January 24, 2013 | by Chris Johnson
Anti-gay groups file Prop 8, DOMA briefs
Supreme Court, gay news, Washington Blade

Anti-gay groups this week filed brief before the Supreme Court (Washington Blade file photo by Michael Key)

Anti-gay forces drew upon reasoning they’ve used the past — such as the inability of gay parents to procreate — in legal briefs filed before the Supreme Court this week in favor of the Defense of Marriage Act and California’s Proposition 8.

In two separate briefs filed on Tuesday, attorneys representing ProtectMarriage.com and the House Republican-led Bipartisan Legal Advisory Group made their case for why the Supreme Court should uphold the anti-gay measures — despite multiple rulings from lower courts that have found DOMA and Prop 8 unconstitutional.

In the 65-page brief filed in the Prop 8 case, they urge the Supreme Court justices to uphold California’s constitutional ban on same-sex marriage, approved by California voters in 2008, because, among other reasons, the measure helps ensure children are raised by their biological parents.

“In particular, an animating purpose of marriage is to increase the likelihood that children will be born and raised in stable and enduring family units by their own mothers and fathers,” the brief states. “Because relationships between persons of the same sex do not have the capacity to produce children, they do not implicate this interest in responsible procreation and childrearing in the same way.”

Attorneys who signed the brief include Andrew Pugno, the lead counsel for ProtectMarriage.com; Charles Cooper, a private attorney representing the group as well as lawyers from the anti-gay Alliance Defending Freedom.

In the brief, these lawyers maintain Prop 8 doesn’t violate the Equal Protection Clause under the U.S. Constitution for four major reasons: 1) Prop 8 advances an interest in procreation and child-rearing; 2) Prop 8 serves an interest in “proceeding with caution” before redefining a social institution; 3) Prop 8 restores democratic authority over a vital principle and 4) Prop 8 does not “dishonor” gay people.

Additionally, the brief answers the earlier posted question from the Supreme Court over whether these lawyers have standing to defend Prop 8 in lieu of California officials — Gov. Jerry Brown and Attorney General Kamala Harris — who have declined to defend the law in court.

Attorneys assert they have standing because Supreme Court precedent has established that state law determines who’s authorized to defend the constitutionality of a law in that state. The brief notes the California Supreme Court determined that ProtectMarriage.com has authority to defend Prop 8.

Anti-gay language is also found in the 60-page brief in the DOMA case submitted by BLAG, a five-member panel of U.S. House members that voted 3-2 along party lines to defend the 1996 law in court. The brief makes similar arguments that the government has invested in prohibiting same-sex marriage to encourage procreation.

“Only opposite-sex relationships have the tendency to produce children without such advance planning (indeed, especially without advance planning,)” the brief states. “Thus, the traditional definition of marriage remains society’s rational response to this unique tendency of opposite-sex relationships. And in light of that understanding of marriage, it is perfectly rational not to define as marriage, or extend the benefits of marriage to, other relationships that, whatever their other similarities, simply do not have the same tendency to produce unplanned and potentially unwanted children.”

Attorneys who signed this brief include House General Counsel Kerry Kircher and private attorney Paul Clement, a former U.S. solicitor general under the Bush administration who was hired for $520 an hour at a cost cap that has now reached $3 million to defend DOMA in court.

BLAG offers five major arguments for why the Supreme Court should uphold DOMA: 1) DOMA preserves each sovereign’s right to define marriage for itself; 2) DOMA ensures uniformity in eligibility for federal benefits; 3) DOMA preserves past legislative judgments and and conserves fiscal resources; 4) Congress proceeded with caution when enacting the law and 5) the federal government can retain marriage as one man, one woman for the same reason a state can.

The brief also goes at length to dispute the idea that laws affecting gay people should be subjected to heightened scrutiny, or a greater assumption they’re unconstitutional, because they’re a suspect class. The view that DOMA should be subjected to this standard is held by the U.S. Second Circuit Court of Appeals and the Obama administration.

As part of this argument, the brief denies gays are politically powerless class, citing the LGBT community’s influence on the Democratic Party and Obama, who has come out for marriage equality.

“Perhaps most critically, gays and lesbians have substantial political power, and that power is growing,” the brief states. “There is absolutely no reason to think that gays and lesbians are shut out of the political process to a degree that would justify judicial intervention on an issue as divisive and fast-moving as same-sex marriage.”

Other arguments to dispute classifying gays and lesbians as part of a suspect are sexual orientation isn’t an immutable characteristic and the histories of discrimination is different for race, ethnicity, gender and legitimacy — others groups that have been designated as suspect classes.

Evan Wolfson, president of the LGBT advocacy group Freedom to Marry, said he believes the Supreme Court would be unpersuaded by the arguments in these briefs because they’re the same earlier arguments that lower courts rejected when striking down Prop 8 and DOMA.

“Ten federal rulings — from judges appointed by presidents including Reagan, both Bushes, and even Nixon — have found these alleged justifications for discriminating in marriage insufficient to meet the constitution’s command of equal protection under the law, as have numerous state judges,” Wolfson said. “The fact that all they have to offer the Supreme Court at this late stage in the day is such old wine in new bottles should help persuade the justices that neither DOMA nor Prop 8 serves any sufficient, legitimate purpose and that both discriminatory measures must fall.”

The next deadline for briefs in these cases is Tuesday, when parties supporting the anti-gay side must file their friend-of-the-court briefs. Oral arguments before the Supreme Court in Prop 8 case are set for March 26 and in the DOMA case are set for March 27. The Supreme Court must deliver rulings on the constitutionality of Prop 8 and DOMA before the end of its term in June.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

6 Comments
  • Amazing what lengths these people will go to to ‘defend’ outright and bigoted discrimination. I suppose they will now also stop straight couples who can’t ‘reproduce’ from having the legal right to have their marriages recognized under FEDERAL law. I suppose that they will also be ignorant to the fact that many same sex relationships do have children, do adopt and do raise great people. I suppose they will deny the fact that their are many ways to procreate beautiful things and children is just one of them. God forbid any of these bigot minded people ‘pro-create’, to have more of them in the world would be such a shame on the EQUALITY that America was founded upon. I would love to sit at their dinner table and show them how DOMA has caused so much pain and suffering in people’s lives and then see if they would have the gaul to ‘defend’ it. Most of these ignorant people don’t even know the specifics of doma or the 1200 federal rights it denies people, and sadly many of these people are clearly closeted and obviously think way too much and feel very little. Bye bye Doma, you won’t be missed.

  • I know a carpenter by the name of Joseph who has some thoughts on that procreation argument.

  • Can I see who”s paying the legal fees for this discriminatory filing? The American tax payer! There must be a law against a politician using tax revenue to pursue his personal or party agenda.

  • As Govern stated above this discriminatory filing groups those physically incapable of reproducing with same-sex couples souley on the basis that they are lesser humans for not over populating the planet.

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