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5 Surprising Amicus Briefs in the Same Sex Marriage Cases

By Robyn Hagan Cain | Last updated on

The same sex marriage cases before the Supreme Court this month feature of lot of legal star power. David Boies and Ted Olson — the attorneys who famously faced off in Bush v. Gore — are leading a bipartisan challenge to California's Proposition 8. Paul Clement, one of the leading litigators of our time, is defending the Defense of Marriage Act.

We knew these cases would be full of interesting twists and turns, but we didn't expect any twists or turns from the amicus briefs. Well, color us wrong.

Here are five surprising amicus briefs in the same sex marriage cases.

  1. Republicans on Board. While a group of Congressional Republicans are funding the Bipartisan Legal Advisory Group's defense of DOMA, dozens of Republicans signed on to a brief this week in support of gay marriage, The New York Times reports.
  2. Don't Hate the Player ... Did anyone expect a pair of NFL players to file an amicus brief? Vikings punter Chris Kluwe and Ravens linebacker Brendon Ayanbadejo are vocal advocates for marriage equality. Last year, Maryland state delegate Emmett C. Burns Jr. wrote the Ravens owner, urging him to "inhibit" Ayanbadejo's declarations of support for same sex marriage. Kluwe then wrote an open letter to Burns, urging him that "gay people getting married" wouldn't turn him into "a lustful cockmonster." The pair's brief is largely an extension of their role model status. They explain, "The amici hope that our support for marriage equality here will matter -- both with the Court and with people looking for confirmation that it is okay to treat other good people as equals," The Baltimore Sun reports.
  3. Constitution Optional. The Westboro Baptist Church -- famous for its claims that homosexuality will lead to America's downfall -- filed an amicus brief in the DOMA case, U.S. v. Windsor. That was expected. But, as noted at Balkanization, "Whether by accident or design, Westboro now has the surely unprecedented distinction of authoring a brief to the Supreme Court on a constitutional question that makes not a single mention of the Constitution itself."
  4. Taking Care of Business. The business world cares about the DOMA outcome. Thursday, 278 businesses signed on to an amicus brief urging the Supreme Court to strike down DOMA Section 3. The businesses claim that treating gay and straight couples differently, "uniquely burdens" companies.
  5. New Addition. The Obama administration weighed in on Prop 8 Thursday evening, filing a last-minute brief in support of a limited right to gay marriage, SCOTUSblog reports. Lyle Denniston explains that the government's position "would simultaneously give some support to marriage equality while showing some respect for the rights of states to regulate that institution ... If a state already recognizes for same-sex couples all the privileges and benefits that married couples have ... those states must go the final step and allow those couples to get married."

Perhaps most surprising of all -- at least to us -- a California lawyer's amicus brief cited an unexpected authority: Along with other articles and Shakespeare (natch), the attorney referred to a FindLaw Ninth Circuit blog. You can read the original post here, and see how it was used in the brief here.

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