WASHINGTON — Two of the biggest figures in the battle for marriage equality are joining forces to give the Supreme Court their take on the marriage cases before the justices.
The Human Rights Campaign, headed since 2012 by Chad Griffin, is joining with Robbie Kaplan, who represented Edie Windsor in her challenge to DOMA, to submit an amicus curiae — or, friend of the court — brief to the justices in the marriage and marriage recognition ban cases out of Kentucky, Michigan, Ohio, and Tennessee.
Kaplan and HRC are already joined by Windsor, the first of whom HRC hopes will be thousands of people across the country signing onto what the group is calling the “People’s Brief.” HRC is launching a campaign at its site to collect signatures for the brief over the next four weeks — a viral effort aimed at a court that still lacks online filing.
“When it comes to marriage equality, the Supreme Court has heard from business leaders and elected officials, faith leaders and even the President of the United States,” HRC President Chad Griffin said in a statement. “But, until now, they’ve never heard from the fair-minded American majority who simply wants to see their LGBT friends and neighbors treated fairly and equally under the law.”
Kaplan and HRC’s Griffin haven’t always been the closest of friends — although they certainly are both strong supporters of marriage equality. So, why did they team up now?
“The simple answer, of course, is that I was asked,” Kaplan told BuzzFeed News on Monday afternoon. “HRC had this idea to capitalize on the power of modern technology in this way and to do an amicus brief that would be able to reach so many more people than has in the past, and I thought it was a great idea.”
Additionally, from a legal perspective, Kaplan had been looking to talk with the justices — through one of the dozens and dozens of amicus briefs expected to be filed in the marriage cases — about animus.
“I very much wanted to write, for the court, an amicus brief on this principle that is so important to me of why things have changed so much, what’s the reason for that, what’s the significance of that legally, and how the court, in my view, both can and should fit that into existing constitutional doctrine” in addressing and striking down the bans, she said.
HRC and Griffin say they are excited about the partnership, the first of many efforts planned to push the discussion of the cases — hoping, eventually, to have the end result of pushing the justices — in the coming months.
“HRC is proud to work with Robbie because we both believe that the fair-minded American majority in support of marriage equality should have a voice at this historic moment,” HRC President Chad Griffin told BuzzFeed News. “Robbie won a sweeping victory in Windsor, we’re proud of what we accomplished in California with Perry, but ultimately this moment is about helping all gay and lesbian couples in all 50 states win a true, complete and lasting victory.”
Kaplan is joined on the brief by two prominent law professors of LGBT legal scholarship, Dale Carpenter of the University of Minnesota Law School and Steve Sanders of Indiana University Maurer School of Law. Kaplan said she asked them to join her on the brief because “they’re the two leading scholars” on the animus question.
As for herself? “I just hope that the justices will appreciate the brief because I hope that they will think that it is a well-written brief that’s persuasive, and that’s my only goal,” she said.
“Animus,” as a legal doctrine, has confused courts, lawyers, and certainly the general public, Kaplan said, and she wants to use this brief — and HRC’s public discussion of it — to help change that.
“You don’t have to have hatred in your heart,” Kaplan said in explaining what legal “animus” means, “but you have to have a misunderstanding or a failure to understand or appreciate that the gay couple who’s living across the street from you are just the same as you are. It’s that lack of understanding in this context, which I think explains what happens, and which gives the court, I think, a reason to hold that various statutes and constitutional amendments before it are unconstitutional.”
The brief doesn’t focus on two of the key arguments discussed throughout the legal proceedings on these bans: whether the bans violate the “fundamental right” to marriage under the constitution or whether claims of sexual orientation discrimination should be subjected to “heightened scrutiny” under the constitutional guarantee of equal protection.
“I’m certainly not contending” that a fundamental rights decision or heightened scrutiny decision wouldn’t make her happy, Kaplan said, “but this gives the court the analytical framework to decide the case in accordance with the decisions they’ve issued in this area.” The fundamental rights and heightened scrutiny arguments will be out there in other briefs, Kaplan said. “We’re just explaining how animus works, too.”
Of course, Kaplan’s also never written a brief intended to be signed by thousands of people — or more.
“In the Grutter case [about law school affirmative action policies], there was a brief filed by 13,600 law students — I think that number’s right,” Kaplan said, noting that the filing won’t be unprecedented, although she and Griffin hope their number will end up being much higher. “I think the difference between that time and this time is that today we have the internet, so HRC has the ability to reach a lot more people than, frankly, anyone ever contemplated.”
Kaplan does not, however, want this to be as easy as a person changing their Facebook profile picture to a red equal sign — HRC’s big social media push during the 2013 Supreme Court marriage cases.
“They have to affirm that they have” read the brief, she said. “I don’t want anyone to sign onto this brief unless they read it. I want to be very clear about that. No one should be signing onto this brief just because it’s HRC or just because it’s Robbie Kaplan or just because it’s Steve Sanders or Dale Carpenter. They need to read it and make sure they agree with it.”
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