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Explained: Supreme Court Argument to Overturn Prop 8


By Matt Baume

Breaking news [from 2/21]: the plaintiffs in the Prop 8 case have filed their brief before the US Supreme Court. It’s an incredible record of the case so far, and a preview of the argument they’ll make next month when they appear before the court. Let’s run through the brief and take a look at some of the highlights.

The brief begins,

“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. Proponents have not once set forth any justification for discriminating against gay menand lesbians by depriving them of this fundamental civil right.”

The Plaintiffs go on to list other past institutions that discriminated on the basis of gender or race. They write, “the Fourteenth Amendment could not tolerate those discriminatory practices, and it similarly does not tolerate the permanent exclusion of gay men and lesbians from the most important relation in life.”

The brief also runs through the history of the case, from the 2000 ban on marriage; to the 2008 California Supreme Court ruling that overturned that ban; to the re-banning of marriage a few months later by Prop 8.

It goes on to describe the District Court’s ruling in August of 2010, along with its key findings. Among those findings: that marriage has evolved from an institution defined by traditional and unbalanced gender roles. Instead, it’s defined by commitment, partnership, cohesive family units, and the liberty of spouses. The court also found numerous benefits available only through marriage: psychological health, legal protection, and longer life; these are benefits that flow to couples’ children.

In short, the District Court found that Prop 8 violates the Equal Protection Clause because it creates an irrational classification.

From there, the case went to the Ninth Circuit Court of Appeals. That court found that the Proponents couldn’t explain how rescinding marriage supported any government interest. It, too, ruled that Prop 8 is unconstitutional.

And now the case is before the Supreme Court. On page 13 of the brief, the plaintiffs lay out their argument.

First, they argue that the Proponents shouldn’t even be able to bring this case before the Supreme Court. They’ve never claimed to be injured by the overturning of Prop 8. This is the “standing” requirement, which they’ve failed to meet.

Second, plaintiffs argue that Prop 8 violates the Due Process Clause because it denies gay men and lesbians the right to marry without furthering a state interest.

This is a compelling argument, because the US Supreme Court has ruled fourteen times that the right to marry is protected by the Due Process Clause.

Third, they argue that Prop 8 violates the Equal Protection Clause, because it creates an unequal status for gay and lesbian couples.

The brief concludes that Prop 8 “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.”

We’re now just a month away from oral argument before the court on March 26. And we’ve never been closer to winning this case — but we need your help to reach the finish line. Support AFER’s work by subscribing on YouTube and by sharing this video with everyone you know. Spreading the word about this case is the most effective way to win people to our side.


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