Prop 8 and DOMA: The Amicus Brief and the Primacy of Law

StarbucksConsider the amicus brief recently filed by Google, CBS, Starbucks and approximately 70 other companies and cities that argues that DOMA is anti-business. To succeed in any competitive business environment, companies cannot discriminate and have to offer benefits and a “workplace ethos of transparent fairness." But, DOMA denies business that chance: “DOMA forces amici to investigate the gender of the spouses of our lawfully married employees and then to single out those employees with a same-​sex spouse. DOMA enforces discriminatory tax treatment of spousal health care benefits.”

DOMA is also a burdensome federal regulation that prevents business growth. Companies not only spend time, money, and energy separating out their married gay employees, they spend time, money, and energy discriminating against them. Businesses have “to maintain two sets of books [, …] and "[t]he double entries ripple through human resources, payroll, and benefits administration." In order to keep track of straight married couples, gay married couples and their varied benefits, some businesses hire outside firms: “These dual regimes have spawned an industry of costly compliance specialists." That means that "[t]he burden on the small employer is especially onerous." After all, small businesses cannot afford these extra compliance costs; therefore, “such burdens, standing alone, might chill a smaller employer from employing an otherwise qualified employee because she happens to be married to a same-​sex spouse.”

We have discussed the constitutional problems with DOMA: It violates the 10th Amendment, it interjects the federal government into an area that was previously the exclusive realm of the states, it changed federal policy toward state marriage law as opposed to enshrining the status quo while the states work out their same-sex marriage rules, and so on. We have also discussed how DOMA discriminates against legally married gay couples when it comes to tax law, immigration law, and health care law. But, the ways in which DOMA harms business and impairs job creation has never been the constiutional lawyer's primary concern.

Briefs also have page limits. Depending on what court is making the rules, primary and amicus briefs can be restricted to as few at 10 pages, leaving little room for secondary (but no less important) arguments. The amicus brief allows those important arguments that may not make it into the primary brief for whatever reason to see the light of day and, perhaps, influence the judge or panel of judges.

Amicus brief arguments have a long history of making their way into final court decisions. As the solicitor-general, future Supreme Court Justice Louis Brandeis pioneered not only the use of sociological evidence and data in primary briefs, but popularized the coordinated efforts of large groups of third parties that wanted to add their two cents. Amici's arguments influenced the majority in Lawrence v. Texas and even one of my amicus briefs in a case involving English-language learner funding in Arizona was quoted in a Supreme Court decision.

Why might the opportunity and power of amicus briefs counsel in favor of sticking with the successful legal strategy in Perry v. Brown rather than destroying that precedent by going to the ballot in 2012 and mooting the case?

The issue is the sanctity of truth. Amicus briefs are the legal equivalent to third-party advertisements in an election, but unlike those third-party spots, amicus briefs do not cost millions of dollars and force thid parties to be honest about their arguments. A traditional marriage advocacy group could spend a million dollars falsely arguing that overtuning Prop 8 would mean that California public schools would be teaching anal sex in health class. That demonstrably ridiculous claim could scare an ill-informed voter, but the only impact it could have on a judge is to prove how empty the anti-gay side of the case really is.

A legal strategy in the Perry case ensures that the debate over same-sex marriage in California will not be influenced by lies, distortions, and flagrant hate, all of which are available tools in an election campaign where any side can pretty much say whatever it wants. The amicus brief allows third parties, like business, labor, law professors, teachers, parents, and so on, to register their views — thereby expanding the information the court has at its disposal — at little cost and limited by the compulsion to tell the truth.

That is the kind of restriction we want.


Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.

Follow Ari on Twitter at @ariezrawaldman.