Amici Curae brief by NFL players Chris Kluwe and Brendon Ayanbadejo in support of respondents in Hollingsworth v. Perry, a case attempting to overturn California’s Proposition 8 banning gay marriageNo. 12-144

In the

Supreme Court of the United States

DENNIS HOLLINGSWORTH, ET AL.,

Petitioners,

v.

KRISTIN M. PERRY, ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF AMICI CURIAE

CHRIS KLUWE AND BRENDON AYANBADEJO

IN SUPPORT OF RESPONDENTS

TIMOTHY R. HOLBROOK

Associate Dean of Faculty

and Professor of Law

Emory University School of Law

1301 Clifton Rd NE

Atlanta, GA 30322

(202) 507-4500

JOHN A. DRAGSETH

Counsel of Record

Fish & Richardson P.C.

60 S. 6th St. – Suite 3200

Minneapolis, MN 55402

(612) 335-5070

dragseth@fr.com

Counsel for Amici Curiae ii

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF THE AMICI CURIAE ....................... 1

INTRODUCTION ........................................................ 2

ARGUMENT ............................................................... 3

I. PROFESSIONAL SPORTS PLAY A

MAJOR ROLE SHAPING PUBLIC

OPINION AND URGING SOCIETAL

PROGRESS, LIKE IT OR NOT ............................. 3

II. THE NINTH CIRCUIT’S DECISION IS

FULLY CONSISTENT WITH VIEWS OF

EQUALITY IN THE CONSTITUTION

AND WITH PRECEDENT .................................. 10

CONCLUSION .......................................................... 15iii

TABLE OF AUTHORITIES

Page(s)

CASES

City of Cleburne v. Cleburne Living Cent.,

473 U.S. 432 (1985) ............................................. 11

Cleveland Bd. of Educ. v. LaFleur,

414 U.S. 632 (1974) ............................................. 12

Griswold v. Connecticut,

381 U.S. 479 (1965) ............................................. 12

Lawrence v. Texas,

539 U.S. 558 (2003) ............................................. 14

Loving v. Virginia,

388 U.S. 1 (1967) ........................................... 12, 13

M.L.B. v. S.L.J.,

519 U.S. 102 (1996) ............................................. 12

Romer v. Evans,

517 U.S. 620 (1996) ............................................. 11

Zablocki v. Redhail,

434 U.S. 374 (1978) ............................................. 12

OTHER AUTHORITIES

Ted Berg, U.S. Soccer Player Rogers Retires,

Comes Out in Blog Post, USA Today, Feb.

15, 2013, ...........................7

Dan Black et al., Demographics of the Gay

and Lesbian Population in the United

States: Evidence from Available

Systematic Data Sources, Demography

150 (May 2000) ........................................... 12

Mark Cuban, The Mavs are a Business

Unlike Any Other, blog maverick (Feb. 12,

2013, 11:54 AM) ................... 4

Stan Grossfeld, No Royalty like King, Bos.

Globe, Dec. 3, 2006 ..............5

Ben Haggerty (a/k/a MACKLEMORE), Same

Love, on The Heist (Macklemore LLC

2012) .................7

Justice B. Hill, One Meeting, Two Men, a

Changed World, mlb.com (Apr. 15, 2008

12:11 PM) ....................6

Henry J. Kaiser Family Found., Children Get

Mixed Messages from Famous Athletes,

Both On and Off the Field, Oct. 12, 2000 .........................6

Macklemore’s Gay Anthem, Studio 360 (Nov.

30, 2012)............................7

Cal Thomas, The Man, Townhall.com (Jan.

21, 2013) ............................5

Any Wallace, “Ocean-ography” (Interview

with Frank Ocean), GQ Magazine, Dec.

2012 ...........8

INTEREST OF THE AMICI CURIAE

1.Chris Kluwe is the punter for the Minnesota

Vikings of the National Football League. He majored

in political science and history at UCLA. Chris

currently contributes to a number of popular

publications, and is best known outside of football for

his advocacy on behalf of same-sex marriage. He

drew broad attention for his recent open letter on the

sports website Deadspin regarding a Maryland state

delegate’s effort to silence such advocacy in violation

of the First Amendment, and he has discussed his views on equality on The Colbert Report, The Ellen DeGeneres Show, The

Nerdist podcast, and in the documentary “The Last

Barrier.”

Brendon Ayanbadejo is a linebacker and threetime Pro Bowler for the Super Bowl Champion Baltimore Ravens. The child of a Nigerian father

and Irish-American mother, he was taunted over his

parents’ right to be married when growing up in the

Lathrop Holmes housing project on the West side of

Chicago, and sees today’s fight to legalize same-sex

marriage as the 21st century version of the fight for

racial equality. Brendon majored in history at

UCLA, wrote for the Santa Cruz Sentinel early in his

NFL career, is the union representative for the

Ravens, and expects to obtain an MBA this Spring

from George Washington University. He advocated

for the passage of the FIT Kids Act, and more

recently for same-sex marriage, dating back to a

posting he wrote that was published by the

Huffington Post. His advocacy gained attention

when the Maryland delegate mentioned above,

writing on state letterhead, urged the Ravens to

“take the necessary action . . . to inhibit such

expressions from your employees.” Upon noting that his parents’ marriage would have been illegal in 16

states before Loving v. Virginia was decided,

Brendon stated that he would not be silent on this

issue of equality, conscience, and public importance.

Chris and Brendon believe and advocate that,

just as athletes should be judged, not by their sexual

orientation, but by their performance and the way

they treat their teammates, so too should people be

judged as citizens by how they act and treat others,

and not what they inherently are.

No counsel for a party authored this brief in whole or in part,

and no such counsel or party made a monetary contribution

intended to fund the preparation or submission of this

brief. No person other than the amici curiae or their counsel

made a monetary contribution to its preparation or submission.

Amici understand that Petitioners and Respondents have both

consented to the filing of amicus briefs in this appeal.

INTRODUCTION

Sports figures receive a celebrity status that

influences a large majority of the American

population. For far too long, professional sports have

been a bastion of bigotry, intolerance, and smallminded prejudice toward sexual orientation, just as they had been to racial differences decades earlier. That is finally changing, and changing drastically.

The NFL, NHL, MLB, and NBA, at the league level,

team level, and individual level, are finally speaking

out against homophobia and intolerance of LBGTQ

individuals. More and more of us realize that using

demeaning slur words like “faggot,” “queer,” and

“gay” can have serious, negative consequences.

Not necessarily consequences for us. Instead,

consequences for the children and adults who look up

to us as role models and leaders. Consequences for

children and adults who mimic our behavior when

they interact with others. And consequences that

can be severe, long-lasting, and not infrequently lead

to suicide and other serious harm.

America has an ideal—exhibited imperfectly in

the original Constitution and more perfectly in the

Fourteenth Amendment—that all should be treated

equally for what they are. When our government

discriminates properly, it does so, not based on what

we inherently are, but instead to regulate our

negative actions against each other. Courts exist—

because of men who long ago placed individual

freedom as an ultimate principle for their country—

to correct government action that takes away

freedoms when that action is motivated by fear and

prejudice rather than by evidence and logic. This

Court should correct Proposition 8’s action to remove

marriage rights from same-sex couples because, as

the district court and the Ninth Circuit majority so

carefully explained, the advocates of Proposition 8

provided no evidence-based rationale—as opposed to

one based on fear and prejudice—for treating

LBGTQ citizens differently with respect to marriage.

ARGUMENT

I. PROFESSIONAL SPORTS PLAY A

MAJOR ROLE SHAPING PUBLIC

OPINION AND URGING SOCIETAL

PROGRESS, LIKE IT OR NOT

Sports receive great attention, the merits of

which can certainly be debated, that influences a

large majority of the American population. With full

respect, we submit that few would blink an eye if

someone could name all eleven starting offensive or

defensive players on their favorite NFL team, but not

name half the members of this Court.

That public focus can be positive and it can be

negative. On the positive side, Dallas Mavericks

owner Mark Cuban recently wrote about how his

NBA franchise is different than all his other

businesses, and he excerpted communications from

fans whose lives had been positively affected:

[U]nlike every other business, making the

most money possible is not a driving

motivation. I try to recognize that Mav’s fans

aren’t only about wins and losses. . . . In fact,

while they want the Mavs to win, they are

Mavs fans, win or lose. . . . There are fans

who love the Mavs because it makes their

lives better. [¶] There are not many

businesses that can begin to have that kind

of impact on their customers/fans.

Mark Cuban, The Mavs are a Business Unlike Any

Other, blog maverick (Feb. 12, 2013, 11:54 AM).

No one can explain this emotional connection to

sports teams, which causes many to act irrationally.

Attorneys and executives in Washington, D.C. wear

pig snouts and wigs in public and without shame.

Young men who are supposed to be love-stricken

choose the fundamentally unromantic locale of a

ballpark to propose marriage. And neighbors across

thin state lines—who share upbringing, basic values,

occupations, religion, and even hobbies—form

Hatfield-McCoy battle-lines against each other for

decades, based solely on allegiance to professional

sports teams. The natural public pull to professional

sports cannot be explained, but it plainly exists.

Professional sports have real power to motivate, to

inspire, and to form public opinion.

Individual players have similar power,

particularly over young people. Indeed, who can

doubt the effect of players who are so very often

referenced, not ironically, as “heroes.” Stanley Frank

Musial, through a life that included a 72-year

marriage and a Presidential Medal of Freedom was,

in the words of President Obama, “an icon

untarnished, a beloved pillar of the community, a

gentleman you'd want your kids to emulate”—most

definitely “The Man.” See, e.g., Cal Thomas, The

Man, Townhall.com (Jan. 21, 2013). Another Medal of Freedom

Winner, Billy Jean King, was the most admired

woman in the world in 1975 in a poll of Seventeen

Magazine readers, and was described by her prime

rival as “my mentor” and “the wisest human being

that I’ve ever met [who] has given me advice [on]

dealing with my parents and even how to raise

children.” Stan Grossfeld, No Royalty like King, Bos.

Globe, Dec. 3, 2006. The list goes on—Roberto Clemente, Jim Abbott, Michael Oher, and Muhammad Ali. All an inspiration to

children and adults who have no doubt used their

examples of class and dedication to improve their

own lives and the way they treat others.

On a much more substantive level, while some

people may be able to name the first African-American Congressperson or physician, so many more know about, and will never forget, Jackie

Robinson and what he achieved. Professional

baseball was much more than just a game when

Jackie Robinson started playing for the Brooklyn

Dodgers in 1947—“trigger[ing] a revolution that

altered the sociopolitical landscape in America.”

Justice B. Hill, One Meeting, Two Men, a Changed

World, mlb.com (Apr. 15, 2008 12:11 PM). When professional athletes

do the right thing, their efforts are magnified,

sometimes in truly astounding ways.

Unfortunately, the same hyper-focus on

professional sports follows equally for negative

influences. As one national survey concluded,

“American kids are mirroring the behavior of famous

athletes—the good and bad—both on and off the

field.” Henry J. Kaiser Family Found., Children Get

Mixed Messages from Famous Athletes, Both On and

Off the Field, Oct. 12, 2000. The most frequently-reported

instances of bad athlete behavior include crimes

committed, bad sportsmanship, and marital

infidelity.

Under all the bad behavior that makes the news,

male professional sports for far too long have

harbored bigotry, intolerance, and prejudice—with

respect to both race and sexual orientation. Much

progress has been made on the racial side, and it has

made sports that much better. African-American

players are, of course, now well-represented in

professional sports, and the situation is improving

for coaches and management.

We are just beginning to see progress with

regard to the issue of sexual orientation. No active

athlete in any of the major male sports has come out,

as professional athletes themselves feel the impact of

homophobia, like soccer pro (footballer) Robbie

Rogers, who only came out recently as he retired

from the sport. Mr. Rogers stated:

“Secrets can cause so much internal damage.

People love to preach about honesty, how

honesty is so plain and simple. Try

explaining to your loved ones after 25 years

you are gay. Try convincing yourself that

your creator has the most wonderful purpose

for you even though you were taught

differently.” Ted Berg, U.S. Soccer Player Rogers Retires, Comes

Out in Blog Post, USA Today, Feb. 15, 2013.

Yet many professional athletes are speaking

up—both to clear the way for any teammates who

may be gay and closeted, and from an understanding

of how even seemingly minor acts by professional

athletes can reverberate with the public. Tolerance

is becoming the message in locker rooms and from

teams that recognize they cannot countenance use of

pointless slurs like “faggot,” “queer,” and “gay.”

Regardless the intent with which those terms are

spoken, they classify a group and particular people

as synonymous with the lesser, and professional

athletes are beginning to understand that.

These athletes understand that, because of their

public stature, the consequences flow naturally from

their actions even if they cannot see the

consequences. Consequences of being a role model

and leader. Consequences for young children and

adults who mimic our behavior when they interact

with other children and adults. Those consequences

flow because children and adults want to “Be Like

[insert athlete name here].” Athletes are learning

that they can no longer say “I am not a role model”—

that they are forced to be a role model and privileged

to be a role model, and that their words and actions,

no matter how innocently intended, are magnified for

both good and bad. If a professional basketball or

football player says something is “gay,” young boys

on the playground will copy and magnify the

statement. If a hockey player says homosexuals are

not welcome in the locker room, a young girl will

shun a teammate who she thinks may be gay—where

that teammate was until then a bright, happy,

smart, and promising kid. After, she will be afraid of

being who she is, and will takes steps, even dire

steps, to avoid it. But if a Pro Bowler treats a teammate as being

an equal who is worthy of his friendship and respect

because that other person is a good friend who places

the team before himself, then high schoolers in

Texas, Georgia, Illinois, Florida, Ohio, Pennsylvania,

California, and Minnesota will not—cannot—miss

that example. If that Pro Bowler speaks out publicly

and kindly, kids will hear it and feel it. Kids who are

already dealing with everything youth throws at

them will know they can treat others as friends and

equals, and those others will know they are equal

and that, without question, it is better to be

themselves than to be hurt. They will follow the

credo, “Live on, and be yourself.”

This Court, incredibly enough, has a central role

in that process. Your stance, your legal reasoning,

will be used by countless people, including athletes,

to justify their actions. People are not wholly

unplugged. They pay attention to what is going on in

the world, what is going on in politics, and what is

going on in the law. Professional athletes are

citizens of this country just like everyone else, and

just like everyone else, the decisions of the Supreme

Court are powerful indicators of acceptable behavior.

Progress can also be seen in other traditionally hidebound

fields, such as rap and R&B music. See, e.g., Ben Haggerty

(a/k/a Macklemore), Same Love, on The Heist (Macklemore LLC

2012), available at http://bit.ly/ZjcMbe (“If I was gay, I would

think hip-hop hates me / Our [hip-hop] culture founded from

oppression, yet we don't have acceptance for ‘em / Call each

other faggots, behind the keys of a message board / A word

rooted in hate, yet our genre still ignores it”) (also sampled in this brief); see also Macklemore’s Gay Anthem, Studio 360 (Nov. 8) (in an interview: “Those [misogyny and homophobia] are the two acceptable means of oppression in hip-hop culture. It’s 2012. There needs to be some accountability.”); Amy Wallance, “Ocean-ography” (Interview with Frank Ocean), GQ Magazine, Dec. 2012 (Ocean: “[Y]ou worry about people in the business who you've heard talk that way. Some of my heroes coming up talk recklessly like that. It's tempting to give those views and words—that ignorance—more attention

than they deserve.”).

If the Court reverses the Ninth Circuit, many

professional athletes will take their cues from that.

And that will cause a ripple effect as even more

people follow their role models, their leaders, their

heroes. Those against same-sex marriage? They will use

it as yet another tool to support their preconceived

idea that gay Americans, who pay their taxes, serve

in our military, and by every measure of societal

participation are superior neighbors and citizens, are

instead second class members of society. That they

do not deserve the same rights as everyone else. That

separate can be equal.

Those for same-sex marriage? They will see it as

proof that justice is not blind in this country, rather,

that justice does not exist anymore. History shows

that societies suffer when a minority group feels it

has no recourse under the legal system, and that it

must suffer or try something else.

The amici hope that our support for marriage

equality here will matter—both with the Court and

with people looking for confirmation that it is okay to

treat other good people as equals. We know for a

certainty that this Court’s decision truly will matter,

and in a tremendous way for many people’s lives.

II. THE NINTH CIRCUIT’S DECISION IS

FULLY CONSISTENT WITH VIEWS OF

EQUALITY IN THE CONSTITUTION AND

WITH PRECEDENT

Despite legions of attorneys attached at all

points to this case, the law regarding the equal

protection is pretty simple. In America, if we don’t

like something but our dislike is based on nothing

more than gut feel, misunderstanding, or prejudice,

we leave it alone. Live and let live. We want to be

free from your interference, so you too should be free

from ours.

The Constitution and all that this country is

built upon allow governmental discrimination only

for legitimate and evidence-based reasons. We

discriminate against criminals because they are

hurting someone and must be treated differently.

We discriminate against people who want to drive

vehicles by making them pass a test because we

legitimately want safe roads. And we discriminate

against polluters because we have a legitimate, 11

evidence-based interest in clean water and air. We

allow such governmental discrimination both

because we can readily see a societal basis for it, and

because of a lack of any history of pervasive and

irrational discrimination against such people and

groups.

But we default to freedom from governmental

discrimination—freedom of individuals to lead

peaceful and productive lives. We do that because

our Founders rebelled from overbearing government,

and because they baked that principle right into our

original and amended Constitution, making our

government one of limited powers in general, and

one that must, absent good reason to the contrary,

provide equal protection under the laws to all its

citizens. Much as a referee is to call no penalty

unless there is a foul—and to let athletes play the

game according to their own styles because that

maximizes everyone’s enjoyment of the game,

government should stay to the side until and unless

it can identify a real foul that needs correcting.

In making decisions on Constitutionality, this

Court sometimes arrives with a skepticism directed

against the regulator, when the regulation is of a

type that has traditionally been enacted with

improper motivation (e.g., race-based laws), and a

skepticism directed against the regulated when the

field has traditionally been subject to benign laws

(like basic economic regulation). E.g., Romer v.

Evans, 517 U.S. 620, 634 (1996); City of Cleburne v.

Cleburne Living Cent., 473 U.S. 432, 440 (1985).

This case is one that merits closer review of the

government action, as the district court so carefully

identified the historical targeting of gay men and

lesbians via ballot initiatives and other

discrimination despite the undoubted positive

contributions they make to society. E.g., Pet. App.

228a-234a; 264a-279a; 300a. Indeed, how could a

group with such high employment, high educational

achievement, low crime, and high positive societal

participation be the target of so much negative

governmental action, but for improper and irrational

motive?

Moreover, marital choice is a central right in

history and in the history of this Court’s

jurisprudence. See Cleveland Bd. of Educ. v.

LaFleur, 414 U.S. 632, 639 (1974). It is “intimate to

the degree of being sacred,” Griswold v. Connecticut,

381 U.S. 479, 486 (1965), and “essential to the

ordinary pursuit of happiness by free men,” Loving v.

Virginia, 388 U.S. 1, 12 (1967). Moreover, the Court

has found it to be associated with the fundamental

rights of association, privacy, and liberty. See M.L.B.

v. S.L.J., 519 U.S. 102, 116 (1996); Zablocki v.

Redhail, 434 U.S. 374, 384 (1978); Griswold, 381

U.S. at 486. Thus, our cultural history and this

Court’s history both counsel for a close review by the

Court of the purported reasons for passing

Proposition 8, and taking away a right that same-sex

couples previously held.

Our nation’s treatment of LGBTQ citizens also

has parallels to its treatment of racial minorities—

3 See, e.g., Dan Black et al., Demographics of the Gay and

Lesbian Population in the United States: Evidence from

Available Systematic Data Sources, Demography 150 (May

2000) (“The gays and lesbians in the census sample appear to be highly educated, span the distribution of ages, and are similar in racial make-up to the population as a whole.”). though no situation can ultimately compare to that which made Jackie Robinson’s actions so important. For example, advocates of racial separation certainly

cited “evidence” for their positions, yet when

analyzed, that evidence time and again fell away and

revealed underlying fear and prejudice. Advocates of

racial separation also used labels—ugly, dirty

labels—to mark those they feared and

misunderstood, as do many today, still based on race

but also on sexual orientation. And such advocates

argued that their proposed legislation was good for

families, yet their logic was largely circular (e.g.,

society wants white people with white people;

therefore, it is good for society if white people stay

with white people) and fell apart on any meaningful

inspection, as do the rationales provided by the

proponents of Proposition 8. E.g., Loving, 388 U.S.

at 8. Without lessening the importance of the

country’s long struggle with race, amici submit that

the historical reasons for trying to regulate based on

sexual orientation are based as much on pretext as

those that tried to regulate based on race. And

certainly if sexual orientation were something you

could not hide, like skin color, our national history in

this particular area would be much worse.

Yet the Ninth Circuit’s decision can and should

stand, based on the record developed below, whether

this Court gives a searching or a passing review of

the reasons that underlie Proposition 8.

The proponents of the law understandably spent little

time at trial on their “Responsible Procreation”

argument, because heterosexual couples, and

particularly heterosexual fathers, are plainly

motivated to stay with their children only by factors

wholly separate from whether there might be a gay

couple (married or not) down the street. The

“Proceeding with Caution” argument falls of its own

weight, because it could be applied any time the

majority wants to take rights from the minority.

And the proponents’ underlying argument—that

society simply morally disapproves of same-sex

marriage—is lacking in any reason for that

disapproval, and thus reduces to an animus-based

rationale. See Lawrence v. Texas, 539 U.S. 558, 582

(2003) (O’Conner, J., concurring).

In short, just as application of the labels “gay”

and “queer” in derogation indicate that one class of

people is inferior, deprival of the label and status

“married” equally indicates that the class is inferior.

Even a fifth grader knows that words have very

serious meaning, and even a fifth grader can see that

the proponents of Proposition 8 provide no reasoned,

evidence-based rationale for taking away that label

and that all-important status. In America, there

truly is no freedom until we’re equal.

When we advance the idea that some people

should be treated differently because of who they

are, demeaned in public as lesser beings, not worthy

of the same rights and benefits as others despite

their actions as good citizens and neighbors, then we

deny them equal protection under the laws. America

has walked this path before, and courageous people

and the Court brought us to the right result. We

urge the Court to repeat those actions here.

CONCLUSION

The amici encourage the Court to affirm the

Ninth Circuit’s decision overturning Proposition 8.

Respectfully submitted.

TIMOTHY R. HOLBROOK

Associate Dean of Faculty

and Professor of Law

Emory University School of

Law

1301 Clifton Rd NE

Atlanta, GA 30322

(202) 507-4500

JOHN A. DRAGSETH

Counsel of Record

Fish & Richardson P.C.

3200 RBC Plaza

60 South 6th Street

Minneapolis, MN 55402

(612) 335-5070

dragseth@fr.com

Counsel for Amici

FEBRUARY 2013