Why the Degeneres brief deserves our attention.

Ellen Degeneres, the TV personality, claims that she filed a brief in the Supreme Court in the potentially landmark case involving California's Proposition 8 and gay rights.. This action deserves the attention of the nation. That Ellen supports gay rights should not be a surprise. However, to my knowledge, this is the first time that a “brief” has been filed in the manner chosen by Ellen. She filed the brief on Facebook. Nobody has done this before.

Of course, the brief filed by Ellen is not a brief at all. It is a letter to the Supreme Court published on the internet. The Supreme Court has rules on how to file briefs. Ellen failed to comply with any of these rules. According to the rules of the Supreme Court, the parties to the litigation can file briefs. Other parties, can file briefs on a case but only with permission of the Supreme Court. Ellen had no such permission. She is merely an ordinary citizen who published her position on the issue on the internet. However, while she is only a citizen, she is also a famous personality.

Traditional theory teaches that Judges don't consider outside influences when deciding cases. It is clear that the Supreme Court conducts their own social and factual research. This was demonstrated recently when Justice Roberts mentioned facts about voting rights that were not known by the litigants. http://news.yahoo.com/massachusetts-more-racist-mississippi-chief-justice-roberts-hints-193401190.html. The reason that this action by Ellen is worth watching is to see if the Supreme Court pays attention to her letter.

As society changes, I hope that government changes with society. Clearly, the technological changes in the internet and social media can change the way the courts function. Should the Supreme Court or any other Court allow individuals the right to right “briefs” on pending cases by publishing them on the internet? This case and Ellen's “brief” may change the way the courts function.

On the subject of gay rights, Ellen's brief isn't really a brief at all. It is a short letter that states that her gay marriage doesn't hurt anybody. She is denied rights for no reason except she is different. She urges the Judges to rule that gay marriage should be treated the same as any other marriage. Based on substance, this is a very poor brief. However, the unique publication method could make this brief one of the most important briefs filed in the Supreme Court.

The Supreme Court prevents forum shopping in international custody battles.

In the recent Supreme Court case of Abbott v. Abbott, 130 S.Ct. 1983 (2010), the Court ordered a child returned to Chile. In this case, the mother had custody under proceedings in Chile and removed the child to the United States in violation of Chilean law. While the case is steeped in the language of international child custody disputes (Hague Convention, right of ne exeat, etc.) the decision prevents forum shopping in international custody disputes. Forum shopping is the idea that a litigant can control the orders of a court by moving from one country (forum) to another. For over thirty years, the United States has had laws that prevent moving from state to state for forum shopping (Parental Kidnaping Prevention Act and Uniform Child Custody Jurisdiction Act). This decision reinforces the concept that the United States will return children to foreign countries if they are removed in violation of the law of the foreign country.


In the Abbott case, the mother argued that since she had custody, she could remove the child without permission of the father of the child or a court. Even though the father did not have custody, under Chilean law, he had the right to prevent the child from being removed from Chile. This right to prevent removal, called ne exeat, was sufficient to cause the Supreme Court to return the child to Chile.

This decision should prevent future attempts to remove children and bring them to the United States. The predictability of a return of the child should prevent removal from occurring.