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, Iâ€™ll be writing a series of columns explaining the legal issues from several different perspectives. (You can let me know in the comments if thereâ€™s any particular question youâ€™d like to see explored or answered.)
Letâ€™s start with an issue that might not occur to you right away: amicus briefs. Â The two cases have spawned an almost unfathomable number of these amicus briefs â€“ I counted at least 80 such briefs in the Prop 8 case, and more than 40 for DOMA (with more coming inâ€¦.). 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 â€œfriend of the court.â€ 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 â€œamicus,â€ 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.
Itâ€™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.
Letâ€™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 thereâ€™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 â€œtwo-sex onlyâ€ model that supports the exclusion of same-sex couples from marriage isnâ€™t consistent with the complex biological reality that â€œa not insignificantâ€ percentage of the population expresses sex and gender in ways that donâ€™t fit into this binary system; mostly, sheâ€™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. Youâ€™ll learn lessons that extend far beyond the current controversy.) But, again, do any of these briefs matter?
Thereâ€™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 whoâ€™s married, and who isnâ€™t, by defining marriage as limited to the union of a man and a woman. (As you probably know, DOMA means that even if youâ€™re married under your stateâ€™s law, your union doesnâ€™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 Â issues, then it might be of some value to you, as a Justice.
And she said she read them! Whether theyâ€™ll affect the Justicesâ€™ thinking in these cases is anyoneâ€™s guess, though. If itâ€™s true that itâ€™s all up to Justice Kennedy, then perhaps heâ€™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. Letâ€™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,Â 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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‘We’re in Trouble’: Steve Schmidt Issues Dire Warning About Changed GOP After January 6th Insurrection
Appearing on MSNBC’s the 11th Hour with host Brian Williams, former GOP campaign consultant Steve Schmidt warned that Democrats need to accept that the Republican Party has changed drastically after four years of Donald Trump and the Jan 6th riot — and failure to recognize that simple fact puts the entire country at risk.
Using one of Schmidt’s tweets where he called Trump’s “truth” a “hideous deception” as a jumping-off point, the former Republican warned, “We’re in trouble.”
“Objectively, since the insurrection on Jan 6th, the Republican Party is far more radical,” Schmidt began. “Far more committed to the lie that Trump has told, fully committed to the authoritarian movement.”
“Should the events repeat themselves, the Republican Party is in a much different place than it was this past election with regard to being prepared to subvert the legal and lawful results,” he continued.
“The Democrats have done nothing since coming into office,” he added. “They have done nothing to prevent any of the abuses we have seen, done nothing to harden any of the infrastructures”
He later added, “This is a serious moment.”
‘Something That’s Under Way’: Trump Aims to Use Russian Tactic to Be ‘Installed Without Winning’ in 2024 Says Yale Historian
Former president Donald Trump and his GOP supporters are hoping to rely on a tactic that’s common in Russia to return him to the White House in 2024, according to one prominent expert on authoritarianism.
“As someone who follows contemporary Russia, there is a Russian phrase that comes to mind, which is the ‘administrative resource,'” author and Yale University history professor Timothy Snyder told MSNBC on Friday. “What the administrative resource means in Russian is that sure, you have an election, but the people who are running the election are going to determine how the election turns out. What the Republicans are going for is precisely that thing, the administrative resource.”
Snyder then explained how this mechanism works and how Trump and Republicans might apply it during the next election.
“Historically speaking, what we know about a ‘big lie’ is that because of its very scale, it’s not about truth or not truth; it’s about living in a kind of alternative reality,” Snyder added. “What we’re looking at is people who believe in or pretend to believe in this Big Lie, actually carrying out our elections. And the problem with this, or one of them, is that since these people have already claimed that the other side cheated, that basically legitimizes their cheating. In other words, if you talk about the Big Lie now, you’re basically promising to cheat the next time around, and that’s very concerning.”
He concluded by saying that this is a clear and present danger, not merely a theoretical one.
“The scenario for 2024 for most influential people around Donald Trump, which unfortunately means one of the political parties, is precisely to be installed without winning the election,” Snyder said. “I don’t think it’s something that could happen. I think it’s something that’s under way, and the question is, can we accept this reality in time to take the measures we need to take to prevent it?”
‘Ghoulish’ Lauren Bobert Branded a ‘Sociopath’ for Attacking Alec Baldwin: ‘Grieving Family Just Lost Their Loved One’
U.S. Rep. Lauren Boebert, the QAnon Republican lawmaker and gun rights activist who owns a bar named Shooters in Rifle, Colorado, is being criticized after posting a tweet mocking and attacking Alec Baldwin. The well-known actor who spent several years playing Donald Trump on “Saturday Night Live” shot and killed award-winning cinematographer Halyna Hutchins, apparently by accident, with a prop gun on set less than 24 hours ago.
Boebert dug up a seven-year old tweet Baldwin had sent in support of Michael Brown, the 18-year old Black man fatally shot by a Ferguson, Missouri police officer.
She then added a snide and ugly remark and posted it to Twitter, only too happy to use the pain of Hutchins’ grieving family, friends, and industry as a tool to attack Baldwin:
The outrage was palpable, even from a few on the right, like former Trump White House Director of Strategic Communications:
If you’re going to tout your Christian faith, how about trying to have some empathy and grace over a tragedy? Don’t remember the part of the gospel that says “anything for RTs” https://t.co/uPT3djTpT7
— Alyssa Farah (@Alyssafarah) October 22, 2021
A Democratic U.S. Congressman weighed in:
You are a ghoul. https://t.co/owURidfZqo
— Ruben Gallego (@RubenGallego) October 22, 2021
This MSNBC correspondent made a keen observation:
Elected official makes joke about gun violence while holding gun in profile pic https://t.co/fO4JMiMUmd
— Cal Perry (@CalNBC) October 22, 2021
And many others:
A member of Congress is using her taxpayer-funded salary to dig up seven year old tweets to troll a man she’s never met in what’s probably the worst moment of his life. “Shame” doesn’t even begin to describe this. https://t.co/BKtSWsADqc
— Mike Rothschild (@rothschildmd) October 22, 2021
So you just straight up don’t give a fuck that there’s a grieving family who just lost their loved one and can see you joking about their loved one’s tragic death, huh?
— Kendall Brown (@kendallybrown) October 22, 2021
You really have to be the most ghoulish, heartless, shittiest excuse for a human being to use a tragic accident that cost a young woman her life, to attempt to crack a joke at @AlecBaldwin’s expense. https://t.co/ZddmfIS0XB
— Ana Navarro-Cárdenas (@ananavarro) October 22, 2021
The “party of family values” ladies and gentlemen.
This vile creature is reveling in a tragic death.
She’s using that horrible accident as a weapon in order to attack someone who is undoubtedly suffering.
This is who she is.
She is grotesque.
She’s an embarrassment to Congress.
— Jo (@JoJoFromJerz) October 22, 2021
This fact makes me so sad. This is the kind of person we have representing Americans. 😭
— Jacqui White (@jacqwhi) October 22, 2021
This is disgusting. A woman is dead. it’s beyond ghoulish for an elected official to joke about this. https://t.co/4QAqyRtH5X
— andrew kaczynski (@KFILE) October 22, 2021
Lauren Boebert is a simpleton sociopath. She is a profoundly stupid person who compensates by being a huge asshole.
In hell, she’d be the hostess at a Nazi Hooters. https://t.co/aleoBtHbCd
— The Hoarse Whisperer (@TheRealHoarse) October 22, 2021
The party of ‘Christian values’.
A person died. These people are repulsive. https://t.co/0wbloL9Evz
— Francis Maxwell (@francismmaxwell) October 22, 2021
One thing that really binds the modern Republican Party is a complete disregard for the life of human beings. https://t.co/p7QN5yja6C
— David Rothschild (@DavMicRot) October 22, 2021
You are evil. https://t.co/axvOO20wFL
— drew olanoff (@yoda) October 22, 2021
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