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Prop 8 proponents file opening Supreme Court brief defending the law

The proponents of Prop 8 file their opening brief with the Supreme Court arguing that the California constitutional amendment which repealed marriage equality in the state does not violate the U.S. Constitution and should be upheld.

In their brief, the proponents first address the question of standing, writing that Supreme Court precedent allows states to determine whom they wish to authorize to represent their interests in federal court, and that federal courts usually defer to these state decisions.  Because of the fact that the California Supreme Court unanimously held that the proponents of Prop 8 have standing under California law to defend Prop 8, the proponents argue, the Supreme Court should allow them to defend the law in federal court as well.

Regarding the case’s central constitutional question on the merits of Prop 8, the proponents argue that the Ninth Circuit erred in relying on the Supreme Court case Romer v. Evans in its decision striking down Prop 8.  In Romer, the Supreme Court invalidated a Colorado constitutional amendment that prohibited all levels and branches of the state government from providing legal protections to gays and lesbians.

Prop 8, the Ninth Circuit held, similarly took away already existing protections from California’s gay and lesbian citizens without a rational reason for doing so.  Arguing against this interpretation of Romer, the proponents cite another Supreme Court case, Crawford v. Board of Education, writing, “a State is no less free to withdraw state constitutional rights that exceed federal constitutional requirements than it was to extend them (or not) in the first place.”

After arguing that Prop 8 should be considered under the rational basis review test, the most deferential level of judicial scrutiny, the proponents argue that Prop 8 passes this test because it represented an attempt by California to encourage ‘responsible procreation’:

“The animating purpose of marriage is not to prevent gays and lesbians from forming families and raising children.  Rather, it is to steer potentially procreative conduct into stable and enduring family units in order to increase the likelihood that children will be raised by the mothers and fathers who brought them into the world…. It is plainly rational for the State to make special provision through the institution of marriage to minimize the social risks uniquely posed by potentially procreative sexual relationships between men and women.”

Because opposite-sex couples differ from same-sex couples by the “biological reality” that only opposite-sex couples can procreate without assistance, Prop 8 does not violate the Constitution’s Equal Protection Clause, the proponents argue.  “Providing special recognition to one class of individuals does not demean others who are not similarly situated with respect to the central purpose of the recognition,” they write.  “It is simply not stigmatizing for the law to treat different things differently …  or to call different things by different names.”

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