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On February 28, 2013, as the deadline approached for submitting amici briefs in the Proposition 8 and DOMA cases to be heard this session by the Supreme Court of the United States, interested parties ranging from the Bishops of the Episcopal Church to PFLAG have acted. The most important brief filed on February 28 was that of the President Obama, who instructed the Justice Department to submit an amicus brief in the Proposition 8 case. In addition, the American Sociological Association filed a potentially crucial brief in both the Proposition 8 and DOMA cases.
There was some doubt as to whether President Obama would file a brief in Hollingsworth v. Perry, the Proposition 8 case, since the U.S. is not a party to that litigation, as opposed to the DOMA case, Windsor v. U.S., in which the Justice Department is directly involved. However, on the afternoon of February 28, the administration announced that it was filing a brief in Hollingsworth.
The brief, filed by Solicitor General Donald Verrelli, argues that Proposition 8 violates equal protection guarantees of the United States Constitution and argues that a heightened level of judicial scrutiny should be used in this and other cases involving classifications based on sexual orientation. Proposition 8, the brief contends, furthers no legitimate government interest and, by depriving same-sex couples of the right to marry, denies them the "dignity, respect, and stature" accorded similarly situated opposite-sex couples.
In response to news that President Obama had ordered the filing of the brief, Chad Griffin, president of the Human Rights Campaign, issued a statement hailing the decision.
"In his second inaugural address last month, the president said our journey is not complete until 'the love we commit to one another' is equal as well. His words inspired a nation, and this amicus brief puts them into concrete action. It argues that Proposition 8 violates the U.S. Constitution's guarantee of equal protection. The Obama administration courageously stopped defending the Defense of Marriage Act (DOMA) in 2011, but this brief marks the first time it has weighed in on a state law barring same-sex couples from marrying."
Griffin added, "I'm proud to say that President Obama and the U.S. government are standing by our side against Prop. 8," and pointed out that "This move fits within a proud tradition of the United States standing on the right side of history in civil rights cases. Almost 60 years ago, the Justice Department filed an amicus brief in Brown v. Board of Education, the landmark school desegregation case."
Another important brief filed as the deadline approached was submitted by the American Sociological Association in both the Hollingsworth and Windsor cases. The American Sociological Association is the most prominent academic organization for sociologists. Its brief zeroes in on the question of same-sex parenting, which is raised by the defenders of both Proposition 8 and DOMA.
As John Becker observes in the Huffington Post and on his blog, the brief "authoritatively dismantles the claim made by opponents of marriage equality--including the GOP-led House Bipartisan Legal Advisory Group, the National Organization for Marriage, and the U.S. Conference of Catholic Bishops --that same-sex marriage harms children, and that kids 'do better with a mother and a father.'"
The brief thoroughly reviews the scholarship on same-sex parenting and concludes that "the evidence regarding children raised by same-sex parents overwhelmingly indicates that children raised by such families fare just as well as children raised by opposite-sex parents, and that children raised by same-sex parents are likely to benefit from the enhanced stability the institution of marriage would provide to their parents and families."
Also noteworthy, as Becker points out, is that the brief confronts head-on and dismantles the disreputable study by University of Texas researcher Mark Regnerus that was funded by right-wing organizations and that purported to show that same-sex parents were inferior. Despite being widely discredited for its flawed methodology and wildly inaccurate conclusions, the study has been embraced by anti-gay organizations and is cited by the proponents of Proposition 8 and the Bipartisan Legal Advisory Group (BLAG) defending DOMA.
As Scottie Thomaston reports at Equality on Trial, other briefs in one or both of the marriage cases filed or expected to be filed on February 28, 2013 include submissions from Democratic members of Congress; from the U.S. Conference of Mayors; from Kamala Harris, Attorney General of California; a joint brief from the attorneys general of fifteen other states; a joint brief from 25 mostly "red state" equal rights organizations; a brief from PFLAG; a brief from the Bishops of the Episcopal Church of the United States; briefs representing more than 200 leading American corporations; a brief from National Football Players Chris Kluwe and Brendan Ayanbadejo; and a brief from the Southern Poverty Law Center. These and other briefs are described at the American Foundation for Equal Rights website.
The brief filed by Democratic members of Congress in the Windsor case is signed by 172 members of the House of Representatives and 40 senators. Among the signatories from the House include House Minority Leader Nancy Pelosi (CA), House Democratic Whip Steny Hoyer (MD), ranking Constitution Subcommittee Member Jerrold Nadler (NY), ranking House Judiciary Member John Conyers, Jr. (MI), and openly gay representatives Jared Polis (CO), David Cicilline (RI), Sean Patrick Maloney (NY), Mark Pocan (WI), Kyrsten Sinema (AZ), and Mark Takano (CA). Senators signing the brief include Senate Majority Leader Harry Reid (NV), Assistant Majority Leader Dick Durbin (IL), Senate Judiciary Chairman Patrick Leahy (VT), Senator Dianne Feinstein (CA), Senator Barbara Boxer (CA), and openly gay Senator Tammy Baldwin.
Below is the brief filed by the Justice Department in regard to Proposition 8.
The brief filed by the American Sociological Association in both marriage cases is below.