Citation
A pentadic analysis of the Family Research Institute's amicus curiae brief for the appeal of Amendment Two

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Title:
A pentadic analysis of the Family Research Institute's amicus curiae brief for the appeal of Amendment Two
Creator:
Decker, Natalie Lynn
Publication Date:
Language:
English
Physical Description:
vi, 144 leaves : ; 29 cm

Subjects

Subjects / Keywords:
Constitution (Colorado) ( fast )
Gays -- Legal status, laws, etc -- Colorado ( lcsh )
Gays -- Legal status, laws, etc ( fast )
Colorado ( fast )
Genre:
bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )

Notes

Bibliography:
Includes bibliographical references (leaves 140-144).
General Note:
Submitted in partial fulfillment of the requirements for the degree, Master of Arts, Communication and Theatre.
Statement of Responsibility:
by Natalie Lynn Decker.

Record Information

Source Institution:
|University of Colorado Denver
Holding Location:
Auraria Library
Rights Management:
All applicable rights reserved by the source institution and holding location.
Resource Identifier:
32480713 ( OCLC )
ocm32480713
Classification:
LD1190.L48 1994m .D43 ( lcc )

Full Text
A PENTADIC ANALYSIS OF THE FAMILY RESEARCH INSTITUTE'S
AMICUS CURIAE BRIEF FOR THE APPEAL OF AMENDEMENT TWO
by
B.A. , Natalie Lynn Decker University of Colorado at Denver, 1993
M.A. , University of Colorado at Denver, 1994
A thesis submitted to the
Faculty of the Graduate School of the
University of Colorado at Denver
in partial fulfillment
of the requirements for the degree of
Master of Arts
Communication and Theatre
1994


This thesis for the Master of Arts
degree by
Natalie Lynn Decker
has been approved for the
Graduate School
by
Date
Michael Monsour


Decker, Natalie Lynn (M.A., Communication and Theatre)
A Pentadic Analysis of the Family Research Institute's
Amicus Curiae Brief for the Appeal of Amendment Two
Thesis directed by Assistant Professor Benita Dilley
ABSTRACT
This thesis is a rhetorical analysis of the amicus
curiae brief submitted by the Family Research Institute,
Inc., tp the Colorado Supreme Court, during the appeal of
Amendment Two. The research artifact being analyzed is the
Family Research Institute's brief. The rhetorical method
of critical analysis utilized in this thesis is Kenneth
Burke's pentad.
The goal of this thesis is to determine whether or not
the brief is effective. Additionally, if the brief is not
effective, a secondary goal is to determine what the
motive(s) behind the submission of the brief was. The
literature review covers the history and development of
amicus curiae, as well as an overview of subjects within
persuasion and argumentation that pertain to the artifact
being studied. The methodology is an analysis via Burke's
pentad which permits the examination of various parts of
the brief and their relationship with one another. From
this examination comes an assessment of potential motives
behind the submission of the brief.
The analysis conducted in this thesis resulted in the
111


determination that the Family Research Institute brief is
ineffective. However, this study found that the most
likely motive behind the submission of the brief was for
the Family Research Institute to make a social or moral
statement about homosexuality and Amendment Two. This
study is important to the communication field, specifically
in the area of rhetoric and law as the case of Amendment
Two will likely go before the U.S. Supreme Court.
This abstract accurately represents the content of the
candidate's thesis. I recommend its publication.
Signed
i v


CONTENTS
CHAPTER
I. INTRODUCTION .................................... 1
Purpose of Study ................................. 2
Definitions of Key Terms ......................... 3
History of Amendment Two ......................... 6
Significance of Study ............................ 9
Overview......................................... 10
II. REVIEW OF THE LITERATURE....................... 12
Amicus Curiae................................. 12
Definitions..................................13
Role and Function of Amicus Curiae...........14
Frequency of Use of Amicus Curiae............24
Persuasion, Argumentation, Reasearch
and Evidence..................................... 30
Audience Analysis .......................... 33
Source Credibility...........................36
Language ....................................38
Research and Evidence........................40
Rhetorical Criticism.............................45
Rhetoric.....................................46
Nature of Rhetorical Criticism ............46
Reasons to Engage in Rhetorical Criticism .48
III. EXPLANATION OF THEORETICAL FRAMEWORK
AND METHODOLOGY..................................51
IV. ANALYSIS.........................................66
Description of Research Artifact.................66
v


Labeling of Elements of the Pentad...............67
Act..........................................67
Agent........................................68
Agency...................................... 70
Scene........................................70
Purpose.................................- 77
Examination of FRI Amicus Curiae
Brief Through the Relationship of the Elements. .78
Language.....................................80
Evidence.....................................86
Assignment of a Motive...........................98
Conclusions Drawn...............................101
V. CONCLUSION......................................103
APPENDIX
Family Research Instituted Amicus
Curiae Brief....................................108
WORKS CITED
140


CHAPTER I
INTRODUCTION
Throughout the history of the development of the
United States, the government, both at the state and
national levels, has evolved into a massive institution.
Although the legislative branch of the government is
designed to make laws and amendments to the federal and
state constitutions, provisions are outlined for citizens
to make law directly. Through acts of rhetorical
initiative civic society is not only shaped, but regulated.
When citizens of Colorado went to the voting polls on
November 3, 1992, they were faced with proposals of ten
citizen initiated amendments to the Colorado Constitution.
One of the most controversial and highly publicized of
these proposed amendments was Amendment Two, the initiative
dealing with homosexual rights. Amendment Two, as it
appeared on the ballot in the Colorado general election and
in the Legislative Council of the Colorado General
Assembly's Analysis of the 1992 Ballot Proposals research
publication, was worded as follows:
1


An amendment to Article II of the Colorado
Constitution to prohibit the state of Colorado and any
of its political subdivisions from adopting or
enforcing any law or policy which provides that
homosexual, lesbian, or bisexual orientation ,
conduct or relationships constitutes or entitles a
person to claim any minority or protected status,
quota preferences, or discrimination. (13)
Amendment Two, although passed by voters of Colorado, has
become the center of a legal battle which was brought
before the Colorado Supreme Court. Two amicus curiae
briefs were filed with the Colorado Supreme Court for the
Amendment Two case? one of these briefs was submitted by
the Family Research Institute. This brief is the subject
of this thesis. Amicus curiae briefs, as will be
illustrated throughout this thesis are a unique form of
communication between people or groups, not a party to the
case yet having an interest in the outcome, and the
justices hearing the cases. In order to properly introduce
this thesis project, this chapter outlines the purpose of
this study, definitions of the key terms used, the history
of Amendment Two, the significance of this study, as well
as providing a brief overview of the material contained in
this thesis.
Purpose of Study
The purpose of this thesis is to critically analyze
the amicus curiae brief submitted to the Colorado Supreme
2


Court by the Family Research Institute for the appeal of
Amendment Two. The brief will be analyzed through a
rhetorical analysis in order to determine whether or not
the brief was effective. If the brief was not effective,
why did the FRI choose the approach in the brief they did?
This study will attempt to determine the effectiveness of
the FRI amicus curiae brief by looking at the brief itself
via a Burkean pentadic analysis and attempting to determine
the actual motives behind its submission.
Definitions of Key Terms
For the sake of clarity and understanding, it is
necessary to define the key terms found within this thesis.
The key terms include amicus curiae, brief, persuasion,
rhetoric, and terms from Amendment Two itself.
The first key term is amicus curiae. The following
definition of amicus curiae is offered by Black's Law
Dictionary:
Means, literally, friend of the court. A person with
strong interest in or views on the subject matter of
an action, but not a party to the action, may petition
the court for permission to file a brief, ostensibly
on behalf of a party but actually to suggest a
rationale consistent with its own view. (82)
A more in depth discussion of the definition of amicus
curiae will follow in the literature review chapter of this
thesis.
3


The term brief is a key term in this thesis as well.
According to Black's Law Dictionary, the definition of the
term brief is, "A written document. . A summary,
abstract, or epitome. A condensed statement or epitome of
some larger document or of a series of larger document, or
of a series of papers, facts and circumstances, or
propositions" (192).
As the subject of persuasion appears throughout this
thesis, a definition for the term should be offered.
Persuasion, as defined in Blacks Law Dictionary, is, "The
act of persuading; the act of influencing the mind by
arguments or reasons offered, or by anything that moves the
mind or passions or inclines the will to a determination"
(1145). Communication scholar Kenneth Burke further
defines persuasion by recognizing the vast area encompassed
by persuasion. In A Rhetoric of Motives. Burke states:
All told, persuasion ranges from the bluntest quest of
advantage, as in sales promotion or propaganda,
through courtship, social etiquette, education, and
the sermon, to a "pure" form that delights in the
process of appeal for itself alone, without ulterior
purpose, (xiv)
The term persuade is defined as, "To induce by argument,
entreaty or expostulation into a determination, decision,
conclusion, belief, or the like; to win over by an appeal
to reason and feelings, as into doing or believing
something" (Black 1144). A more extensive discussion
4


regarding the term persuasion will follow in the literature
review chapter of this thesis.
As this thesis is a rhetorical analysis, the term
rhetoric should be defined. Rhetoric, as defined by
Kenneth Burke, the communication scholar who developed the
pentadic critical analysis which is used in this thesis,
defines rhetoric as, "The use of words by human agents to
form attitudes or to induce actions in other human agents"
(Rhetoric 41). The Explanation of Theoretical Framework
and Methodology chapter elaborates on the subject of
rhetoric.
As Amendment Two is the subject of the brief being
analyzed, definitions of the key terms found within the
amendment should be noted. These definitions are the ones
provided in the Colorado Legislative Council's Analysis of
1992 Ballot Proposals. The term civil rights laws refers to
"local, state, and federal laws designed to protect classes
of persons from discrimination in areas such as employment,
housing, and public accommodations" (13). The term
constitutional rights refers to the "guarantees contained
in the federal Bill of Rights and made applicable to the
states through the Fourteenth Amendment" (13). The term
discrimination is defined as "any act which denies,
prevents, or limits any person from obtaining or
maintaining employment, housing, or public accommodations
5


based on race, age, gender, disability, nationality, or
religion" (13). The term equal protection refers to "the
clause in the Fourteenth Amendment to the U.S. Constitution
which prohibits any state from adopting any law which
denies the equal protection of the laws guaranteed to the
citizens of the United States" (13). The term protected
status is defined as "a group that has been identified for
protection from actions which affect a protected or suspect
class and which are limited or scrutinized as required by
anti-discrimination statutes, ordinances, or common law"
(13). The term sexual orientation is defined as "the status
of an individual as to his or her sexuality, for example,
heterosexuality, homosexuality, lesbianism, or bisexuality"
(13). These terms are central terms within Amendment Two
and appear in the FRI brief and, consequently, may appear
in later sections of this thesis.
These terms will appear throughout this thesis, and
must be adequately understood in order fully appreciate the
analysis conducted in this thesis project. It is hoped
that the provision of the key terms used in this thesis
will eliminate any possible confusion or ambiguity with the
terminology contained in this thesis.
History of Amendment Two
This proposed amendment was initiated by a Colorado
6


Springs based organization, Colorado for Family Values
(CFV). CFV organized and mobilized its resources in order
to petition registered voters in an attempt to get the
measure placed on the ballot for a popular vote. According
to Colorado Senator Ted Strickland, in the Colorado
Legislative Council's Analysis of 1992 Ballot Proposals,
the number of signatures required in order to place an
initiative on the ballot is "an amount equal to five
percent of votes cast for all candidates for the Office of
Secretary of State at the previous general election" (1).
Consequently, this required CFV and its volunteers to
obtain the signatures of at least 49,279 registered voters.
Not only were the required signatures obtained, but also an
additional 35,166. The CFV signature drive secured a record
number of signatures for a volunteer-conducted petition
drive in Colorado with an overwhelming 84,445 signatures in
support of placing Amendment Two on the ballot (CFV).
Although Amendment Two was predicted by the tracking polls
to be defeated, Colorado voters surprised the nation when
53.5% of voters, 813,966 votes, passed the amendment
(Pankratz, "Court" 10).
Despite the fact that Amendment Two passed by a
majority vote of Colorado citizens and successfully went
through the legitimate, necessary channels that every other
initiative does and should have been immediately
7


implemented, the passage of Amendment Two was just the
beginning of the legal battle that has tied up the
amendment in court which continues today. After its
passage, Amendment Two drew criticism and outcries from
civil rights and homosexual rights activists who claim the
amendment was unconstitutional as it violated the rights of
homosexuals not to be discriminated against. Amendment Two
was brought to trial before Judge Jeffrey Bayless in the
Denver District Court. Judge Bayless placed a temporary
injunction which barred Amendment Two from being
implemented into law, pending the results of the trial. At
the end of the trial, Judge Bayless ruled that Amendment
Two was, in fact, unconstitutional as its opponents
accused, and thus the temporary injunction was made
permanent, thereby nullifying Amendment Two and the votes
of the citizens of Colorado.
Far from being over, the battle being waged over
Amendment Two was brought before the Colorado Supreme
Court. As part of the process of appeals, two amicus
curiae or "friend of the court" briefs were filed on behalf
of Amendment Two.
One of the amicus curiae briefs submitted is that of
The Family Research Institute (FRI), the organization that
provided CFV with the research and statistical support for
their campaign literature. This brief is the artifact
8


being studied in this rhetorical analysis. The brief
discusses the interest of the Family Research Institute
with regard to the case of Amendment Two, outlines the
nature of the case, materials presented, and court
proceedings. It also specifies the question presented in
the brief, provides a statement of the facts, elaborates
the FRI arguments and offers a conclusion. The brief was
written by Dr. Paul Cameron, chairman of FRI, and FRI
attorney Keith E, Abbott of Greeley, Colorado.
Significance of Study
This study is important because of the impact
Amendment Two has on the public as a whole, regardless of
whether the Colorado Supreme Court deems it constitutional
or unconstitutional. As Colorado Attorney General Gale
Norton stated in her ninety-eight page petition to the U.S.
Supreme Court:
It [Amendment Two] presents an issue of exceptional
public importance. It impacts not only Colorado, but
all places in the country where, regardless of the
outcome, issues pertaining to homosexual and bisexual
rights are addressed by governmental entities or the
people themselves. (Wilmsen 1)
The case involves a situation in which the voters spoke and
the law they passed is not being implemented, rather it is
tied up in court in a vicious legal battle. This is a
cause for concern for voters:
9


Many Colorado residents, even some who voted against
Amendment Two, are confused about how the will of the
majority can be negated after a measure was ruled
acceptable for the ballot and approved in an election.
(Pankratz, "Majorities" 1)
Consequently, the case of Amendment Two is already filed
for appeal to the United States Supreme Court and there is
much speculation that the case will be accepted. The
analysis of the effectiveness of the argumentative
strategies used, specifically the amicus curiae briefs, on
the state level could provide invaluable insight as to what
will be an effective strategy or approach at the federal
level. Furthermore, this analysis of the FRI amicus curiae
brief may promote or encourage additional research in the
area of rhetoric and the law.
Overview
For the sake of clarity, this section is intended to
provide a brief overview of the material and information
contained in this thesis. Chapter Two contains a review of
the literature. The literature regarding amicus curiae and
its history and development are examined. As that
literature illustrates that amicus curiae briefs have
evolved into a rather persuasive role, the areas of
persuasion and argumentation are briefly discussed.
Additionally, as the FRI brief utilized several empirical
studies and research to support the arguments presented,
10


the chapter also incorporates a review of the information
about research and evidence and how to determine its
validity, reliability, and soundness. The third chapter of
this thesis provides an explanation of the theoretical
framework and methodology used in the analysis of the FRI
amicus brief. As Kenneth Burke's pentadic analysis is the
critical method selected for this thesis, that chapter also
elaborates on the pentad and offers reasons for why that
method was selected. The fourth chapter is the actual
analysis of the amicus brief. It contains the labeling of
the elements of the pentad, as well as the analysis of the
FRI brief through an examination of the relationship of the
most significant elements of the pentad. The fifth chapter
offers a conclusion to this thesis and reviews the findings
of the analysis and the overall thesis.
11


CHAPTER II
REVIEW OF THE LITERATURE
The literature that pertains to this study encompasses
a vast area, as this analysis deals with amicus curiae
briefs and legal communication that necessarily
incorporates the areas of persuasion, argumentation, and
rhetoric. In order to provide an adequate background for
this study, this chapter will examine the existing
literature of the subject of amicus curiae briefs, as well
as a brief overview of some of the literature in the areas
of persuasion and argumentation, and rhetorical criticism.
Amicus Curiae
A wide array of essays and articles pertaining to
amicus curiae briefs have been published in law journals
and books. When studying amicus curiae briefs, it is
necessary to review the literature that has already been
published in order to fully appreciate the research at
hand. The literature on amicus briefs discusses the
definitions, role and functions, and frequency of use of
12


amicus curiae briefs. These areas are important to examine
as they provide the background information necessary to
adequately analyze the Family Research Institute's amicus
curiae brief. In order to determine whether or not the
brief was effective, one must first know what an amicus
brief is, what purpose it is supposed to serve, and whether
or not it is a frequently used method of communication
within the legal system.
Definitions
As the primary subject and research artifact of this
rhetorical study is an amicus curiae brief, it is necessary
to adequately define what an amicus curiae brief is.
According to American Jurisprudence (1962), the term
"amicus curiae" literally means a friend of the court
(109). This "friend" can be an attorney or a layperson who
provides the court with information pertaining to the case
being heard which the court may be unaware of or overlook.
The amicus curiae brief is the written report the amicus
curiae submits to the court with the information it wishes
to communicate. The definition provided in 3A Corpus Juris
Secundum (1973) further adds to the definition of amicus
curiae in stating, "The term is sometimes applied to a
person who is not a proper or necessary party, but who is
13


allowed to appear to protect his interest or the interest
of a party he represents" (422).
Some of the articles on amicus briefs also suggest
definitions. In his frequently cited article, "The Amicus
Curiae Brief: From Friendship to Advocacy," Samuel Krislov
devotes a portion of his article to defining amicus curiae.
Krislov cites two definitions of amicus curiae in order to
provide a solid base of understanding for his readers. One
of these definitions, as it appears in Abbott's Dictionary
of Terms and Phrases. defines amicus curiae as:
A friend of the court. A term applied to a bystander,
who without having an interest in the cause, of his
own knowledge makes suggestion on a point of law or of
fact for the information of the presiding judge, (qtd.
in Krislov 694)
While there are a plethora of definitions of amicus
curiae, as each dictionary has its own version, the basic
definition is agreed upon. Amicus curiae is a friend of
the court, while not directly a party to the case, may be
either an attorney or a layperson, who submits information
to the court relevant to the case which the court may not
otherwise be aware of and thus may err in its decision.
Role and Function of Amicus Curiae
Another area to look at when studying amicus curiae
14


briefs is the role of the briefs. What functions do amicus
curiae briefs serve? Perhaps the best way to determine the
role of the amicus brief is to examine the historical
development of amicus curiae, which includes its evolution
from being strictly informative to persuasive and more
partisan. In fact, in her essay, "The Amicus Curiae and
the Public Interest: A Search for a Standard," Nancy Daly
states, "Much of the descriptive literature on amicus
curiae charts its historical development from neutrality to
partisanship" (391).
The lineage of amicus curiae is quite extensive.
Although there is not much information known about the
specific origins of amicus curiae, the practice has been
traced back to Roman law. The use of amicus curiae in
early Roman law is thoroughly documented as early as 1353
A.D. (Wiggins 294). In Roman law, the amicus curiae's
function was merely to supply the court with information
pertaining to the case presented to the court which
involved areas beyond the reach of the court's expertise
(Lowman 1248). The use of amici in Roman law involved the
use of a court office, the consiliarus. The role of the
consiliarus contrasts that of an amicus curiae in later
common law and today's practice in many ways. For instance,
his presence was only when specifically requested by the
court. However, much as an amicus curiae today, the
15


consiliarus was to serve the court by advising the justices
"in the disposition of a particular case or point of law"
(Wiggins 295).
From the vast domain of Roman law emerged the concept
of English common law. Common law also incorporated the
notion of amicus curiae, adapted from amicus curiae in
Roman law. Although legal provisions were made for amicus
curiae participation in English common law, the provisions
were rather vague and thus allowed the notion of amicus
curiae to develop somewhat culturally through the courts'
gradual molding (Lowman 1248). The English version of
amicus curiae was a "disinterested bystander who, at the
court's request or permission, informed the courts on
points of law" (Lowman 1248). Thus, amicus curiae could
request permission to communicate with the court; the court
did not necessarily have to ask amici to appear. This
notion of amicus curiae and the justification for
empowering an amicus curiae was based on the theory that by
providing the court with information, thus preventing the
court from potentially erring in its judgment, the amicus
curiae was consequently serving in a capacity which
maintained "judicial honor and integrity" (Lowman 1248).
Although the traditional role sought to have amicus
curiae serve as the "judiciary's impartial friend," this
role came into conflict with the adversarial nature of the
16


common law system which was based on the principle of
"trial by duel," as Michael Lowman asserts in his article,
"The Litigating Amicus Curiae: Where Does the Party Begin
After the Friends Leave?" Lowman explains that in
practicing the concept of "trial by duel," the persons
involved in the lawsuit were granted the ultimate control
over the process and litigation of the case, thereby
discouraging, if not overtly preventing, any third party
involvement (1249). This duality of the system proved to
be a source of conflict and strife, as many cases that are
brought before the court indirectly involve other parties
not participating in the case but who will be affected by
the court's ruling. Lowman states, "In response to
potential inequity, common law courts gradually molded the
amicus curiae device into an informal judicial method of
representing third-party interests previously ignored under
the adversarial system" (1249). With this development, the
role of the amicus curiae further evolved on its way to
becoming its modern form. By the mid- 1700s, the English
courts saw amicus curiae begin to transform into the role
of advocacy (Angell 1018).
With the formation of the United States of America in
1776 came yet another judicial system, this one emerging
from the premises of English common law. The notion of
amicus curiae was certainly not to be forgotten in the
17


judicial system of the United States. The United States
adopted a federalist system of judicial practice.
The federalist system, the base of the American
courts, had limitations in third-party interest
representation much as the "trial by duel" system of the
English courts did. Not only did federalism incorporate
the concept of "trial by duel," but it also extremely
limited the ability of third parties to be heard in court
despite the fact that their interests went unrepresented in
the two-party trial system (Lowman 1249). Although it was
not immediately utilized, the role of amicus curiae made
its debut in the United States in 1823 in the case of Green
v. Biddle (Lowman 1250). Once again the role of amicus
curiae had been sought by the courts to help eliminate some
of the problems caused by the limitations of the court's
adversarial litigation system.
The involvement of amicus curiae in Green v. Biddle
(1823) was critical to the evolution of the role of amici.
In Green v. Biddle (1823), Henry Clay, an orator and state-
rights advocate, was granted permission by the Supreme
Court to act as amicus curiae in a case involving the state
of Kentucky. Clay was permitted to file a motion
requesting that the case be reheard due to unrepresented
third-party interests in the first trial. Clay's request
for the rehearing of the case was granted by the U.S.
18


Supreme Court which also allowed Mr. Clay, as amicus
curiae, to present an oral argument before the court rather
than simply providing an informative amicus curiae brief
(Lowman 1255). As Michael Lowman advocates, Henry Clay's
involvement as an amicus curiae in the case of Green v.
Biddle (1823) went far beyond the traditional role of
amicus curiae as an impartial informer to the court and was
actually closer to the role of an intervenor or advocate.
Lowman states, "Several commentators have attributed the
wide scope of power demonstrated in Green to the
development of an often blurry distinction between
intervening parties and amicus curiae status" (1256).
Another turning point that has been attributed to the
evolution of the role of the amicus curiae from informative
to advocacy occurred around the beginning of the 1930s.
Prior to this time, amicus curiae briefs from an
organization had been submitted under their lawyer's name,
and the lawyer was considered the amicus presenting
information on behalf of the actual organization. However,
by the early 1930s, organizations were submitting amicus
curiae briefs in their own names rather than that of their
lawyer (Angell 1018). In "The Amicus Curiae Brief: From
Friendship to Advocacy, written in 1963, Samuel Krislov
states:
The attribution of a brief to an organization belies
19


the supposedly lawyer-like role of the amicus, but
realistically embraces and ratifies the
transformation of the actual pattern of behavior and
its new function. The amicus is no longer a neutral,
amorphous embodiment of justice, but an active
participant in the interest group struggle. (703)
These historical developments have contributed
significantly to the evolution of the role and function of
amicus curiae. Much of the literature dealing with amicus
curiae briefs concludes that the role that the amicus
curiae has evolved into is that of advocacy or lobbyist as
opposed to that of its traditional role of impartial
informant. In an article for USA Today (Magazine), "Can
the Courts Be Swayed?" Karen 0/Connor, a political
scientist who has conducted extensive research on amicus
curiae briefs, is quoted as saying that amicus curiae
briefs have, "Now become a powerful lobbying tool, since
interest groups, of course, submit information in support
of their positions" (12). Samuel Krislov contends that
during the last several years "the line between an
intervenor and an amicus curiae is often blurred" (700),
and that amicus curiae briefs are "the most formal of a
number of lobbying tactics" to influence court justices
(710). In their article,"Lobbyists Before the Court,"
Fowler V. Harper and Edwin D. Etherington are devoted to
defending their argument that amicus briefs are persuasive
"lobbying devices" used to influence the courts to favor a
20


certain position (1172). They further argue that there is
nothing wrong with lobbying the courts as long as
"everything is above board and on a level of decency,
morally and intellectually" (1177). Michael Lowman argues,
"No longer a mere friend of the court, the amicus has
become a lobbyist, an advocate, and, most recently, the
vindicator of the politically powerless" (1245). In
Justice in America: Courts, Lawyers, and the Judicial
Process, Herbert Jacob said, with regard to amicus curiae
briefs and their persuasive role:
They parallel to a striking degree the principle
technique of lobbyists before executive agencies and
legislatures, for they rely on the utility of
information. It is hoped that giving the courts
information will incline them to rule in favor of the
group's interest. (35)
Kent Hull, Director of Legal Services for the National
Center for Law arid the Handicapped (NCLH), an organization
that frequently writes amicus curiae briefs on social
issues for litigation, states, "The amicus curiae brief is
now acknowledged to be a supporter of one side" (28). These
statements illustrate the recognition that amicus curiae
briefs have become partisan, as opposed to an impartial
informer with altruistic motives to simply assist the court
by providing the court with unbiased information.
Due to the change in the nature of the role of amicus
curiae, and thus the amicus curiae briefs, from informer to
21


persuader, interest groups and organizations now use amicus
curiae briefs as part of their persuasive legal strategies.
In his essay, "The High Road to the Bench: Presenting
Research Findings in Appellate Briefs," Charles Tremper
notes that briefs are in fact an important part of an
adequate, thorough legal strategy to "influence public
policy," as the briefs permit interest groups,
organizations and other third parties to communicate with
judges, an especially important aspect in the appellate
courts, since these judges hold concentrated power to make
decisions impacting social policy. It should be considered
that judges have ultimate decisionmaking authority as to
whether or not a law or public policy can be implemented,
regardless of what the entire legislative body or majority
of citizens believe. Tremper states, "In contrast to the
dozens to hundreds of legislators (and the thousands or
even millions of voters) need to change a law, two to five
votes among members of the appellate bench are typically
sufficient to achieve the same result" (201).
Consequently, the ability to persuade judges to support a
particular position through the use of amicus curiae briefs
is extremely valuable.
Bearing in mind that the amicus curiae brief is a
persuasive form of communication, Tremper also reminds his
readers that this should be kept in mind when writing the
22


brief.
A writer of an amicus curiae brief will need to
consider the positions and views of the justices if the
brief is to, in fact, be persuasive to them, just as a
writer of any other form of communication would have to
consider his/her audience:
The final suggestion requires the greatest expenditure
of effort by the brief writer: It is to tailor the
presentation of research findings to the specific
interests and biases of the judges...taking judges'
preferences into account is one peculiar form of
targeting a presentation to a specific audience.
(Tremper 226)
While the consideration of the preferences of the justices
is important when writing an amicus curiae brief, this is
not to say that the briefs cannot pose arguments that are
a little more risky. Attorney Bruce Ehnis contends that
amicus curiae briefs may present arguments that the parties
litigating the case would not be in a position to make for
"political or tactical reasons" (607). All the same, if
the goal is to be persuasive, it is especially important to
keep the target audience in mind when preparing the amicus
curiae brief.
A review of the literature written about amicus
curiae illustrates that the role of the amicus curiae, and
thus the amicus curiae briefs, has been radically
transformed over the last six hundred years. Although the
function of amicus curiae has been transformed from
informative to persuasive, the practice of amicus curiae is
23


still frequently used today.
Frequency of Use of Amicus Curiae Briefs
Another area that the literature about amicus curiae
briefs focuses on is the frequency of the use of amicus
briefs in court cases. Although the use of amicus curiae
in the United States did not begin until 1823, it is now
commonplace. The vast area that American law encompasses
makes it impossible for judges to be experts in every
aspect of law, thus necessitating the use of amicus curiae
briefs to fill in the knowledge gaps (Angell 1022).
Throughout the years, the use of amicus curiae briefs has
remained steady, and now the amount of briefs filed is
quite high. One or more amicus curiae briefs are filed in
over two-^thirds of all Supreme Court cases (Ennis 604). It
should be noted that much of the literature examining the
frequency of the use of amicus curiae briefs is based upon
the U.S. Supreme Court and federal courts rather than the
state courts. However, the studies are still significant
as they provide an indication as to how widespread the use
of amicus curiae briefs is.
Prior to 1938, the Supreme Court had no specific
written rules as to the submission of amicus curiae briefs.
In 1903, in Northern Securities Company v. United States,
the Supreme Court had "indicated that amicus need only
24


demonstrate an interest in the issues at hand in order to
participate" (O'Connor and Epstein 36). Pursuant to that
case and the lack of a clear definition for the term
"interest," the courts saw an increase in the submission of
amicus curiae briefs and thus an increase in the workload
of the justices. Consequently, the Supreme Court made a
formal rule, Rule 27-9, which "specifically required a
party seeking to participate as an amicus curiae to secure
written consent of all parties to a case" prior to
submission of an amicus curiae brief (O'Connor and Epstein
37). However, the result was not what the court had
intended. The amicus curiae briefs submitted after the
writing of the rule actually increased in number while
decreasing in legal merit and utility or value to the
justices. The briefs had become vehicles for judicial
"propaganda" for the litigants involved in the case since
they were the ones who ultimately approved or disapproved
the briefs submitted to the court (O'Connor and Epstein
37). Litigants to the case were not about to authorize the
submission of an amicus curiae brief that would undermine
their position and arguments. Instead, a plethora of
amicus curiae briefs were submitted as propaganda for the
litigants. Finally, during the 1948 term, the Supreme
Court justices had had enough of these "friends" when
seventy-five amicus curiae briefs were submitted for the
25


fifty-seven cases presented before the Court (Harper and
Etherington 1172). The Court was becoming overwhelmed with
the increase of amicus briefs.
In order to curb this continual increase in submission
of amicus curiae briefs which added to the already
overwhelming workload of the justices, as well to attempt
to eliminate the lack of legal merit of the briefs due to
the requirement of consent of the litigants, the Supreme
Court amended the 1938 formal rule with regard to the
submission of amicus curiae briefs. The 1949 amended rule
also required amicus curiae to receive consent from the
parties litigating the case, but it carried the rule
further to "set out more stringent standards to guide
amici... and required parties wishing to participate as
amicus curiae to present motions for leave to file with the
Court if permission was referred by either party to the
action" (O'Connor and Epstein 37). It was hoped that the
more rigid standards would reduce the volume of amicus
briefs.
In the short term this amendment did reduce the number
of amicus curiae briefs submitted. However, in the long
run this did not appear to be the case. In their essay,
"Court Rules and Workload: A Case Study of Rules Governing
Amicus Curiae Participation," political scientists Karen
O'Connor and Lee Epstein contend that "although many have
26


noted that the 1949 rule change immediately reduced the
number of amicus curiae briefs submitted to the Court, by
1961 the rule no longer had any appreciable effect" (35).
In their study which covered a thirteen year period, 1969
to 1981, O'Connor and Epstein found that 2,052 amicus
curiae briefs were submitted to the U.S. Supreme Court for
827 of the cases being heard. Of these briefs, 741 were
granted permission for leave to file the amicus curiae
brief by the Court. Of the total motions for leave to file
an amicus brief, the Court rejected only 91 or 11% (41).
These figures indicate that, despite the amendment, amicus
briefs were still being utilized in a large portion of
cases.
The findings of O'Connor and Epstein seem to be
consistent with cases heard before the Court in more recent
years. Bruce Ennis reports, "By the Court's 1980 term,
however, of the 137 cases decided by opinion, ninety-seven,
or 71% of the total, involved amicus briefs," up from about
33% in 1965 (603). In Webster v. Reproductive Health
Services (1989), the case involving abortion, seventy-eight
amicus curiae briefs were submitted (Greenhouse 22). From
the time the Supreme Court accepted the case involving a
challenge to the First Amendment of the U.S. Constitution,
Turner Broadcasting v. Federal Communications, on September
28, 1993, until December 23, 1993, when Linda Greenhouse
27


published her article, "In Big Cases, Lots of Briefs and
'Friends'," thirty-two amicus curiae briefs had been
submitted. Charles Tremper states, "Whereas the amicus
appearance was once fairly rare, it has now become almost
a standard feature of major precedent-setting cases" (202).
According to the article, "Social Science and the Courts:
The Role of Amicus Curiae Briefs," amicus curiae briefs
were submitted in the cases of: Lockhart v. McCree (1986),
a case involving the death penalty; Watkins v. U.S. Army
(1988), a case involving homosexual rights; Ballew v.
Georgia (1978), a case involving the size of a jury;
Maryland v. Craig (1990), a case involving the use of
children as witnesses; Thornburgh v. American College of
Physicians and Surgeons (1986), an abortion case; and in
City of Cleburne v. Cleburne Living Center. Inc. (1985), a
case involving the rights of individuals who are mentally
ill (Roesch et al. 2). These cases illustrate not only
that fact that amicus briefs are utilized in numerous
cases, but also that amicus briefs are used in cases
encompassing a wide variety of subject matters.
Perhaps one of the most significant reasons for the
high rate of submission of amicus curiae briefs is the low
cost involved. Typically, the financial costs involved
with the submission of an amicus curiae brief are nominal.
An amicus curiae "pays no court fee for the filing of any
28


motion for leave or for actual appearance under the
privilege accorded... he has only to meet the bill for the
printing of his brief" (Angell 1023). It should be noted
that not only are the financial costs low, but so are the
social costs and risks which are incurred when attempting
to influence the court to change public policy in other
manners such as presenting a "test case." As Herbert Jacob
points out:
Presenting such a brief to an appellate court involves
fewer risks and less costs than making a test case.
No member of the group is personally threatened with
imprisonment or the other consequences of a lost
lawsuit. (36)
Although amicus curiae briefs are frequently submitted
and the costs involved in their submission are relatively
low, there is no standard way to empirically attempt to
measure their effectiveness. In their study of amicus
curiae briefs, O'Connor and Epstein found that the only way
to even attempt to empirically suggest the effectiveness of
amicus curiae briefs is to determine how many times the
briefs were cited in the Supreme Court opinions. In their
study, over thirteen years and 827 cases, in which one or
more amicus curiae briefs were submitted, 149 cases or 14%
cited at least one of the amicus curiae briefs (43).
However, it has been argued that even the specific citation
of an amicus curiae brief by judges is not an accurate
assessment of the effectiveness of an amicus brief as it is
29


possible that the justices arrived at their conclusions on
their own and merely used the briefs as support for their
own positions (Daly 414). Nevertheless, it is generally
thought that groups who submit amicus curiae briefs which
bolster their arguments have an increased chance in
prevailing in court (Yarnold 23). Due to the fact that the
effectiveness of an amicus curiae brief cannot be
empirically determined, the amicus curiae briefs can be
looked at as rhetorical artifacts and analyzed through
rhetorical criticism, as is the case with this particular
thesis.
The majority of literature regarding amicus curiae
briefs is found in legal books and journals tucked away in
law libraries. The literature, after providing an adequate
definition of amicus curiae to use as a base, mainly
focuses on the evolution of the role of amicus curiae from
impartial informer to persuader and advocate, as well as
the frequency of use of the amicus curiae briefs.
Persuasion. Argumentation and Research/Evidence
Due to the nature of the research artifact of this
thesis being persuasive and utilized in legal argument, it
is necessary to look briefly at what some of the literature
has to say about persuasion, argumentation, research and
evidence. The literature that pertains to the subject of
30


source
this thesis discusses audience analysis,
credibility, language use, and research and evidence
evaluation.
Before examining what the literature has to say with
regard to persuasion and argumentation, it is helpful to
define these two terms. Persuasion, as defined by Herbert
Simons in Persuasion, is "a process of communication
designed to modify the judgments of others and... success
at modifying the judgments of others in the intended
direction" (24). In his article, "Persuasion," Joseph W.
Singer states, "Persuasion is somewhat mysterious" (2444).
Persuasion is generally considered to be any efforts
intended to influence others, whether it be their ideology,
thoughts or actions. Roy T. Stuckey, in his article,
"Persuasion from A to P: Back to the Basics," contends that
persuasion involves the "manipulation of the decisions" of
the audience (680).
The art of persuasion is one of the oldest of the
disciplined studies (Arnold 43). Persuasion includes a
variety of messages sent to audiences. Included in
persuasion are messages which claim to be objective but in
reality are persuasive in nature. This disguised
persuasion includes:
Ostensibly objective messages that purport to be
unbiased and impartial; and those much more manifestly
rhetorical documents which, although more obviously
31


rhetorical in their aims and convictions, nevertheless
purport to provide objective 'fact, "information,"
and "logic" in support of their claims. (Simons 307)
Furthermore, Howard Martin and Kenneth Anderson,
communication scholars, argue, "All communication is
ultimately persuasive in that it seeks to win a response to
the communicator's ideas," regardless of its claim to
objectiveness (Reike and Sillars 9). With regard to
persuasion, the fifth century philosopher, Augustine
states:
A man is persuaded if he likes vzhat you promise,
fears what you say is imminent, hates what you
censure, embraces what you commend, regrets what you
built up as regrettable... and in whatever other ways
your high eloguence can affect the minds of your
hearers, bringing them not merely to know what should
be done, but to do what they know should be done,
(qtd. in Burke, Rhetoric 50)
The other area of communication studies which pertain
to the subject of this thesis is argumentation. The
process of argumentation, as defined by Richard Reike and
Malcolm Sillars in Argumentation and the Decision Making
Process. is the:
Ongoing transaction of advancing claims, supporting
them with reasons, and the advancing of competing
claims with appropriate support, the mutual criticism
of them, and the granting of adherence to one. (6)
In "Argumentation and Interpretation in Law," Neil
MacCormick defines argumentation as, "The activity of
putting arguments for or against something" (16).
Conseguently, argumentation is especially important in a
32


democratic society and within the United States judicial
system. The importance of argumentation in democratic
societies is emphasized in a quote from The Peloponnesian
War by Thucydides in which Pericles states, "Instead of
looking on discussion as a stumbling-block in the way of
action, we think it an indispensable preliminary to any
wise action at all" (qtd. in Jensen 1).
Audience Analysis
One of the areas discussed in persuasion and
argumentation literature is that of audience analysis. It
is very important for a rhetor to consider his or her
audience when preparing the message in order to achieve the
desired goal. Throughout his article, "Persuasion from A
to P: Back to the Basics," Roy T. Stuckey reminds rhetors
that analyzing their audience is an essential component of
successful communication, especially persuasive
communication. Rhetors must consider their audience and
their predispositions, relative interests, beliefs,
attitudes, values and ideas (K. Black 232). Communication
scholars Aizen and Fishbein's advice is to be certain the
appeals used are "believable and consistent with the target
audience's dominant values" (Simons 147).
The rhetor should have a target audience, a specific
group to whom the rhetorical message is aimed. No matter
33


what the message, if it is not aimed at the audience
receiving it, it will be unsuccessful (Ibis 41). The
rhetor needs to learn as much as possible about this group,
including the political preferences of the group if
applicable.
As the political preferences of the audience are
relevant to the subject of this thesis, J. Vernon Jensen's
statement about audience political preferences is
particularly insightful:
Knowing the political atmosphere of a group will
enable arguers to adapt accordingly, to choose
acceptable authorities, to develop certain arguments
more than others, and to phrase statements
appropriately. (203)
If a rhetor knows the political atmosphere of the audience,
he or she can attempt to frame the rhetorical message in
such a way as to be persuasive to people holding these
particular views. In her article, "Source Credibility in
Persuasive Oral Communication," Vanessa D. Arnold states,
"Therefore, good communicators will tailor their
presentations to the appropriate audience" (44). For
example, an argument that would persuade an audience with
politically liberal views would not likely persuade an
audience with conservative views, thus the message must be
framed accordingly.
It is important to analyze an audience in order to
frame the message in such a manner as to illicit the
34


desired response. Jensen suggests:
Members of an audience, even a captive audience, do
not have to listen if they do not want to, so arguers
have to mold their comments accordingly to meet the
interests and aspirations of the receivers, to secure
a high degree of attention, understanding, and
favorable response. (195) i
If a rhetor knows about his or her audience, common ground
i '
appeals can be made, appeals which emphasize similarities
between the rhetor and the group.. Perceived similarities
. - . i
and appeals based on common ground can increase a rhetor's
success with the audience, as they emphasize a relationship
I
between the rhetor and the audience (Singeir 2458).
!
Incorporated with audience analysis and establishing
common ground is the idea of identification!. Kenneth Burke
places tremendous emphasis on the identification of a
i
rhetor with the audience receiving the message. In A
Rhetoric of Motives. Burke states, "You persuade a man only
. ' i
insofar as you can talk his language, by sipeech, gesture,
tonality, order, image, attitude, idea, identifying your
i
ways with his" (55). In Persuasion and Social Movements.
1 . i
Burke's notion of identification is considered to be "more
than merely relating to others; it is an instrument of
transformation" (Stewart et al. 143). Burke also refers to
identification as "consubstantiality." Burke states, "In
acting together, men have common sensations, concepts,
images, ideas, and attitudes that make them iconsubstantial"
1
35


(Rhetoric 21). Burke views the establishment of
identification or consubstantiality with the audience as an
essential component of the communication process,
especially when attempting to be persuasive (Rhetoric 46).
The concept of audience analysis is very important to
a rhetor. It is absolutely essential that a rhetor know
about the audience in order to frame the message
appropriately and know what kinds of appeals to use to have
the highest impact on the audience.
Source Credibility
The second area discussed in the literature is that of
source credibility. Source credibility refers to "a
communicator's positive characteristics which affect the
receivers acceptance of a message" (Kertz and Ohanian 13),
An audience needs to believe that the rhetor, the source of
the message, is credible, that they can safely put their
confidence there. In his book, Persuasive Writing. Herman
Holtz confirms the importance of credibility in stating:
Credibility is not an absolute characteristic of the
written project. It is a complex idea, affected by
several factor, some of the rather complex in
themselves. It does not result automatically from
skillful writing, yet writing that does not achieve it
may as well not have been written at all. (66)
Scholars Carl I. Hovland, Irving L. Janis, and Harold H.
Kelley have done extensive research in the area of source
36


credibility and found that it has a significant impact on
the audience's acceptance of a message (35). The greater
the credibility of the source of the rhetorical message,
the more likely the audience will accept the message being
sent them (Arnold 44). Credibility includes intellectual,
moral, and social components.
The intellectual component includes the rhetor's
knowledge of the subject, experience, and perceived
intelligence; in other words, the expertise or competence
of the source. Roy Stuckey refers to this component as
"good sense" or "practical knowledge" about the subject
(720). The expertise of a source is a critical determinant
in the acceptance of a message by the audience (Kertz and
Ohanian 13).
The moral component of source credibility incorporates
the trustworthiness of the rhetor. This can include the
perceived objectivity of the rhetor, the perceptions of the
rhetor's intentions, honesty, sincerity, and reliability
(Kertz and Ohanian 13). A source needs to have "good moral
character." Stuckey argues that a source needs to portray
himself or herself as someone who would not deceive the
audience (720).
The third component of credibility is social. These
qualities within the social component are the "attraction"
variables of the source (Kertz and Ohanian 13). The social
37


component includes perceptions of the rhetor's interest in
the audience, attitude, friendliness, and likability
(Gibbons et al. 115). A source needs to be perceived as
having "good will." Essentially, the audience needs to
feel that the source is interested in them and has their
best interests in mind (Stuckey 720).
The credibility of a rhetor, the source of the
message, as perceived by the audience is very important in
persuasion and argumentation. The three components,
intellectual, moral, and social, work together to
contribute to the audience's overall perception of a
rhetor's credibility (Stuckey 720). In order to achieve
the desired goal, the audience needs to perceive the rhetor
as being credible.
Language
Another area mentioned in the literature about
argumentation and persuasion is that of language use or
style. The language a rhetor uses is also important in
order to achieve the desired goal. Roy T. Stuckey
states,"Style involves the words to used in a persuasive
effort" (727). Stuckey further contends that language
should be used to create a bond between the audience and
the source (728).
There are a few guidelines for the use of language
38


when presenting an argument and attempting to persuade an
audience. Stuckey refers to these as "virtues of style,"
and includes clarity, dignity, and propriety among the
virtues to be used in selecting appropriate language to
frame a message (727).
The first of the virtues of style is clarity. With
regard to clarity of language, it is necessary to use
language the audience is familiar with (Stuckey 727). This
will help ensure the audience receives the message. A
rhetor should, in striving for clarity, refrain from using
words which are elaborate and sound sophisticated. In the
interest of clarity, it is wise to use simple words that
the particular audience is familiar with (728). It is
necessary to speak in terms that are familiar and
important to the audience in order to have the message
successfully reach the audience (Arnold 45).
The second of the virtues of language use or style is
dignity. Stuckey refers to dignity as, "The use of unusual
or extraordinary words to call attention to certain aspects
of a presentation (727). The importance of clarity,
however, should be kept in mind. Thus, another suggestion
for using appropriate language is to clearly define the key
terms being used in the message. This provides a starting
point for discussion and ensures that the rhetor and
audience are both conceptualizing the same thing when a
39


particular term is used. An interesting example of this
potential confusion is found in Neil MacCormick's article,
"Argumentation and Interpretation in Law":
For example, the word "diligence" in "ordinary"
English means praiseworthy and careful application by
a person to a task. But in Scots law, it has a
technical usage, meaning a legal process for enforcing
judgments; and at one time, in the terminology of
transport, it meant a particular kind of horse-drawn
vehicle. (21)
If key terms in the message are not clearly defined,
disagreement could ensue because two people are using two
different definitions for the same term when, in reality,
there is no real disagreement with the intended message.
Consequently, it is necessary to ensure, regardless of
whether a term is simple or complex, the audience knows the
specific meaning.
The language used to frame a rhetorical message is
important in order to attain the desired impact on the
audience, as it impacts the credibility of a source
(Gibbons et al. 128). Thus, rhetors should strive for
clarity of language as well as the appropriateness of its
use.
Research/Evidence
The fourth area discussed in literature is that of
research and evidence. This is of particular importance
for the subject of this thesis because the research
40


artifact, the Family Research Institute's amicus curiae
brief, presents research and evidence in support of its
arguments. The literature on research and evidence
examines the types and evaluation of evidence and research.
There are generally thought to be three types of
evidence: specific instances, statistics, and testimony
(Jensen 124). Specific instances are examples, including
illustrations (Jensen 124). Examples ar useful in
supporting an argument. Examples relevant to a particular
audience are especially helpful in persuasive appeals
(Stuckey 722). Statistics are "compact numerical ways to
express specific instances," and usually they are "raw
data or percentages" (Jensen 124). Testimony refers to
statements made by people who have "been there" (Jensen
124). Although testimony can be from either laypersons or
experts, for the sake of the subject of this thesis the
focus will be on expert testimony. The strongest evidence,
the best kind to use to back up arguments made, is recent,
clear, accurate, representative, consistent, and that there
is enough of the evidence to adequately support the
argument (Jensen 135).
In order to evaluate evidence, one should ask
questions. When evaluating specific instances, Jensen
suggests asking whether or not there are enough instances
and if they are in fact representative (128). Jensen
41


suggests several questions to assist in evaluating
statistics: Were the statistics accurately gathered? If
they were obtained through a sample, was the sample
population the appropriate size and representative of the
total population? Are the items being compared or
quantified capable of being compared or quantified? Do the
statistics cover a long enough tiraespan? Is the researcher
predicting beyond the data and making improper conclusions?
(129). Herbert Simons further suggests that data gathered
from questionnaires be evaluated by looking at the
questions to determine if the way the questions were posed
limits the possible responses of subjects (185). Simons
also suggests that attempts to evaluate statistics examine
whether or not the appropriate statistical unit is used
(e.g., mean, median, or mode), as an inappropriate unit can
significantly alter or skew the interpretation of
statistics. Watching for post-hoc fallacies, those which
"assume that which preceded an event must have caused it,"
is also necessary (Simons 189).
Questions must also be asked in order to evaluate
expert testimony. Simons suggests a few probing questions:
Is the expert free from excessive prejudice or
exaggeration? Is he/she really an expert on the subject at
hand (189)? Jensen further adds that it is necessary to
look at an expert's educational and vocational background.
42


It is also important to consider whether the reference to
the expert was vague, if his/her testimony is relevant, and
whether or not the expert was aware of the significance of
the statements he/she made (Jensen 133).
When conducting research, the results of which will be
used as evidence, it is necessary to consider the
appropriateness of the manner in which it is conducted.
Researchers need to "choose a sample (a smaller number of
cases) whose answers represent the responses of the larger
population (the total number of cases)" (Tucker et al.
159). Evidence that is from an unrepresentative population
is problematic. A sample size which is too small will
present a distorted view and may imply a conclusion that is
simply not true or one which makes unsubstantiated
intellectual leaps; sample sizes which are too large will
yield redundant information for researchers to sift through
(Simons 186).
Often it is necessary to employ the use of
randomization, assigning subjects to various groups by mere
chance, in order to ensure that the results of the research
will be valid. In Researching Speech Communication.
researchers are reminded "Nothing can cast doubt on the
integrity of a study faster than an indication that the
randomization procedure was not invoked when it would hjave
been appropriate" (Tucker et al. 160). Furthermore, biased
43


samples, samples in which subjects are used simply because
they are available, are not appropriately conducted either
as the data will be misleading because the subjects are not
representative of the population (Tucker et al. 163). This
empirical information regarding research samples and
methodology is important to consider as the amicus brief
being analyzed uses evidence from several research studies
in order to support the arguments made. If the evidence on
which an argument is based is not statistically sound, the
argument falls as it is unsubstantiated.
Two very important things to consider when evaluating
research is the reliability and validity of it.
Reliability refers to the consistency of the results: "If
a test of other dependent variables measures a trait or
construct perfectly on more than one occasion it is said to
be perfectly reliable" (Tucker et al. 167). The validity
of research refers to whether or not the study measured
what it claimed it was measuring, whether there is a
correlation between the test scores or results and the
actual behavior. A research study is said to be valid "if
the relationship between the test score and the actual
behhvior is high" (Tucker et al. 169). In the article,
"Use of Qualitative Methods to Enhance Content Validity,"
the definition of valitidity offered is:
Item content validity is the extent to which each item
44


fits the concept, while at the total scale level,
content validity relates to the representativeness of
the collection of all items as a measure of the
concept. (Tilden et al. 174)
Research that is used as evidence needs to be both
reliable and valid, otherwise it will not hold up under
scrutiny and thus will cause the argument to go
unsubstantiated. Once again, this empirical information
has a significant relation to the analysis of the research
artifact in this thesis as there is research evidence used
in the FRI amicus brief and if the evidence is not valid
and reliable, the arguments are invalid as they are
unsubstantiated.
The literature in the areas of persuasion,
argumentation, and research evidence provide some helpful
insight for this thesis. The concepts of audience
analysis, source credibility, language use, and research
and evidence should be kept in mind throughout this thesis
as they will be of great value in analyzing the Family
Research Institute's amicus curiae brief.
Rhetorical Criticism
As this thesis is a rhetorical analysis, a brief
overview of rhetorical criticism provides some helpful
insight. When examining rhetorical criticism, one should
45


consider rhetoric, the nature of rhetorical criticism, and
reasons to engage in rhetorical criticism.
Rhetoric
The first step in examining rhetorical criticism is to
define rhetoric. Frequently the term "rhetoric" carries
negative connotations, thus it is necessary to define what
the term means in the scholarly sense. As mentioned in
Chapter One of this thesis, Kenneth Burke defines rhetoric
as the use of language to influence the attitudes and
actions of other people (Rhetoric 41). This definition
acknowledges the symbolic and persuasive functions of
rhetoric (Burke, Rhetoric 44). With regard rhetoric and its
persuasiveness, communication scholar Richard Whately
states, "The finding of suitable arguments to prove a given
point, and the skilful [sic] arrangement of them, may be
considered as the immediate and proper province of
Rhetoric, and of that alone" (30). These definitions
acknowledge rhetoric as communication.
Nature of Rhetorical Criticism
The next step is to briefly examine the nature of
rhetorical criticism. The art of rhetoric has been in
existence for centuries and, consequently, the study of
46


rhetoric, rhetorical analysis, has developed throughout the
years. Rhetorical criticism provides an opportunity to
examine and interpret rhetorical acts and artifacts within
communication situations. In Permanence and Change.
Kenneth Burke contends that all living creatures are
critics in that they interpret "signs" around them (6).
However, because humans have the gift of speech, humans
engage in can engage in formal criticism to interpret signs
and symbols, thus the need for rhetorical criticism. Burke
states:
Though all organisms are critics in the sense that
they interpret the signs about them, the experimental,
speculative technique made available by speech would
seem to single out the human species as the only cna
possesing an equipment for going beyond the criticism
of experience to a criticism of criticism. We riot
only interpret the character of events... we may also
interpret our interpretatioris. (Permanence 6)
Thus, rhetorical criticism allows humans to interpret
experiences and gain an understanding of them.
Rhetorical analysis offers a way to address questions
and provide answers in ways that the objective sciences do
not permit. In his essay, "Rhetoric and the Law," in his
book Heracles/ Bow: Essays on the Rhetoric and Poetics of
the Law. James Boyd White states:
Rhetorical analysis provides a way of addressing the
central questions of collective existence in an
organized and consistent, but not rule-bound, way. It
directs our attention to the most significant
questions of shared existence, which are wholly
outside the self-determined bounds of science. (44)
47


Thus, rhetorical analysis offers flexibility that the
objective sciences do not. White acknowledges this in
stating that rhetorical analysis offers a "set of questions
and attitudes that will enable us to move from one academic
and social field to another and in doing so unite them"
(44).
This flexibility can also be seen in that rhetorical
criticism allows critics to examine symbols and the affect
they have on people. Symbols are a significant part of
communication. Consequently, people engage in "a process
of thinking about symbols, discovering how and why they
affect us, assessing that impact, and choosing to live on
the basis of the judgments we have made" (Foss 3).
Rhetorical criticism offers a way to analyze these symbols
that constitute communication.
Reasons to Engage in Rhetorical Criticism
When offering an overview of rhetorical criticism it
is necessary to consider some of the reasons to conduct
studies using rhetorical criticism. Bearing in mind that
"rhetorical theories are aimed more at explanation that
prediction" (Foss et al. 20), what are the reasons one
would opt to do a rhetorical critical analysis? As
previously stated in this chapter, rhetorical criticism
allows a critic to gain an understanding of signs, symbols,
48


and experiences. Through rhetorical criticism, one can
examine a rhetorical artifact and gain a thorough
understanding of it and use that understanding for the
benefit of other people and society.
Another reason to engage in rhetorical criticism is
"to make a contribution to rhetorical theory or explain how
some aspect of rhetoric works" (Foss 6). Not only does the
critic gain an understanding of the rhetorical artifact and
the symbolism used, but the findings of the rhetorical
analysis can be used to further refine existing theory or
develop new ones. Consequently, engaging in rhetorical
criticism will help to improve communication for everyone.
In the case of this thesis, a rhetorical analysis affords
the opportunity to examine the brief and gain an
understanding of it, as well as to use this understanding
in future communication through the use of amicus curiae
briefs.
In briefly reviewing rhetorical criticism, it is clear
that rhetoric is communication involving symbols and
persuasion. The nature of rhetorical criticism allows
critics to examine rhetorical artifacts and situations and
gain and understanding of the symbols used within that
communication. Rhetorical criticism offers flexibility and
a way to explain, rather than merely predict, something.
As a result, rhetorical criticism provides critics with an
49


understanding of the rhetoric being analyzed,and thus
offers a way to improve future communication.
50


CHAPTER III
EXPLANATION OF THEORETICAL FRAMEWORK AND
METHODOLOGY
The particular rhetorical critical style that has been
selected for this thesis is the perttadic analysis developed
by Kenneth Burke. This chapter will explain the process of
a pentadic analysis as well as why this particular style
was chosen by highlighting the major points of Burkean
theory, the five parts of the pentad, the concept of
"ratios," and a few of the articles that have helped shape
the pentadic method of critical analysis.
In order to adequately explain the methodology
employed in a pentadic analysis, it is necessary to examine
the theoretical framework from which it arose. Kenneth
Burke, a noted communication scholar and theoretician,
studied rhetoric and developed new theories about
communication based upon his findings. Burke defines the
function of rhetoric as the use of words by humans to shape
or influence the attitudes and actions of other humans
(Rhetoric 41). Burke elaborates on this definition of
51


rhetoric in stating:
For rhetoric as such is not rooted in any past
condition of human society. It is rooted in an
essential function of language itself, a function that
is wholly realistic, and is continually born anew; the
use of language as symbolic means of inducing
cooperation in beings that by nature respond to
symbols. (Rhetoric 43)
These definitions emphasize the importance of language used
by a rhetor, and should be kept in mind when examining his
theoretical perspectives.
A significant portion of Kenneth Burke's studies and
theories focuses on the area of motives. Finding ways to
determine people's motives through their rhetoric is
central in Burke's work, as he stated in the introduction
of A Grammar of Motives, "This book is concerned with the
basic forms of thought which, in accordance with the nature
of the world as all men necessarily experience it, are
exemplified in the attributing of motives" (xv). In
Permanence and Change. Burke states:
In the human sphere, the subject of expectancy and the
judgment as to what is proper in conduct is largely
bound up with the subject of motives, for if we know
why people do as they do, we feel that we know what to
expect of them and of ourselves, and we shape our
decisions and judgments and policies to take such
expectancies into account. (18)
Thus Burke's dedication to determining people's motives can
be attributed to the idea that once a person's motives are
established, other aspects of the communication exchange,
52


such as what to expect from them and what kind of responses
are appropriate, will become clearer.
Kenneth Burke's studies of rhetoric and motives led
him to develop the theory of dramatism. Dramatism is the
study of human motivation through the use of terms
associated with drama. With regard to his theory of
dramatism, Kenneth Burke states:
It is built about the contention that the application
of "dramatistic" terms to the study of human
motivation in general is not merely "metaphorical,"
that people do literally "act," and since "action" is
the primary qualitative part of drama, the systematic
use of drama as a model helps us perfect our
terminology for charting the cycle of terms implicit
in the idea of an act. (Permanence 12)
The theory of dramatism is based upon two major
assumptions. The first of these assumptions is that when
people use language they are engaging in action which is
associated with the "symbolic or neurological aspect" of
human beings, not merely the biological aspect of motion.
The requirements for action are that it must include
freedom of choice, purpose or will, and has to be
accompanied by motion (Grammar 14). Essentially, there
needs to be a number of options available to a person and
(s)he must be able to freely select one alternative over
all of the others presented. The second assumption is that
people communicate through their messages in much the same
way that a play is presented to an audience. In A Rhetoric
53


of Motives Burke emphasizes the importance of language
used to frame messages (44). From this theory of dramatism
and view of human language and communication arose the
pentadic criticism style.
The pentadic criticism allows the scholar to examine
some form of rhetoric, whether it be discursive or
nondiscursive, and determine a rhetor's motive based on the
language used. Burke's pentad includes five elements: act,
scene, agent, agency, and purpose. Each of these five
elements and their relationships with one another are
analyzed in order to determine the motive of the rhetor.
The first element of the pentad is the act, what
actually occurred. The second element is the scene, the
situation in which the act takes place and also includes
the background of the act. The scene can be a certain
period of time or a physical place, and can be as broad or
narrow as the critic so chooses. However, the breadth of
the scene will have an impact on the criticism, so it needs
to be selected wisely. The third element is the agent, the
person(s) or type of person(s) who committed the act. The
fourth element is the agency, the instruments or means used
by the agent in order to complete the act. The fifth and
final element of the pentad is the purpose, why the agent
committed the act or what is being accomplished through the
act. In his introduction to A Grammar of Motives. Kenneth
54


Burke outlines the five elements of the pentad and asserts
that an adequate, thorough analysis via the pentad must
offer some answer to each of the five elements (xv).
It should be noted that the scene element is the
situation that the rhetorical artifact occurred in.
Kenneth Burke reminds critics that the "scene contains the
agents" and people involved in the situation (Grammar 3).
Consequently, the scene also includes the audience to whom
the communication or rhetorical act is directed. The
labeling of the elements of the pentad lead the critic to
the capability of determining other aspects of the
situation, remaining consistent with those elements. With
regard to determining who the audience is, it is necessary
to consider Kenneth Burke's statement on the matter: "It is
a principle of drama that the nature of acts and agents
should be consistent with the nature of the scene" (Grammar
3). Thus, the critic, after labeling the elements of the
pentad, specifically the scene, is able to determine the
audience the rhetorical artifact is directed at by
remaining consistent with those elements.
Due to the importance of the five elements and that
they are at the base of the critical analysis, the first
step in conducting a pentadic analysis is to label all five
parts of the pentad from the rhetoric being studied.
Labeling the terms of the elements provides a guide to the
55


language utilized the rhetoric. "The pentad is a guide to
finding words that will represent the culture depicted in
the story" (Sillars 166). Burke's theory is that the
language rhetors use reveals their orientation or
perspectives, which in turn allow a critic to determine
what the rhetor's motives are. With regard to this, Burke
advocates that people's language and experiences create
their orientations that in turn affect people's perceptions
of reality and their motives for action (Permanence 18).
Furthermore, the labeling of the five elements enables the
critic to view any relationships that exist between the
terms and their underlying meanings. As Malcolm Sillars
states in his review of Burke's pentad in Messages.
Meanings, and Culture: Approaches to Communication
Criticism. "Together they [the five elements] permit the
critic to understand the relationship of the elements in a
story by highlighting the different interpretations that
can be made" (166).
Once the five elements have been labeled and the
relationships between them become visible, it is necessary
for the critic to take the next step in the analysis
process which is the application of "ratios." Ratios are
the specific relationships between the terms within the
pentad
A ratio is a pairing of two of the elements in the
56


pentad which, when examined, illuminates a specific
relationship and allows the critic to discover any effects
each one has on the other. In his book Dramatism and
Development. Burke elaborates on the idea of ratios:
When I first began working with my Dramatistic pentad
(act, scene, agent, agency, purpose), I thought of
them as but related by "and" (this term and that term
and the other, etc.). But later, on peering more
closely into them, I realized their analytic
familyhood (in the sense that the idea of an act
implied the idea of an agent; the idea of an agent
acting implied the idea of a scene in which the act
takes place; there can be no act without recourse to
some means, or agency; and there can't be such a
thing as an act without a purpose, though there can be
accidents). (22)
The ratios are as follows: scene-act, scene-agent, scene-
agency, scene-purpose, act-purpose, act-agent, act-agency,
agent-purpose, agent-agency, agency-purpose, and a reversal
of all of the above listed ratios. Once the critic has
examined the ratios, the one that seems to have received a
larger portion of the rhetor's attention is the area which
should be looked at closely in order to determine the
agent's motive behind his or her act (Burke, Rhetoric 18).
With the application of ratios completed, the critic
can then move on to the third and final step in the
pentadic analysis, naming the motive. Although the critic
will find the motive in the terms or elements that have the
most impact on, or determine the nature of, the other terms
in the pentad, the motive will not be crystallized at
57


first, and there may be several possible motives to choose
from. The motive that the critic selects needs to then be
supported with good arguments and ample evidence.
Since the development of the pentadic analysis by
Kenneth Burke, several scholars have helped shape the use
of the pentad in journal articles. In order to adequately
assess the pentadic method of critical analysis, it is
necessary to briefly examine a few of those pieces.
One of the major contributors to the shaping of the
pentadic analysis as it appears in contemporary journals is
Marie Hockmuth Nichols. In her article, "Kenneth Burke:
Rhetorical and Critical Theory," in Rhetoric and Criticism.
Nichols discusses Burkean criticism at some length.
Nichols considers Burke an academic "stimulus," a man who
began his scholarly work unsure of where he was headed, but
ended up drafting the "structure for a whole new
educational mansion" (80).
In her article, Nichols discusses Kenneth Burke/s
central concepts and how they are employed by a critic
conducting a pentadic analysis. The first concept
discussed is that of the bases of communication. Nichols
discusses Burke's emphasis on the animal and rational
natures of humans, as well as the capability of humans to
use symbolism, and the divisiveness that results from these
things (82). Nichols discusses this divisiveness and its
58


role in communication; her definition of communication
involves "the use of verbal symbols for the purpose of
appeal" (82). Nichols contends that this leads to the
distinction of three elements: the speaker, the speech, and
the spoken-to (82). When conducting a pentadic analysis,
the critic needs to keep in mind the division resulting
from human nature and the use of symbols, as the speaker
shapes the speech in order to communicate with the spoken-
to (82).
The concept of rhetoric, the "mode of appeal essential
for bridging conditions of estrangement to society as we
know it," is also discussed (83). Nichols reminds critics
of the need to examine the identification or commonality
within the rhetorical act. Nichols states, "One identifies
himself by thinking in terms of the psychology of the
audience" (88). This is essential for a critic to consider
when conducting a pentadic analysis.
The concept of motivation, central to Burke's
writings, is also discussed by Nichols. According to
Nichols, critics need to remember that motivation involves
the use of language as an act itself: "Words act upon us as
the result of an agent who uses them" (90). In examining
these things, Nichols has helped to shape Burkean pentadic
analysis as it is actually employed by contemporary
scholars.
59


The pentadic analysis has been utilized in several
journal articles. These journal articles assist in shaping
pentadic criticism as it appears in other journal articles
because critics look to previous examples or articles
utilizing the pentadic method in order to gain an
understanding of its application.
One such article which employs the pentadic method of
critical analysis is David Ling's article, "A Pentadic
Analysis of Senator Edward Kennedy's Address to the People
of Massachusetts- July 25, 1969," that appeared in the
Central States Speech Journal in 1970. Ling uses a
pentadic analysis in order to examine Senator Kennedy's
address to the people of his state regarding his
involvement in the Chappaquidick incident.
Ling begins his article with an overview of Kenneth
Burke's writing with regard to the pentad and human
motivation. Then Ling moves to an examination of Kennedy's
address, and the implications of the rhetorical choices he
made in it, via the elements of the pentad. The
conclusions of Ling's article are twofold, and benefit
other critics considering the use of the pentadic method.
Ling concludes that the pentad "functions as a tool for
content analysis," and that "man's description of a
situation reveals what he regards as the appropriate
response to various human situations" (85). Ling contends
60


that Burke's pentad, when applied to a rhetorical act,
provides for an examination of "how the persuader has
attempted to achieve the restructuring of the audience's
view of reality" (85). David Ling's piece is but one
example of an article which employs the pentadic analysis
method, and thus has helped shape the method for other
critics.
Another journal article that utilizes Burkean pentadic
analysis and has also contributed to the shaping of the
application of the pentad in journal articles is by Barry
Brummett, "A Pentadic Analysis of Ideologies in Two Gay
Rights Controversies." In this article, Brummett uses
Burke's pentad to examine the rhetorical appeals made in
support of and opposition to ballot initiatives that would
repeal anti-discrimination ordinances regarding
homosexuality. Brummett examines the campaigns that
occurred in 1977 in Dade County, Florida, and in 1978 in
St. Paul, Minnesota. Brummett's article illustrates an
"example of how a ratio within Kenneth Burke's pentad may
be used in critical inquiry to reveal and explain
ideologies" (260).
Brummett's article begins with a brief examination of
Burke's writings. Then the focus of the article shifts to
an in-depth examination of the rhetorical appeals made by
the "pro-gay" and "anti-gay" rights campaigns. Brummett
61


explores these appeals through three sub-categories:
standards for sex and politics, living with political and
sexual difference, and political and sexual education.
Brummett's analysis focuses on the elements of act and
agent. From Barry Brummett's article, the conclusion is
drawn that differences in positions people take on issues
stem from differing ideologies which result from the
defining elements of the pentad (261). Consequently, this
article has helped to shape pentadic analysis as it is
applied in journal articles, as it illuminates the notion
that a critic examining a rhetorical situation will find
differences in rhetorical appeals made which result from
differing ideologies, differences that ultimately are
accounted for through the elements the pentad focuses upon
most heavily in the situation.
Another article that has contributed to the shaping of
pentadic analysis as it appears in journal articles is by
Janis Forman, "Collaborative Business Writing: A Burkean
Perspective for Future Research." This article, which
appears in the Journal of Business Communication (1991^-
discusses the importance of collaborative writing and
suggests that a Burkean framework, via the elements of the
pentad, be used to study it. After reviewing the research
on collaborative writing, Forman then turns to an
examination of the Burkean framework. Emphasis is placed
62


on the pentadic elements of act, agent, and scene, as well
as their relationships to one another. Forman states,
Acts are, then, performed by agents who, in turn, are
constrained by the scenes of their activities. The
scene is no mere descriptive backdrop to collaborative
activity, but is, rather, an essential constraint on
the activity, guiding and limiting a group's
collaborative practices and products. In addition,
influence is reciprocal: acts depend upon agents and
scenes, but also influence them. (242)
Consequently, Forman suggests that using a Burkean
framework allows researchers to examine the parts of
something in order to be able to understand it as a whole
(243).
Furthermore, the article suggests that researchers
should use the pentadic analysis as a qualitative study,
prior to their quantitative studies of a phenomenon.
Forman contends, "Quantitative studies such as survey
research and experiments that, by necessity, strip away
social context, ought to follow rather than precede or
parallel qualitative studies" (252). The conclusion of the
article is that a Burkean analysis can be used as a
qualitative research method to enable researchers to
"identify some key areas for investigation" and provides a
way to do so without ignoring the social contexts they
occur in (252). Thus the article encourages researchers to
employ a pentadic analysis in a variety of fields of study,
including those that focus on quantitative research.
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While there are a number of articles that employ the
Burkean pentadic method of critical analysis, the articles
discussed here are intended to be a brief overview of some
of the articles that have helped shape the way that the
pentadic analysis is applied in journal articles.
Additionally, this overview illustrates the fact that
Kenneth Burke's pentadic analysis is well-recognized and
utilized in research articles that appear in highly
respected academic journals.
After much deliberation as to which critical style of
rhetorical analysis would be the most appropriate for
examining the amicus curiae brief submitted by the Family
Research Institute for the appeal of Amendment Two to the
Colorado Supreme Court, Kenneth Burke's pentadic analysis
seems to be the most logical choice. Although there are
other rhetorical methods that may have worked for this
analysis, such as the feminist approach, generic criticism,
a cluster analysis, or an ideological analysis, the
pentadic analysis seemed to work the best. The pentadic
analysis is based on a contemporary theoretical perspective
(Foss et al. 22), and is workable for a written rhetorical
artifact. The pentadic analysis offers an approach that is
"designed to help the critic discover a rhetor's mptive by
examining how rhetoric is used to encompass a situation"
(Foss 335). Using the pentadic analysis, the FRI amicus
64


brief can be analyzed by examining the elements and their
relationships with one another, as well as considering the
rhetor's motive for submitting the brief.
With the methodology used in a pentadic analysis, the
amicus curiae brief can be analyzed in order to adequately
determine the answer to the primary research question of
whether or not it is an effective brief by also examining
what the motives involved are. For this analysis of the
amicus curiae, the parts of the pentad will be labeled,
followed by a discussion of the significant ratio(s), and
a naming of the most probable motive supported with
evidence. The examination of the five pentadic elements
with regard to the Family Research Institute amicus curiae
brief should yield interesting results as to what the
motivation behind the submission of the brief was, and
thus, ultimately, whether the brief was effective or not.
65


CHAPTER IV
ANALYSIS
This chapter contains the actual analysis of the
Family Research Institute's amicus curiae brief via the
Burkean pentad. In order to present a coherent analysis,
the chapter contains a brief description of the research
artifact, the labeling of the parts of the pentad, a
discussion of the most significant relationship between the
elements of the pentad, and the assigning of a motive as
per the findings of the relationship examination.
Description of the Research Artifact
The research artifact being analyzed in this thesis is
the amicus curiae brief submitted by the Family Research
Institute (see Appendix). The brief was submitted to the
Colorado Supreme Court on May 4, 1994, by the Family
Research Institute's attorney, Keith E. Abbott.
The brief submitted is thirty-two pages, including the
bibliographic information. There are forty-six citations
referenced in the brief. The brief itself was written by
the Family Research Institute's chairman, Dr. Paul Cameron,
66


and attorney Keith E. Abbott.
The amicus curiae brief is in support of Amendment
Two, thus is requesting the Colorado Supreme Court to
overturn the ruling of Denver District Court Judge Jeffrey
Bayless which stated that Amendment Two is
unconstitutional. The brief presents eight arguments in
support of Amendment Two. Statistics and expert testimony
are used in the brief in order to support the arguments
asserted.
Labeling of the Elements of the Pentad
When conducting a Burkean pentadic analysis, it is
necessary to label the five elements of the pentad: act,
agent, agency, scene, and purpose. This section will label
and briefly describe each of the five elements.
Act
The act in this analysis is the writing and submission
of the Family Research Institute's amicus curiae brief.
The brief was originally written by Family Research
Institute chairman, Dr. Paul Cameron. However, that brief
was too long, approximately twice the length of the thirty-
two page brief that was actually submitted. Consequently,
the Family Research Institute's attorney, Keith E. Abbott,
collaborated with Dr. Cameron to compose a much more
67


concise and pithy brief. The brief was submitted to the
Colorado Supreme Court, pursuant to the Colorado Appellate
Rule 29, on May 4, 1994.
Agent
The agent is the Family Research Institute, Inc. In
a telephone interview on August 31, 1994, Dr. Paul Cameron,
the Chairman of FRI, provided background information about
both The Family Research Institute and its Board of
Directors. Founded in 1982, the Family Research Institute,
Inc. (FRI) is a non-profit organization designed to conduct
empirical research on family related issues such as
homosexuality, sexuality, AIDS, and drug abuse. The
primary focus of their research has been on issues of
homosexuality.
The Family Research Institute believes strongly in
publishing empirical research findings in these areas of
study, as well as educating the public about these
findings. Pursuant to these beliefs, FRI spokesmen have
appeared on Nightline, CNN. Crossfire, CBS News. C-SPAN,
Donahue. and Sally Jessy Raphael to discuss FRI research,
as well as having been cited in Time, Newsweek. The New
York Times. and The Wall Street Journal. FRI provided
Colorado For Family Values with much of the information
68


used in their campaign in support of Amendment Two,
including 100,000 brochures detailing some of the causes
and effects of homosexuality. Additionally, FRI has been
involved in providing materials and information to assist
in attempts to pass anti-gay rights legislation or to
overturn existing gay rights legislation in cities in
Oregon, Maine, Rhode Island, Louisiana, Texas, Ohio and
Maryland.
As the amicus brief was written by Dr. Paul Cameron
and attorney Keith E. Abbott, it is necessary to provide a
brief synopsis on each one of them. Dr. Paul Cameron, a
psychologist and the chairman of FRI, was the founder of
the Family Research Institute. Dr. Cameron received a
Ph.D. in Psychology from the University of Colorado in
1966, and is a member of the Eastern Psychological
Association. Dr. Cameron has published over eighty
articles and five books, and has taught at the University
of Louisville, the University of Nebraska-Lincoln, and
Fuller Theological Seminary. Additionally, he has provided
testimony in numerous court cases as a medical and social-
psychological expert.
Keith E. Abbott is the attorney and legal specialist
for FRI. Mr. Abbott specializes in Family Law, Domestic
Relations, Employment Law, and Environmental Law in his
private practice in Greeley, Colorado. Mr. Abbott received
69


his J.D. from Ohio Northern University in 1981 and belongs
to the American and Colorado Bar Associations, Colorado
Trial Lawyer's Association and was listed in the Who's Who
in American Law, 5th edition.
Agency
The agency is the specific legal process in which the
FRI amicus curiae brief was submitted to the Colorado
Supreme Court. Pursuant to Colorado Appellate Rules
(C.A.R.)- Rule 29, this brief was submitted by FRI, by
permission granted by the Court. C.A.R. Rule 29 states:
A brief of an amicus curiae may be filed only by leave
of court granted on motion or by the request of the
court. The brief may be conditionally filed with the
motion for leave. A motion for leave shall identify
the interest of the applicant and shall state the
reasons why a brief of an amicus curiae is desirable.
Any amicus curiae shall file its brief within the time
allowed the party whose position as to affirmance or
reversal the amicus brief will support unless the
court for cause shown shall grant leave for later
filing, in which event it shall specify within what
period an opposing party may answer. A motion of an
amicus curiae to participate in the oral argument will
be granted for only extraordinary reasons. (94)
Scene
The specific scene, in which the act occurs, being
analyzed for this study is the Colorado Supreme Court. It
should be noted that, although the specific scene in which
70


the rhetorical artifact occurs is defined in this analysis
as being the Colorado Supreme Court, it is possible that
the authors of the brief had in mind a much larger scene
which includes their supporters and social network.
However, in order to keep this analysis within workable
parameters, the scene examined is the specific scene of the
Colorado Supreme Court.
The Colorado Supreme Court is comprised of seven
justices and leans to the liberal side of the political
spectrum. Due to the fact that the courts do not like to
admit they are partisan, it is difficult to find objective
documentation as to the partisan identity of the court.
Consequently, perhaps the best indicator of the political
and ideological preferences of the Colorado Supreme Court
is to look at who appointed each of the justices, as well
as what some prior statements and rulings of the Court have
been with regard to Amendment Two. The person who
appointed each of the justices is a key indicator of the
ideological and political preferences of the justices
because Colorado Supreme Court justices are appointed by
the Governor of Colorado. Due to the substantial amount of
power and influence that the justices have over public
policy, governors appoint judges who are aligned with their
own political preferences.
The first indicator of the Colorado Supreme Court's
71


predisposition is the composition of the Court itself. The
Colorado Supreme Court is composed of seven justices,
including one chief justice. The Colorado Supreme Court
Clerk's office keeps a record of when each justice was
appointed and by whom. The Chief Justice, Luis D. Rovira
was appointed by democratic governor Richard Lamm in
February 1979. Justice William Erickson, the senior member
of the Court and only member to be appointed by a
Republican governor, was appointed in December 1970 by
Governor John Love (Knight 10). Justice Gregory E. Lohr
was appointed by Richard Lamm in December 1979. Governor
Lamm also appointed Justice Howard M. Kirshenbaum in May
1983, and Justice Anthony F. Vollack in February 1986.
Colorado's current governor, Roy Romer, a democrat, has had
the opportunity to appoint two justices to the Colorado
Supreme Court. Justice Mary J. MUllarkey was appointed in
June 1987, and Justice Gregory K. Scott was appointed in
January 1993. An interesting note about Governor Romer, as
he appointed two of the seven justices, is his public
opposition to Amendment Two, although as governor he is
required by law to defend it (Booth 10).
The second, and extremely solid, indicator of the
Colorado Supreme Court's predisposition to Amendment Two
are the previous statements and rulings made by the high
court with regard to Amendment Two. These statements and
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rulings clearly indicate an unfavorable view of Amendment
Two on the part of the majority of justices. On July 19,
1993, the Colorado Supreme Court ruled six to one to deny
a request of the state to remove the temporary injunction
that Denver District Court Judge Jeffrey Bayless placed on
Amendment Two (Pankratz, "Gay" 1). The Court claimed that
"the controversial measure (Amendment Two) violates the
fundamental right of gays and lesbians to participate
equally in the political process" (Pankratz, "Court" 1).
The Colorado Supreme Court upheld the injunction saying
that "gays belong to a class of people who deserve
constitutional protection" (Wilmsen 1). In a July 25,
1993, article, "Majorities Don't Always Win in Court,"
Denver Post legal affairs writer, Howard Pankratz, writes:
The justices said Amendment Two would infringe on a
fundamental right of gays and lesbians to participate
in the political process. It singles them out and
bars them from 'obtaining legislative, executive, and
judicial protection... from discrimination'. (1)
In an article on October 24, 1993, "Modest Ruling Possible:
Amendment Two Decision May Bypass Gay Rights," Pankratz
states:
The Colorado Supreme Court issued an opinion in July
that Amendment Two probably cannot pass constitutional
muster. A key flaw in the measure, the court said, is
that Amendment Two denies gays access to the political
system by barring them from seeking help or
consideration from the government. (1)
There are several statements made within the Colorado
73


Supreme Court's July 19, 1993, ruling, which permitted
Judge Bayless' injunction against Amendment Two to stand,
that indicate the Court's attitude with regard to Amendment
Two. The majority opinion, written by Chief Justice Luis
Rovira states:
In short, gay men, lesbians and bisexuals are left out
of the political process through the denial of having
an 'effective voice in the governmental affairs which
substantially affect their lives... They, and they
alone, must amend the state constitution in order to
seek legislation which is beneficial to them',
(qtd. in "Colorado Supreme" 6)
Page fourteen of the majority opinion states:
The Equal Protection Clause guarantees the
fundamental right to participate equally in the
political process and.... any attempt to infringe on an
independently identifiable group's ability to
exercise that right is subject to strict judicial
scrutiny, (qtd. in Knight 10)
Chief Justice Rovira further noted that neither state nor
supporters of Amendment Two have shown "any compelling
state interest to justify the enactment of Amendment Two"
(Pankratz, "Court" 1).
The July ruling mandated the use of the "strict
scrutiny of review" test for Amendment Two. This is a test
which legal experts claim dooms the amendment before any
trial even begins (Pankratz, "Court" 1). Gene Nichol, Dean
of the University of Colorado Law School, says the mandate
of the strict scrutiny standard:
Will make it impossible for the state to win its
case. They say the strict scrutiny standard is
74


strict in theory, but fatal in fact. It's virtually
impossible for the state to defend Amendment Two under
that framework. (Pankratz, "Amendment" l)
The strict scrutiny standard of review required the state
to show a "compelling state interest" in order for the
amendment to exist. The Court said that if the state could
not show a compelling state interest, as the Court
previously stated that Amendment Two supporters had not,
Judge Bayless must rule the amendment invalid (Pankratz,
"Fate" 1).
The sole dissent in the July ruling came from Justice
William Erickson, the only justice on the Colorado Supreme
Court to be appointed by a Republican governor. In his
dissenting opinion, Justice Erickson states:
It is clear that language discussing citizen
participation has appeared in a variety of contexts in
Supreme Court equal protection opinions addressing the
fundamental right to vote, ballot access, and suspect
classifications. To date, however, the Supreme Court
has never explicitly stated that a fundamental right
to participate equally in the political process exists
that is subject to the strict scrutiny standard of
review nor has the Supreme Court found such a
fundamental right within the penumbras of the
Constitution, (qtd. in Knight 10)
This statement of Justice Erickson is the only one made by
any of the justices, with regard to Amendment Two, that was
not heavily biased against the amendment. Even this
statement of Erickson's could hardly be construed as being
in favor of Amendment Two, but it does appear to be at
least neutral. However, this was a statement on behalf of
75


only one out of seven justices.
These previously made statements of the Colorado
Supreme Court are very good indicators of the Court's views
and predisposition against Amendment Two, as all of these
statements were made before the actual appeal of Amendment
Two was ever brought before the Colorado Supreme Court.
The only thing the justices were asked to rule on in July
1993 was whether or not the temporary injunction by Judge
Bayless could remain intact throughout the trial of
Amendment Two in the Denver District Courts. A July 20,
1993, Denver Post article, "Colorado Supreme Court's 6-1
Vote Dooms Amendment 2," states:
The Colorado Supreme Court didn't guite formally kill
Colorado's controversial Amendment Two... but it
denounced the measure as a violation of the equal
protection of the laws guaranteed by the U.S.
Constitution- a clear sign that it will put Amendment
Two out of its legal misery in the fullness of
judicial time, (l)
As none of these prior statements or rulings said anything
even remotely favorable to Amendment Two, rather they have
almost all been extremely critically of the measure, they
are a strong indicator that the Colorado Supreme Court is
resistant to the amendment. Thus, in approaching the Court
with regard to Amendment Two, this should be kept in mind
and the arguments presented in favor of Amendment Two need
to be solid and framed appropriately.
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Purpose
The purpose of the FRI amicus curiae brief is to
encourage the Colorado Supreme Court to overturn the lower
court ruling by Denver District Court Judge Jeffrey Bayless
and declare Amendment Two constitutional. Thus the brief,
as other amicus curiae briefs, has a purpose of persuading
the justices rather than merely informing them of the
information deemed pertinent.
The purpose was clearly established within the brief
as being informative and persuasive. This can be
determined by looking at various statements made within the
brief itself. One such statement is:
amicus submits this brief to bring to the Court
aspects of the empirical and theoretical literature
that bear upon this case. It is particularly
important that the court appreciate the breadth of
legitimate popular and scientifically supported
concerns about homosexuality. (3)
This purpose is also evident in the question presented in
the beginning of the brief which is supposed to tell the
court what question the amicus brief will attempt to
answer. The question presented in the FRI brief is:
Whether the District Judge erred in holding that
Amendment 2 was "violative of an identifiable group to
participate in the political process without being
supported by a compelling state interest" (Findings,
p.ll) in that although those who declare themselves to
be homosexuals or "gay" constitute "and identifiable
group," there are insufficient compelling state
interests in precluding their attainment of "special
legal status" or even being accorded equivalent status
with "generally acceptable lifestyles" (e.g., the
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married, rock-hounds, skiers). (4)
This purpose is carried throughout the entire brief. In
the Final Summary section at the end of the brief, this
purpose is again reiterated:
But whatever their reasons, the majority of
Coloradans voted for Amendment 2, and the above
mentioned materials provide ample reason for an
informed and concerned public to attempt to stop the
homosexual onslaught upon their society and their
children (29).
Examination of the FRI Amicus Curiae
Brief Through the Relationship of the Elements
After labeling the terms of the pentad and examining
the relationship between these elements, it appears that
the most significant pair of elements is that of scene-
purpose. The relationship these two elements have with one
another within the research artifact, the FRI amicus curiae
brief, is substantial. Due to the intended purpose of the
brief, the scene in which everything occurred is necessary
to take into consideration.
The scene and purpose are interrelated and should have
been a primary consideration in the writing of the FRI
amicus curiae brief. In examining the Colorado Supreme
Court, one can determine that the majority of justices
gravitate toward the liberal end of the political spectrum
and are resistant to Amendment Two before they heard the
78


case. This should have been an important guide for
achieving effectiveness of the brief since the justices
are the primary audience for the rhetorical message.
After establishing that the scene and purpose have a
significant relationship and that in order to achieve the
purpose, the audience must be a forethought so that the
message is framed in such a ways as to reach the target
audience, it is necessary to examine the brief itself. As
discussed in the Audience Analysis section of the
Literature Review chapter, messages should be framed
appropriately for the audience. In order to do that in the
FRI brief, the political atmosphere of the audience needed
to be considered. Since the purpose of the brief was to
persuade the Colorado Supreme Court to rule that Amendment
Two as being constitutional, the brief needed to be
carefully worded and full of evidence that is beyond
reproach in order to succeed. An examination of the brief
will determine whether this consideration occurred and the
relationship of scene and purpose were coordinated in order
to attain an effective amicus curiae brief.
An examination of the FRI amicus curiae brief with
through the scene-purpose relationship reveals several
problem areas. These problems are concentrated in the
language used in the brief and the evidence used to support
the assertions made in the brief.
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Language
The first potential problem area for the effectiveness
of the amicus brief arises out of the language used in the
brief. Considering the importance of the language which
frames an argument, especially when the audience is
somewhat resistant to the ideas to begin with, and that the
purpose of the brief is to persuade the audience to accept
a position it is predisposed not to favor, this is a
significant factor. The arguments and assertions should
have attempted to utilize neutral words and state the
contentions in an amicable, non-threatening manner.
The words used in the FRI amicus curiae brief were, by
no means neutral or amicable in nature. The word choice
used in the brief was extremely value-laden and hostile.
Homosexuals were referred to an several occasions as
'predators," "non-productive," "parasitical," "parasites,"
and a "danger" to society throughout the brief. The phrase
"homosexual onslaught upon their society and children" (29)
was also used, in addition to suggestions that the state
"suppress"(6) homosexual activities and that Amendment Two
"weakens the status of homosexuals" (9). Words and phrases
such as these are likely to be offensive and inflammatory
to people who are not in favor of the position being
asserted: that homosexuals are non-productive parasites who
need to have their sexual desires suppressed by the state
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in order to protect society from demise. Using words which
are likely to offend the audience is not a good strategy to
employ when attempting to persuade the audience to accept
a particular position. It is important to consider, as was
established in the Review of the Literature chapter of this
thesis, the beliefs of the audience in order to frame
appeals appropriately. An examination of the Colorado
Supreme Court and prior statements made by the justices
regarding Amendment Two indicated that the justices do not
share these sentiments, thus it was not a prudent
argumentative strategy.
In addition to the individual word choices being
somewhat hostile, the language used to frame some of the
entire arguments was also inflammatory and not a prudent
argumentative or persuasive strategy. Argument number five
is stated as, "The protection of the most important product
of a society from predation its children is a
fundamental compelling state interest" (2). Argument
number six is stated, "It is unjust to confer special or
equivalent status upon the non-productive or parasitical
(in this case homosexuals), as is conferred on the
productive" (2). Yet another argument is stated,
"Amendment Two is probably the least restrictive way for
the people of Colorado to protect themselves against the
political and social inroads of homosexuals" (2). These
81


arguments are on the second page of the brief, among the
first statements made. These arguments, heavily value-
laden, are used to set the tone for the entire brief.
Considering that the justices on the Colorado Supreme Court
are inclined to support equality and have condemned the
discrimination of people, these arguments are worded in
such a manner as to probably offend the judges. If the
judges are offended at the offset, chance are high that the
rest of the information in the brief will be negated.
Continuing along the line of thought that reminds us
of the Colorado Supreme Court's opposition to
discrimination, the word choice of other statements in the
brief stand out. A statement made on page ten of the brief
asserts, "Amendment Two appropriately singles out and
discriminates against those who desire to engage in
homosexuality, and seeking to enter in the honorable circle
of marriage. . ." Other similar statements are made
throughout the brief. Another reference, similar to the
previously mentioned one, states, "Amendment Two explicitly
discriminates against those who desire to or in fact engage
in homosexuality" (11). A statement made on page twelve
begins, "Amendment Two, by discriminating against
homosexuality per se..." Yet another assertion is stated,
"Amendment Two, by singling out those who engage in
homosexuality for discrimination, partially accomplishes
82


these twin goals" (15). The language used in all of the
statements explicitly reveals that the brief asserts that
Amendment Two actively discriminates against homosexuals;
the brief supports Amendment Two, thus it is safe to
conclude that the brief supports the discrimination of
homosexuals. It can hardly be considered a wise strategy
to assert that the amendment is discriminatory while
attempting to persuade judges, who have publicly decried
discrimination and opposition to Amendment Two, to accept
the amendment and see that it is implemented.
Similar to the argument that Amendment Two is
discriminatory is the argument in the brief that the state
should "suppress" homosexual activities and desires. One
reference to this argument states:
As such, the state should suppress homosexual
activities and interests. . Amendment Two, by
denying special legal status to those who desire to
engage or do engage in homosexuality, and singling
such individuals for such denial, accomplishes part of
this socially-desirable end. (6)
This statement indicates that Amendment Two is meant to
suppress homosexual activities and interests, a
questionable position to advocate when considering that
prior statements made by the majority of Colorado Supreme
Court justices indicated their resistance to preventing
homosexuals from equal political participation and from
seeking legal action against discrimination. Another
83


reference to this position asserts that society is being
destroyed by an:
Insidious, albeit slower, attack from within. While
the state has a duty to repel invaders who might
destroy society, so likewise the state has a duty to
suppress those activities and interests that
accomplish the same destruction through voluntary
sexual or drug abuse activities. (8)
This statement seems to imply that, without Amendment Two,
the state will be destroyed by homosexuality. Yet another
similar statement appeared on page twenty-one of the brief:
Amendment Two was an attempt on the part of the
productive to end the encroachment by the non-
productive (in this case homosexuals) on the status
and perquisites of the productive (e.g.,
heterosexuals, especially those who marry and produce
and rear children).
All three of these statements seem to be assertions that,
given ,the predisposition of the Colorado Supreme Court, are
not likely to be accepted as factual, logical arguments,
but rather as emotionally-based remarks.
The brief continued to pose statements in such an
inflammatory manner throughout the brief. Towards the end
of the brief, a few statements that were phrase in heavily
value-laden terms, term vehemently opposed to
homosexuality, were made. One of these statements reads:
What homosexuals do is either non-productive and
socially irrelevant, or, at worst, parasitic and
counter productive (e.g., disease-creating, disease-
spreading, recruiting youth to their lifestyle, etc.).
(21)
Another value-laden, inflammatory statement was made which
84


states:
Amendment Two did not recriminalize homosexual acts
nor did it recriminalize homosexual acts nor did it
require the state to inveigh against homosexuality.
Perhaps the people of Colorado should recriminalize
homosexuality or require the state to inveigh against
it, but that is not the issue here. (23)
This last statement is extremely inappropriate as it is
worded in such a manner that is very hostile and almost
challenging of the authority of the justices. It should
have been considered when making such a statement that the
judges hold the ultimate authority over whether or not
Amendment Two is permitted, regardless of what the people
of the state have to say. Certainly the suggestion that
the people should vote to recriminalize homosexuality, an
extremely questionable move, is not likely to persuade the
judges to support Amendment Two and rule it constitutional.
Furthermore, this statement was totally unnecessary as the
issue of criminalization of homosexuality is, as stated,
not the issue being dealt with. Since the statement is so
inflammatory and deals with a completely irrelevant issue,
such an assertion should have been omitted when writing the
brief.
The language used in the brief, both the word choice
of individual terms as well as that of some of the entire
arguments and assertions made, was problematic. Much of
the terminology appears to be inflammatory, hostile, and
85


heavily value-laden. In order to be persuasive, the
audience should have been considered, in this case the
views of the Colorado Supreme Court justices who appear to
condemn discrimination and to be resistant to Amendment Two
needed to be kept in mind. However, due to the language
used in the brief which condemns homosexuality an seems to
be judgmental based upon personal beliefs and opinions
rather than solid evidence, indicates that the audience was
not adeguately considered when the arguments were framed.
Evidence
Another area of the brief that seems to be problematic
is that of evidence. An examination of the evidence used
in the brief exposes several areas of concern: the use of
legal precedent citations, the recency of the evidence, how
unbiased the evidence is, the ability to determine the
soundness of the evidence, and the amount of evidence used
to support the assertions made within the brief.
Use of legal precedent. The first area involving
evidence that seems to be problematic is the use of legal
precedent in the brief to support the assertions made.
Perhaps a more accurate statement would be to say the lack
of legal precedent citations within this amicus curiae
brief. Since courts rely heavily on legal precedent when
deciding cases, and that the Colorado Supreme Court seems
86


predisposed against Amendment Two, it would have been a
prudent strategy to cite legal precedent which supports the
Family Research Institute's position. Instead, only one
direct reference to legal precedent was made. That
reference, from a U.S. Supreme Court case, deals with the
issue of family:
Our decisions establish that the Constitution protects
the sanctity of the family precisely because the
institution of the family is deeply rooted in this
nation's history and tradition. It is through the
family that we inculcate and pass down many of our
most cherished values, moral and cultural. (5)
The citation of this reference contains a little more
information and references:
Moore v. City of East Cleveland 431 U.S. 494, 503-04
(1977) or Griswold v. Connecticut. 318 U.S. 479, 496
(1965) (the traditional family is as "fundamental as
our entire civilization") (Goldberg, J., Warren, C.J.,
and Brennan, J., concurring); Doe v. Commonwealth's
Attorney. 403 f. Supp. 1199, 1200 (E.D. Va. 1975)
("the Constitution condemns state legislation that
trespasses...upon the sanctity of the home, or the
nature of family life."). (5)
The quote and the ensuing citation, with the exception of
two other indirect citations involving court cases but not
legal precedent, is the extent of the use of legal
precedent citations used to support the assertions made in
the brief. Even this citation of legal precedent is of
questionable merit as far as its persuasive impact on the
justices due to the fact that it merely refers to the
sanctity of "the family" and does not address the issue of
87


homosexuality nor does it elaborate on what the definition
of a 'family" is.
Recency of evidence. The second area pertaining to
the evidence used in this amicus curiae brief is the
recency of the evidence. As mentioned in the literature
review chapter, the strongest evidence to use in order to
support an argument or position is that which is current,
the most recent findings and information on the subject.
It appears, however, that much of the evidence cited and
used as support in this brief is rather dated. Fifteen of
the forty-six citations made in the brief are from
materials published prior to 1980. Even 1980 is rather
dated when considering statistics and research findings on
social issues as that is now a time period spanning almost
fifteen years and a plethora of social changes have
occurred during that time. Although fifteen citations out
of forty-six is only approximately one-third of the
citations, this is quite a substantial amount when bearing
in mind that several of these sources were cited rather
extensively and that they also contain several of the
studies of which the results are used to support
contentions stated in the brief. A Kinsey Institute study
from 1970 is cited in the brief (7). This study is almost
twenty-five years old; perhaps the age is reflected in the
fact that white and black subjects are categorized
88


separately! Interestingly enough, a more recent Kinsey
study ("Ignorance1* 12), The Kinsev Institute New Report on
Sex (1990), was not cited in the brief.
Another citation was made which referenced the
findings of Dr. Edmond Bergler, who treated over 1,000
homosexuals, in 1956 (14). These results are approaching
forty years old, quite a substantial time span in which a
great deal could have changed. The findings of Dr. Irving
Beiber, "who performed one of the largest and most
intensive psychiatric studies of homosexuals" in 1962, are
cited in the brief as well (14). Yet another citation
refers to statistics from 1947:
Because of this pattern, Judge J.T. Rees concluded
that "the male homosexual naturally seeks the company
of the male adolescent...[In 1947] 986 persons were
convicted of homosexual and unnatural offenses". (17)
While the findings of these studies and the conclusions
drawn from these results may still be valid today, with the
rapid rate that researchers bombard newspapers and news
broadcasts with reports that "research now shows",
concluding one thing conclusively one day and the opposite
thing conclusive the next, statistics and data that it
twenty to forty years old should certainly be questioned.
There has been more research done in the field of
homosexuality since these studies were conducted years ago,
and that information should be used as it is more recent.
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Furthermore, since the brief is meant to persuade the
Colorado Supreme Court justices, it would have been better
to use more current information as it would provide
additional support and credibility to the assertions made.
Impartiality of evidence. Not all of the evidence and
citations contained in the FRI amicus curiae brief were
dated, however. This leads into the next area of evidence
that is potentially problematic, the impartiality of the
evidence utilized. Seven of the citations noted in the
brief, most of which were referenced to a high degree, were
from materials from the Family Research Institute, Inc.,
the authors of the brief. While the Family Research
Institute, Inc. is a non-profit, scientific and educational
research corporation, and the research from the
organization may very well be 100% accurate and valid,
using it to support the Family Research Institute's own
arguments suggests that the information may be biased, not
impartial. The presentation of biased material is a
definite possibility when considering that the Family
Research Institute makes its potion and views on
homosexuality and it support of Amendment Two amply clear
within the brief itself. One statement indicating the FRI
position reads:
Primarily as a result of this study, FRI researchers
are responsible for a large proportion of the
scientific, research-based literature that tends to
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hold participation in homosexuality as a personal and
societal misfortune. (2)
Another indicator as to the potential bias of Family
Research Institute information is the statement:
FRI findings and social philosophy were influential in
the founding, materials, and campaign of Colorado For
Family Values and have been and are influential in
almost all of the anti-gay rights initiatives across
the U.S.. (3)
These statements suggest that the Family Research Institute
is biased in favor of Amendment Two, however, this is not
to condemn them. The point is to merely to acknowledge
that because of their well-established position on the
issue being presented, the use of evidence derived from FRI
research should be suspect as the evidence may itself, or
its presentation, may be biased. The use of bias, or even
potentially biased, information to persuade is not a very
good way to achieve success, especially with an audience
that is predisposed toward an opposing position.
Validity and reliability of evidence. The fourth area
involving evidence that is potentially problematic within
the FRI amicus curiae brief involves the ability to
determine the soundness of the evidence used. On several
occasions throughout the brief, references are made to
studies without providing an adequate amount of information
with which to determine the validity and reliability of the
research and its results. For example, three references
91


are made to the Family Research Institute's urban study.
However, none of these references reveal much information
as to how the study was conducted, what questions subjects
were asked, specifically how the subjects were selected,
and so on. The first reference was merely stated as:
FRI conducted the first, and as of this writing, sole
published random sample comparison of homosexuals and
heterosexuals along a broad spectrum of scientific and
social concerns in 1983-84. (2)
The second reference to the study revealed even less about
its background and methodology, "The Family Research
Institute's national urban survey, conducted in 1983-4..."
(7). Yet a third reference to the study provides a little
more information, although by no means an abundance:
The court is invited to consider that the largest
comparison of gays and straights on a wide range of
topics and based on a random sample involved 4,340
adults in 5 U. S. metropolitan areas. (16)
Other studies cited in the brief had vague references
and no background information provided within the text of
the brief. These references instigate questions as to
which specific study is being cited, where the data was
drawn from, what methodology was used to gather the
research, and whether or not the research was gathered from
a sample that is representative of the entire population.
One of these references is found early on in the brief:
Other non-random surveys of homosexuals have reported
similar findings regarding their low rates of
fecundity (or fertility). Only 4% of readers of the
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Advocate, the national gay magazine, had a child in
their home. Likewise, Overlooked Opinions, a
specialty marketing survey of homosexuals, reported
that of 7,500 homosexuals who frequented gay bars
and/or subscribed to gay publications.. .Other surveys,
including the FRI study of 7,000 gay obituaries,
arrived at comparable figures. (7)
This quote references "other non-random"surveys", yet it
does not qualify their validity or reliability by
explaining how or where the studies were conducted, what
questions were asked, nor how representative the subjects
were of the population. Another reference with the same
problem reads:
A fifth to a third of surveyed gays admitted to
child molestation. Finally, at least 42% (and
probably well over half) of the largest survey of
homosexuals on the topic, uncovered clear homosexual
abuse in the childhood histories of adult homosexuals.
(20)
This statement refers to "the largest survey" conducted in
the subject area, yet it is not clear as to what the survey
is, who conducted it, how it was conducted, or how many
people participated in the survey. Consequently, the
validity and reliability of the survey cannot be determined
from the information provided in the brief. Another
reference states, "The 1989 Doll et al study (note 44) of
1001 homosexual men who visiting STD clinics in San
Francisco, Denver, and Chicago reported...[sic]" (18),
without providing any other information about the study or
how it was conducted. The reference Note 44 reads, "Doll,
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L.S. et al Self-reported childhood and adolescent sexual
abuse among adult homosexual and bisexual men. Child Abuse
& Neglect 1992: 16; 855-864 [sic]" (32). Thus, although
the study was referenced to an endnote, the endnote
provided almost no additional information about the study
in order to determine the validity and reliability of it.
Yet another referenced study is that of the Masters
and Johnson study of "22 homosexuals whose life histories
were partially reported" (18). Twenty-two is hardly a
statistically significant number or large enough sample
size to use to make inferences about homosexuals as an
entire population. Each of these references and citations
of studies lack the information necessary to determine
whether or not the research is valid and reliable; some of
the references are not even clear as to what specific study
is being referred to. While it is true that a person could
take the tidbits of information provided in the citations
at the end of the brief and go look up the studies in order
to uncover this additional information, there should be
enough information provided within the brief itself to
answer basic questions that would assist the reader in
determining the validity and reliability of the research
evidence. This is especially true for this amicus brief
when considering that the brief is attempting to persuade
judges, who already have an enormous workload, to accept
94