A "mixed orientation" Mormon couple in which the husband is gay and the wife is straight say their public statements about their marriage were included without their permission in a Supreme Court filing that argued against gay marriage.
Joshua and Lolly Weed have been open for years about choosing to enter a heterosexual marriage despite the fact that Joshua is gay, but Joshua told VICE News he was frustrated and stunned to see how his comments about their decision were used.
"I'm not opposed to marriage equality," Weed said. "I voted for it in Washington. It's just frustrating to have assumptions made about one's position based on life choices, to not have even been asked is almost insulting."
The issue raises questions about more than 100 amicus briefs filed with the Supreme Court ahead of next week's hearings on gay marriage. The briefs have been filed by everyone from major corporations to military officials, local arts councils, religious leaders, and families with gay parents, and experts disagree on how much weight they will carry.
The brief that includes the Weeds was filed by attorney Darrin K. Johns of American Fork, Utah, and includes other statements from couples featured in a video series about mixed-orientation couples on the website LDS Voices of Hope, which offers Mormons "alternative responses to same-sex sexuality." Published under "fair use" laws, the quotes are in the public domain.
Johns did not return calls from VICE News and did not respond to Weed's inquiries about his interview being used. The brief argues that marriage equality will "demean" mixed orientation marriages and send a message to gay youth that mixed orientation marriages are impossible.
"I was immediately outraged," Weed said, describing his reaction when he found out his interview had been included in an anti-equality brief. "The brief itself is arguing that marriage equality somehow negatively affects mixed orientation marriages, which is a premise I do not agree with and I find it to be, well, I think it is kind of silly truth be told. I cannot imagine how marriage equality could in any way negatively impact a marriage."
After Weed found out that his statements were included in the brief, he consulted with lawyers, who told him it was too late to file an amendment explaining his position because Johns filed his amicus brief on the last possible day.
"It seemed a little underhanded," Weed said.
According to SCOTUSblog, more than 100 amicus briefs have been filed in the marriage equality case. The niche argument presented in Johns' brief — that marriage equality will negatively affect mixed orientation marriages — shows the wide variety of opinions being voiced ahead of the oral arguments next week, and the varying levels of influence that amicus briefs can have, according to experts.
"Amicus briefs are important if they come from thoughtful, important constituencies and can often have a big impact on the Court," Richard Socarides, an attorney and legal commentator, told VICE News. "I suspect the amicus brief in question does not fit any of that criteria."
Gary Gates, a social science researcher at the Williams Institute at UCLA School of Law, has filed amicus briefs in marriage equality cases across the country, including the cases being heard by the Supreme Court next week.
"My sense of the impact of briefs is, well, obviously all amicus briefs are not equal in their potential to have impact," Gates said. "I think the ones that tend to have the most impact are the ones that make particularly salient or more novel arguments that either go beyond the petitioner and respondent briefs.
"The law clerks for the justices certainly will read all the briefs," Gates added, "but it's not necessarily true that they're all weighted equally in their usefulness."
Gates and Williams Institute attorney Adam Romero, who together filed a brief in the marriage equality case, emphasized that amicus briefs can be particularly useful in providing information to justices about the populations that will be affected by a decision. They can also reflect academic research and expert opinions about a topic, questions that should be considered before a ruling, and a variety of rationales for ruling one way or another.
"For any Justice who is still deciding how to cast his or her vote, the amici briefs may make all the difference," Romero said. "Consequently, the amici briefs may shape not only the ultimate outcome but also the Justices' reasoning, which can profoundly impact other cases down the road."
Joshua Schiller, a member of the legal team that argued successfully to have Proposition 8 struck down in California, said that sometimes Supreme Court justices have clerks read through the briefs to find interesting legal holes or arguments to bolster their opinions. Schiller and his colleagues filed their own amicus brief in this case on behalf of the clients they represented in marriage cases in California and Virginia, and said that the majority of briefs in this case seem to be in favor of marriage equality, but that it's important for the court to allow a wide variety of voices to be heard.
"It shows how divided this country will be for the next hundred years, like it continues to be about abortion," Schiller said. "Despite what happens, and we are hopeful this case will ultimately resolve this issue legally speaking and allow this country to move forward past a history of discrimination once again, this is a political issue and people will continue to use it for political purposes."
Weed said he hopes that despite the amicus brief with his name on it, the court will decide in favor of marriage equality.
"I find myself in a very strange position, I guess, where I do very much care for my brothers and sisters in the gay community and even though I experience a lot of heteronormative privilege because of my marital status," he said. "I was still that bullied kid who was effeminate and pushed around really heavily bullied growing up and I understand to some degree what marginalization feels like. It very much affects me when I see that happening on a larger scale, so I deeply empathize with the LGBT community as a member of it."
Follow Colleen Curry on Twitter: @currycolleen
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