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The Solicitor General’s brief in the Prop 8 case: an analysis

Marriage equality Marriage Equality Trials Prop 8 Prop 8 trial

By Scottie Thomaston

Since the Obama administration filed its brief last week in the Prop 8 case, there have been some questions and some confusion about the potential reach of the arguments made in the case. The arguments the administration makes are nuanced and technical.

First, keep in mind that this isn’t a federal case (in the sense that it doesn’t involve a federal law that the administration is obligated to defend; it does involve the federal constitution, of course), so the administration’s involvement was not guaranteed. They do occasionally get involved in state cases that touch on federal law, especially when asked (or “invited”) by the Supreme Court to offer its views. But otherwise it’s discretionary.

The administration in this case notes a couple of reasons it decided to get involved: one is its prior determination that laws that classify people on the basis of sexual orientation warrant a heightened form of judicial scrutiny because those laws tend to be suspicious. Since the administration is directly involved in United States v. Windsor, the constitutional challenge to Section 3 of the Defense of Marriage Act (DOMA), providing their views in this similar case is important for consistency.

They also point out that the Justice Department has offered its views on the level of judicial scrutiny that should be applied in other equal protection cases (citing Cleburne v. Cleburne Living Center.) And last, they point out that the opposing sides in both Windsor and Perry have raised some identical issues.

The brief can be read as a continuation of the arguments raised in Windsor. In fact, rather than rehashing its argument for heightened judicial scrutiny in this brief, the Solicitor General simply cites his merits brief in Windsor for a discussion of the level of scrutiny. By doing this, the suggestion is that whether it’s a federal law discriminating against gays and lesbians, or a state law doing the same, the level of scrutiny should be heightened. And it is objectively very hard to see how these arguments survive under heightened scrutiny. The Second Circuit’s opinion in Windsor actually pointed out that Paul Clement, arguing for BLAG on behalf of House Republicans, “all but conceded” that he wouldn’t win if heightened scrutiny were applied. And the proponents of Prop 8 stress that the amendment should be reviewed under the most lenient rational basis standard.

More below the fold…

As the Solicitor General writes:

Those considerations [proponents’ claims that heightened scrutiny should not apply because of “biological realities” and the state’s control over marriage], however, relate (at most) to whether a classification based on sexual orientation in the marriage context survives heightened scrutiny (the second step of the analysis), not to the antecedent question whether heightened scrutiny applies to the classification at all.

The questions related to the possible reach of the administration’s argument are based on the administration’s suggestion that:

The 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.

Those circumstances are that California law treats gays and lesbians exactly the same in most respects, including adoption and joint filing of taxes, except for the label of “marriage”. That’s only granted to opposite-sex couples now that Prop 8 is law.

The Solicitor General continues:

California has therefore recognized that same-sex couples form deeply committed relationships that bear the hallmarks of their neighbors’ opposite-sex marriages: they establish homes and lives together, support each other financially, share the joys and burdens of raising children, and provide care through illness and comfort at the moment of death.

Proposition 8 nevertheless forbids committed same-sex couples from solemnizing their union in marriage, and instead relegates them to a legal status—domestic partnership—distinct from marriage but identical to it in terms of the substantive rights and obligations under state law.

This distinction – disallowing gay and lesbian couples in California the label of “marriage” while treating them the same – is what makes Prop 8 unconstitutional.

The Solicitor General also points out that this same set of circumstances applies to seven other states:

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: Delaware (Del. Code Ann. tit. 13, §§ 212,214), Hawaii (Haw. Rev. Stat. Ann. § 572B-9), Illinois (750 Ill. Comp. Stat. Ann. § 75/20), Nevada (Nev. Rev.Stat. Ann. § 122A.200), New Jersey (N.J. Stat. Ann.§§ 37:1-31, 37:1-32), Oregon (Or. Rev. Stat. § 106.340),and Rhode Island (R.I. Gen. Laws §§ 15-3.1-6, 15-3.1-7).

But this separate status is not equal:

The designation of marriage, however, confers a special validation of the relationship between two individuals and conveys a message to society that domestic partnerships or civil unions cannot match.

Also, in asking the Court to apply a heightened level of judicial scrutiny, their 1972 one-sentence decision in Baker v. Nelson becomes less relevant, they suggest. The Court didn’t consider the applicable level of scrutiny in the case, and intermediate scrutiny had never been applied at the time that case was decided.

When heightened scrutiny is applied, the Court’s review of the issues changes in a few ways. First, under heightened scrutiny, it’s the state or the person defending the classification who has to tell the Court why it is valid. Under the more lenient rational basis review the person challenging the classification must explain why any perceived rational basis isn’t rational. Secondly, the law has to be substantially related to an important government objective. Third, the classification has to be defended by way of using the actual objectives stated in the legislative history or ballot information. Under rational basis, any “rationalization” for the law, whether it was discussed prior to passing the law or not, can be used in litigation to defend the classification.

So the Solicitor General’s analysis is confined to the reasons for passage of Prop 8 and under that view, none are substantially related to an important government objective.

In closing, the Solicitor General writes:

California’s extension of all of the substantive rights and responsibilities of marriage to gay and lesbian domestic partners particularly undermines the justifications for Proposition 8. It indicates that Proposition 8’s withholding of the designation of marriage is not based on an interest in promoting responsible procreation and child-rearing—petitioners’ central claimed justification for the initiative—but instead on impermissible prejudice. As the court of appeals observed (Pet. App. 87a), that is not necessarily to say “that Proposition 8 is the result of ill will on the part of the voters of California.” ‘‘Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.” Board of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J., concurring). Prejudice may not, however, be the basis for differential treatment under the law.

In short, the administration certainly doesn’t suggest there is a full “due process” right for gays and lesbians to marry in all 50 states. It doesn’t address the due process argument at all. In its view, the only thing the Court needs to do to resolve the case is to review it under a heightened level of judicial scrutiny and determine that Prop 8 is not substantially related to an important government objective.

This would very likely require marriage in at least eight states currently. But the application of heightened scrutiny itself will eventually, inevitably, affect more states. The brief is an extension of the views of the Solicitor General in Windsor: the stated objectives are invalid whether it’s a federal or state law. And heightened scrutiny should be applied in both cases. So, objectively speaking, while the administration’s view would not strike down bans in all fifty states this coming June, if their view is accepted, marriage bans will likely not last too much longer. The reasons for the bans track very closely in all states, and under this approach, those reasons are clearly suspicious.


  • 1. Scottie Thomaston: Solici&hellip  |  March 15, 2013 at 2:43 pm

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