With the U.S. Supreme Court set to take up a case that will determine the fate of California's same-sex marriage ban and perhaps have legal ramifications beyond the Golden State, it also has the somewhat unusual opportunity to consider the views of two National Football League players with strong opinions on the matter.
Baltimore Ravens linebacker Brendan Ayanbadejo and Minnesota Vikings punter Chris Kluwe—both of whom have vigorously backed state-level efforts aimed at legalizing same-sex marriage—teamed up to file an amicus curiae or “friend of the court” brief Thursday urging the nation’s highest court to strike down the California law barring gay and lesbian couples from marrying. (Click here for the 19-page brief.)
The players—whose filing came the same day the Obama administration weighed in with its own brief calling on the Supreme Court to reverse the California ban—are being represented pro bono by Wiley Rein alum and current Emory University School of Law associate dean and professor Timothy Holbrook in Atlanta and Fish & Richardson IP partner John Dragseth in Minneapolis, the cochair of the firm's appellate group.
Dragseth—an appellate litigation guru once ranked by now-defunct sibling publication IP Law & Business as one of the country's top young IP lawyers—told The Am Law Daily via email that it was Twitter that led him to join forces with Kluwe on the brief.
When the Supreme Court—after staying silent on the subject through most of last year—agreed in early December to hear two historic same-sex marriage cases, including the Hollingsworth v. Perry challenge to California’s Proposition 8 law, Kluwe tweeted news of the court's decision. As one of the punter’s 160,700 Twitter followers, Dragseth saw the tweet and responded by suggesting to KIuwe that given his well-articulated views on the subject of gay marriage, he should submit a brief on the matter.
Dragseth, who during his morning commute would hear Kluwe occasionally appear on local talk radio, says he offered to help write the brief for free. He adds that in Kluwe, whom he says played an active role in preparing the filing, he saw somewhat of a kindred soul. “I understand that Chris is a speed reader who aced his SAT verbals—and he actually did an early draft of the brief that set the tone for it,” Dragseth says. “Moreoever, he’s a über-nerd, and I’m an expert in that arena since I spend most of my time with patents and inventors.”
Dragseth says that after he and Kluwe agreed to collaborate, they then brought in Holbrook, whom Dragseth got to know when the two men clerked together years ago on the U.S. Court of Appeals for the Federal Circuit, and Ayanbadejo—who has written and spoken out in support of gay marriage for years and during the NFL's offseason is pursuing an MBA at George Washington University in Washington, D.C.
Besides hearing the Obama administration express its opposition to California's same-sex marriage ban via U.S. solicitor general—and former Jenner & Block partner—Donald Verrilli Jr., the Supreme Court has received a blizzard of other amicus briefs. While a number have come from large corporations, another brief that received much of the publicity over the past week was the one signed by 131 prominent Republicans, including Patton Boggs political law partner Benjamin Ginsberg (national counsel to Mitt Romney’s GOP presidential campaign) and hedge fund general counsel James Comey (a high-ranking Justice Department official during the second Bush administration), supporting freedom to marry.
Dragseth, though, thinks the brief submitted by Kluwe and Ayanbadejo is different. The two men, he notes, “live very transparent lives through social media” and have “written on a variety of topics,” making them ideal candidates to weigh in before the country’s top court on an important issue with major political and societal ramifications. It doesn't hurt, he adds, that they are widely known for playing America's most popular professional sport.
“We had a general agreement that the brief had to be more accessible than academic,” Dragseth says. “We also felt that an amicus brief was appropriate because they had something to say that all the suit-wearing folks who were likely to file the other briefs could not say. And whether you think athletes should be heard from or not, people do pay attention to them, and we tried to get that message across as clearly as possible.”
