Main presentation, rebuttal, and conclusion

Philosophy / Sexuality Studies                                                                Sex and the Law

                                                              LEGAL BRIEFS

Your writing assignment is to create a particular legal issue, an appellate brief.  This will be the basis of the argument your team will make orally in our “moot court” session the last few days.

Each trial will last no more than twenty-five (25) minutes to make its case, including introduction, main presentation, rebuttal, and conclusion.

Each side (i.e., Petitioners and Respondents) of each case must submit a final draft of an appellate brief, one brief per side, making its best legal argument for why a court should grant a judgment in its favor. Similarity check is used in electronic form via the Turnitin link to the appropriate “Appellate Brief” link (for your side, in your case).

The (very rough) parameters for the brief are that it should represent approximately six or seven pages (typed, double-spaced) of work from each member of that side’s team.

An appellate brief is a complex legal document, and you will construct that document in stages.

The first stage is to agree, as a group, on at least a preliminary description of the underlying “facts of the case.”  For example, in a plural-marriage case, the “facts of the case” might involve three people asking a county clerk to issue a marriage license to all three of them.  You might fill this imaginary scenario out with further detail to make it more interesting or to illuminate particular issues.  (You can also use the “facts” as discussed in an already-decided case, suitably tweaked so you’re not merely rerunning that old case.)

The second stage is to agree on the central legal issue (or, possibly, issues — but don’t make things too complicated!) underlying your case.  For example, in a plural-marriage case, one of the issues might be framed as “Does the fundamental right of marriage, protected as a liberty interest against state interference under the due process clause of § 1 of the Fourteenth Amendment to the United States Constitution, extend to marriages between more than two persons?”  (Notice that this is a Yes-or-No question; your issue should be framed that way as well.)

The third stage is to construct legal arguments giving the best reasons available supporting each side of that legal issue (or issues).  For examples, you should look at actual legal briefs filed in actual appellate courts in actual lawsuits or prosecutions.  (See below for more thoughts on this point.)

The fourth stage is to form into “sides” and flesh out that outline into a rough draft of an argument presenting that side’s best argument for a favorable legal conclusion.

And the final stage is to edit, rewrite, find more sources, and polish that rough draft into something you can use as the basis of your oral presentation in the moot court itself, and then submit it as a final draft.


The word “brief” carries multiple meanings in legal contexts, but for our purposes in this course a “brief” is an argument presented by one of the two (adversarial) parties, attempting to show why that party has a legal right to prevail in court (that is, to have the court grant its decision in favor of that party).  The case you will be simulating is to be an appellate case, in which the only controversy concerns whether the original court, the trial court, applied the law correctly to the factual situation.  (That is, in this situation, an appeal from a court decision, “the facts” are taken as having already been established.  As mentioned above, the members of the group-pod, on both sides, will stipulate an agreed set of those facts for purposes of the moot court.  You may make up those facts out of whole cloth, or you may begin with the facts of a real-life case and then modify them appropriately; the choice is yours.)

The best way to see what a brief includes is to look at one and study it carefully.  Two briefs, one on each side of a case recently decided by the United States Supreme Court, are posted on the course iLearn page.  You can see the structure of each parties’ arguments quite readily by looking at the Tables of Contents of each brief, which work as outlines of the two arguments.  Your side should use briefs like those in the samples posted on the iLearn page as templates to construct your own arguments for the party you are “representing” in your own case.

A brief provides an argument — reasons in support of a conclusion — but a special kind of argument, an argument whose central portions are distinctly legal claims, legal claims as contrasted to (for example) claims about the best public policy, or moral and ethical claims, or scientific and engineering claims, or anything else.  If you are representing the Petitioner, the conclusion of your argument will be something to the effect that “Petitioner has a legal right to prevail,” while if you are representing the Respondent, the conclusion of your argument will be something to the effect that “Petitioner does not have a legal right to prevail.”

By way of contrast, so-called “policy” arguments ordinarily play only a subsidiary role in legal arguments, especially at the constitutional level.  A policy argument is the sort of argument ordinarily directed to an elected legislature or executive, making claims about what sort of law would be best.  “Best” in this context includes many, many different factors; but, roughly speaking, the “best” law yields the greatest benefits to the community at the lowest cost.  To a considerable degree, the best law is determined by a utilitarian test of efficiency:  it is the one that most efficiently achieves its goals (achieves the largest portion of its goals at a minimal cost in money and other social resources).  But (ordinarily) the job of a court is not to figure out which law is the “best”; that’s the job of the elected political branches: the legislature, the governor, the Congress, and the President.  Therefore:  whichever side of the case you are presenting, the core of your side’s argument will not be a policy argument.

In a case in a common-law legal system like ours, the paradigm sort of “legal” claim used by a court to argue for or justify its conclusion is a claim made by a court in an earlier case which that earlier court used to decide that earlier case.  Typically, that earlier court decision in a constitutional case will also be a case applying some legal rule – a rule found, for example, in some provision of the constitution — to some particular act of a state or local government.  In the same-sex marriage cases, Obergefell v. Hodges in 2015, many of the courts looked to the earlier decision by the United States Supreme Court in the case of Loving v. Virginia, the case in which the Virginia anti-miscegenation statute was struck down as inconsistent with the Constitution of the United States.  In Loving, as you will soon find out, the U.S. Supreme Court held that the Virginia ban on interracial marriage was inconsistent with the equal protection clause of § 1 of the Fourteenth Amendment, and was, furthermore, inconsistent with the right to marry, which is protected as one aspect of the “liberty” secured under the due process clause of § 1 of the Fourteenth Amendment.

Now, although in both Loving and Obergefell the central issue concerns the power of the state to decide to whom it will grant the right to marry, the anti-miscegenation statute of Virginia did not regulate the same sort of actions as did the opposite-sex marriage statutes of Minnesota, Hawaii, Vermont, Massachusetts, or Ohio.  So the question for the court is whether a state law forbidding marriage based on the races of the prospective spouses is analogous to a state law forbidding marriage based on the sexes of the prospective spouses.

You will notice, reading (for example) the decisions of the state courts of Minnesota, Hawaii, Vermont, and Massachusetts, and reading the dissenting opinions of the judges in those decisions, or the decisions of the federal district court and of the federal appellate court hearing, in succession, the Obergefell case, that judges disagree as to whether or not the two sorts of cases are genuinely analogous.  Obviously, there is no mechanical test to determine whether the two sorts of cases are sufficiently similar, or insufficiently similar, for the analogy to be a legitimate one or not.  The lawyers and the judges must point out the similarities and the differences and make arguments as to whether the similarities are sufficiently strong and as to whether the dissimilarities are sufficiently strong.  (The book by Edward H. Levi, An Introduction to Legal Reasoning, ordered through the campus bookstore and (in its law-review-article version) posted on the course iLearn page, focusses on this very topic; I urge each of you to read Levi’s discussion.

By the end of the semester we will have examined a series of claims based on the United States Constitution (and parallel claims based on state constitutions), which appellate courts, especially the United States Supreme Court (and various state supreme courts), have found to be applicable to the federal and state governments’ treatment or regulation of sexuality and sex differences.  Your group should start by seeing if one or more of these sorts of claims are applicable to the case you are bringing to the moot court.

Among the most important of these would be:  (1) the use by a state or the federal government of race-based classifications (e.g., white/black) under the equal protection clause of § 1 of the Fourteenth Amendment (if a state or local government), or under the equal protection component of due process as protected by the Fifth Amendment (if the federal government); (2) the use by a state or the federal government of sex-based classifications (male/female) under the equal protection clause of § 1 of the Fourteenth Amendment, or under the equal protection component of due process as protected by the Fifth Amendment; (3) state or federal regulation of sexually explicit “expression” under the rights to freedom of speech and to freedom of press protected by the First Amendment, and applicable to the states through the due process clause of § 1 of the Fourteenth Amendment; (4) state or federal restrictions on “fundamental rights,” including the right to marry, to form a family, and to raise children, as protected by the due process clause of § 1 of the Fourteenth Amendment or the due process clause of the Fifth Amendment (read “substantively” and not “procedurally”); (5) state or federal restrictions on the right of privacy, as protected by the First, Third, Fourth, Fifth, and Ninth Amendments, and applicable to the states through the due process clause of § 1 of the Fourteenth Amendment.

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