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April 15, 2015 Practice Points

I Get by with a Little Help from My Friends

By Nick Kacprowski

The case challenging the legality of the same-sex marriage bans in Ohio, Michigan, Tennessee, and Kentucky has received a flurry of amicus briefs on both sides of the issue. The 150 briefs filed include a mixture of organizations that have long appeared in the same-sex marriage cases, more idiosyncratic groups, public figures, scholars, businesses, and other individuals. The briefs range from those amici and briefs making somewhat expected arguments to the much more unusual.

For the opponents of the marriage bans, the amici include the American Bar Association, the Anti-Defamation League, Members of Congress (mostly Democrats), the NAACP, and a number of "blue" states. Some more unanticipated amici, either because they were not expected to take a position or because they are organizations that do not typically appear as amici before the Supreme Court on personal liberty issues, include the United States, Indiana University, and the AFL-CIO. Among the most unusual amici are, for example, Judge John Olson, a United States Bankruptcy Judge in Florida who entered into a same-sex marriage in 2010 in Massachusetts, and Lisa Brown, the County Clerk/Register of Deeds for Oakland County, Michigan, who would like to issue same-sex marriage licenses.

Perhaps the more interesting group of briefs, however, is from the supporters of the same-sex marriage bans. These amici include the usual opponents, such as multiple Republican politicians, various "red" states, and a number of religious organizations. There is, however, a more interesting array of unusual amici among the opponents. Amicus Richard Lawrence, for example, is an individual representing himself who has been married for 45 years and wanted to provide a brief "from the viewpoint of a married man." The "Scholars of Marriage and Fertility" are two professors who wrote "in order to highlight the procreative aspects of marriage" and "the importance of societies reproducing in adequate numbers." Another amicus is a group of "Same-Sex Attracted Men and Their Wives." This group distinguishes itself from other amici, those who claim to have changed their sexual orientation, by noting that they choose to be in opposite-sex marriages despite being attracted to those of the same sex, which they openly acknowledge and accept they cannot change. They argue that the legality of same-sex marriage will cause them to be demeaned and marginalized because they have chosen to be in opposite sex marriages, despite their same-sex attractions.

Key Words: LGBT, litigation, Obergefell, amicus, same-sex marriage, Supreme Court

Nick Kacprowski is with Alston Hunt Floyd & Ing in Honolulu, Hawaii.

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