SAGE (Services and Advocacy for GLBT Elders) and a number of the country’s most influential non-profits in the aging sector have filed an amicus brief in Obergefell v. Hodges, the historic case in which the US Supreme Court will determine whether the US Constitution requires every U.S. state to issue marriage licenses to same-sex couples, and to recognize marriages of same-sex couples lawfully performed in any other state.
The Supreme Court oral argument in the case is scheduled to take place in late April, with a decision expected in late June.
In addition to SAGE, the amicus brief was joined by the American Society on Aging, Justice in Aging (formerly the National Senior Citizens Law Center), the National Committee to Preserve Social Security and Medicare, and the National Hispanic Council on Aging. The brief shines a spotlight on the serious burdens placed on LGBT elders who are denied the right to marry, and joins Petitioners in arguing that states’ refusal to license or recognize marriages by same-sex couples violates the U.S. Constitution.
Amici are represented by the law firm Squire Patton Boggs. Jack Nadler served as lead lawyer for the Squire Patton Boggs team. He worked in close collaboration with Rachael Harris, Lauren Kuley, and Brandon Román. More than a dozen other lawyers, in offices around the Firm, supported the effort.
“As SAGE and the other amici demonstrate in the brief, the denial of marriage equality is causing serious harm to older same-sex couples, hurting their economic security, their happiness and even their health as they age,” said Michael Adams, Executive Director of SAGE.
“We’re extremely grateful for the extraordinary work of the Squire Patton Boggs team on this brief, which ensures that the voices of our country’s LGBT elders are heard by the Supreme Court in this historically important case.”
This includes denial of the rights to make critical healthcare decisions for an incapacitated spouse, to receive survivor’s benefits under a spouse’s corporate retirement plan, or to inherit a marital home from a deceased spouse.
The brief also discusses the ways in which the states’ exclusion of same-sex couples from marriage deprives these couples of the intangible benefits that marriage has long provided to older heterosexual couples, such as recognition, security, and mutual support. Relying on numerous social science studies, the brief argues that, because lesbian, gay, bisexual, and transgender elders often have greater health-related and financial needs and weaker social support networks than other elders, they could benefit from marriage even more than other older adults.
The brief goes on to directly challenge the most common argument made by marriage equality opponents: that because the purpose of marriage is to regulate procreation, there is no reason to allow same-sex couples to marry. Relying on census data, which was carefully analyzed by Squire Patton Boggs’s Research Department, the brief points out that about 15 percent of the couples that marry each year are older couples that are also incapable of procreation. Allowing a substantial number of older heterosexual couples to marry despite being incapable of procreation, while denying a far smaller number of older same-sex couples the right to marry because they are incapable of procreation, the brief argues, is not rationally related to the states’ professed goal of limiting marriage to couples capable of procreation. Therefore, the brief concludes, even under the most deferential standard of review – so-called “rational basis” review – the states’ exclusion of same-sex couples from marriage violates the U.S. Constitution’s Equal Protection Clause.
“As part of its long-standing commitment to pro bono representation, Squire Patton Boggs was pleased to represent SAGE and the other amici in this matter,” said Jack Nadler, Partner at SPB. “We’ve worked with SAGE in the past, and are looking forward to continuing to do so in the years ahead. We are particularly pleased to have been able to help SAGE bring a unique perspective to the case: that of older same-sex couples who – like other older couples –want nothing more than to marry the person they love, but who – unlike the vast majority of older couples – are forbidden to do so.”