Making Friends in High Places
From Of Counsel Vol.3 No.4
By Jennifer C. Pizer, Senior Counsel
Published 07/30/07
When gay icon Bette Midler sings, "But you got to have friends . . .," she could easily be describing some of Lambda Legal's most important impact litigation work. Amicus curiae, or friend-of-the-court, briefing has been critical in civil rights legal work. It remains central to our work today as advocates for lesbian, gay, bisexual and transgender people and those with HIV.
There are two types of amicus briefs: the classic form that presents and explains factual research and those that complement the parties' legal arguments. The first type, commonly called a "Brandeis Brief," is named after renowned jurist Louis Brandeis. Brandeis prepared the first brief of this kind in the early 1900s for a case concerning the adverse health effects on women forced to work long hours. To help the court in its consideration of the legal question, Brandeis provided a fuller factual context through the compilation of extensive social science information. Since then, Brandeis Briefs have come to play an important function in impact cases in both state and federal courts whenever specialized factual material may assist the court. Those who prepare these briefs act like expert witnesses, providing information that is readily known and verifiable to people steeped in a given field but may not be common knowledge.
Lambda Legal has submitted this kind of amicus brief in cases such as Kovatch v. California Casualty Management Company to document the psychological trauma inflicted by antigay bullying and sexualized harassment. We have filed similar fact-packed briefs in cases such as In the Matter of Brian (a.k.a. Mariah) L. to explain gender dysphoria and document the medical consensus that gender reassignment is medically necessary for some transgender people and must be accommodated, for example, by employers and co-workers. We have also submitted such briefs in asylum cases such as In re Y.S. and Soto Vega v. Gonzales to help courts understand cultural norms in an applicant's country of origin. Such information helps explain the applicant's self-presentation, and can provide a clearer picture of the brutally antigay conditions in the applicant's country of origin.
Distinct from Brandeis Briefs are the countless amicus briefs in which we make legal arguments that complement the parties' arguments. These briefs sometimes show how an important case without an obvious LGBT rights connection could have unintended harmful impacts on LGBT people if the court were to decide it with unduly broad language. For example, in Morse v. Frederick, the recent "Bong Hits 4 Jesus" student speech case in the U.S. Supreme Court, we submitted a brief to alert the justices about emerging issues not squarely presented in that case. Lambda Legal reminded the Court of the case's potential impact upon the speech rights of LGBT students who want to come out and organize, whether or not they have administration support, as well as school officials' duties to enforce antibullying policies against antigay harassment. Although the majority decision in Morse to allow punishment of the student is troublesome, we were heartened that Justices Samuel Alito and Anthony Kennedy concurred separately to limit their support to speech advocating drug use and not speech on other social and political subjects.
We played a similar role in Troxel v. Granville, when the U.S. Supreme Court considered whether Washington State's "grandparent visitation" statute offended parents' rights to decide who should and shouldn't have access to their children. Our brief made sure the high court had in mind the needs of lesbians and gay men who are parents in day-to-day fact but not in law, and whose relationships with their children might be at greater risk if the Court were to define the constitutional rights of legally recognized parents too broadly. The numerous differing opinions in Troxel gave scholars much to ponder. However the doctrine proceeds, Justice Sandra Day O'Connor's lead opinion acknowledging the diversity of American families drew generously from Lambda Legal's amicus brief, and we have cited her often in cases since Troxel.
Lambda Legal acts as a friend-of-the court when other cases may affect the communities we serve. Often we also ask others to "befriend" us. The marriage cases are a timely example. When our New Jersey marriage case, Lewis v. Harris, was before that state's high court, 14 briefs supporting our clients came in from "friends" ranging from the American Psychological Association to the New Jersey State Bar Association to a group of 30 prominent professors of history and law.
In California, the marriage cases we are litigating with the National Center for Lesbian Rights and the ACLU are in the state supreme court now, and amicus briefs have not yet been filed. But when these cases were in California's intermediate appellate court, more than 250 religious and civil rights organizations stepped forward to befriend us through eight separate amicus briefs. The supporting groups ranged from leading national civil rights groups such as the NAACP, the Mexican American Legal Defense and Educational Fund and the Asian American Justice Center to more than 200 local, regional and national religious organizations and clergy. These groups included such diverse denominations as the United Church of Christ, the Union for Reform Judaism, the Ecumenical Catholic Church, the Buddhist group Soka Gakkai International-USA, the California Council of Churches and California Church IMPACT, which represents 21 Protestant and Orthodox denominations throughout California.
The participation of these groups illustrates the breadth of support and dispels misperceptions that our positions are out-of-step with public understanding. Also, particular groups speak with special authority on certain issues. Based on their history and recognized moral authority, some civil rights groups speak exceedingly persuasively about the core principles in equal protection doctrine. Leading women's rights groups and feminist scholars, with their deep expertise in gender theory and sex discrimination, can give an especially sophisticated, authoritative presentation about why sexual orientation discrimination should be understood as a particular form of sex discrimination. Religious groups, of course, most effectively rebut false, reactionary arguments that religious sentiment monolithically opposes equality for, and inclusion of, LGBT people. Preeminent lawyers, law firms and bar associations most convincingly attest that the practicing bar needs, and is ready for, specified reform.
Lambda Legal is a think tank for developing new legal theories and strategies, a repository of factual expertise and a community collaborator for advancement of both law and social understanding about how law should prevent discrimination based on sexual orientation, gender identity and HIV status. We rely on friends to help explain and support us in this work, just as we are friends to others on our common American path to liberty and justice for all.
