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Analysis: The Prop 8 proponents’ final Supreme Court brief strikes familiar notes

Briefs Prop 8 Prop 8 trial Supreme Court

Steve Rhodes
Charles Cooper, lead attorney for the Prop 8 proponents.

By Jacob Combs

Here’s to attorney Charles Cooper’s final Supreme Court brief on behalf of the official ballot proponents of Proposition 8 in defense of the law’s constitutionality. I sincerely hope it’s the last piece of his writing I ever have to read.

To be fair, Cooper is a very, very good lawyer.  He has a way with words both in writing and during oral argument, as he demonstrated in December 2011 during the impassioned and histrionic conclusion to his appearance before the Ninth Circuit in the Prop 8 case (known at the Supreme Court as Hollingsworth v. Perry):

“If this Court says what they [the plaintiffs challenging Prop 8] urge you to say, this will be a signal and dark day in American jurisprudence.”

(In response to that remark, Judge Reinhardt, who would go on to pen the Ninth Circuit ruling invalidating Prop 8, responded wryly, “Thank you, Mr. Cooper.  Well, let’s hope, however it comes out, that it won’t be a dark day.”)

As Cooper’s most recent Supreme Court brief demonstrates, though, the proponents of Prop 8 don’t really have any new arguments to make in defense California’s marriage equality ban.  Cooper is left to rely instead on lawyerly twists and evasions in order to make the law look as though it supports the constitutionality of Prop 8.  In light of this, Cooper’s plaintiffs–and the legal argument they’re trying to make–may have a tough day in court next Tuesday.

One need look no further than page 3 of Cooper’s new brief to see this kind of trickery in action.  Responding to the arguments presented to the Supreme Court by the lawyers for the two couples challenging Prop 8, Cooper hammers home the “unique procreative potential of male-female unions,” an argument he has made many times before in defense of Prop 8 which essentially boils down to the idea that states can limit marriage to opposite-sex couples because only these couples (and not same-sex couples) experience accidental pregnancies.

Plowing ahead along these lines, Cooper writes that “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.'”

That last quotation–‘fundamental to our very existence and survival’–is a line from Loving v. Virginia, one of the Supreme Court’s most significant decisions, which held in 1967 that state laws prohibiting marriage between interracial partners was unconstitutional.  Cooper’s sly framing of this line makes it seem like the Loving quotation–one repeated innumerably by LGBT advocates who see a historical connection between miscegenation bans and marriage equality prohibitions–is about procreation and the idea that marriage is literally ‘fundamental to our very existence and survival’ because it helps the human race from running out.

But when viewed in its full context, this resonant line from Chief Justice Earl Warren’s decision in Loving bears little resemblance to Cooper’s argument:

“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival…. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”

Warren’s ruling underscores that marriage is a fundamental right because it is an aspect of personal liberty that involves intimate, personal decisions that should not be infringed upon by the state.  Marriage is ‘fundamental to our very existence’ because it is an exercise of personal agency, not just because it involves procreation.

This kind of logical slipperiness pervades Cooper’s brief.  His brief cites the 1972 case Baker v. Nelson, a challenge to Minnesota’s refusal to grant a marriage license to a same-sex couple that was summarily dismissed in a one-sentence order by the Supreme Court “for want of a substantial federal question.”  In Cooper’s reading, Baker essentially forecloses the need for the Supreme Court to consider the Prop 8 plaintiffs’ claims:

Baker v. Nelson … was brought by a same-sex couple who challenged Minnesota’s gendered definition of marriage and, relying primarily on Loving, raised the same equal protection and due process claims raised here [in the Prop 8 case].  This Court (including four Jusices who joined the decision in Loving) denied those claims on the merits, summarily and unanimously.”

Again, Cooper’s contention here is tenuous at best.  Cooper is correct in his assertion that the plaintiffs in Baker raised equal protection and due process claims as do the plaintiffs in the Prop 8 case.  But upon a closer look, the Perry claims are clearly not “the same” as the Baker claims, as Cooper would have the Court believe.

In regard to the specifics of the equal protection question, the Baker plaintiffs argued that Minnesota’s laws constituted discrimination on the basis of sex (since, for example, it prohibited men from marrying men but allowed women to do so).  The Perry plaintiffs argue that Prop 8 discriminates on the basis of sexual orientation, since it targets gays and lesbians but not heterosexuals.  This is a subtle but hugely significant distinction that makes a big difference in terms of the jurisprudence that courts must rely on to make a final determination regarding the law’s constitutionality.

Cooper’s claim that the Supreme Court “denied those [the Baker] claims on the merits” is even slimier.  Yes, Supreme Court procedure in 1972 held that summary dismissals of appeals hold precedential weight.  But that procedure has changed in the meantime, and courts are only supposed to view such summary dismissals as controlling when the circumstances of a new case are virtually identical to the appeal that was dismissed.

Baker and Perry are different for myriad reasons, foremost amongst them the facts that gay sex was a crime in Minnesota when Baker was decided but had been recognized as constitutionally protected by the time Perry was argued.  Just as importantly, Minnesota provided no legal rights or benefits to same-sex couples in 1972, while California provided same-sex couples all the rights of marriage without the name in 2009.

As for the idea that the Supreme Court decided the Baker challenge “unanimously,” calling an unsigned, one-sentence opinion a unanimous decision is just plain silly.

In many ways, the Supreme Court’s eventual decision on the constitutionality of Prop 8 may very well reside on the level of constitutional scrutiny with which it considers the law.  Cooper and his clients have long maintained that Prop 8 should be considered under the most deferential form of review, rational basis scrutiny, which he asserts once again in his new brief.  However, perhaps in anticipation of the possibility that the Court could rely instead on a more searching heightened scrutiny test, he endeavors to make a startling new argument in favor of multiple levels of scrutiny for laws pertaining to gays and lesbians:

“This fundamental biological distinction [between same-sex and opposite-sex couples] goes to the heart of the State’s interest in marriage and calls for rational-basis review here, regardless what level of scrutiny may apply to sexual-orientation classifications in other contexts.”

Cooper is essentially saying that while perhaps most laws that classify on the basis of sexual orientation should be subject to heightened scrutiny, Prop 8 should only be considered under the rational basis test because it pertains (so he argues) to procreation.  How any two laws which single out a class of individuals based on one defining characteristic can be viewed through two different judicial lenses–regardless of any other mitigating circumstances–is a bit of a mystery.

But Cooper soon finds himself back on more familiar terrain, arguing that gays and lesbians do not merit heightened scrutiny because sexual orientation is not immutable and because “gays and lesbians command the attention of lawmakers both in California and nationally.”

Charles Cooper’s fancy rhetoric and logical flourishes cannot hide the fact that his legal arguments are only obliquely related to the facts surrounding the Prop 8 case at best and inflated and even erroneous at worst.  As he writes in his brief to the Supreme Court, “Plaintiffs’ reading of this Court’s marriage cases is plainly wrong.”  If only he understood the true irony of those words.


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