The Absurd Charge that Conservatives Have Been Bullied in the Marriage Equality Cases

In the run up to this month’s big constitutional showdown over marriage equality, conservatives are trying to turn the tables, claiming that they, in fact, are the beleaguered minority in the case.  Their spin was front and center in Adam Liptak’s recent New York Times piece reporting that “[t]here are no major law firms urging the justices to rule against gay marriage.”   As Liptak observed, conservatives are claiming that those who “oppose a constitutional right to same-sex marriage have been bullied into silence.”  In the words of Stanford Law Professor Michael McConnell, “the level of sheer desire to crush dissent is pretty unprecedented.”  But the facts simply don’t bear this extravagant charge out. 

There is a much simpler, more persuasive explanation for the pattern in the briefing described by Liptak: it accords with what has happened in each of the big cases on the constitutional rights of gay men and lesbians considered by the Supreme Court in the last two decades.  In case after case over the past twenty years, red states and social conservative groups, such as the Family Research Council, American Center for Law and Justice, Liberty Council, the Eagle Forum, and others, have been the ones filing amicus briefs urging the Supreme Court to uphold laws that criminalize sexual intimacy between same-gender partners, treat gay men and lesbians as second class persons, and deny them the right to marry.  The top law firms with recognized Supreme Court practices have not joined in these amicus efforts, whether for lack of interest, because it did not make business sense, or because they were not asked.  That’s true even of the most conservative-leaning big firms.  What’s happening in this round of litigation is no different than in past cases.

The amicus briefs filed in Romer v. Evans, Lawrence v. Texas, United States v. Windsor, and Hollingsworth v. Perry, which can be found in the U.S. Supreme Court reports, through SCOTUSblog, and elsewhere on line, look remarkably like those filed in Obergefell v. Hodges.  If there is a difference, it’s that there are many more briefs filed in support of discrimination this time around.  There were nine briefs supporting the state of Colorado in Romer, thirteen supporting Texas in Lawrence, thirty supporting the constitutionality of DOMA in Windsor, and forty-one urging the Justices to uphold Proposition 8’s ban on same-sex marriages in Perry.  In Obergefell, sixty-one briefs have been filed supporting the constitutionality of the discriminatory marriage laws of Ohio, Michigan, Kentucky, and Tennessee.  That’s hardly a case of bullying, and the defenders of marriage discrimination have hardly been silenced. 

The friend-of court-briefs in these past landmark cases, as in Obergefell, feature a slew of briefs filed by social and religious groups, mostly written by the groups themselves, as well as briefs filed by law professors, and a number by conservative state governments and by conservative state legislators.  Some of these were authored by well-known Supreme Court advocates – for example, Michael Carvin and Robert Bork filed a brief in Romer urging the Justices to uphold the Colorado constitutional amendment stripping gay men and lesbians of a host of legal protections – but for the most part they have been written either by repeat players from conservative groups, state attorneys general, or by attorneys with smaller law firms.  There is nothing really different this time around, except the new bullying charge (and many more briefs).

It’s not surprising that conservatives are trying to change the conversation around marriage equality.  The main justifications offered to support bans on same-sex marriage make absolutely no sense, and have been rejected in case after case.  Given that, defenders of discriminatory marriage laws have now pivoted to the argument that it should be up to the people of the states to decide whether same-sex couples should have the right to marry.  That claim ignores the fundamental constitutional principle that the will of the majority cannot trump the Constitution’s mandate of equality for all.

This latest effort by conservatives to change the conversation simply doesn’t work.  And it raises the question why Professor McConnell, a well-respected Supreme Court advocate who regularly participates in Supreme Court litigation, didn’t file a brief himself if he thought the right arguments weren’t being made or that the opponents of marriage equality lacked good lawyers.  No one should be fooled by conservatives’ efforts to claim the status of victim.