Advocate for the Court
Legal scholars must walk the line between pure objectivity and pure advocacy when engaging in a national debate, especially one as prevalent in the public consciousness as gay marriage, according to a University of Louisville law professor.
“On the one hand, you are a scholar who is not supposed to be merely an advocate,” says Sam Marcosson, an expert on sexual orientation and the law. “On the other hand, whenever you write an article of legal scholarship you’re advocating for a position.
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Law scholar Sam Marcosson says advocacy is inherent in both the practice and study of law.
“To be a good scholar, you have to have the credibility that comes with seeing and engaging both sides of an issue. But you’re also taking a point of view, arguing for it and having other scholars and advocates come back at you and criticize your ideas. I think that’s how it works best.”
Marcosson, who is open about being gay, came to U of L’s Brandeis School of Law in 1996 after eight years with the Equal Employment Opportunity Commission, where he was a senior attorney in the appellate services division.
His twin focuses—sexuality in the law and Constitutional law and interpretation—overlap in several places. They also have exploded into the national headlines over the past 10 months after key court rulings, legislative decisions and administrative interpretations on gay marriage in Vermont, Massachusetts and California.
“The focuses are obviously cutting edge,” he says. “They’re in the news, not only in the popular press, but they’re also very big issues within the academic literature. It’s definitely an area where you can feel like you’re making a contribution to a very ‘now’ kind of field.”
How do legal scholars contribute to a national debate such as the one being waged over gay marriage? What kinds of activities and approaches are available as they frame the discussion?
First of all, Marcosson says, they can participate the way scholars do best—by writing.
“There have been literally hundreds of articles just on the marriage issue,” he says. “As far as gay and lesbian rights—generally adoption, gays in the military, antidiscrimination protections, anti-sodomy laws, all of it—there have been thousands of articles written.”
At times legal scholars are asked to write what are called amicus curiae briefs, which in Latin translates to “friend of the court.” Filed by someone who is not a party to the litigation but who believes that the court’s decision may affect his or her interests, these briefs “are intended to present a view, perspective or a set of arguments that the court hasn’t heard in the main briefs,” Marcosson says.
The American Civil Liberties Union recently asked Marcosson to write an amicus brief for a current Florida case in Federal Appeals Court about the right of same-sex couples to adopt.
In district court, the state successfully argued that there are better outcomes for children who are raised by married straight couples.
In his brief, Marcosson challenged the idea of anti-gay morality as a reason for discriminatory laws, citing the equal protection clause of the U.S Constitution.
He says the impact of these briefs usually depends on the circumstances.
“When I was with the government, our amicus briefs tended to have more influence because it was coming from an agency of the United States government,” he says. “When I do one—as I did in this case in a private capacity—those generally will have less impact.
“But you hope it will get the court’s attention and help the court to see the issues.”
Scholars also may engage the discussion by networking at conferences with lawyers who are working on the frontlines, Marcosson says.
“You talk and brainstorm with them. You talk about how we can contribute to the overall debate and what the role of the scholar should be. Sometimes we take their advice. Sometimes we don’t.”
Marcosson also takes advantage of public speaking opportunities. Media outlets in Kentucky, Florida, Wisconsin and the state of Washington recently have interviewed him about gay marriage. He also has participated in a variety of public debates and forums.
Finally, legal scholars may participate in the debate and engage the issues by teaching students and “modeling advocacy,” Marcosson says.
“We’re training lawyers,” he says. “That means we’re training advocates, regardless of their positions on issues. And one of the things we can do to help train them is by being an advocate on the frontlines ourselves.
“So when I’m an advocate, I feel like I’m teaching my students. I model advocacy inside and outside the classroom.”
