Guide to the Amicus Briefs in Obergefell v. Hodges: The Same-Sex Marriage Cases

The United States Supreme Court is set to hear oral arguments on April 28 in the same-sex marriage cases, now styled as Obergefell v. Hodges, a consolidated appeal from the Sixth Circuit’s decision in DeBoer v. Snyder, reversing the district court decisions in  Kentucky,Michigan, Ohio, and Tennessee that had held the same-sex marriage bans unconstitutional, andcreating a circuit split.

Recall that the Court certified two questions:

    1)Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

The case has attracted what seems to be a record number of amicus briefs.  As we discussed last year, the then-top amicus brief attractors were the same-sex marriage cases of Windsor and Perry, which garnered 96 and 80 amicus briefs respectively, and the 2013 affirmative action case of Fisher v. University of Texas at Austin, which attracted 92.

The count for Obergefell v. Hodges stands at  139. 147  [updated: 17 April 2015]

76 amicus briefs support the Petitioners, who contend that same-sex marriage bans are unconstitutional.

58 66 amicus briefs support the Respondents, who contend that same-sex marriage bans are constitutional.

05 amicus briefs support neither party (but as described below, generally support Respondents).

According to the Rules of the Supreme Court of the United States, Rule 37, an amicus curiae brief’s purpose is to bring to the attention of the Court “relevant matter not already brought to its attention by the parties.”  While such a brief “may be of considerable help to the Court,” an  “amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.”

An impressive number of the Amicus Briefs are authored or signed by law professors.  Other Amici include academics in other fields, academic institutions or programs, governmental entities or persons, organizations, and individuals, often in combination.  Some of these have been previously involved in same-sex marriage or sexuality issues and others less obviously so, with a number being religious organizations. Several of these briefs have beenprofiled in the press; all are linked on the Supreme Court’s website and on SCOTUSBlog.

Here is a quick – – – if lengthy – – – summary of the Amici and their arguments, organized by party being supported and within that, by identity of Amici, beginning with briefs having substantial law professor involvement, then government parties or persons, then non-legal academics, followed by organizations including religious groups, and finally by those offering individual perspectives.  [Late additions appear below]Special thanks to City University of New York (CUNY)  School of Law Class of 2016 students, Aliya Shain & AnnaJames Wipfler, for excellent research.


Briefs in Support of Neither Party

Although these five briefs in support of neither party, they each ultimately urge affirmance.

1.              Mae Kuykendall, David Upham, and Michael Worley – While in support of neither party, this amicus supports Respondents’ position on question 1.  Amici Mae Kuykendall, a Conlawprof, and Upham Worley urge the Court to affirm and hold that the Fourteenth Amendment does not require states to license same-sex marriages, because states have historically set their own limitations on marriage, finding a Fourteenth Amendment licensing requirement would improperly convert many state family law cases into federal issues.  They take no position on question 2 because they could not agree amongst themselves.
2.              Prof. W. Burlette Carter – Amicus Burlette Carter, Lawprof, supports Respondents’ position and argues that same-sex marriage was not contemplated by the passage of the Fourteenth Amendment and that federalism dictates that states should retain their rights to restrict marriage, although the Court might “require states to establish a procedure for recognizing same-sex relationships.”
3.              Eagle Forum Education & Legal Defense Fund – Amicus, an organization founded by Phyllis Schafley, argues that the domestic relations exception to federal jurisdiction bars consideration of same-sex marriage.  Although filed in support of neither party, Amicus supports Respondents’ position and urges affirmance.
4.              General Conference for Seventh Day Adventists and the Becket Fund for Religious Liberty  – The Amici argue that the Court’s ruling will have a significant impact on religious organizations’ ability to carry out its mission unless there are religious liberty protections. It argues that should the Court recognize a right to marriage for same-sex couples, such ruling should include religious exemptions for people with an objection to same-sex marriage grounded in a religious belief.
5.              Citizens United for the Individual Freedom to Define Marriage –  Amicus, a collection of citizens who believe that defining marriage should not be left to the government, generally support Respondents’ position. Amicus argues that a federal government definition of marriage both implicates and violates the Establishment Clause, which prevents the government from disapproving or approving particular religious beliefs and from engaging in activity that creates divisiveness.  Amicus argues that the Court can reconcile the tension between the Establishment Clause and the Petitioners’ claims by requiring that same-sex couples have a right to civil unions, leaving the freedom to define marriage to the people of the states.

Read the full article and information here – Guide to the Amicus Briefs in Obergefell v. Hodges: The Same-Sex Marriage Cases