Unsurprisingly, an enormous number of groups have submitted amicus briefs for the pending Supreme Court cases on same-sex marriage. More surprising is the fact that Westboro Baptist Church submitted one of those briefs. But this is no ordinary brief. It does not directly cite the U.S. Constitution at all. It only cites a very small number of past cases. It extensively cites the Bible and religious and academic commentary on the Bible.
How do we make sense of this? What does Westboro Baptist Church hope to achieve by submitting this brief? WBC is no stranger to the courts. But in the past, they have used courts to defend their right to picket. Most notably, in Snyder v. Phelps the Supreme Court (2011) upheld their right to picket at a military funeral. I found one other case where WBC submitted an amicus brief (Bogan v. Scott-Harris, U.S. 1997), but even here, WBC was interested in the implications of the case for the ability of cities to pass laws restricting protest. Unlike these cases on picketing, WBC’s amicus brief on the same-sex marriage cases doesn’t seem to make sense.
Courts are often described as the last refuge for social movements. Under this theory, movements turn to courts to achieve change when they cannot achieve it elsewhere or when the costs are too great elsewhere. Law and society scholars have rejected this view as too simple, pointing to other reasons we might expect social movements to turn to the courts. Legal mobilization might be used as a tool in building collective identity. Movements might respond to perceived legal threats (e.g., the lesbian and gay movement response to Bowers v. Hardwick) or proactively seek the symbolic power of the law. Law might be seen as offering a public forum for framing broader social issues.
But do any of these explain why WBC would file an amicus brief at the Supreme Court, and in particular an amicus brief that does not actually engage with the key legal arguments (more on that later)? Westboro Baptist Church has gained prominence through its picketing of funerals and public events. They have purposefully rejected the legitimacy of the U.S. government and of the law. Thus, they do not seem to be using their brief for actual legal change. They are not responding to a direct threat as with the cases involving their picketing. They are not seeking symbolic recognition from the law, at least not in any way we normally think about that. And even in filing an amicus brief, they reject the legitimacy of much of U.S. law, so they do not seem to be using the law as a tool to frame their message.
Even if we reject the idea that law always has to be a conformist or insider strategy, WBC’s brief does not seem to make much sense here. Why would they depart from their normal strategy of picketing? They normally specifically choose to picket events that will gain them maximum exposure. They explain that they are trying to spread their message. In fact, much of the media attention that they do get is because their tactics are so controversial and confrontational. Amicus briefs to the Supreme Court get virtually no media attention, especially beyond a small circle that is interested in Supreme Court activity. I turn now to consider the actual content of their brief before concluding with more thoughts on why they might have filed it.
Other religious organizations do frequently file amicus briefs at the Supreme Court. Some of these cite the Bible, others do not. But all make legal and constitutional arguments. For example, in the current marriage cases, Christian Legal Society cites the Bible in their brief arguing that recognizing sexual orientation as a suspect class would undermine religious liberty and discriminate against them based on religion. Thomas More Law Center makes a similar argument, but without citing the Bible (instead arguing that recognizing same-sex marriage restricts the voices of those advocating traditional marriage). The National Association of Evangelicals cites the Bible in their brief describing Proposition 8 as a rational choice between alternative visions of marriage. The United States Conference of Catholic Bishops makes a similar argument but without citing the Bible. This is just a small sampling of the religious organizations involved. But in all of these briefs, when the Bible is cited, it plays a small role in an otherwise legal and constitutional argument.
From the cover page of its brief, WBC’s whole argument is “The government has a compelling interest in protecting the people from the destructive effects of same-sex marriage.” They do not cite the Constitution. They only cite a small number of past cases. Even when they cite these cases, they do not engage with the legal arguments from them. The phrase “compelling interest” does come from case law on the constitution, but they do not even try to define what that term should mean or cite any sort of case law for their proposition that avoiding sin is a compelling interest.
The main argument again begins with a brief legal hook: “[G]overnment is vested with the responsibility of protecting the health, safety, and welfare of its citizens.” But the brief does not engage with any legal sources for what this means. Instead, the brief explains, “Nothing is more harmful to the health and welfare than sin.” The brief spends many pages reciting the story of Sodom and Gomorrah and discussing later Biblical stories and religious commentaries on Sodom. All of this is used to establish the proposition that ignoring God’s word is dangerous for government and society. The brief then reminds us, “Unquestionably it is best for health, safety and welfare to follow God’s standard on marriage… But of far greater importance is the fact that… Nothing is better for the health, safety and welfare of the people than to obey God.”
The closest the brief comes to a constitutional argument is at the end of the brief. It argues that separation of Church and State means that the State cannot interfere in Church doctrine, but it claims the State should still uphold Christian morality. But again, it does not engage with the relevant constitutional law on separation of Church and State. Instead, the brief cites various court cases and academic texts that recognize the influence of religion on U.S. law and politics.
So now I return to the question I started with: why did Westboro Baptist Church submit this brief? And what does this tell us about how we think about when social movements will turn to law and courts? When I first heard that WBC submitted a brief in this case, and that the brief did not cite the constitution, my initial thought was that they were making a cultural claim about what the law should say. And maybe that’s partially accurate. But that doesn’t seem to fit with their past strategies. Surely legal battles can be used to gain a public forum. For many movements, even losses at court might produce wins this way. But WBC gains much greater publicity through their typical confrontational pickets. WBC also does not seem to be trying to influence the case in any real sense. Unlike the other religious organizations involved, they do not engage any of the actual constitutional questions. They in fact explicitly reject much of constitutional law. While I might consider some of the arguments made by other religious organizations to be facetious, at least they engage in some sense with the actual constitutional basis of the law.
Maybe this does contain some elements of building a collective identity. Doug NeJaime has argued that some Christian lawyers have built an identity around their willingness to challenge laws that are perceived as threatening religious rights (e.g., in schools). Even when they know that they will lose these cases, these lawyers stake their reputation on their willingness to go into court to bring the cases. In this sense, maybe WBC is asserting that they are the ones willing to reject the legitimacy of the legal argument entirely, even in an argument at the Supreme Court? Maybe this brief helps shore up their identity as extreme dissidents, as sitting outside of the law entirely? But this explanation is still uncomfortable. The Christian lawyers that NeJaime described rejected specific laws, but did not reject the legitimacy of the rule of law itself. Instead, they built their identity around trying to change the law, around working within a system. Even in filing a brief at the Supreme Court, WBC continues to reject the legitimacy of the law itself. However we think about this brief, it forces us to continue to grapple with the symbolic meaning of the law and when social movements will turn to law and courts.