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.


  1. Ben says

    Paul, that comment is just mean-spirited. There are plenty of people outside of the field of law, but in equally intelligent and respected areas of society, who might not know what that term means. If you believe the majority of Americans will know that term, I don’t think you are opening your eyes wide enough.

  2. Gianpiero says

    Ari, I agree with your analysis and with the conclusion that 2012 is not the right time (if ever) to pursue a ballot strategy, but urging people to “ignore” activists who ultimately have the same policy objectives is unnecessarily divisive.

  3. vanndean says

    As a general rule, italicize the names of aircraft, ships, and trains; foreign words used in an English sentence.

    Since the word amicus is Latin, it would have to be considered a “foreign” word used in an English sentence and italicizing it would be proper usage. Considering the ignorance of the general population of the United States, a definition of “amicus brief” would also appear to be an appropriate subject.

  4. Rich F. says

    @ Paul R: “Amicus” and “amici” are italicized because they’re Latin words, not for any sort of emphasis. Granted, it’s a fairly common word in legal English, so italics are not strictly necessary; stylistically, though, italics are correct.

  5. paul b says

    @Paul R…don’t feel sorry for us. Ben is right and in my humble opinion (try that sometime)we’re not all qualified to interpret these legal documents correctly.
    I do know how to do an exorcism though…want to go for a spin?

  6. SamIAm says

    While I disagree with Paul that everyone knows what one is, I do agree that it does not require italicization. Foreign words used in common parlance in a particular field are not italicized. Amicus curiae is one such phrase. Even the Bluebook, which is the writing handbook for lawyers says not to italicize it. See Rule 7, 19th ed.

  7. Glenn says

    Agree with Gianpiero: saying we should “ignore” those who activists who disagree with you sounds pretty condescending — I hope you didn’t mean it that way. The folks who think we should go back to the ballot are well-meaning, sincere, and (in my view) likely correct but even if they are not they do not deserve that kind of back-of-the-hand treatment.

    The other thing about your analysis that I think you should acknowledge explicitly, rather than merely leaving it implicit, is that it is premised upon our winning the Prop 8 legal fight. As you well know, the fears of many who opposed this battle are that, with this Supreme Court, the case will wind up with a Bowers-type setback that will haunt us for a generation. If that happens, all the amicus briefs in the world will be just so much useless paper in the files on First Street. I understand you believe that won’t happen, and I hope you’re right. But your argument is premised on it not happening, and hey, it’s hard to argue with that, right? If we win the legal battle, then going the legal route will have been a great move.

  8. SamIAm says

    Who cares if you don’t like them? Lawyers don’t do work that makes everyone like them.

    I don’t particularly like people who think accuracy or precision is a flaw. Maybe lawyer should just text speak in their briefs or publications. From now on, let’s just call it AmIcUr :) lol LMFAOOOO.

  9. searunner says

    @Ezra, thanks for the piece. What are the political benefits of having so many companies file briefs in support of repealing DOMA and overturning Prop. 8? And is there a way to leverage that support with GOP politicians?

  10. Paul b. says

    @SAM…well, you may be right. Maybe a planet somewhere in a distant solar system for lawyers to chat in their own “special” language would be appropriate. Then you could go visit and “out-persnickity” each other till the cows come home.
    Oh, lot’s of people care if I don’t like lawyers…I’m part of a very big club that feels the same way.

  11. SamIAm says

    Well just remember, it is lawyers, whether you like them or not, who could one day make sure you’re able to get married wherever you live, that your kids attend integrated schools, that your sister has control over his body, and that your asinine comments are not censored.

    You may not like them, but you probably should.

  12. Rich says

    While I agree that getting the Federal Courts to nullify Prop 8 is preferable to having the voters repeal it, there is a danger that the Courts could follow the logic of the cited brief opposing DOMA, declare marriage a States’ right under the 10th Amendment and uphold the right of California to legislate (in this case, by initiative) its own marriage laws as it sees fit.

    Application of the Full Faith and Credit clause to marriages performed in a foreign jurisdiction has been extremely limited, and barring an act of Congress, it’s hard for me to see how the Federal government can extend the rights granted to married persons to those having substantially similar partnerships in states that refuse to recognize those partnerships as equivalent to marriage.

    For most couples, it is the Federal treatment of marriage that is critical to their life issues. Repeal of DOMA is a necessary but not sufficient condition for marriage equality.

  13. Paul b. says

    @SAM…and that is why, if you could read through you’re fancy attitude…you would have heard me say “not all…just most”.
    I think we’re done here sam…gotta go do my real work…but it has been fun.

  14. Paul R says

    Wow, thanks. My life is indeed really lonely because I know how to read and absorb information. And thanks for the guidelines about editing and italicizing; I’ve only been editing for 20 years.

    Italicizing common Latin terms like ex ante, ex post, inter alia, de facto, and the like isn’t necessary. More to the point, the terms should rarely be used if you want to be widely understood. Look up articles in major publications; most avoid the use of these terms or don’t italicize them. “Amicus brief” is used everywhere.

    I wasn’t trying to insult Ari in any way, and the focus on this point is silly.

  15. MiddleoftheRoader says

    Good article, but the problem with amicus briefs is that in many cases, they arguments that they present are NOT based on “facts” in the “record” of the case. For example, the whole argument about added administrative costs to employers who claim they have to keep two sets of books, to hire outside compliance firms, etc. — this is all “hearsay”. It may be true and probably is true, but unless there was actual evidence in the trial that indicates two sets of books, hiring outside compliance firms, etc, then it would be difficult (or impossible) for an appeals court to accept these “hearsay” claims as true and to rely upon them to decide the case.

    For those who don’t like the above argument, imagine if the situation is reversed, and if NOM or another anti-gay group submits an amicus brief. This is not a perfect example (not enough time and space to present the perfect example here), but what if NOM says that without the “protection” of DOMA that allows businesses to use a uniform federal definition of ‘spouse’ all over the US (only male + female), costs and complexity would be even greater for businesses that operate in multiple states. NOM’s argument would be that some same-sex couples might be covered by federal benefits in some states, but not in other states which specifically forbid recognizing same-sex relationships; so, federal rights of same-sex partners(not just state rights of same-sex partners) could vary from state-to-state, and that different application of federal rights from state to state would increase costs and complexity for businesses that already have to deal with different state laws, but now would have to deal with different federal rights in different states. Whether you agree with this argument or not, would we really want a court to accept NOM’s claims about “cost and complexity” without there being evidence of those facts during the trial, so that it could have been subjected to cross-examination and rebuttal?

    The point is: Amicus briefs can do everything that Ari says. But it is dangerous to allow amicus briefs to introduce new information (information masquerading as evidence) that was never introduced and ‘tested’ at the trial.

  16. Chuck Mielke says

    Here’s where I found it:

    Here’s what it says:

    The amicus curiae walks a fine line between providing added information and advancing the cause of one of the parties. For instance, she or he cannot raise issues that the parties themselves do not raise, since that is the task of the parties and their attorneys. If allowed by the court, amici curiae can file briefs (called briefs amicus curiae or amicus briefs), argue the case, and introduce evidence. However, they may not make most motions, file pleadings, or manage the case.

    In other words, amici are _not_ restricted to evidence presented in trial. This may, however, be the case in some state court systems; rules can vary.

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