Box Turtle Bulletin

Obama Administration Files Brief Asking Supreme Court To Strike Down Prop 8

The U.S. Department of Justice met today’s deadline for filing an Amicus brief urging the U.S. Supreme Court to strike down California’s Proposition 8 as unconstitutional. U.S. Solicitor General Donald Verrilli opens the administration’s case against Prop 8 by arguing that because California law already provides all-but-marriage in the form of Domestic Partnerships, withholding the designation of marriage does nothing to further governmental interests:

Private respondents, committed gay and lesbian couples, seek the full benefits, obligations, and social recognition conferred by the institution of marriage. California law provides to same-sex couples registered as domestic partners all the legal incidents of marriage, but it nonetheless denies them the designation of marriage allowed to their opposite-sex counterparts. Particularly in those circumstances, the exclusion of gay and lesbian couples from marriage does not substantially further any important governmental interest. Proposition 8 thus violates equal protection.

It is on this point — that while California provides all of the benefits of marriage to everyone, only straight people get to call themselves “married” under the law — that Virrelli appears to suggest that many other states are also running afoul of equal protection for the same reason:

California is not alone in this regard. Seven other states provide, through comprehensive domestic partnership or civil union laws, same-sex couples rights substantially similar to those available to married couples, yet still restrict marriage to opposite-sex couples: Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island. The designation of marriage, however, confers a special validation of the relationship between two individuals and conveys a message to society that domestic partnerships or civil unions cannot match.

Proposition 8’s denial of marriage to same-sex couples, particularly where California at the same time grants same-sex partners all the substantive rights of marriage, violates equal protection. The Fourteenth Amendment’s guarantee of equal protection embodies a defining constitutional ideal that “all persons similarly situated should be treated alike.” The object of California’s establishment of the legal relationship of domestic partnership is to grant committed same-sex couples rights equivalent to those accorded a married couple. But Proposition 8, by depriving same-sex couples of the right to marry, denies them the “dignity, respect, and stature” accorded similarly situated opposite-sex couples under state law, and does not substantially further any important governmental interest. It thereby denies them equal protection under the law. [References omitted]

Depending on how the Supreme Court rules, one can imagine other court challenges emerging in other states using many of the same arguments Virrelli makes in this brief.

Virrelli argues, as he did in the merits brief for U.S. v. Windsor, that “classifications based on sexual orientation call for application of heightened scrutiny, and that Prop 8 fails under that test. (In fact, just about all of the arguments made in this brief neatly parallel those made in the brief for Windsor.) As an interesting example of one of the ways in which Prop 8 fails that test, Virrelli points to the California Voter Guide:

To the extent the Voter Guide offered a distinct ra-tionale favoring child-rearing by married opposite-sex couples, Proposition 8 neither promotes that interest nor prevents same-sex parenting. The overwhelming expert consensus is that children raised by gay and lesbian parents are as likely to be well adjusted as chil-dren raised by heterosexual parents. In any event, notwithstanding Proposition 8, California law continues to grant same-sex domestic partners the full extent of parental rights accorded to married couples. In that context, the exclusion of same-sex couples from marriage bears no substantial relation to any interest in promoting responsible procreation and child-rearing. [References omitted]

By pointing to the Voter Guide, Virrelli hints toward the argument, which was part of the Federal District Court ruling, that Proposition 8 was the product of anti-gay prejudice. Virelli, again citing the Voter Guide, went on to build the foundation for that case:

First, preserving a tradition of limiting marriage to heterosexuals is not itself a sufficiently important interest to justify Proposition 8. … Nor do petitioners point to any evidence that permitting same-sex couples to marry will affect the “traditional” marriages of opposite-sex couples.

Second, protecting children from being taught about same-sex marriage is not a permissible interest insofar as it rests on a moral judgment about gay and lesbian people or their intimate relationships. See Lawrence v. Texas, 539 U.S. 558, 577-578 (2003). Nor does Proposition 8 substantially further any such interest given California’s educational policies, which have never required teaching children about same-sex marriage and which prohibit instruction that discriminates based on sexual orientation.

Incidentally, the brief also includes, I think, one of the pithiest arguments against the contention that procreation makes marriage between opposite-sex couples unique:

Petitioners contend (Br. 33) that the “overriding purpose of marriage” is “to regulate sexual relationships between men and women so that the unique procreative capacity of such relationships benefits rather than harms society.” Based upon that premise, petitioners centrally defend Proposition 8 on the ground that “traditional” marriage serves to address the problem of “unintended pregnancies.” … As this Court has recognized, marriage is much more than a means to deal with accidental offspring… Petitioners’ unduly narrow conception of the institution of marriage would hardly be recognizable to most of its participants.

Virelli then comes to this conclusion — which includes a timely shout-out to Justice Kennedy, who is believed to be the swing vote on this issue:

California’s extension of all of the substantive rights and responsibilities of marriage to gay and lesbian domestic partners particularly undermines the justifications for Proposition 8. It indicates that Proposition 8’s withholding of the designation of marriage is not based on an interest in promoting responsible procreation and child-rearing — petitioners’ central claimed justification for the initiative — but instead on impermissible prejudice. As the court of appeals observed (Pet. App. 87a),that is not necessarily to say “that Proposition 8 is the result of ill will on the part of the voters of California.” ‘Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful,rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.” Board of Trs. of Univ.of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J.,concurring). Prejudice may not, however, be the basis for differential treatment under the law.