reading through the thick pile of verbiage in an attempt to gain wisdom about what to do. Let’s hope so, as the arguments for striking down these laws are much stronger than those on the other side. Reading the 120+ amicus briefs (not to mention those filed by the actual parties to the case) would doubtless only strengthen that conviction.
John Culhane is the co-author of the new book, Same-Sex Legal Kit for Dummies. He is a law professor who writes about various and sundry topics, including: disaster compensation; tort law; public health law; literature; science; sports; his own personal life (when he can bear the humanity); and, especially, LGBT rights and issues. He teaches at the Widener University School of Law, and is also a contributing writer for Slate.
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U.S. Rep. Adelita Grijalva (D-AZ) is accusing U.S. Immigration and Customs Enforcement (ICE) agents of pepper-spraying her in her face while she was at a local Tucson, Arizona restaurant.
Rep. Grijalva in a video on social media said she saw about 40 mostly-masked ICE agents at a restaurant she frequents weekly.
The agents were “in several vehicles that the community had stopped right here, right in the middle of the street, because they were afraid that they were taking people without due process, without any kind of notice.”
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She said that the community was “protecting their people” when she was “sprayed in the face by a very aggressive agent,” and “pushed around by others when I literally was not being aggressive.”
“I was asking for clarification, which is my right as a member of Congress,” she continued. “So, once I introduced myself, once I did, I assumed that it would be a little calmer, but there was literally only one person that was trying to speak to me in any kind of civil tone, and everyone else was being rude and disrespectful, and I just can only imagine if they’re going to treat me like that, how they’re treating everybody else.”
Congresswoman Grijalva said she saw “people directly sprayed,” including “members of our press” and staff members.
She blasted President Donald Trump, saying that he “has no regard for any due process, the rule of law, the Constitution — they’re literally disappearing people from the streets.”
Critics slammed the agents’ action.
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U.S. Senator Ruben Gallego (D-AZ) wrote that Rep. Grijalva “was doing her job, standing up for her community.”
“Pepper-spraying a sitting member of Congress is disgraceful, unacceptable, and absolutely not what we voted for. Period,” he added.
“This is unacceptable and outrageous,” observed Arizona Attorney General Kris Mayes. “Enforcing the rule [of] law does not mean pepper spraying a member of Congress for simply asking questions. Effective law enforcement requires restraint and accountability, not unchecked aggression.”
The Bulwark’s Sam Stein noted, “quite the beginning for Grijalva, who wasn’t seated for weeks, [cast] the decisive vote to get the Epstein files, and now has apparently been pepper sprayed in the face by immigration agents.”
Also calling the action “outrageous,” U.S. Rep. Pramila Jayapal (D-WA) wrote: “We are Members of Congress with oversight authority of ICE. Rep Grijalva was completely within her rights to stand up for her constituents. ICE is completely lawless.”
“First they tackle a sitting Senator,” noted U.S. Rep. Adriano Espaillat (D-NY). “Now they’re pepper spraying a Representative. It’s clear ICE is spinning out of control. We will hold the agency accountable.”
ICE just conducted a raid by Taco Giro in Tucson – a small mom-and-pop restaurant that has served our community for years.
When I presented myself as a Member of Congress asking for more information, I was pushed-aside and pepper sprayed. pic.twitter.com/gPx0p3IXP2
— Rep. Adelita Grijalva (@Rep_Grijalva) December 5, 2025
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Image via Reuters
A well-known conservative commentator has a warning for the Republican Party: take action now or face a repeat of the 2018 midterms when the GOP lost 41 House seats in a landslide. And this time, he says, the Senate could go to the Democrats as well.
Award-winning writer and journalist Bernard Goldberg reminded readers at The Hill that in 2018, during President Donald Trump’s first term, “Republicans got walloped … and a good chunk of that had President Trump’s name written all over it.”
Trump’s “approval ratings were in the low 40s, and independents — the folks who usually decide elections — had seen enough. They broke hard for the Democrats,” Goldberg noted. “Now here we are, staring down 2026, and you can almost hear history clearing its throat, getting ready to repeat itself.”
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Goldberg noted that Trump’s approval rating is currently the lowest it’s been this term.
“Among Republicans, his support dropped from 91 percent right after the 2024 election to 84 percent last month. Among independents, it cratered — from 42 percent to just 25 percent.”
“If the trend continues,” he warned, “Republicans could be headed for another blue wave — and this time, it could wash away not just the House majority, but control of the Senate too.”
Why?
“It’s the economy — still,” he wrote.
“Trump is out there saying the economy is humming. Biden said the same thing before him. But voters didn’t buy it then, and they’re not buying it now. Why? Because it’s not GDP numbers that matter. It’s affordability,” Goldberg noted.
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That’s a word that President Trump continues to call a “con job,” while his own administration tries to claim he is focused on.
He pointed to a Karl Rove Wall Street Journal column and wrote: “The Republicans may have ‘avoided disaster’ in Tennessee, but the result should be a wake-up call for Republicans. He’s right.”
Goldberg asked: “will anyone in the Republican Party actually pick up the phone?”
“Because if Republicans don’t wake up — and fast — they’re going to find out the hard way what happens when you keep rerunning the same movie and expecting a different ending. To lose in 2026, all they have to do is nothing. And right now, that’s pretty much what they’re doing.”
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President Donald Trump is claiming that the top priority of Democrats is the “total obliteration” of the U.S. Supreme Court. His remarks came just hours after SCOTUS gave Republicans a 6-3 win along partisan lines, in the form of approving Texas’s redrawn mid-decade congressional maps that could help add five GOP-held seats to the U.S. House of Representatives. A lower court had ruled the redrawn Texas maps were likely racially biased.
Although there are different ways to measure, one study by Court Accountability this fall found that the Supreme Court has ruled in Trump’s favor 90% of the time.
“Most of these wins for the president came from the court’s ‘shadow docket’ slate of opinions — where the court has typically, in the past, only ruled on administrative measures,” according to Truthout. “However, in recent years, the Supreme Court has been making announcements on cases, issuing injunctions or allowances of actions to remain in place, that have the same effect, essentially, as a final decision.”
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On Friday, the president declared that the “Democrats number one policy push is the complete and total OBLITERATION of our great United States Supreme Court.”
“They will do this on their very first day in office, through the simple Termination of the Filibuster, SHOULD THEY WIN THE UPCOMING ELECTIONS,” he wrote.
Trump has strongly advocated for Republicans to eliminate the Senate filibuster.
“The Radical Left Democrats are looking at 21 Justices, with immediate ascension,” he wrote, claiming that Democrats would more than double the current size of the court.
“This would be terrible for our Country. Fear not, however, Republicans will not let it, or any of their other catastrophic policies, happen. Our Country is now in very good hands. MAGA!!!”
Some court reform advocates have suggested the Supreme Court be expanded to 13 justices, one for each of the thirteen U.S. Courts of Appeals.
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Image via Reuters
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