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READ IT HERE: Prop 8 proponents’ final reply brief in Hollingsworth v. Perry

Marriage Equality Trials Prop 8 Prop 8 trial

By Scottie Thomaston

Today, the proponents of Prop 8 filed their final brief in the Perry case that’s set for oral arguments next week. You can read the brief here.

They write:

The truth is that Plaintiffs’ genderless, adult-centered understanding of marriage is a recent academic invention; its pedigree originates with the modern movement to redefine marriage to include same-sex couples. And because it deliberately severs the abiding connection between marriage and the unique procreative potential of male-female unions, Plaintiffs’ conception of marriage can offer no explanation whatever for why the institution is a ubiquitous, cross cultural feature of the human experience, nor why it is, as this Court has consistently emphasized, “fundamental to our very existence and survival.”

Interestingly, they suggest that the Supreme Court should certify the question of standing to the California state supreme court again:

Moreover, Petitioners submit that under California law they do have a unique, personal stake in the validity of Proposition 8 that is “directly affected” by this litigation.
[Footnote 1]: Neither the Ninth Circuit nor the California Supreme Court found it necessary to resolve this contention. See Pet. App.41a-42a. Accordingly, it may be appropriate again to certify this question to the California Supreme Court if this Court concludes that Petitioners, despite their established authority to represent the State’s interest, must also demonstrate personal injury to satisfy Article III.

Plaintiffs had pointed out that no state law related to marriage has ever required couples to be interested in or capable of reproductive activities. Proponents respond this way:

More important, the overriding societal purpose of marriage is not to ensure that all marital unions produce children. Rather, it is to channel the presumptive procreative potential of opposite-sex relationships into enduring marital unions so that if any children are born, they will be more likely to be raised in stable family units by both their mothers and fathers. In other words, because society prefers married opposite-sex couples without children to children without married mothers and fathers, it encourages marriage for all (otherwise eligible) heterosexual relationships, including those relatively few that may not produce offspring.

The proponents suggest that (unnamed) gay rights supporters want to gain the right to marry via the democratic process instead of via recognition that the United States Constitution allows it:

People throughout California, including many gay-rights supporters, believed that the momentous decision whether to redefine marriage should be made through the democratic process rather than imposed by a sharply divided court. Respondents’ arguments that the People’s insistence on democratic self-governance cannot justify discrimination against “discrete and insular minorities,” “experiment[s] with the fundamental liberties of citizens,” or “inflict[ing] a constitutional wrong,” simply beg the questions they raise here.

We will have more updates…

h/t Kathleen

Perry: Prop 8 Proponents' Reply Brief by EqualityCaseFiles


  • 1. Thom Watson  |  March 19, 2013 at 12:08 pm

    Interestingly, for the first time they seem to be admitting that public opinion is turning against them; the brief almost sounds more resigned than forceful. From the last paragraph of their introduction: “Although the constitutional case for a right to same-sex marriage thus lacks merit, the political case for redefining marriage has resonated with growing numbers of Americans in recent years, and has carried the day in several States. At the same time, the long-term implications of redefining marriage are profound, for they go to the basic nature of our civilization, and are still impossible to predict with confi-dence. It is therefore hardly surprising that the People of most States have decided, at least for now,not to redefine this bedrock social institution. Perhaps, their views will change as experience with same-sex marriage in other States matures. And perhaps not. But whether marriage should be redefined is for the People to decide.”

  • 2. NYlawyer  |  January 23, 2014 at 5:46 am

    Wow! Excellent article! This answered many questions. Thanks for taking time to put this into post. Keep up the good work!

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