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Plaintiffs in challenge to Proposition 8 ask the Supreme Court to decline to review the case

Prop 8 trial

By Scottie Thomaston

The plaintiffs in the Prop 8 case Hollingsworth v. Perry filed their opposition brief to the proponent’s petition for a writ of certiorari to the Supreme Court. The plaintiffs, as expected, oppose Supreme Court review of this case, writing that “this Court’s traditional standards for the exercise of certiorari jurisdiction lead inexorably to the conclusion that this Court’s review is not warranted.”

While suggesting that “the question whether the States may discriminate against gay men and lesbians in the provision of marriage licenses is the defining civil rights issue of our time” and that in some ways this case is “an attractive vehicle for approaching” the issue, review is nonetheless unwarranted because the Ninth Circuit’s decision does not “conflict with any decision of this Court or any decision of a court of appeals or state court of last resort.” The filing also argues that the Ninth Circuit applied Romer v. Evans properly to the circumstances set out in the state of California.

They suggest that proponents’ “claim of Article III standing to appeal is predicated on a novel legal theory: that a ballot initiative proponent who has suffered no injury personal to himself nevertheless may seek to vindicate the State’s interests in the validity of the initiative.” If the Court decides that proponents lack standing to appeal, the Court could not reach the merits of the case anyway.

Lastly, the filing argues that alternative theories would lead to the same result the Ninth Circuit reached; because denying gays and lesbians the right to marry violates both the Due Process and Equal Protection clauses of the Fourteenth Amendment, and because the Court may decide to apply a heightened form of judicial scrutiny to laws that discriminate on the basis of sexual orientation, Proposition 8 would be struck down in the end.

The Court could take up the petition as early as September 24, and we may know as soon as the next day if they will review the case.

h/t Kathleen for the embedded filing:12-144 #5


  • 1. Ann_S  |  August 24, 2012 at 2:08 pm

    I for one hope that they don't grant cert.

  • 2. Seth from Maryland  |  August 24, 2012 at 7:07 pm

    me too, im kind of ready for this to be over with ,lol

  • 3. SHOES THROWER  |  September 1, 2012 at 10:32 am

    Are you afraid the Supreme Court will reverse the judgment?

  • 4. jpmassar  |  August 24, 2012 at 2:09 pm


    The Court could take up the petition as early as September 24, and we may know as soon as the next day if they will review the case.

    In exactly one month marriage equality could come back to California.

  • 5. Ann_S  |  August 24, 2012 at 2:11 pm

    Let's hope!

  • 6. Scottie Thomaston  |  August 24, 2012 at 2:26 pm

    Yeah, makes me nervous.

  • 7. Glen  |  August 24, 2012 at 3:23 pm

    Personally I hope that the decision doesn't come until after November 5th.

    Given that SCOTUS is unlikely to grant cert, if they release that decision prior to the election that will only energize the anti-gay right wing (or those who may not be overtly anti-gay but think that the majority – them being a member of that majority – should always be able to run roughshod over the minority) to come out in even bigger droves in November.

  • 8. MightyAcorn  |  August 24, 2012 at 10:32 pm

    That would be sweet! I'm getting antsy-dancey now that the deadlines are so close, but In Ted We Trust.

  • 9. Nonsense  |  August 25, 2012 at 1:36 pm

    Marriage equality was here when Prop 8 passed. Soon, you all we get to be normal, and maybe your suicides will stop.

    You want access to sex with children and animals and those are facts, since Obama and gay groups are trying to make gay sodomy with animals legal.

  • 10. Glen  |  August 25, 2012 at 5:56 pm

    This may be the lamest attempt at being a troll I've yet seen on the internet.

  • 11. MightyAcorn  |  August 26, 2012 at 6:11 pm

    Certainly the lamest proofreading.

  • 12. fiona64  |  August 27, 2012 at 9:12 am

    Obvious troll is obvious …

  • 13. Sagesse  |  August 24, 2012 at 2:27 pm


  • 14. Canuck237503  |  August 24, 2012 at 2:32 pm

    Just a note that it's an opposition brief, not a reply. Replies are to oppositions . . . just being pedantic here.

  • 15. Scottie Thomaston  |  August 24, 2012 at 2:44 pm

    That's a good point. I changed it.

  • 16. Kathleen  |  August 24, 2012 at 2:57 pm

    Technically, it's a "response" brief, but a response brief opposing the petition can be referred to as an opposition brief.

  • 17. arjay1951  |  August 24, 2012 at 3:02 pm

    The accurate summary by Scottie is a fair reflection of the thrust of the brief. Reading the brief in its origional, however, is an incredibly detailed review of the case, the holdings of the various courts involved in the decision, and, generally, a wonderful review of the history of same sex marriage in California, the evidence presented at the ten day trial on the merits, and fatal admissions of the parties purporting to defend Proposition 8. Additionally, it is a good review of the U.S. Supreme Court's record on sexual orientation, sex based and racial based classifications, as well as a detailed analysis of the various standards the Supreme Court has used for discrimination and Equal Protection analysis. I readily commend the brief itself to anyone interested in these issues.

  • 18. Jay  |  August 24, 2012 at 5:01 pm

    You are so right. The brief is a masterful overview of the issues raised in the case and of Supreme Court precedent. It strikes me as a beautiful piece of work.

    I join the others above who hope that SCOTUS will not grant cert in this case. Partly because the case has gone on so long and we have been deprived of justice every day that our rights have been denied. I just don't want more delay. But also because I would not trust the motives of the justices voting to grant cert.

  • 19. SoCal_Dave  |  August 24, 2012 at 6:30 pm

    Thanks for the suggestion, Arjay. I would not normally have read something like this, but it was really well done, (and not too much legalese! – even I could understand it.)

  • 20. Nonsense  |  August 25, 2012 at 1:40 pm

    Yet again, you prove that there is a mental illness element to homosexuality. The two plaintiff attorneys are afraid of one thing, and that is inevitably losing. This Supreme Court has already set precedence with the 14th Amendment, in the Oklahoma case, in which that cited the 14th Amendment as the reason to uphold the ban against same sex marriage.

    I readily commend the facts concerning these issues, to anyone who is not gay. Homosexuality is not part of a "suspect class", so the attorneys know that there is no precedent to protect a behavior and a choice, albeit in some cases unconscious.

  • 21. MightyAcorn  |  August 26, 2012 at 6:13 pm

    "there is no precedent to protect a behavior and a choice"? Excellent. When do the executions of religious bigots begin?

  • 22. fiona64  |  August 27, 2012 at 9:13 am

    Michael, is that you?

  • 23. SHOES THROWER  |  September 1, 2012 at 10:04 am

    What was this Oklahoma case?

  • 24. | Plaintiffs i&hellip  |  August 24, 2012 at 4:37 pm

    […] via Prop 8 Trial Tracker » Plaintiffs in challenge to Proposition 8 ask the Supreme Court to decline to…. […]

  • 25. Bob  |  August 24, 2012 at 5:19 pm

    The religious right, NOM, is going to play this as the opponent of prop 8 is scared to have this go to the SCOTUS. The best decision has been made, the courts have easily come to the conclusion that an injustice has been done thru the referendum. Let them make hay, they certainly don't have much else.

  • 26. jake  |  August 24, 2012 at 8:23 pm
    This includes a link to San Francisco's opposition brief as well.

  • 27. Mike in Baltimore  |  August 24, 2012 at 10:00 pm

    About the only reason I can think of for SCOTUS to accept the case is to tell the 9th Circuit that they overly limited their decision in the case, and that the District Judge's decision was the proper decision.

  • 28. Lymis  |  August 25, 2012 at 2:58 am

    Which would essentially require them to rule that marriage equality is a federally protected Constitutional right. With the DOMA cases coming at them, they have a far better chance to move incrementally on this and keep it state by state for now.

  • 29. Mike in Baltimore  |  August 25, 2012 at 5:21 pm

    And for SCOTUS (at least according to our CONservative 'friends') to be able to scold the Ninth Circuit would be reason enough for them to take the case. If you look at facts, that does not reflect reality, and that's why I posted "About the only reason I can think of for SCOTUS to accept the case", meaning that there really isn't any other reason I can think of for SCOTUS to accept the case.

  • 30. Glen  |  August 26, 2012 at 10:01 am

    But SCOTUS does not in fact overturn the 9th Circuit more often than other circuits on a per-case basis.

    CONservatives love to say things like that which obfuscate the actual facts, but the reality is the 9th circuit only has more cases overturned by SCOTUS because they hear a lot more cases than the other circuits. But on a per-case basis they are equivalent to the other circuits.

    So I wouldn't expect the conservatives in SCOTUS to take this case simply to overturn the 9th's very limited ruling, particularly as they cannot rely on Kennedy to vote with them (and maybe not even Roberts), and particularly as they can probably read the writing on the wall as well as anyone and see that marriage equality is gaining majority and growing acceptance.

  • 31. Mike in Baltimore  |  August 26, 2012 at 1:09 pm

    You know the CONservatives are lying, and I know the CONservatives are lying, when they state that SCOTUS overturns Ninth Circuit decisions more often than they overturn other Circuits.

    And that is why I stated what I did above.

    Remember, though, that it takes the vote of only four Justices to grant cert. Roberts may, or may not, be leaning in our direction. If not, then he could easily join Scalia, Thomas and Alito to accept cert with the intention of doing a slap-down on the Ninth. After all, the egos of Scalia and Thomas (especially) are big enough that they probably think they can convince one or two others to join them when any final opinion is handed down.

  • 32. Stefan  |  August 26, 2012 at 10:06 pm

    There is evidence that Roberts would support our side (pro-bono work in Romer v Evans). I also think that Ted Olson, being a conservative, will likely convince them not to hear it. After all, with Kennedy likely to side with us, the court could concievable ressurrent Walker's ruling and allow this to legalize same sex marriage nationwide. That's probably not something the conservative justices would want to risk.

  • 33. Kathleen  |  August 25, 2012 at 6:35 pm

    SCOTUS could accept the case and say that Prop 8 does not violate the federal constitutional, in which case Prop 8 would remain on the books until/if the voters of California overturn it with a subsequent ballot initiative.

  • 34. Stefan  |  August 26, 2012 at 1:45 am

    Kennedy would never vote that way, as it would mean overturning his own words on Romer v Evans.

  • 35. bythesea  |  August 26, 2012 at 1:31 pm

    I think Roberts probably won't either, though that is far less certain than with Kennedy.

  • 36. SHOES THROWER  |  September 1, 2012 at 10:10 am

    How so? Romer dealt with a law that prohibited "protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society", 517 U.S. at 631, for homosexuals, but not heterosexuals. It "denie[d] them protection across the board" id. at 633 And the law was unprecedented, "[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision." id, quoting Louisville Gas & Elec. Co. v. Coleman, 277 U. S. 32, 37-38 (1928)

  • 37. Kathleen  |  August 26, 2012 at 5:10 pm

    Kennedy could find a way to distinguish it from Romer.

  • 38. SHOES THROWER  |  September 1, 2012 at 10:31 am

    This is true, and indeed almost any anti-gay law could be distinguished from Romer, because of the "unusual character" of Amendment 2. See Romer, 517 U.S. at 633, and it denied homosexuals "protection across the board. id. . The DADT cases were distinguished from Romer by the appellate courts that rejected equal protection challenges. While it can be written that Romer reaffirms basic equal protection principles that a legislative classification must at least have a "rational relation to some legitimate end", Vacco v. Quill, 521 U.S. 793 at 799 (1997), citing Romer v. Evans, 517 U.S. 620 at 633 (1996), it did not disturb any previously established constitutional principles or announce new ones.

  • 39. Bunka  |  August 26, 2012 at 9:31 am

    This is getting confusing. I check the website quite often and was confused to see that a brief was filed asking the Supreme cout to not take this on. I have not seen anything that it had even gone to them and wondered why a brief would be filed when it wasn't even appealed to them. I did a search and found an article that it had gone to them on Aug 4th. Thats three weeks ago and the Prop 8 trial tracker says nothing about this.

  • 40. Stefan  |  August 26, 2012 at 12:08 pm

    Yes they did. Check the archives.

  • 41. Jacob Combs  |  August 26, 2012 at 7:40 pm

    Hi Bunka–this is Jacob, one of the moderators/writers on the site. In essence, it sort of depends on what you mean by the case having "gone" to the Supreme Court. Following the 9th Circuit's decision not to rehear the case en banc (which we wrote about here on P8TT), the proponents of Prop 8 filed an appeal with the Supreme Court asking them to take the case. We also covered that filing here as well.

    Because the Court is on its summer recess, nothing is "going" to them right now at all. Nonetheless, briefs like the one that this post covers are still being submitted. The plaintiffs in the Prop 8 case (the gay couples opposing the law) are asking the Supreme Court not to take up the case at all, because the Supreme Court chooses which cases it hears and hears only a small fraction of cases.

    So, the Prop 8 case isn't currently "at the Supreme Court" and may never be. But there is an appeal pending with the Court, and these filings address that appeal.

    Hope that helps and feel free to ask any other questions if that's confusing!


  • 42. LGBT Fast Friday News on &hellip  |  August 27, 2012 at 9:28 am

    […] Plaintiffs in challenge to Proposition 8 ask the Supreme Court to decline to review the case [Prop 8 Trial Tracker] […]

  • 43. SHOES THROWER  |  August 31, 2012 at 3:57 pm

    When a state statute is struck down by a lower court on federal constitutional grounds, the Supreme Court has typically granted review if this was the first time such a statute was struck down, even in the absence of a Circuit split and even in a gay rights context. See e.g. Board of Education v. National Gay Task Force, 470 U.S. 159 (1985) (hearing constitutional challenges to Oklahoma law allowing teachers to be fired for public homosexual conduct), Romer v. Evans, 517 U.S. 620 (1996) (hearing constitutional challenge against state law prohibiting anti-discrimination protections for homosexuals, but not those for heterosexuals).

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