Tuesday, October 06, 2020

Yet marriage equality lawyers often recoiled from the sex discrimination argument. Consider the half-hearted arguments from the briefs in Obergefell. The Obergefell/Henri brief, which was signed by prominent lawyers from Lambda Legal and the ACLU, devoted 11 pages to arguing that marriage bans are a form of unconstitutional sexual orientation discrimination, and just three paragraphs—less than two pages—to argue that such laws constitute sex discrimination. A second brief authored by ACLU lawyers, among others (Bourke v. Beshear), spent 13 pages articulating different iterations of a sexual orientation-based equality argument, and just one page on sex. The petitioners’ brief in DeBoer v. Snyder, which was signed by Mary L. Bonauto of Gay and Lesbian Advocates and Defenders, completely disregarded sex discrimination. It spent five pages on sexual orientation discrimination and three pages on discrimination against children deemed “illegitimate.” The exception was a brief joined by Shannon P. Minter, for National Center for Lesbian Rights, which tends to be more intersectional and lesbian-centric in its advocacy than other marriage equality lawyers. Minter’s brief gave nearly equal time to the sex discrimination argument.

No comments: