For over 60 years, the U.S. Supreme Court has been a battleground for LGBTQ+ rights, shaping constitutional law and impacting the lives of millions of individuals nationwide. In One, Inc. v. Olesen (1958), the Court tackled obscenity laws against gay publications and, in a one-line order, indicated that speech addressing gay subjects and concerns was not inherently obscene. This was about as far as the Court would go for several decades. Baker v. Nelson (1972) summarily dismissed an early challenge to a same-sex marriage ban for want of a substantial federal question. And Bowers v. Hardwick (1986) entrenched longstanding discrimination against LGBTQ+ individuals by upholding laws criminalizing private same-sex intimacy.
The tide began to turn in 1996 with Romer v. Evans, which invalidated a Colorado statute banning any protections from discrimination based on sexual orientation. The Court followed with landmark advances in Lawrence v. Texas (2003), overturning Bowers and decriminalizing same-sex intimacy; Windsor v. United States (2013), striking down the federal Defense of Marriage Act (DOMA); Obergefell v. Hodges (2015), establishing marriage equality nationwide; and Bostock v. Clayton County, Georgia (2020), determining that Title VII’s prohibition on discrimination “because of sex” also covered discrimination based on sexual orientation and gender identity. In the interim, the Court decided Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), which stands at the intersection of LGBTQ+ rights and inclusion with religious liberty; the Court held, that in rendering a determination that a baker’s refusal to create a wedding cake for a same-sex couple violated anti-discrimination laws providing for equal access to goods and services, a Colorado commission failed to adhere to the requirement of religious neutrality.
While representing clients in landmark cases such as these is one significant way to advance civil rights, amicus briefs offer another important avenue for legal advocacy. By allowing the voices of diverse stakeholders to be heard while providing courts with broader perspectives and insights, amicus briefs can influence court decisions by highlighting the wider societal implications of a case.
Our attorneys at Sanford Heisler Sharp McKnight have authored influential amicus briefs in key cases, including the historic 2015 Supreme Court case of Obergefell v. Hodges.
What Is an Amicus Brief?
An amicus brief, also known as a “friend of the court” brief, is a document submitted to a court by someone who is not a party to the case. These briefs provide additional information or arguments that the court may consider in making its decision. They are tremendously important in U.S. Supreme Court cases because they can influence constitutional law by highlighting societal impacts, historical context, and technical insights related to the case. They help shape landmark rulings that affect public policy and civil rights nationwide. Since 1950, the number of amicus briefs has soared as individuals and organizations have sought to weigh in on precedent-setting decisions.
Preparing an amicus brief requires thorough research and a deep understanding of both the legal issues at stake and their broader implications. The process involves obtaining permission from the court, crafting compelling arguments, and identifying influential parties who share a vested interest in the outcome. A brief joined by multiple credible parties adds weight to the arguments presented. These collaborations not only enrich the content and impact of the brief but also signal to the court that there is substantial interest and concern regarding the issues at hand.
The Role of Amicus Briefs in Obergefell v. Hodges
Obergefell v. Hodges was a watershed moment in U.S. history, particularly in the arena of LGBTQ+ rights. It affirmed that same-sex couples have the right to marry under the Fourteenth Amendment’s Due Process and Equal Protection Clauses. This decision not only legalized same-sex marriage nationwide but also underscored the importance of dignity and equality for all Americans.
Amicus briefs played an instrumental role in this case by providing context and persuading judges about the broader impact of their decision – a decision everyone knew would be groundbreaking. A record-breaking number of amicus briefs – 139 – were filed. While not all those briefs supported marriage equality, the majority did, underscoring the broad coalition advocating for LGBTQ+ rights.
Sanford Heisler Sharp McKnight’s Role in Crafting an Amicus Brief in Obergefell
One of Sanford Heisler Sharp McKnight’s partner attorneys, Andrew Melzer, co-authored an impactful amicus brief on behalf of LGBTQ+ college and graduate student groups nationwide. (Firm Managing Partner David H. Tracey and former firm attorneys Deborah Marcuse and Lila Miller also participated as co-authors.) The brief highlighted how nonrecognition laws (that is, state laws that refused to recognize same-sex marriage) compounded the challenges that LGBTQ+ individuals faced in the workplace. The LGBTQ+ community already confronted pervasive employment discrimination and limited opportunities. Nonrecognition laws that invalidated same-sex marriages when the couple crossed state lines put many of the signatories to the brief and their constituencies in the position of having to choose between professional advancement and marital rights. The brief argued that such legal barriers amplified existing discrimination by limiting where LGBTQ+ couples could live and work without sacrificing their legal relationship status.
The brief also detailed how these laws created an environment of uncertainty for recent graduates entering the workforce. Many LGBTQ+ students, poised to start careers, often in highly specialized and competitive fields, were deterred from accepting positions in states with nonrecognition laws due to fear of losing marital benefits or facing heightened workplace hostility. This deterrent effect was particularly concerning for those pursuing public service roles in underserved communities – positions vital for social equity. These positions were often located in states with restrictive marriage recognition policies.
Finally, the brief underscored the broader societal implications of nonrecognition laws. These laws not only harmed LGBTQ+ individuals but also deprived communities of diverse talent and perspectives. By imposing a “Hobson’s choice” on LGBTQ+ individuals – forcing them to choose between either employment opportunities or personal dignity – the laws stifled economic mobility and perpetuated inequality.
The brief concluded by urging the court to recognize the fundamental right of same-sex couples to travel freely and maintain their marital status nationwide, aligning with Fourteenth Amendment protections. Such recognition would dismantle discriminatory barriers and promote a more inclusive society where all individuals could thrive without compromising their identity or relationships.
Numerous LGBTQ+ student organizations nationwide joined in the amicus brief, such as:
- Stanford University GradQ
- Stanford Law School’s LGBTQ+ student organization, Stanford OutLaw
- Harvard Law School Lambda
- Cohort Q at the Boston University Graduate School of Management
- Columbia Law School’s LGBTQ+ student organization, Columbia OutLaws
- The Williams College Queer Student Union
- Yale Law School’s LGBTQ+ student organization, Yale OutLaws
Amicus Briefs and the Future of LGBTQ+ Equality
Amicus briefs like the one co-authored by Mr. Melzer in Obergefell v. Hodges have been vital tools for advocating civil rights for LGBTQ+ individuals and marginalized groups alike and will continue to play a pivotal role in shaping the course of civil rights.
At Sanford Heisler Sharp McKnight, we are committed to advancing social justice through multiple avenues, including litigant representation and amicus briefs. As Andrew Melzer aptly stated in his reflection statement related to the firm’s 20th anniversary, “In addition to my case work, I have drafted numerous amicus briefs on issues such as same-sex marriage… . It is my hope that my writings will help draw attention to these issues and bring about much-needed reform.” Through continued efforts in drafting persuasive amicus briefs, we strive to advance equality and uphold justice for all.”