February 21, 2013 | by Chris Johnson
Prop 8 attorneys file brief before Supreme Court
Ted Olson speaks at the Cato Institute

Ted Olson was among attorneys who signed AFER’s brief against Prop 8. (Washington Blade file photo by Michael Key)

The legal team behind the challenge to California’s Proposition 8 filed its brief on Thursday before the Supreme Court asking it to declare the anti-gay measure unconstitutional.

The 54-page brief, signed by co-counsels Ted Olson and David Boies on behalf of the American Foundation for Equal Rights, asserts that Prop 8 — a ballot initiative passed by California voters in 2008 — should be struck down because prohibiting same-sex couples from marrying in California violates due process and equal protection under the U.S. Constitution.

“It denies gay men and lesbians their identity and their dignity; it labels their families as second-rate,” the brief concludes. “That outcome cannot be squared with the principle of equality and the unalienable right to liberty and the pursuit of happiness that is the bedrock promise of America from the Declaration of Independence to the Fourteenth Amendment, and the dream of all Americans.”

The brief is divided into three sections. The first maintains proponents of Prop 8, such as ProtectMarriage.com, don’t have standing to defend the measure before the Supreme Court because they won’t be harmed if gay couples marry in California. Attorneys also argue their desire to defend the law is insufficient to meet standing requirements under Article III of the U.S. Constitution.

A substantial part of the brief is devoted to arguing that Prop 8 is unconstitutional based on the merits. The second section of the brief maintains the measure violates due process because the right to marry is fundamental. This section also tears into the argument that proponents outlined in their brief before the Supreme Court the purpose of marriage is procreation is incorrect based on the trial record in the case.

“Indeed, many persons become parents through adoption or assisted reproduction and exercise their constitutional rights to marry and raise those children in a recognized family unit,” the brief states. “Yet Proponents’ assertions about marriage — and that is all that they are — would leave adoptive parents and infertile couples without any constitutional protection against a State that prohibits them from marrying.”

The third section of the brief argues that denying gay couples the right to marry violates their equal protection rights — not to mention the constitutional rights of the estimated 40,000 children raised in same-sex households.

This argument is divided into three sections: 1) discrimination on the basis of sexual orientation merits heightened scrutiny, or greater assumption such laws are unconstitutional ; 2) laws that prohibit gay men from marrying don’t meet the lesser standard of rational basis review and heightened scrutiny; and 3) Prop 8 is unconstitutional because it was motivated out of desire to make gay people unequal to straight people.

“The absence of any rational justification for depriving gay men and lesbians of their right to marry, and marking their relationships as inferior to those of heterosexual couples, leads inexorably to the conclusion that Proposition 8’s principal purpose was to advance the majority’s moral disapproval of gay relationships,” the brief states.

Notably, the brief is along the lines of the ruling from U.S. District Judge Vaughn Walker against the anti-gay brief. It doesn’t delve into the narrower ruling made against Prop 8 by the U.S. Ninth Circuit Court of Appeals that the measure is unconstitutional because it took away marriage rights from gay couples after they once enjoyed them in the state after the California Supreme Court ruled in favor of marriage equality in 2008.

But during a conference call with reporters on the same day the brief was filed, Olson assured the media that the argument that attorneys are “embracing” the Ninth Circuit ruling in their brief and it’s important to all arguments against Prop 8 are being made from the top down.

The brief from AFER wasn’t the only one filed on Thursday in the Prop 8 case. The Supreme Court allowed San Francisco City Attorney Dennis Herrera and Chief Deputy City Attorney Therese Stewart to participate in the case. They articulated arguments against Prop 8 in a 62-page document.

That brief makes arguments along the lines made by AFER that Prop 8 violated due process and equal protection, but the brief also makes the case that Prop 8 can be invalidated even as the national debate continues on same-sex marriage.

“Petitioners’ argument derogates the most im- portant role this Court serves in our democracy: to protect the constitutional rights of minorities from encroachment by an unsympathetic majority,” the brief states. “The responsibility to protect individual rights does not transfer to the political process when the dispute happens to be “controversial.”

The next step in the process for the Prop 8 case is for opponents of the measure to file their friends-of-the-court brief before the Feb. 28 — one week from the day these briefs were filed. Opponents of Prop 8 are hoping the Obama administration will be among those filing such a brief. Oral arguments in the Prop 8 case are set for March 26.

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

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