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Prop. 8 plea: Stand-in for state OK (UPDATED)

California citizens who put together the winning ballot measure against same-sex marriage in that state told the Supreme Court on Tuesday afternoon that the state supreme court clearly gave them the right to defend the constitutionality of that measure — “Proposition 8.”  They do so as representatives of the state itself, the new brief argued, because state officials opted not to defend the measure after its constitutionality was challenged in a historic federal court case by two same-sex couples who want to wed.

Seeking to answer the Court’s specific demand that the proponents justify their right to be in court under the Constitution’s Article III, the backers said that provision “does not purport to control the manner in which states allocate their sovereign powers, and ‘principles of federalism require that federal courts respect such decisions by the states as to who may speak for them.’  Indeed, such decisions are ‘of the most fundamental sort,’ for it is ‘through the structure of its government, and the character of those who exercise government authority, that a state defines itself as a sovereign.'”

The unabashed claim that the sponsors of a ballot measure embody a state’s very sovereignty marked a bold escalation of the sponsors’ claim to have a right to be in the Supreme Court.  They attributed it entirely to the state supreme court decision in their favor — a decision that appeared to go far toward settling the issue as a matter of state law, but did not — and could not — settle the Article III question posed by the Court when it agreed to hear this case on December 7.   Later today, House GOP leaders who are defending the constitutionality of a federal law that excludes married same-sex couples from federal marital benefits are due to defend their own right to make that case.

The new California citizens’ brief argued that, if the Court were to find that the measure’s sponsors have not satisfied Article III, then it would have to throw out the Ninth Circuit Court ruling striking down “Proposition 8,” and should also wipe out the earlier federal trial judge’s ruling that barred enforcement of that measure across the state.  If there was no one to defend the law, the brief asserted, there was no “case or controversy” – the constitutional minimum for a federal court’s exercise of its authority.

And, even if the case was properly in federal court, the brief added, the judge at most had authority only to order that marriage licenses be issued to the two couples who had been denied a license.  They had no right to sue for marriage rights for anyone else, the document contended.

The brief’s argument about the constitutionality of “Proposition 8” focused on three central themes: marriage in the U.S. has always been under the control of the states, the states from time immemorial have restricted that institution to opposite-sex couples, and the timing of when a state reaffirms its support for the traditional version of marriage makes no constitutional difference.

That third point was an attempt to undermine the core of the Ninth Circuit’s decision against the ballot measure: that it was invalid because the state had previously allowed same-sex marriage, and then took that away.   The Circuit Court had approached the case that way as part of a studied effort to avoid ruling on whether there was a constitutional right for same-sex couples to get married.  It said that was an issue open to debate, and it would not attempt a judicial answer.

The Supreme Court itself should not attempt an answer, the Californians contended, because the issue is being worked out now within the democratic process across America.  “The People’s democratic institutions are now fully engaged” on the issue, the brief said.  “Nine states have decided to redefine marriage.  The rest, California among them, have decided, most by express constitutional amendment, to preserve the traditional definition of marriage as the union of a man and a woman. ”

It conceded that supporters of same-sex marriage had drawn “substantial support” for their cause in California, gathering forty-seven percent of the vote when “Proposition 8” was on the ballot in November 2008.  And, the brief added, just last November the same arguments in favor of same-sex marriage “carried the day in three states….The public debate continues throughout the Nation.”

They ridiculed the same-sex marriage proponents for arguing that “the issue was taken out of the People’s hands in 1868, when the Fourteenth Amendment was ratified, and that our Constitution itself defines marriage as a genderless institution.”

But, the brief contended, until the Ninth Circuit ruled on the issue last year, “every state and federal appellate court to consider the issue, including this one, see Baker v. Nelson…., had rejected the claim that the Federal Constitution prohibits a state from embracing the traditional gendered definition of marriage.”   The reference to the Supreme Court’s 1972 decision in the Baker case involved a one-line, summary decision that the Justices issued without briefing or oral argument in a Minnesota case.  If the Justices do reach the merits issue in the California case, they probably will have to decide whether that precedent retains its force and whether, in fact, it settled the issue definitively.

While relying upon the Baker precedent, the proponents’ brief sought to turn the Court away from any reliance on three other precedents that have figured in the constitutional debate over gay rights: the decision in Lawrence v. Texas in 2003, finding a constitutional right of privacy for adults to engage in private homosexual conduct; the 1996 decision in Romer v. Evans, striking down a Colorado constitutional amendment that barred gays and lesbians from seeking laws that would protect them from discrimination; the 1967 decision in Loving v. Virginia, striking down Virginia’s ban on marriage for a couple of different races; and the 1954 decision in Brown v. Board of Education, putting an end to racially segregated public schools.

The Lawrence precedent, the brief said, was about punishing criminally acts of private human conduct in the home, while “Proposition 8” does not even discourage let alone criminalize any private behavior or personal relationship.  The Romer decision, it said, involved the imposition of a sweeping form of political disability because of a person’s single trait, while the California measure has made no change whatsoever in a series of laws that provide gays and lesbian couples with very comprehensive civil rights.  The Loving and Brown rulings, the brief added, dealt with explicit racial discrimination, while the California amendment involves only the definition of marriage without regard to race.

“In short,” the brief summed up, “there is no warrant in precedent or precept for invalidating marriage as it has existed in California for virtually all of its history, as it was universally understood throughout this Nation (and the world) until just the last decade, and as it continues to be defined in the overwhelming majority of states and nations — and in diverse philosophical and religious traditions — throughout the world.”


Recommended Citation: Lyle Denniston, Prop. 8 plea: Stand-in for state OK (UPDATED), SCOTUSblog (Jan. 22, 2013, 5:02 PM),