Saturday, March 2, 2013
MOJ's own Tom Berg, along with Douglas Laycock (University of Virginia School of Law) and Marc Stern (American Jewish Committee), on behalf of the American Jewish Committee, have submitted an amicus brief to SCOTUS in Hollingsworth v. Perry (the Prop 9 case) and USA v. Windsor (the DOMA case). The brief makes a strong plea for protecting religious liberty in the context of the legalization of same-sex marriage. The brief also argues:
"In Perry, wholly excluding same-sex couples from civil marriage deprives them of a fundamental right. And as implausible as it is to explain civil marriage in terms of protecting children, it is even more implausible to use children to explain the difference between civil marriage and a civil union that would — if it were sufficiently well understood to be enforceable as a practical matter — confer all the same rights as civil marriage. If the Court prefers to proceed cautiously, deciding one case at a time, it should affirm the judgment in Perry on the narrow ground stated by the Court of Appeals. The Court should not reverse on the merits. To do so would be wrong, for the reasons we have stated; it would also be unstable. In the area of same-sex relationships, where public understanding of the underlying facts is rapidly changing, the Court cannot reach a stable constitutional resolution by broadly rejecting constitutional claims. The last time it attempted to do so, in Bowers v. Hardwick, 478 U.S. 186 (1986), it overruled the decision just seventeen years later, and parts of the Bowers opinions are now a permanent embarrassment in the United States Reports. The Court should not repeat its Bowers mistake in these cases."
The brief is available here: Download Marriage Cases AJC Brief Final.