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UPDATE – Wash. AG Ferguson filing amicus briefs in support of ‘marriage equality’ in two cases before the U.S. Supreme Court

Post by Brad Shannon / The Olympian on Feb. 28, 2013 at 10:00 am | No Comments »
February 28, 2013 11:40 am
Bob Ferguson, attorney general
Bob Ferguson, attorney general

Washington Attorney General Bob Ferguson is filing amicus briefs with the U.S. Supreme Court this week in two historic same-sex marriage cases that go before the high court for arguments in late March.

“In our state, the Legislature and the voters have spoken on this issue and came down strongly in support of marriage equality. Our involvement in these two cases is consistent with the will of the voters,” Ferguson said in an interview.

The Democrat said lawyers in his Office of Solicitor General had taken the lead with counterparts in Massachusetts and New York to draft briefs in one case involving California’s voter-approved ban on gay-marriage, Proposition 8, and another in a New York tax case.

Since Referendum 74 took effect early in December, Washington has been one of nine states plus the District of Columbia that legally permit marriages for same-sex couples.

Ferguson’s office is announcing the filings of briefs today in a news release – one day after more than 200 leading corporations including Microsoft and Google also filed a brief asking the court to strike down the federal Defense of Marriage Act, in which Congress defined marriage as a union between one man and one woman in 1996.

The Obama administration also filed papers this week seeking the same goal – to strike down the federal DOMA in a case originating with a New York widow who was denied a estate tax refund related to her lesbian spouse’s estate.

Although it is not unusual for the AG’s Office to file friend of court briefs, Ferguson’s position on same-sex marriage is a big change from his predecessor. Former AG Rob McKenna, a Republican, opposed R-74 during last year’s gubernatorial campaign.

Ferguson is filing one brief today, another on Friday – in advance of the court arguments that begin March 26 in the back-to-back cases. Ferguson, his Solicitor General Noah Purcell and attorneys in the office shared their draft briefs with counterparts in the other states.

Fourteen states – Connecticut, Delaware, District of Columbia, Illinois, Iowa, Maine, Massachusetts, Maryland, New Hampshire, New Mexico, New York, Oregon, Vermont and Washington – signed onto the filing in the California case known as Hollingsworth v. Perry. The brief was filed by Massachusetts AG Martha Coakley; California’s AG filed a separate brief.

In both cases, Washington hopes to offer unique perspective.

In the U.S. v. Windsor case involving the estate tax and inheritances, equal protection under the law is at issue, and Washington can point to same-sex couples who are disadvantaged because their marital rights are not recognized by the federal government, according to Purcell. The negative impacts on families include such things treatment in the tax code, the ability to receive spousal Social Security or military benefits, and other rights of marriage enjoyed by heterosexual couples.

In the case of California Proposition 8 in 2008, 52 percent of voters approved changes in the state constitution to bar same-sex marriage and limit marriages to a union of one man and one woman.

Purcell said that in that case Washington has “first hand experience with the benefits of marriage equality and that the sky in fact is not falling as the proponents of Prop. 8 claim” once same-sex relationships were legally recognized.

State Sen. Ed Murray, an openly gay Democrat who led the fight to pass the law that led to last fall’s referendum, said Washington brings a unique perspective as a state where both the Legislature and voters affirmed same-sex marriage rights.

State Rep. Jamie Pedersen, also a gay proponent of the marriage law and a family-law attorney, said he can’t say Ferguson’s brief can change any views on the court. But he thinks an amicus brief can make arguments that are “awkward or perceived as risky for the parties’’ – and sometimes explore a line of reasoning that can be appealing for individual members of the court.

“The conventional wisdom has become that in big Supreme Court cases it is important to get a constellation of ‘amici’ weighing in,’’ Pedersen said.

Pedersen said he is “cautiously optimistic” about overturning the federal DOMA law. He speculated it could draw support from justices who might see the law as Congress intruding on an area of family law that had been the province of states for 220 years.

At the same time, he said he is anxious about the California case. The court could invalidate it and other similar state laws. But deference to states could work against gay rights, because the court is weighing an amendment laws in a state constitution approved by voters who clearly wanted to exclude gays from marriage.

Despite the historic nature of the U.S. Supreme Court cases, Ferguson said he hasn’t sorted out whether he can attend the oral arguments.

“Obviously it would be an honor to be there but we haven’t made any final decisions on that. We’ve been focused on the briefs,” he said.

UPDATE on 10 a.m. post: Joseph Backholm of the Family Policy Institute of Washington led the campaign to reject Washington’s same-sex marriage law.  He said in an email he had not known about Ferguson’s filing but was not surprised:

For those who believe the Supreme Court has the power to invent new rights to suit their policy preferences, this is a consistent position. … I am optimistic that the Supreme Court will acknowledge that the Constitution is silent on the issue of how marriage should be defined.  This is a policy discussion that should take place in legislative bodies around the country, and that is what is happening now.  For the court to impose same-sex “marriage” on the entire country, including 31 states that have constitutional amendments defining marriage as a relationship between a man and a woman, would remove the discussion from the democratic process and further disempower the people whose consent is allegedly required for our government to properly function.

Gov. Jay Inslee, made marriage rights equality a piece of his campaign platform last year, put out a statement saying:

“Washington is a national leader in the fight for marriage equality, and I’m proud that our state today joined two friend-of-the court briefs to bring that right to couples across the country. Washington Attorney General Bob Ferguson has done admirable work in helping to shape these briefs and in ensuring that our state continues to be a strong voice in this important campaign for civil rights.”

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