Issue:  Vol. 48 / No. 8 / 22 February 2018

Online series looks at legal arguments in marriage case


Marriage Equality USA's Pamela Brown, left, and Molly McKay review legal briefs in the same-sex marriage case. Photo: Jane Philomen Cleland
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In preparation for hearing oral arguments March 4 in the same-sex marriage case, the state's Supreme Court justices had to digest more than 90 briefs filed by the parties to the six consolidated lawsuits and from amici curiae, or "friends of the court," with an interest in the case.

The task was so daunting that the court had to delay scheduling the case in order to allow enough time for the seven justices to read through the mountain of legal arguments the court received.

Thirty of the briefs came from parties supportive of same-sex marriage. They represent various legal associations and interest groups, ranging from matrimonial lawyers, anthropologists and psychologists, to religious leaders and civil rights organizations like the National Association for the Advancement of Colored People and the Mexican American Legal Defense and Educational Fund.

To help readers digest the legal reasoning behind the briefs and meet the people who crafted the arguments, the Bay Area Reporter teamed up with Marriage Equality USA to launch a new online series called Friends of the Court.

The series debuts today (Thursday, February 14) in honor of Valentine's Day and the four-year anniversary of when Mayor Gavin Newsom ordered San Francisco city officials to marry same-sex couples. The series will run each weekday between now and March 4, when the court has scheduled three hours for arguments in the case beginning at 9 a.m.

"The chances of you actually getting through the thousands and thousands of pages in the amicus briefs are pretty small unless you are an attorney. We wanted to make the briefs accessible to the lay audience," said Molly McKay, MEUSA's media director. "There are some unique points and poignant stories that come through the examples."

The columns will be available on the B.A.R. 's Web site at by around 10 a.m. every day except for Wednesdays, when they will be posted around noon.

The series will also be made available on Marriage Equality USA's Web site at

"We are going to have a countdown to the hearing," said Pamela Brown, the organization's policy director. "We think it will be really interesting for people within our community and undecided individuals on the issue to really look at this case and the merits that are raised in these briefs."

Each day the series will look at one specific brief or several briefs with similar viewpoints or arguments. Today's inaugural edition focuses on the NAACP's brief, which focuses on the court's decision 60 years ago that overturned California's interracial marriage prohibitions.

Known as the Perez v. Sharp decision, the court ruled in 1948 that the right to marry the person of your choice is a "fundamental right of citizenship" and struck down the state law banning couples of different races from civil marriage. The NAACP brief compares that discriminatory law to the anti-gay marriage one.

"They have gone through and juxtaposed words of race to sexual orientation and compare the Perez decision to Massachusetts' Goodrich decision," said Brown, referring to that state's high court ruling in favor of same-sex marriage. "The right to marry for interracial couples and same-sex couples are exactly the same."

Brown spent the last three months reading the briefs and interviewing the lawyers who wrote them as well as the leaders of the various groups that filed them with the court. A majority of those people are not gay but see the issue of marriage equality as a civil rights issue that affects society as a whole, said Brown.

"Many of these organizations have passed resolutions in favor of marriage equality and the amicus brief provided them a way to speak to the court," said Brown. "They really reflect the diversity of support here in California and nationwide that is growing for the freedom to marry."

The case is known as In re Marriage Cases , S147999. It began after the state Supreme Court ruled in the summer of 2004 that the 4,000 marriage licenses handed out during the "Winter of Love" in San Francisco were null and void.

But the court did not rule on the issue of whether gay men and lesbians had a right to marriage, and instead, the justices referred the issue of whether the state could exclude same-sex couples from marrying back to the lower courts.

A San Francisco Superior Court judge ruled in 2005 that the state had no reason to deny marriage rights to same-sex couples, but a Court of Appeal panel overturned the decision in 2006. The majority 2-1 decision said that, "Everyone has a fundamental right to 'marriage,' but, because of how this institution has been defined, this means only that everyone has a fundamental right to enter a public union with an opposite-sex partner."

The Supreme Court will have 90 days from March 4 to issue its ruling. The court has posted copies of all 90 briefs filed in the case on its Web site at

MEUSA also will host a series of events today at county clerk offices in 20 cities throughout the state where same-sex couples will request marriage licenses. The Valentine's Day counter actions are listed at

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