One-Sided Argumentation in the Defense of Marriage Act
Verrilli’s arguments (Verrilli et al. 2013)
Clement’s arguments (Clement et al. 2013)
Section 3 violates equal protection for all citizens.
Section 3’s definition of marriage should be retained because it is fiscally necessary.
Section 3 does not further federal interests of preserving federal resources.
Section 3 provides a uniform definition that helps the federal government administer programs efficiently.
Section 3 legitimizes discrimination.
Section 3 should be retained because it was passed by Congress, signed by President Clinton, and certified by the Justice Department.
Section 3 excludes gays and lesbians from federal benefits solely because of their sexual orientation.
Homosexuals are not a powerless group deserving special legal consideration.
Court precedents show that the federal government cannot exclude a group from federal benefits based on conserving public resources.
Section 3 should continue because there is no compelling legal reason to change it.
The goal of this paper is extend legal argumentation theory by identifying the traits of partisan and one-sided arguments found in appeal and reinforced in amicus curiae briefs. The essay describes amicus curiae briefs and their role in appellate argument, explains one-sided legal arguments, and explicates the specific traits of this type of argument in two different amicus curiae briefs submitted in the DOMA case for consideration by the U.S. Supreme Court.
6.2 Amicus Curiae Briefs
The name, amicus curiae, means friends of the court. These briefs are partisan, biased, and one-sided arguments submitted by special interest individuals and groups to support a particular side of an appellate case. The amicus briefs express partisan interests and seek to persuade the judges on the Supreme Court that their position is the only correct one (Foggan and Dancey 2004). The amicus briefs also present specialized and unique information that legal advocates determine to be pertinent to the judges deciding a case. Specifically, these briefs are “no longer a mere friend of the court, the amicus has become a lobbyist, an advocate, and most recently the vindicator of the politically powerless” (Lowman 1992, 1245).
These briefs are a common type of legal advocacy that accompanies the required appellate briefs and addresses judges deciding a case. Since 1990, more than 90 % of all case appealed to the U.S. Supreme Court include a number of amicus curiae briefs (Kearney and Merrill 2000, 744), a fact demonstrating the prevalence of this type of legal argumentation in the U.S. In the DOMA case, 43 amicus briefs supported the U.S. government and the petition of Windsor, and 30 supported BLAG and the interests of conservative groups. My study selects one brief for each side as a representative example of the kinds of arguments and the credentials of the amici who constructed the briefs. Most of the amicus briefs supporting the government and Windsor’s claim of discrimination came from congressional groups, government agencies, corporations, and academic groups; whereas most of the briefs supporting BLAG came from conservative political and religious groups and individuals.
6.2.1 Structure
Amicus briefs share a common structure, purpose, content, and social premises. Because of the prevalence of friends of the court briefs in the last three decades, the Supreme Court issued guidelines in 1997 about the form of these arguments that limited these briefs to 50 pages and forced the authors of these briefs to identify their commitments, biases, authority and sources of financial support for the production and submission of these briefs. All amicus briefs contain the following: table of authorities, interests of amici, and summary of arguments. These briefs present arguments in a detailed outline form that must be submitted to the Court no later than 7 days after the petitioners and respondents submit their required briefs (Foggan and Dancey 2004; Rule 29, Federal Rules of Appellate Procedure).
6.2.2 Purpose
The goal of this kind of appellate argument is to inform the court of the amici’s (name for the people and groups that pay attorneys to create the briefs) “interests in the case,” establish “the relevance” of amici’s argument” to the case outcome, and justify “why the amici’s interests” are not adequately addressed in the appeal briefs (Kearney and Merrill 2000, 38). For this reason, amicus briefs allow individuals, interest groups and activists to make additional arguments that they consider pertinent to one side of the appellate case (Flango et al. 2006; Collins 2004).
6.2.3 Content
The content of each amicus briefs is aligned with the partisan and one-sided arguments of required briefs. The amicus briefs do not take up all of the arguments that are presented in the required briefs, but instead focus on key evidence and reasons that they claim have significant bearing on the case. For example, in support of the brief presented by the U.S. Solicitor General Donald B. Verrilli, amicus attorney Miriam R. Nemetz et al. (2013) argued: (1) Gay men and lesbians do not have meaningful political power because they lack civil rights and sufficient political clout to prevent the passage of DOMA and other harmful legislation; (2) Section 3 of DOMA is unconstitutional because it is based on partisan lawmaking; and (3) DOMA does not preserve tradition, protect federal interests in procreation, or assure uniformity in federal law. On behalf of conservative groups who support DOMA and BLAG argued by Paul D. Clement, amicus attorney Herbert W. Titus et al. (2013) constructed the following lines of argument: (1) DOMA is constitutional based on several historical Court precedents; (2) DOMA is not prohibited by the Fifth Amendment and due process clause; (3) Homosexuals already have significant political power; and (5) DOMA aligns with Christian teachings about marriage as only between a man and woman.
6.2.4 Premises
The premises of amici briefs are intertwined with the social myths that adhere in the narratives of the briefs. Larson (2010) defines social myths as “real or imagined [features of] narratives that illustrate a society’s values” (234). Social myths are connected to law because they come from social knowledge and beliefs (tradition and history) about legal issues as well as from the appellate advocate’s values. One prominent and disputed myth in this case emphasizes socio-political beliefs about discrimination of gays and lesbians, and another stresses the importance of traditional religious definitions of marriage and the intentions of the framers of the U.S. Constitution. For example, Nemetz (2013) premises her arguments in a social narrative that centers on flawed U.S. laws that promote discrimination of gays and lesbians and situates DOMA directly within contemporary practices of oppression and discrimination in the U.S. On the other hand, Titus (2013) locates his arguments within a social narrative emphasizing the importance of precise legal language, the intentions of the framers of the U.S. Constitution, and Christian religious ideals that he says demonstrate the moral importance of the nuclear family and centrality of marriage as only between heterosexual couples. The disparate social myths appear both in the required and amici briefs in the form of premises that contain appellate arguers’ commitments and social values in relation to the disputed legal issues of this case.
6.3 One-Sided Appellate and Amici Arguments
Both the required briefs and those of amici are examples of biased, partisan, and one-sided argument. The amicus briefs locate their one-sided arguments both in the facts as advocates understand them, the values of the interest groups they represent, and the social myths that provide the premises of their arguments. Although a common view is that partisan, biased and one-sided arguments oppose the standards of logical rigor and therefore create fallacies, partisan bias is both a necessary and positive trait of appellate argument. Walton (1999) emphasizes that bias in argumentation is not necessarily “incorrect or logically defective”; it is normative for various kinds of one-sided advocacy and therefore deserves critical attention (xviii). Appellate arguers often create partisan, biased and one-sided arguments in order reflect the standpoints of those they represent with persuasive arguments.
A more nuanced meaning of the term “bias” is needed here. One sense of bias is closed-mindedness where the commitments of the advocates are so strong that they refuse to consider the arguments of opponents. Legal advocates typically do not hold this kind of bias because the rules of the legal procedure force them to acknowledge some of opponents’ arguments in order to bolster their own standpoints. Another type of bias is what Walton (1999) calls “my-side” bias in which arguers promote group interests from a particular point of view. Expressing “my-side” bias is the norm for appellate arguers because the rules of the court require these advocates to defend one side of a legal dispute, create reasons and evidence that support the people and interests they represent, and make sure the judges deciding the case will understand the reasoning for their partisan positions and interests. In other words, partisan and my-side bias is an integral part of legal advocacy because it is “a function of the avowed or supported purpose of the discourse” (62). Even though the legal system expects appellate judges to be unbiased, impartial and without pre-existing commitments, these traits do not apply to appellate advocacy. Specifically, my-side bias allows amici, always outsiders to a particular dispute, to present arguments they believe should be considered by appellate judges as part of the overall reasoning for each side of the case.
A partisan point of view adheres in one-sided argumentation since appellate arguers must present a compelling case for those they represent and reject arguments from the legal adversaries. In contrast to Walton’s claim that one-sided arguments are not balanced, appellate arguers construct reasoned arguments based on evidence that support their side of the case. Admittedly, some of the arguments are stronger than others, but they nonetheless provide reasons and evidence defending distinctive standpoints. Both the required appellate and the amicus briefs contain compelling partisan and one-sided arguments that contain my-side bias in order to present and defend their positions and allow the adversarial argument process to take place in the appeal process. Since Walton’s descriptors of one-sided arguments are not designed to explicate the content of required or the amici appellate arguments, I explain six common traits in order to clarify this prominent type of legal argument.
6.4 Traits of One-Sided Arguments in Amici Briefs
Several traits commonly found in the arguments of amici briefs include: clarifying a legal principle, emphasizing amici’s interests, refuting oppositions’ interests, stipulating partisan definitions, using one-sided evidence, and citing precedents that reinforce my-side bias. The following section explains these traits and then provides examples from two sample amicus curiae briefs in the DOMA. Nemetz, cited here using the name of the counsel of record, supports the arguments of the U.S. and of lower court rulings in Windsor by denying the constitutionality of Section 3 of DOMA. Titus, cited here using the name of the counsel of record, promotes the arguments for several conservative groups supporting BLAG. Nemetz argues that same sex couples should not be denied federal benefits solely because they are gay, DOMA denies these benefits, and therefore Section 3 must be revoked. She submits this brief on behalf of 172 members of the U.S. House of Representatives and 40 U.S. Senators. Titus’s brief represents the interests of a coalition of many conservative groups, including Citizens United National Committee for Family Faith and Prayer, Guns Owners Foundation, Lincoln Institute, and the Conservative Legal Defense and Education Fund. He argues that Section 3 is constitutional and that those in homosexual marriage can legally be denied federal benefits.
6.4.1 Clarifying a Legal Principle
The primary goal of the amicus briefs is to support one side of an appellate case by clarifying a legal principle, that is, developing arguments that amici believe are missing or underdeveloped in the required appellate briefs. For Nemetz et al. (2013), one underdeveloped argument is the lack of federal purpose of the DOMA statute. In fact she claims DOMA has no federal purpose whatsoever; instead its purpose is to legitimize discrimination against gays and lesbians.