Amicus Brief Profile: Constitutional Accountability Center

In a short series, I will profile several individual amicus briefs filed in the same-sex marriage cases currently consolidated before the U.S. Supreme Court and slated for oral argument on April 28, 2015.

In the same-sex marriage cases currently before the Supreme Court (consolidated as Obergefell v. Hodges), already nearly one hundred amicus (or "friend of the court") briefs have been filed. The vast majority so far are in support of the petitioners - same-sex couples from Kentucky, Michigan, Tennessee, and Ohio. Amicus briefs in favor of the respondents - the states - are due at the end of March.

One of the amicus briefs in favor of the petitioners was filed by the Constitutional Accountability Center through counsel Elizabeth B. Wydra, Douglas Kendall, David Gans, and Judith Schaeffer.

The brief tackles three constitutional topics: the Supremacy Clause of Article IV, the Equal Protection Clause of the Fourteenth Amendment, and the general conflict between democracy and constitutional provisions.

The second section specifically focuses on the "text and history of the Equal Protection Clause" to discern its "original meaning." Why is this significant? It is significant because discerning the "original meaning" of a law or constitutional provision is one of the chief concerns of the Originalist approach to judicial interpretation, an approach followed by Supreme Court Justices such as Antonin Scalia and Clarence Thomas.

Based on their past dissents in cases such as Lawrence v. Texas and U.S. v. Windsor, observers expect Justices Scalia and Thomas to oppose the idea that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples. So this amicus brief reads as though it is specifically appealing to their perspectives and approaches to the question.

As a quick note without going down a deep explanatory rabbit hole, be aware that there is debate whether Originalism should focus on the "original intent" of the people who wrote, passed, or ratified a law compared to the "original meaning" of the words that actually comprise the law. Justice Scalia, for example, has said that the correct approach is to discern the meaning rather than the intent.

With Justice Scalia's perspective apparently in mind, the amicus brief tackles the original meaning of the Fourteenth Amendment and cites the Congressional record from 1866 (the period of time when the Amendment was being debated and framed).

The amicus brief argues that the meaning of the words, written quite broadly, were originally meant to be interpreted broadly:

Attempting to clarify the "original meaning" of the Fourteenth Amendment is not just a ploy to sway certain Justices. It's also directly responsive to the Sixth Circuit's opinion which ruled in favor of the state marriage bans and led to the current Supreme Court case. Judge Jeffrey Sutton of the Sixth Circuit wrote in that opinion that "the people who adopted the Fourteenth Amendment [never] understood it to require the States to change the definition of marriage." DeBoer v. Snyder, 772 F.3d 388, 403 (6th Cir. 2014).

The amicus brief criticizes this as the wrong analysis. What matters is the meaning of the text, "not the subjective expectations of the lawmakers in Congress or the people in the states who ratified the document." After all, the brief argues, the wording of the Amendment is broad and contains no enumeration of the rights it protects.

Though ratified just after the Civil War, the Fourteenth Amendment's text was designed by its framers to formally codify the expansive liberty proclamation of the Declaration of Independence:

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The brief points out that the perception among framers like John Bingham was that the Fourteenth Amendment meant equal protection of "life and liberty and property" of all Americans regardless of any classification state laws may draw.

Ultimately, the brief concludes that the Sixth Circuit was wrong because the original meaning of the Fourteenth Amendment's text, rather than the original intent of its individual framers who may not have, 150 years ago, conceived of a future where same-sex couples would seek civil marriage rights, should control. The Supreme Court should read a "sweeping, universal guarantee of equality," rather than any narrower interpretation that enumerates some liberty interests but resigns the rest to state democratic control.

This focus on the history and meaning of the Fourteenth Amendment (as compared to the history of homosexual discrimination, for example) is not unique to this brief. Others address the same topic. I will profile at least one more in a future installment.