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Holbrook files Supreme Court brief in support of same-sex marital rights

Emory University School of Law |
On Thursday, Emory Law Professor Timothy Holbrook filed an amici curiae brief on behalf of two NFL players, urging the U.S. Supreme Court to uphold the Ninth Circuit Court of Appeals ruling that overturned California’s controversial Proposition 8, which denies marital rights to same-sex couples.

Holbrook, Emory Law’s associate dean of faculty and professor of law, and counsel of record John A. Dragseth (Fish and Richardson PC, Minneapolis) represent Chris Kluwe, punter for the Minnesota Vikings, and Brendon Ayanbadejo, linebacker for the Baltimore Ravens. The brief was filed in support of respondents in Hollingsworth v. Perry, which presents the issue of the constitutionality of Proposition 8, which eliminated marriage equality within the State of California.

The California Supreme Court ruled that it was unconstitutional under California law to deny same-sex couples access to the institution of marriage, even though California afforded comparable legal protections under a different moniker. In response, opponents of marriage equality organized Proposition 8, a ballot initiative ultimately approved by voters. It amended the California constitution to prohibit same-sex couples from marrying, though the state retains domestic partnership protections.

The specific issue in the case is whether Proposition 8 is unconstitutional as a denial of due process or equal protection. There is also an issue of whether petitioners have standing under Article III, Section 2 of the Constitution to defend the measure. Both the district court and the U.S. Court of Appeals for the Ninth Circuit found Proposition 8 to be unconstitutional, though for different reasons. The Supreme Court will hear oral arguments in the case on Tuesday, March 26.

The brief argues:

“America has an ideal—exhibited imperfectly in the original Constitution and more perfectly in the Fourteenth Amendment—that all should be treated equally for what they are. When our government discriminates properly, it does so, not based on what we inherently are, but instead to regulate our negative actions against each other.”

“Courts exist . . . to correct government action that takes away freedoms when that action is motivated by fear and prejudice rather than by evidence and logic. This Court should correct Proposition 8’s action to remove marriage rights from same-sex couples because… the advocates of Proposition 8 provided no evidence-based rationale—as opposed to one based on fear and prejudice—for treating LBGTQ citizens differently with respect to marriage.”

Ayanbadejo has been vocal in support of Maryland’s law allowing same-sex marriage, which passed in 2012.

Last August, Emmett C. Burns, a Maryland legislator and Baptist pastor, wrote the Ravens' owner, Steve Bisciotti, on Maryland House of Delegates letterhead, criticizing Ayanbadejo’s remarks.

"I believe Mr. Ayanbadejo should concentrate on football and steer clear of dividing the fan base," Burns wrote. "I am requesting that you take the necessary action, as a National Football Franchise Owner, to inhibit such expressions from your employee and that he be ordered to cease and visit such injurious actions," the letter continued.

Burns’ letter prompted a blistering and widely quoted response from Kluwe.

Burns later relented on the issue of free speech.

"Upon reflection, he has his First Amendment rights,” he told the Baltimore Sun. "I have my First Amendment rights. … The football player and I have a right to speak our minds.” Burns remains a critic of same-sex marriage.

Ayanbadejo says the issue is akin to racial discrimination.

"The child of a Nigerian father and Irish-American mother, [Ayanbadejo] was taunted over his parents' right to be married when growing up in the Lathrop Holmes housing project on the West side of Chicago, and sees today's fight to legalize same-sex marriage as the 21st century version of the fight for racial equality," the brief says.

"Upon noting that his parents' marriage would have been illegal in 16 states before Loving v. Virginia was decided, Brendon stated that he would not be silent on this issue of equality, conscience and public importance," the brief continues. "If the Court reverses the Ninth Circuit, many professional athletes will take their cue from that. And that will cause a ripple effect as even more people follow their role models, their leaders, their heroes."

Related Links

Read the brief online »

Read about the case on SCOTUSblog »