Kramer Levin Files Second Brief Urging Supreme Court to Settle Marriage Equality and End Harm to American Families

Kramer Levin has filed an amicus curiae brief urging the U.S. Supreme Court to grant review in one of the marriage equality cases now pending before it, affirm the freedom to marry for all couples, and end the severe harm caused by marriage discrimination to same-sex couples and their families. The brief echoes one the firm filed in September when an earlier set of cases was pending before the Court. Both briefs were filed on behalf of Freedom to Marry, a national leader in the campaign to win marriage equality, and several organizations focused on advocating for and empowering same-sex individuals, couples, and their families: Family Equality Council, PFLAG, COLAGE, and Equality Federation.

The Kramer Levin brief catalogues a wide range of injuries caused by marriage discrimination, including exclusion from hundreds of important state and federal protections, benefits, and responsibilities; severe dignitary harm based on the government’s message that the relationships of same-sex couples are less worthy of respect and recognition – a particularly humiliating message to the children of such couples; and further injury caused even to legally married couples when they move or return to states that bar recognition of their marriages.

As the brief explains, “Every day that same-sex couples are denied the freedom to marry, they and their families suffer new and continuing injuries to their financial security, their access to legal protections, and their fundamental dignity.”

The brief notes that, in the 18 months since the Supreme Court decided United States v. Windsor, which struck down the portion of the Defense of Marriage Act barring federal recognition of the legal marriages of same-sex couples, a long string of federal and state courts has held that marriage discrimination by individual states is a similarly unconstitutional denial of equal protection. In light of that emerging national consensus, the earlier brief had argued that the Court should grant one or more of the petitions seeking review of federal court decisions upholding the right to marry in several states, to resolve the question nationwide.

Those petitions were denied in September – but that action had the effect of letting marriage equality go forward in several additional states. The cases now before the Court went the other way: they include a decision by the Sixth Circuit Court of Appeals overturning pro-marriage rulings in Kentucky, Ohio, Michigan, and Tennessee, and a similar decision by the U.S. District Court in Louisiana that advocates are trying to bring directly to the Supreme Court. The new Kramer Levin brief points out that denying review of these decisions would entrench discrimination in five states, create further nationwide confusion, and unnecessarily augment and prolong harm to millions of Americans – same-sex couples and their children, extended families, and friends.

“After working on marriage equality for more than a decade, we are gratified to see the country coming together around basic fairness, recognizing that marriage discrimination needlessly injures so many American families,” said Kramer Levin partner Jeffrey S. Trachtman, counsel of record on the brief. “These new, negative decisions directly harm families in five states, but leaving the question open nationally inflicts broader harm.”

Kramer Levin’s clients on the brief are some of the most expert and distinguished nonprofits working for LGBT equality. Freedom to Marry, a longtime Kramer Levin pro bono client, was founded by marriage pioneer Evan Wolfson and provides leadership and coordination for the movement to win marriage nationwide. Family Equality Council brings together and advocates for LGBT families with children and through an earlier amicus brief in Windsor helped bring children’s voices before the Supreme Court. PFLAG represents parents and friends of LGBT individuals and was also Kramer Levin’s amicus client in Dale v. Boy Scouts. COLAGE advocates for and empowers the children of LGBT couples. And Equality Federation partners with state-based advocacy organizations to advance the rights of all LGBT Americans.

The Kramer Levin brief was written by partner Jeffrey S. Trachtman and associates Michelle Ben-David and Anna Schoenfelder, with assistance from partner Norman C. Simon and associates Jason M. Moff and Kurt M. Denk. Kramer Levin has a long history of involvement in pro bono LGBT rights litigation, including serving as co-counsel with Lambda Legal in Hernandez v. Robles, the case seeking equal marriage rights under the New York Constitution.

Click here for the full brief.