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CA Attorney General Brief: Prop 8 Violates 14th Amendment

Jim Burroway

June 13th, 2009

What a contrast between the California Attorney General and the U.S. Department of Justice. On the same day in which the Obama administration filed a brief before the U.S. Supreme Court defending the so-called “Defense of Marriage Act, California Attorney General Jerry Brown filed a very different brief in Perry v. Schwarzenegger, the Prop 8 challenge brought by Ted Olson and David Boies.

In the brief filed on behalf of the State of California (PDF: 128KB/11 pages), Brown notes that:

The Attorney General of California is sworn to uphold the Constitution of the United States in addition to the Constitution of the State of California. Cal. Const., art. XX, § 3. The United States Constitution is the “supreme law of the land.” Taking from same-sex couples the right to civil marriage that they had previously possessed under California\’s Constitution cannot be squared with guarantees of the Fourteenth Amendment. Accordingly, the Attorney General answers the Complaint consistent with his duty to uphold the United States Constitution, as Attorney General Thomas C. Lynch did when he argued that Proposition 14, passed by the California voters in 1964, was incompatible with the Federal Constitution.

The complaint filed by Olson and Boies (PDF: 140KB/11 pages) is broken down into forty-nine paragraphs. The response by the Attorney General addresses each of the numbered paragraphs in the original complaint. The response begins with a stipulation that California’s Domestic Partnerships are not equal to civil marriage and therefore violates the Fourteenth Amendment to the U.S. Constitution”

In response to paragraph 1 of the Complaint, the Attorney General admits that in November 2008 California adopted Proposition 8; that Proposition 8 amended Article I of the California Constitution by adding section 7.5 which provides that “[o]nly marriage between a man and a woman is valid or recognized in California;” and that the effect of Proposition 8 is to deny gay men and lesbians and their same-sex partners access to civil marriage in California and to deny them recognition of their civil marriages performed elsewhere. The Attorney General admits that lesbians and gay men and their same-sex partners may form domestic partnerships in California pursuant to California Family Code sections 297 through 299.6, and that such domestic partnerships are not equal to civil marriage, and that this unequal treatment denies lesbians and gay men rights guarantees by the Fourteenth Amendment to the United States Constitution.

…In response to paragraph 7 of the Complaint, the Attorney General admits that Proposition 8 denies same-sex couples the right to civil marriage in California, and that it therefore violates the Fourteenth Amendment to the United States Constitution.

…In response to paragraph 23 of the Complaint, the Attorney General admits that California\’s domestic partnership law gives same-sex couples many of the substantive legal benefits and privileges that California civil marriage provides; that the domestic partnership law does not permit the marriage of same-sex couples; and that the California Supreme Court has noted at least nine ways in which statutes concerning marriage differ from corresponding statutes concerning domestic partnerships.

Brown describes the reasons that gays and lesbians should be treated as a suspect class deserving of equal protection:

…In response to paragraph 20 of the Complaint, the Attorney General admits that sexual orientation is a characteristic that bears no relation to a person\’s ability to perform or contribute to society and that the sexual orientation of gays and lesbians has been associated with a stigma of inferiority and second-class citizenship, manifested by the group\’s history of legal and social disabilities.

Brown also invokes Loving v. Virginia, the 1967 U.S. Supreme Court ruling which struck down laws banning marriage between people of different races:

In response to paragraph 35 of the Complaint, the Attorney General admits that the United States Supreme Court found in Loving v. Virginia, 388 U.S. 1. 12 (1967), that the “freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”

The brief then addresses the Due Process claims:

In response to paragraph 38 of the Complaint, the Attorney General admits that, to the extent that Proposition 8 took from Plaintiffs their previously held fundamental right to marry, the measure violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution on its face.

…In response to paragraph 39 of the Complaint, the Attorney General admits that, to the extent that Proposition 8 took from Plaintiffs their previously held fundamental right to marry, the measure violates the Due Process clause of the Fourteenth Amendment to the United States Constitution on its face; and that by denying civil marriage to gay and lesbian same-sex couples that it affords to heterosexual opposite-sex couples, the California Constitution denies gay and lesbian couples and their families the same dignity, respect, and stature afforded families headed by a married couple.

And the Equal Protection claims:

In response to paragraph 42 of the Complaint, the Attorney General admits that Proposition 8 restricts civil marriage in California to opposite-sex couples; that gays and lesbians are therefore unable to enter into a civil marriage with the person of their choice; that the California Constitution treats similarly-situated persons differently by providing civil marriage to opposite-sex couples, but denying it to same-sex couples; that domestic partnership under California law is available to same-sex couples, but is not the equivalent of civil marriage; that even if domestic partnership were the substantive equivalent to civil marriage, it would still be unequal to deny civil marriage to same-sex couples because, as recognized by the California Supreme Court in In re Marriage Cases, domestic partnership would carry with it a stigma of inequality and second-class citizenship; that under the California Constitution, gay and lesbian same sex couples are unequal to heterosexual opposite sex couples; and that article I, section 7.5 of the California Constitution discriminates on the basis of sexual orientation.

This is an exceptional brief, absent all of the pernicious anti-gay ramblings of the Obama administration’s brief before the U.S. Supreme Court. After reading the DOJ brief yesterday, this one was a breath of fresh air. Look at these two briefs side-by-side. It will be clear that only one was written by a “fierce advocate” for the Constitutional principles of Due Process and Equal Protection.



Richard W. Fitch
June 13th, 2009 | LINK

It is historically significant to note that yesterday (Jun 12) was the 42nd anniversary of SCOTUS decision in Loving v. Virginia. Here is a portion of the statement made by Mildred Loving on the 40th anniversary in 2007:
“Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.
I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.”

John B.
June 13th, 2009 | LINK

I hope this is the David Boies that represented Al Gore and took on Microsoft, not the David Boies that defended Fastow and worked with the SCO Group. I prefer the anti-trust Boies, not the big-business shill Boies.

Richard W. Fitch
June 13th, 2009 | LINK

This the link to the Larry King segment with Ted Olson and David Boies who were opponents in the Bush-Gore ballot dispute. There is heated discussion around as to whether this is “the right time” to bring this before SCOTUS. These two make good points for not waiting and clear reasons why it must be addressed at the federal level, not just state-by-state

Regan DuCasse
June 14th, 2009 | LINK

This goes to show that this isn’t just about marriage, but EVERYTHING.

Once the opposition posits gay people as requiring the status of children, but doesn’t give this same group the capability, right or respect to respond with emotions and feeling that any normal human would, we know what is in store and we’ve seen other citizens treated in this same manner.

This is absolutely a civil rights issue.
This is not defense of sexuality, but defense of one’s HUMANITY.
Which IS what our nation’s creed and mission statement is about and we SHOULD hold it accountable.

And when the opposition insists it IS about defense of a sexuality they don’t understand, they fail to admit or acknowledge that when all civil rights are lost BECAUSE of sexual orientation, not any OTHER reason, then of course THEY define gay people by sex and nothing else.

It’s exhausting and so unfair to even have to defend ANYTHING on so basic a level.
But this is something that black folks and women and Jews know well.
Because the opposition takes so much away for so superficial a reason, and WE defend the one thing that shouldn’t have to be defended for civil rights in the first place.

History is already revealing how right we are.

June 15th, 2009 | LINK

Support sex, and gender education for children! Religious zealots support lies, and homophobia, as sex eduction.

Ben in Oakland
June 15th, 2009 | LINK

Regan– ang on. as always, a thoughtful and complete response.

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