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The Supreme Court Does Not Need Friends Like This

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April 20, 2022


Our judicial system was created to determine factual truth and to determine whether our laws have been violated and are just. 

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To that end, witnesses at a trial give sworn testimony on penalty of perjury and are subject to cross-examination and rebuttal. 

After the trial, one or more of the parties may decide to appeal the trial court decision.  To preserve the trial court protections of sworn testimony, cross-examination, and rebuttal, appeals courts operate under a general rule: Appellate court review is limited to the trial court record of the evidence submitted. 

Shamefully, the general rule is not being followed.  Enter the culprit – the Friend of the Court (aka the amicus curiae).  

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An amicus curiae is a person or organization (not a party to the lawsuit) with special interest, strong views, or supposed special expertise as to the issues in the case who submits an amicus brief to the appellate court.  The usual amici are special interest groups, lawyers and law professors, government, business/trade groups, and non-profit organizations who purport to have special information or experience that would be beneficial to the court.  Appellate courts have thus created a process by which significantly biased persons and groups with material conflicts-of-interest are invited to influence the court’s decision without any obligation to be wholly and completely truthful, or even partially truthful, in their presentation.   

Because the court is not obligated to even read, let alone carefully consider, all or any of the briefs, nor to disclose (before its decision) that it is relying on ‘new evidence’ gleaned from an amicus brief, the parties in the case may have no viable opportunity to counter false, misleading, or incomplete arguments from an amicus brief that the court may have found compelling.  

Failure to follow the general rule restricting consideration of ‘new evidence’ is rationalized by assuming that the parties and the court (judges and their clerks) have neither the time nor the expertise/ability to properly research certain of the issues on appeal, and by assuming that sending the issues back to the trial court for determination would be too costly or time-consuming. 

Violation of the general rule by permitting so-called “Friends of the Court” to submit unverified (perhaps purposefully false) information in the form of amicus briefs which do not have the protections of sworn testimony, cross-examination, and rebuttal creates monumental risk of erroneous conclusions.

Let’s examine the 2015 Supreme Court case of Obergefell v. Hodges – the same-sex marriage case – as a case in point.  A record 149 amicus briefs were submitted.  In Obergefell, Justice Anthony Kennedy predicated his entire majority opinion (at page 4) on the immutability of sexual orientation stating: “. . . and their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.” 

He then continues, specifically crediting the American Psychological Association (APA) amicus brief: “. . . only in recent years have psychiatrists and others recognized that sexual orientation is both a natural expression of human sexuality and immutable.” 

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Not so quick, Justice Kennedy.  Dr. Lisa Diamond (co-editor-in-chief of the APA’s own Handbook on Sexuality and Psychology) confirmed (at page 236) in her own 2008 book, Sexual Fluidity, that although the prevailing common assumption is that sexual orientation is strictly biological and rigidly fixed, “we know” that women’s sexual feelings can change either abruptly or gradually over time. 

She further stated (in 2008) that we are shifting away from sexual determination and alluded to how these conclusions would have an effect on the determinism models that serve as a foundation for political and legal claims, for example, that gay marriage is a civil right. 

Further studies by Professor Diamond confirmed the conclusion that sexual orientation is not immutable.  In a speech at Cornell University on 10/17/2013 (years before the 2015 Obergefell decision) she declared that an unchangeable deterministic model is wrong.  She stated (beginning at about 39 minutes into the speech) that the LGBT community should not utilize the “born this way” and “can’t change” argument for legal standing . . . and that this argument will “bite us in the ass.”  

Further, it is reported that a relevant provision of APA’s Handbook indicates immutability of sexual orientation is not true:  “Although change in adolescence and emerging adulthood is understandable, change in adulthood contradicts the prevailing view of consistency in sexual orientation” (Rosario & Schrimshaw, 2014, APA Handbook, v. 1, p. 562).”

Did the APA amicus brief upon which Justice Kennedy relied disclose with candor and honesty that the notion of immutability of sexual orientation is just not true even according to its own Handbook and even according to its Handbook’s co-editor-in-chief?  Did the APA amicus brief warn Justice Kennedy and the court that only a few months later Dr. Diamond and her co-author would demean Kennedy’s sincere emphasis on immutability of sexual orientation in reaching his decision by referring to Kennedy’s declaration of immutability as merely “gratuitous”?  Did the APA amicus brief disclose that the former president of the APA wrote in the preface to his 2005 book:The APA has chosen ideology over science”, explaining since the mid-1970s “. . .  advocacy for scientific and professional concerns has been usurped by agenda driven ideologues who show little regard for either scientific validation or professional efficacy,” with the result that “topics that are deemed politically incorrect . . . are neither published nor funded”?   Did the APA amicus brief (while declaring itself to be “an accurate summary of the current state of scientific and professional knowledge concerning sexual orientation) disclose that a few months after the Obergefell decision Dr. Diamond would be publishing an article confirming: “Immutability claims are unscientific.”  Did the APA, upon reading Justice Kennedy’s opinion, inform Kennedy and the court that the APA rejects any notion that sexual orientation is immutable?

One is compelled to ask: Why, in light of all of the above, did the APA assert to the U.S. Supreme Court arguments that convinced the Court that sexual orientation is immutable?  Dr. Diamond may have admitted the answer in her book (page 256-7): 

“Given the recent resurgence of conservative antigay activism (much of it focused on banning same-sex marriage), it may well be that for now, the safest way to advocate for lesbian/gay/bisexual rights is to keep propagating a deterministic model; i.e., sexual minorities are born that way and can never be otherwise.  If this is an easier route to acceptance (which may in fact be the case), is it really so bad that it is inaccurate? Over the long term, yes ….” 

For Dr. Diamond and the APA, one can infer that the long term had not yet begun. After all, the easiest way to get what you want is to promulgate inaccurate information, which, at least for them, isn’t “really so bad.”

It is widely required and appreciated that trial court jurors are instructed to refrain from watching and listening to news broadcasts about the case, using the internet to research about the case or the people involved, hearing discussions about the case outside the courtroom, and communicating with anyone about the case, etc. 

It might be suggested that, considering their wisdom, training, and self-discipline, appellate judges and their clerks do not need to comply with the general rule.  However, based on what has occurred in Obergefell and based upon the recent appointment to the U.S. Supreme Court of a justice who cannot provide a definition for the word “woman,” any such suggestion would be truly absurd. 

Without the protections of sworn testimony, cross-examination, and rebuttal, the amicus procedure is a license for improper and undue influence and a means for judges to decide cases based upon false assertions and political narrative.  It is clear that the amicus procedure, if retained at all, needs thorough re-examination and wholesale restructuring.

Image: Pixabay / Pixabay License

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