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Two important state amicus briefs in the California marriage case

The state of California itself has today filed this amicus brief in Hollingsworth v. Perry, in which it argues not only that California’s own Proposition 8 violates the Fourteenth Amendment, but also that the petitioners — four of the Proposition 8 sponsors — do not have Article III standing to represent California’s interests in federal court, notwithstanding the ruling of the California Supreme Court that California law assigns such a function to those sponsors to represent California’s interests as a matter of state law.  If the Court were to accept this standing argument, it would dismiss the petition.  (A similar argument is offered in an amicus brief filed today on behalf of Professor Walter Dellinger.  (Disclosure:  I consulted on the Dellinger brief.))

In addition, thirteen states and the District of Columbia have filed this brief urging the Court to affirm the judgment of the court of appeals declaring that Proposition 8 is invalid.  Importantly, the states in question include not only the ten jurisdictions that currently allow same-sex couples to marry, but also four states that do not — Delaware, Illinois, New Mexico and Oregon — one of which (New Mexico) does not have a “domestic partnership” or “civil union” law providing same-sex couples with all benefits and privileges available to similarly situated opposite-sex couples.  Although the brief does not appear to expressly acknowledge that its analysis would call into question the constitutionality of the laws of those four states, that would appear (at least on a quick first read) to be the natural implication.  [I’ll try to update this post with further details (or corrections) when I’ve had a chance to read the briefs more carefully, but wanted to get them to SCOTUSblog readers as soon as possible.]

My earlier post on state amicus participation in support of the petitioners in Perry can be found here.


Recommended Citation: Marty Lederman, Two important state amicus briefs in the California marriage case, SCOTUSblog (Feb. 28, 2013, 5:50 PM),