February 21, 2013
By Scottie Thomaston
UPDATE at 2PM ET San Francisco has filed its brief in the case as well.
Just now, the same-sex couples challenging the constitutionality of California’s Prop 8 at the Supreme Court filed their brief.
Geidner has the story and some quotes:
“The only substantive question in this case is whether the State is entitled to exclude gay men and lesbians from the institution of marriage and deprive their relationships—their love—of the respect, and dignity and social acceptance, that heterosexual marriages enjoy,” lawyers for two California couples told the Supreme Court Thursday.
We will post updates as we read…
Proposition 8 thus places the full force of California’s constitution behind the stigma that gays and lesbians, and their relationships, are not “okay,” that their life commitments “are not as highly valued as opposite-sex relationships,” Pet. App. 262a, and that gay and lesbian individuals are different, less worthy, and not equal under the law. That “generates a feeling of inferiority” among gay men and lesbians — and especially their children — “that may affect their hearts and minds in a way unlikely ever to be undone.” Brown v. Bd. of Educ., 347U.S. 483, 494 (1954).
In their 65-page brief about marriage in California, Proponents do not even mention the word “love.”
They argue that the proponents’ view of marriage is incredibly restrictive:
Indeed, Proponents’ state-centric construct of marriage means that the State could constitutionally deny any infertile couple the right to marry, and could prohibit marriage altogether if it chose to pursue a society less committed to “responsible” procreation.
They resurrect the claim that Prop 8 violates the Due Process Clause of the 14th Amendment. This is the “fundamental right” argument that was advanced in Judge Walker’s opinion but discarded by the Ninth Circuit:
Because Proposition 8 prevents gay men and lesbians from expressing this most basic aspect of their autonomy and personhood, and is not “narrowly drawn” to further a “compelling state interest[ ],” Carey v. Population Servs. Int’l, 431 U.S. 678, 686 (1977), it violates due process. Proponents nonetheless claim that marriage—and thus the fundamental right to marry—excludes same-sex couples as a definitional matter. They contend that “marriage” categorically excludes same-sex couples because society’s alleged interest in “responsible procreation and childrearing” is the defining purpose of marriage. Prop. Br. 34. Proponents’ newly constructed understanding of the contours, implications, and meaning of marriage conflicts with longstanding controlling precedent from this Court and the overwhelming record evidence in this case.
And they take on the “procreation” argument:
This Court has never conditioned the right to marry on the ability to procreate. Rather, the Court has expressly recognized that the right to marry extends to individuals not in a position to procreate with their spouse, see Turner, 482 U.S. at 95, and that married couples have a fundamental right not toprocreate. See Griswold, 381 U.S. at 485-86.
They address equal protection:
Proposition 8 also violates equal protection, as it is antithetical to the “principles of equality” on which this “Nation . . . prides itself.” Plyler v. Doe, 457 U.S. 202, 219 (1982). It creates a permanent “underclass” of hundreds of thousands of gay and lesbian Californians, id., who are denied the fundamental right to marry available to all other Californians simply because a majority of voters deems gay and lesbian relationships inferior, morally reprehensible, religiously unacceptable, or simply not “okay.” With the full authority of the State behind it, Proposition 8 sends a clear and powerful message to gay men and lesbians: You are not good enough to marry. Your loving relationship is not equal to or respected enough to qualify to be called a marriage.
“But this case is not about whether marriage should be abolished or diminished. Quite the contrary, Plaintiffs agree with Proponents that marriage is a unique, venerable, and essential institution. They simply want to be a part of it—to experience all the benefits the Court has described and the societal acceptance and approval that accompanies the status of being “married.””