February 28, 2013
By Scottie Thomaston
The Obama administration has filed a brief in Hollingsworth v. Perry, the constitutional challenge to California’s Prop 8. Reports over the past few weeks have suggested that were the administration to get involved in the case, President Obama himself would sign off on the brief once it’s finished.
The brief itself is filed by the Solicitor General in the United States Department of Justice.
The Solicitor General writes that:
This case presents the question whether California’s denial of the right to marry to same-sex couples violates equal protection. The United States has an interest in the Court’s resolution of that question, particularly in light of its participation in United States v. Windsor, No. 12-307 (cert. granted Dec. 7, 2012), now pending before the Court. The President and Attorney General have determined that classifications based on sexual orientation should be subject to heightened scrutiny for equal protection purposes.
And they write:
Private respondents, committed gay and lesbian couples, seek the full benefits, obligations, and social recognition conferred by the institution of marriage. California law provides to same-sex couples registered as domestic partners all the legal incidents of marriage, but it nonetheless denies them the designation of marriage allowed to their opposite-sex counterparts. Particularly in those circumstances, the exclusion of gay and lesbian couples from marriage does not substantially further any important governmental interest. Proposition 8 thus violates equal protection.
While the brief suggests that “[t]he Court can resolve this case by focusing on the particular circumstances presented by California law and the recognition it gives to committed same-sex relationships, rather than addressing the equal protection issue under circumstances not present here,” it also argues a heightened level of judicial scrutiny should be applied. This would inevitably affect anti-LGBT laws in future cases, including marriage bans.
The filing says California offers its gay and lesbian citizens the same rights but withholds the label of “marriage” andc then points to the fact that it is one of eight states to do so:
Seven other states provide, through comprehensive domestic partnership or civil union laws, same-sex couples rights substantially similar to those available to married couples, yet still restrict marriage to opposite-sex couples[.]
The label of marriage is important though, it:
confers a special validation of the relationship between two individuals and conveys a message to society that domestic partnerships or civil unions cannot match.
And Prop 8 does nothing but strip dignity from same-sex couples:
Proposition 8, by depriving same-sex couples of the right to marry, denies them the “dignity, respect, and stature” accorded similarly situated opposite-sex couples under state law[.]
Attorney General Eric Holder has issued a statement, provided to EqualityOnTrial, upon the filing of the brief:
“In our filing today in Hollingsworth v. Perry, the government seeks to vindicate the defining constitutional ideal of equal treatment under the law. Throughout history, we have seen the unjust consequences of decisions and policies rooted in discrimination. The issues before the Supreme Court in this case and the Defense of Marriage Act case are not just important to the tens of thousands Americans who are being denied equal benefits and rights under our laws, but to our Nation as a whole.”
The filing has just been released and analysis from EqualityOnTrial will be forthcoming…
h/t Kathleen for the Scribd filing