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Prop 8 proponents file final reply brief with Supreme Court

The proponents of Proposition 8 file their final Supreme Court brief in the Hollingsworth v. Perry case, just one week before oral arguments are scheduled at the Supreme Court.  The proponents’ filing comes in response to the brief filed against Prop 8’s constitutionality by the plaintiffs challenging the law.

In their reply brief, the proponents flatly deny the plaintiffs’ claims that marriage is about more than just procreation:

“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.'”

As in their opening brief with the Supreme Court, the plaintiffs stress the importance of ‘responsible procreation’ to society, arguing that marriage’s central purpose 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.”

States can limit marriage to opposite-sex couples only, they argue, “because society prefers married opposite-sex couples without children to children without married mothers and fathers.”  The proponents also respond to the plaintiffs’ contention that the ‘responsible procreation’ argument could be used to prohibit infertile opposite-sex couples from marrying, writing that it is in the state’s interest to “encourage[] marriage for all (otherwise eligible) heterosexual relationships, including those relatively few that may not produce offspring.”

Finally, the proponents brief addresses the issue of the proper level of constitutional scrutiny the Supreme Court should apply to laws like Prop 8 which ban same-sex couples from marrying.  As in their previous briefs, the proponents assert that rational basis scrutiny, the lowest, most deferential form of review, should apply.  However, the proponents also make the unusual argument that the fact that opposite-sex couples can reproduce by natural means and same-sex couples cannot “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.”

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