Amici argue that it is the federal judiciary, not state legislatures or voters, that decide the scope of the Equal Protection Clause of the Fourteenth Amendment.
Willkie is serving as counsel for 92 plaintiffs as Amici Curiae in the marriage case from the Sixth Circuit currently before the United States Supreme Court, James Obergefell, et al. and Brittani Henry, et al. v. Richard Hodges, Director, Ohio Department of Health, et al. Amici are a cross-section of Americans, including teachers, military and law enforcement personnel, veterans, lawyers, medical professionals, small business owners, and stay-at-home parents, who have challenged the constitutionality of bans on marriage of same-sex couples imposed by their home states of Alabama, Alaska, Arkansas, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Carolina, North Dakota, South Carolina, South Dakota and Texas.
The brief addresses the Sixth Circuit’s question of “who decides” whether the laws denying marriage to same-sex couples unjustifiably treat amici and other gay men and lesbians as second-class citizens. The brief sets forth that using the customary tools of constitutional analysis – the words and historical context of the Equal Protection Clause of the Fourteenth Amendment and the Supreme Court’s precedents – it is the federal judiciary and ultimately the Supreme Court, not the states, that must decide this issue. The Sixth Circuit erred in concluding that because denying those protections is a “tradition” – recognized when the Clause was enacted and extant in a number of states today – it is state legislatures or electorates that have the final say. The brief also emphasizes that because amici reside in states with long and continuing legislative records of hostility to the rights of gay men and lesbians and of marriage for same-sex couples, it is vital for the Supreme Court to exercise its authority to enforce the Equal Protection Clause.
The matter was handled by partners Richard Bernstein, Wesley Powell, Mary Eaton, Sameer Advani and associates Frank Scaduto, Matthew Edwards, Peter Nothstein, Andrew Hanrahan, Timothy McGinn, Christopher McNamara, Sarah Wastler, Meredith Ruggles, Caroline Van Wagoner, Thomas Artaki, Maxwell Griffith, Nicolas Heliotis, Samuel Kalar, Kyle Mathews and Cristina Quinones-Betancourt.
Read: Brief of Ninety-Two Plaintiffs in Marriage Cases in Alabama, Alaska, Arkansas, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Carolina, North Dakota, South Carolina, South Dakota and Texas as amici curiae in support of Petitioners.