“Promoting democratic self-
governance and accountability is a laudable governmental interest, but it is not one that justify a law that would otherwise violate the constitution,” Verrilli wrote.
In such cases, he said, the judiciary plays a special role in protecting minorities.
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The administration’s brief is added to dozens that outside groups have filed in the same-sex marriage cases. Briefs have been submitted by states that allow such unions and those that forbid them; religious groups on both sides of the issue; Republicans who support same-sex marriage and conservatives who say it undermines a traditional way of life.
Labor unions and hundreds of major corporations weighed in on the side of same-sex marriage, for instance.
The AFL-CIO said its gay workers are economically harmed by laws that do not allow them to marry.
“These economic injuries are readily quantifiable in terms of the dollars gay and lesbian workers are forced to spend on higher costs and taxes, in the denials of access to publicly and privately provided benefits, and in the refusals of entry into and in the deportations out of the U.S.,” the union brief said. “These harms further extend into the physical workplace, where gay and lesbian workers often confront and navigate biases about their sexual orientation and the comparative worth of their personal relationships.”
The businesses, which included such giants as Microsoft and Nike and small businesses such as a winery in California, said restrictions against same-sex marriage create extra work for them — over insurance coverage and taxes, for instance — and force them to categorize workers differently.
“It puts us, as employers, to unnecessary cost and administrative complexity, and regardless of our business or professional judgment forces us to treat one class of our lawfully married employees differently than another, when our success depends upon the welfare and morale of all employees,” the brief stated.
Another is signed by more than 100 prominent Republicans, including Clint Eastwood and seven former governors, among them 2012 presidential candidate Jon Huntsman (although only a small number currently hold public office).
They tell the court that supporting civil marriage for same-sex couples is consistent with a “commitment to limited government and individual freedom.”
“Many of the signatories to this brief previously did not support civil marriage for same-sex couples,” the brief stated. But after states offered such unions, they said, they have “reexamined the evidence and their own positions and have concluded that there is no legitimate, fact-based reason for denying same-sex couples the same recognition in law that is available to opposite-sex couples.”
On the other side, a coalition of African American pastors told the court it should not draw comparisons to its 1967 decision in Loving v. Virginia, which struck down state bans on interracial marriage.
“The ruling in Loving was not revolutionary the way striking down the traditional male-female definition would be in the present case,” the brief stated. “The anti-miscegenation statutes in Virginia were at war with the core purposes of marriage — especially the fostering of responsible procreation and child rearing by biological parents.”
And 19 states, including Virginia, urged the court to overturn the 9th Circuit’s opinion, which it said overrode the will of California voters.
“The result is not merely vitiation of California’s co-equal sovereignty without a clear constitutional warrant,” the brief said. “It is disintegration of perhaps the most fundamental and revered cultural institution of American life: marriage as we know it.”
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