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One lawyer's religious brief for marriage equality

Eric Isaacson has donated over 1,700 hours making the case for same-sex marriage, and judges have listened.
By Elaine McArdle
6.3.13

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In June, the U.S. Supreme Court is expected to issue rulings in two related cases that address one of the most consequential and controversial issues of our time: the right of same-sex couples to marry.

Many people are anxiously awaiting the decision for personal or political reasons, or both. But Eric Isaacson, a member of First Unitarian Universalist Church of San Diego, also has a long-standing professional interest in the matter.

Over the past nine years, Isaacson, a lawyer with a focus on appellate work, has donated over 1,700 hours of free legal services—worth more than $1 million—to supporting marriage equality by writing amicus curiae briefs on behalf of Unitarian Universalists, including a brief in Hollingsworth v. Perry, which is now pending before the high court. The brief argues that California’s notorious Proposition 8, enacted in 2008 to ban same-sex marriage, is unconstitutional.

Isaacson, a partner with the law firm of Robbins Geller Rudman & Dowd in San Diego, first got involved in 2004 when he began writing a series of appellate briefs in favor of same-sex marriage. His work started as “organic local efforts” in California’s UU congregations, he says, and then grew into interfaith filings joined by many other religious organizations, thanks to the efforts of the Rev. Lindi Ramsden and the UU Legislative Ministry in Sacramento.

The Unitarian Universalist Association joined all of the briefs Isaacson wrote and filed beginning in 2005, except for the one in Hollingsworth, which he wrote for various California religious organizations led by the UU Legislative Ministry, California Faith for Equality, and the California Council of Churches. As part of a strategy worked out with marriage-equality organizations, a second brief was written and filed on behalf of a broader spectrum of primarily national organizations, which the UUA joined. (The UUA also signed onto an amicus brief in the other pending case, United States v. Windsor, arguing that the federal Defense of Marriage Act is unconstitutional; Isaacson did not write that brief.)

“The two-brief strategy gave the California organizations freedom to develop a religious-liberty argument grounded in a 1948 California Supreme Court opinion, to speak on behalf of California’s faith communities actually subject to Proposition 8, and to argue some points more aggressively than might be done in a necessarily somewhat blander interfaith filing on behalf of national groups,” explains Isaacson.

In 2009, in recognition of his extensive pro bono legal services on issues important to the UUA, then-President William G. Sinkford awarded Isaacson the President’s Annual Award for Volunteer Service. The award is presented each year to one or more volunteers whose service to the UUA has been “vital and extraordinary.”

“We have been not only exceedingly grateful for his volunteer work but also very impressed with the quality of that work,” says Kay Montgomery, executive vice president of the UUA. Indeed, she points out, the UUA’s former general counsel, Edward Leibensperger (now a Massachusetts Superior Court judge), repeatedly praised Isaacson’s “writing, analyses, and precision.”

A graduate with high honors from Duke University School of Law, Isaacson’s appellate cases have produced dozens of published precedents, and he has written frequently about marriage equality and other LGBT rights issues for law reviews and other publications. His wife, Susan Kay Weaver, also a lawyer, has worked with him on several of the appellate briefs supporting marriage equality. Currently a member of the UU Legislative Ministry board, she has been nominated for election to the UUA Board of Trustees at the 2013 General Assembly.

In first grade, Isaacson returned from a Lutheran church’s Sunday school and decided that if God loves everyone, as he had been taught, then God would not let anyone burn in hell for eternity. “So at age seven, I was a Universalist, although I didn’t know the words for it then,” he says. When his family moved from California to Rhode Island while he was in high school, Isaacson—who by then had learned about Unitarianism by reading Emerson and Thoreau—began attending Channing Memorial Church, a UU congregation in Newport, although he didn’t officially enroll as a UU until the 1980s, after returning to California.

In 2004, he decided to get involved in the church in a very focused way: by offering his legal services, for free, to help with social justice issues. He initially planned to file amicus briefs supporting gay rights in two California cases on behalf of his San Diego congregation. But Ramsden, executive director of the UU Legislative Ministry, suggested he expand the briefs to include all UU congregations in California. Then, at the request of other liberal religious organizations in the state, Isaacson found himself working with Ramsden and Mary Helen Doherty at the UU Legislative Ministry to submit the brief on behalf of these organizations, too, including the Union for Reform Judaism, the United Church of Christ, the Metropolitan Community Churches, the California Council of Churches, and hundreds of ministers, rabbis, and congregations throughout the state.

The briefs served two important purposes, he says. First, Ramsden used the growing list of signatories to build a network of churches, synagogues, and clergy who would take a stand in favor of the right to marry, and bring the issue before moderate churches and synagogues. Strategically, it worked very well. “If clergy are signing onto a brief, they are likely to mention the issue in a sermon,” Isaacson says, “so in churches that are more mainstream, we could affect how people in pews think.” Second, the briefs showed the judges in each case that people of religion were not uniformly opposed to equal rights for LGBT people. “If you read the news stories, you got the impression that anyone connected with a church was against same-sex couples being able to marry,” says Isaacson. “So it was phenomenal” to be able to file on behalf of a large and varied group of religious organizations.

The original California trial court’s decision to uphold the right to marry was overturned by the California appeals court, but a dissenting judge and a concurring judge each cited Isaacson’s brief to note that people of faith are divided over the issue of same-sex marriage. When the case went to the California Supreme Court, then-Chief Justice Ronald George mentioned the brief during oral argument as evidence that many faith-based communities support same-sex marriage. In 2008, George wrote the opinion in the In re Marriage Cases when the state high court ruled, 4-3, that same-sex marriage was legal. A few months later, California voters passed Proposition 8, an amendment to the state constitution prohibiting same-sex marriage—and Isaacson has been working to get it overturned ever since.

Isaacson has also filed briefs opposing government support for the Boy Scouts of America because it discriminates against non-theists and gays, and opposing the military’s “Don’t Ask, Don’t Tell” policy, which has since been repealed by the Obama administration.

The amicus brief in Hollingsworth relies on religious-liberty grounds that California’s Supreme Court employed in 1948 to strike down laws against interracial marriage, and that the U.S. Supreme Court acknowledged in a 1987 holding that even prison inmates retain a religious-liberty interest in marriage. “If religious liberty means the government can’t keep mixed-race couples from getting married if it’s okay within their own church,” as the California high court ruled more than 60 years ago, “then the government can’t stop a UU couple or a Congregationalist couple from marrying someone of their own sex in a marriage solemnized by their own clergy,” Isaacson says. “And if prison inmates’ religious liberty entails the right to marry, then the government is treating LGBT couples worse than it treats criminals when it denies them the same right.”

While it’s impossible to know now what the high court will decide later this month, Isaacson doubts the court will embrace marriage equality. Questions the justices asked during oral argument leave him concerned that Justice Anthony Kennedy, typically the swing vote on matters with clear ideological pull, regards the cases as improperly before the Court. Comments by two other justices suggest that they, too, might think it is too soon for the Court to rule on the right to marry, he says.

More likely is that the Court won’t put the matter to rest this time around, he says. “My guess is we’ll see Proposition 8 being struck down, but probably on fairly narrow grounds, leaving the right to marry, itself, for a future case,” Isaacson says.

In that situation, the UUA—with Isaacson’s help—will continue to file briefs supporting same-sex marriage. “I’m happy to do it,” he says, laughing, “because it’s the right thing to do.”


Photograph (above) by Nancy Pierce: Lawyer Eric Isaacson (left) received the President’s Award for Volunteer Service from then-UUA President William G. Sinkford in 2009 for Isaacson’s work writing legal briefs in defense of marriage equality. Over the past nine years, Isaacson has donated approximately 1,700 hours of legal work to UU social justice efforts. This article originally appeared on uuworld.org on June 3, 2013. See sidebar for links to related resources.

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