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All-out assault on Proposition 8 (FINAL UPDATE)

Accusing the backers of California’s ban on same-sex marriage of seeking to turn marriage into an institution that serves only the government’s interests and does away with any private right to wed, the opponents of Proposition 8 on Thursday challenged the Supreme Court to strike down that measure as a stark contradiction of history and the Constitution.

The two California same-sex couples’ fifty-four-page brief was a bold attempt to portray the constitutional idea of marriage equality as a victim of homophobia, and to persuade the Court not to settle for a California-only decision, or for one that moved gays and lesbians only a bit closer to marriage, but rather to give them a right to wed as fully as any other couple has, regardless of race, sex, or sexual orientation.

With such a sweeping approach, the brief took a considerable risk that it might be more than the Justices were ready to accept.  But it also has the potential virtue of making it easier for the Court to settle for a ruling for same-sex marriage on narrower grounds — as the Ninth Circuit Court had done in striking down Proposition 8 a year ago.

Theodore B. Olson, a prominent Washington attorney who — along with an equally high-profile New York lawyer, David Boies — had fashioned their case from the beginning to be a broad one, told reporters in a telephone conference call: “We thought it was extremely important to put the entire panoply of the case before the Court.  It was appropriate and necessary to paint the broad picture, and let the Supreme Court select the kind of decision within that range; we would like the decision to be as fulsome as possible.”

The complete nullification of the amendment to the California constitution, and the establishment of equal access to marriage, have been the goals of Olson and Boies since they filed the historic challenge to it in federal court in May four years ago.  Their aim was to get the marriage equality issue before the Supreme Court and, with it there now, their brief sought to lead the Court to see the case as coming down to two ultimate options: to strike down Proposition 8, or apply a strained reading of marriage rights to uphold the measure.

Although the brief did argue that the sponsors do not have a legal right to be before the Court, under the Constitution’s Article III, and so their appeal should be dismissed outright without a ruling, the document spent little space on that argument and moved with rhetorical force into the assault on Proposition 8’s constitutionality.

The brief did not argue that gays and lesbians have a constitutional right all of their own to marry; rather, it argued for marriage equality, contending that the Constitution means that marriage is a fundamental right that must be open to same-sex couples just as much as to any other loving and committed couple.

Eliminating Proposition 8 and its negative treatment of same-sex couples, the brief said, “would not require the recognition of a new right, but would instead afford gay men and lesbians access to the fundamental right to marry guaranteed to all persons.”

Before putting forth that broad vision of the constitutional controversy over Proposition 8, however, the brief opened with a searing attack on the motives and the policy aspirations of the sponsors of that ballot measure, which California voters approved in November 2008.

Under the logic of that ballot proposition, the document argued, a state would be free to choose to deny marriage rights to any couple incapable of bearing children.  Further, they contended, the philosophy behind the measure would allow a state to ban marriage altogether if a state chose to pursue a society that was not fully committed to producing children.

The document accused the measure’s proponents of winning approval of their measure with a hostile campaign which had “engraved into California’s constitution the cardinal principle that unions among gay men and lesbians are not valid or recognized as marriages, and therefore second-class and not equal to heterosexual marriages.”

It argued: “Proposition 8 thus places the full force of California’s constitution behind the stigma that gays and lesbians are not ‘okay,’ that their life commitments ‘are not as highly valued as opposite-sex relationships,’ and that gays and lesbians are different, less worthy, and not equal under the law.”

The measure, it added, “prevents gay men and lesbians from marrying, thereby making them ‘unequal to everyone else.'”   That quoted phrase is from the Supreme Court’s decision in the case of Romer v. Evans, striking down a Colorado constitutional amendment that barred homosexuals from trying to gain new laws protecting them from discrimination.   The Romer decision established the constitutional principle that states may not impose a “special disability” on gays and lesbians out of hostility to their sexual identities.

Although the new brief applies the Romer precedent as part of its broad approach, the Ninth Circuit Court had used it in a more confined way in finding Proposition 8 to be unconstitutional.   The Circuit Court ruled that, because California had once allowed same-sex marriages, it could not constitutionally take that away, at least when that was done in part because of hostility to homosexuality.  Approaching the dispute that way, the Circuit Court ruling essentially is a California-only ruling, since no other state that has once recognized gay marriage has later taken it away.

In ruling in that more narrow way, the Circuit Court said it did not need to address the broader question of whether rights are entitled to marriage equality.   But the same-sex couples’ brief on Thursday directly took on that question, and argued that the Supreme Court should do so, too.

In addition, the brief argued that the Court should use this case to establish — for the first time — that laws that discriminate against homosexuals should be judged by a more rigorous constitutional standard.   At one point, the brief appeared to be arguing that the Court should use the very toughest test: whether a discriminatory law can survive “strict scrutiny.”   Few discriminatory laws can pass that test, because it requires proof of a “compelling government interest” and proof that the measure is “narrowly tailored” to promote that interest.

But the brief also embraced a less demanding test, which is called “heightened scrutiny.”   That requires laws that are allegedly discriminatory to serve an important government purpose, and to be closely related to that purpose.   That is the standard that the Obama administration has adopted, in arguing against laws that discriminate on the basis of homosexuality.

The Obama administration has never been involved in the lawsuit over Proposition 8, but will have the opportunity to join in on the side of the same-sex couples — if that is its choice — a week from now.   In the telephone conference with reporters, attorney Olson said his legal team would very much welcome the administration in support of the challenge, but said he had no idea whether the government would do so.

The brief contended that, whatever constitutional test is used, Proposition 8 cannot pass it, because there is no proof that it serves any interest of the government of California.  “The absence of any rational basis for Proposition 8 — together with the evidence of anti-gay rhetoric in the Yes on 8 campaign — leads inexorably to the conclusion that Proposition 8 was enacted solely for the purpose of making gay men and lesbians unequal to everyone else.”

In discussing the backers’ claims of the need for a ban on same-sex marriage, the couples’ brief singled out, for special assault, the claim that it was necessary to preserve opposite-sex marriage — the traditional form of marriage — without opening it to same-sex couples, to promote “responsible procreation.”

The backers of the measure, according to the brief, “have imagined a cramped definition of marriage as a utilitarian incentive devised by and put into service by the state — society’s way of channeling heterosexual potential parents into ‘responsible procreation.’  In their 65-page brief about marriage in California, proponents do not even mention the word ‘love.'”

What marriage is really about, the couples’ brief contended, is “the privacy, liberty, and associational values that underlie this Court’s recognition of marriage as a fundamental, personal right.”   The backers of Proposition 8, the brief added, “actually go so far as to argue that, without the potential for procreation, marriage might not ‘even . . . exist at all’ and ‘there would be no need of any institution concerned with sex.’ . . .  Thus, under proponents’ peculiar, litigation-inspired concept of marriage, same-sex couples have no need to be married and no cause to complain that they are excluded from the ‘most important relation in life.'”

The city and county of San Francisco, also challengers to Proposition 8, used the brief that it filed on Thursday to give a fuller defense of the idea that had led the Ninth Circuit to strike down that measure — that is, it was unconstitutional for California to take away a right to marry that had previously existed, briefly, for same-sex couples in the state.

“Extinguishing the equal stature of gay people’s relationships was not simply a side effect of Proposition 8,” the city-county brief contended; “it was the measure’s overriding purpose.  And the justifications offered for Proposition 8 are so far removed from its actual effects that it is impossible to credit them. . . .  The measure is unlike any other state’s marriage law in that it takes away same-sex couples’ existing right to marry.”

While the same-sex couples’ brief placed its heaviest emphasis on the claim that the measure violates due process, and did so because due process principles are behind the notion that some rights are “fundamental,” the city-county brief emphasized the separate but related claim that the proposition is invalid because it treats gays unequally.   The city-county brief joined in arguing that the Court should apply a tougher constitutional standard in judging the measure’s validity.

Both of the new briefs, in arguing that the backers of the measure do not have “standing” to be in the Supreme Court to defend their measure, contended that the proponents have not made and could not make any argument that they would be harmed directly by allowing same-sex couples to marry.  The Ninth Circuit had allowed the backers to be in that court to defend the measure, on the theory that they were standing in for the state, which declined to defend Proposition 8.

The two briefs asserted that merely using the delegated powers of a state in the way the proponents have is not sufficient to satisfy the requirements of Article III.

The sponsors and defenders of the measure will have the opportunity, by March 19, to file their reply to the two briefs filed by the challengers.   The case is set for oral argument on March 26.

NOTE TO READERS: Tomorrow the Obama administration will file its brief on the constitutionality of the Defense of Marriage Act.  The blog will cover that, along with other briefs due then on the Court’s authority to decide the DOMA cases.


Recommended Citation: Lyle Denniston, All-out assault on Proposition 8 (FINAL UPDATE), SCOTUSblog (Feb. 21, 2013, 1:26 PM),