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Prop 8 plaintiffs file Supreme Court brief challenging the law’s constitutionality

The plaintiffs in the Prop 8 file a brief with the Supreme Court arguing that the law violates both the due process and equal protection rights of same-sex couples in California, and that it and all such marriage equality bans across the U.S. should be declared unconstitutional.  The plaintiffs’ filing comes in response to an opening brief by the law’s proponents arguing that only opposite-sex couples can procreate and that it is thus “plainly rational for the State to make special provision through the institution of marriage to minimize the social risks uniquely posed by potentially procreative sexual relationships between men and women.”

In their brief, the plaintiffs cite the landmark racial discrimination case Brown v. Board of Education, arguing that “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,’ … 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.'”

The proponents’ argument, they contest, is remarkably limited in its singular focus on responsible procreation, noting that “[i]n their 65-page brief about marriage in California, Proponents do not even mention the word ‘love.'”  Furthermore, they write, the proponents’ contention that the most significant different between same-sex and oppoiste-sex couples is the fact that only opposite-sex couples can procreate naturally “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.”

The plaintiffs’ brief argues that all Americans have a fundamental right to marry under the 14th Amendment, regardless of their sexual orientation, a similar argument to the one made by the plaintiffs at the district court and the one which Judge Vaughn Walker cited in his opinion striking down Prop 8 in 2010.  They argue that Prop 8 also violates equal protection because it “creates a permanent “underclass” of hundreds of thousands of gay and lesbian Californians, … 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.'”

On the procedural issues, the plaintiffs argue that the propoents lack Article III standing to appeal the lower courts’ decisions invalidating Prop 8, because the proponents “have never once suggested that permitting same-sex couples to marry could harm them—or anyone else—personally.”  They also argue that discrimination on the basis of sexual orientation should be subject to heightened scrutiny, a more searching form of judicial review than the lower rational basis test.  Nonetheless, they write, Prop 8 is unconstitutional no matter which level of scrutiny is employed when considering it.

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