Some of Your Best Friends Will Go to Court for You

The archaic Connecticut law that bans the prescription or even the use of contraceptives in that state is now being challenged in the Supreme Court (TIME, Dec. 18). The fact that the law is stoutly supported by Connecticut's

Roman Catholic clergy, whose flock comprises 46% of the state's population, is theoretically of no concern to the court--but a little counterpressure never hurts. Last week it came from an unexpected source. The Catholic Council on Civil Liberties offered an amicus curiae (friend of the court) brief attacking the law and implying that it might trouble even Pope Paul VI.

"Though modest in size," wrote Buffalo Lawyer Robert B. Fleming, the C.C.C.L. boasts Notre Dame's Law School Dean Joseph O'Meara, Massachusetts' former Attorney General Edward J. McCormack and the Rev. Benjamin L. Masse, associate editor of the Jesuit weekly America. Though it hardly speaks for the church, "hopefully it speaks for a Catholic point of view."

In that view, said Fleming, a father of six, the church has begun to recognize that marriage rights include "conjugal union as the expression of love." Pope Paul himself recently said that in restudying its stand on birth control the church cannot overlook "the feelings most close to the experience of man and woman." Connecticut, said Fleming, is guilty of "profane interference" with just those feelings.

Judicial Lobbying. At first glance, C.C.C.L. might seem devoid of any right to argue a case to which it is not remotely a party. Originally, an amicus was simply a bystanding lawyer who offered a judge neutral legal advice. But as more and more private lawsuits began to affect public interests, amid became advocates, largely in appellate courts, for otherwise unrepresented third parties--business, labor, the states, even Congress. Today, amicus briefs may sometimes dwarf the arguments of nominal litigants--and be welcomed by courts as clarifiers of widely competing interests.

Almost since its founding in 1870, the Justice Department has been the leading filer in federal courts of amicus briefs aimed at social changes--from trustbusting to school desegregation. Since the N.A.A.C.P. began leading the way in 1909, more and more minority groups have also found in court a chance for expression that eludes them at the ballot box. In 1945, the American Jewish Congress started a legal arm that has since filed scores of amicus briefs not only concerned with Jewish causes but also with the rights of Catholics, Negroes and Puerto Ricans. No amicus quite matches the 44-year-old American Civil Liberties Union, which, under Executive Director John Pemberton Jr., churns out briefs for people of any political persuasion.

Some amid see their briefs as frank lobbying--demonstration that powerful groups back an appellant's cause. Indeed, such pressure flooded the Supreme Court in 1948 when 40 organizations filed for the Hollywood "unfriendly ten," screenwriters who had been convicted of contempt of Congress. The court refused to review the case (Lawson v. U.S.). Trade associations have also failed to snow the court with briefs trumpeting the size and power of their members.

Important Irrelevancies. But the court does welcome artful amid and occasionally solicits Government briefs that truly ventilate legal issues. If the main parties lack legal talent, the court's ultimate opinion may even sound remarkably like the amicus brief--a type of plagiarism that amicus groups prize and proudly report to their members. Most often, amid do the valuable chore of arguing novel or shaky points that litigants either dare not or do not think to embrace. Even when they are initially rejected, such arguments are thus recorded and may later bear fruit. In 1950, for example, the N.A.A.C.P., acting as amicus for a Negro who had been segregated in a railroad dining car, suggested overruling the separate-but-equal doctrine--a point that finally won school desegregation in 1954. Stress "important irrelevancies," Lawyer Charles Abrams of the American Jewish Congress once advised. Amid, he said, should provide "arguments that will salvage the judges' consciences or square with their prepossessions should they lean toward holding for us."

Understandably, the court refuses to consider half-baked briefs and requires amid to ask the consent of all parties before filing. Amid face a formidable critic in the Justice Department, a party to 50% of the court's cases. The Government as a party approves only amid with "relevant arguments" and "substantial interest in the decision."

The court does, however, accept some amicus briefs without the litigants' consent. Last week's liberal Catholic brief requested court approval, for example, because Connecticut withheld consent.

Even if the court rejects the C.C.C.L. brief, it faces three other aspiring pro-contraceptive amid--the Planned Parenthood Federation of America, a group of 141 leading U.S. doctors, and the ever-eager American Civil Liberties Union. Anticontraceptive Connecticut, on the other hand, has not found an amicus willing to speak up in court.

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