With an eye to persuading Justice Kennedy, Prop 8's supporters finally have laid out the best version of their argument.
It has been 1,515 days since November 4, 2008. That's the day California voters approved Proposition 8, the ballot initiative designed to end the Golden State's heralded experiment with same-sex marriage. During that time, Prop 8 has been forcefully challenged as a violation of the equal protection and due process clauses of the Constitution, has been the subject of a one-sided bench trial, has twice been declared unconstitutional, and has been accepted for review by the justices of the United States Supreme Court. And during all that time it has never really enjoyed a coherent defense. Until now.
On Tuesday, the first substantive brief was filed in Hollingsworth v. Perry, the Prop 8 case now under review by the Supreme Court. The document was filed by lawyers representing a group of citizens who took over the case after California's elected officials refused to continue to defend the measure. I'm still not convinced that their arguments are going to persuade Justice Anthony Kennedy to save Prop 8. And without his vote the measure is doomed. But these are about the best legal arguments that can be offered in support of this dubious measure, and they are laid out more impressively here than I have yet seen while covering this case.
To prevail, foes of same-sex marriage must convince at least five justices -- and especially Justice Kennedy -- that this case is different from three other Supreme Court decisions.
Here is the link to the brief. For our purposes, the most important passage -- an example of strong legal writing -- comes at pages 20 through 26, and I suggest you take the time to read all seven pages. The gist of this text is likely to animate the Prop 8 case from here on in, through oral argument in late March to the decision in late June. And the rhetoric contained here surely poses a new challenge to the initiative's famous foes, lawyers David Boies and Ted Olson, who until now have largely won the legal war in court over Prop 8 as well as the public relations war beyond it.
To begin their argument, Prop 8's supporters make a point upon which most everyone in the country can agree. The question of same-sex marriage, they tell the justices, "implicates the most profound social, philosophical, religious, moral, political, and legal values of the People." And since "the People" are engaged in resolving the question, the best place for that debate is in the voting booth and not behind a bench. "No precedent or established constitutional precept justifies federal judicial intervention into this sensitive democratic process," the petitioners write.
To prevail, foes of same-sex marriage must convince at least five justices -- and especially the aforementioned Justice Kennedy -- that this case is different from three other Supreme Court decisions that recognized either broader marriage rights or protections from discrimination based upon sexual orientation. There is Lawrence v. Texas, in which the court in 2003 struck down Texas' sodomy law. There is Romer v. Evans, in which the court in 1996 struck down Colorado's anti-gay discrimination law. And there is Loving v. Virginia, in which the court in 1967 struck down Virginia's anti-miscegenation statute.
Justice Kennedy wrote the majority decision in Lawrence, so opponents of same-sex marriage must first convince him that the principles in it do not apply here. Prop 8 is different from the Texas sodomy statute, the petitioners write, "because the people of California by passing the ballot initiative 'have not even discouraged, let alone criminalized, any private behavior or personal relationship.'" They write:
This Court has long recognized that "[t]here is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy." Maher v. Roe, 432 U.S. 464, 475 (1977); see also Christian Legal Soc'y v. Martinez, 130 S.Ct. 2971, 2989 n.17 (2010) (emphasizing "the distinction between state prohibition and state support"). Indeed, as the California Court of Appeal aptly put it, "[t]he right to be let alone from government interference is the polar opposite of insistence that the government acknowledge and regulate a particular relationship, and afford it rights and benefits that have historically been reserved for others." (citations omitted by me)
You can see in this passage the echoes of the conservative argument marshaled last year against the Patient Protection and Affordable Care Act. This is a version -- from a different part of the Constitution, of course -- of the action/inaction dichotomy which helped convince all five of the court's conservatives to strike down the Affordable Care Act under the Commerce Clause. Surely this is not an accident. The problem with this argument, of course, is that Prop 8 was very much an "action" by the majority which sought to strip away existing same-sex marriages which had been lawfully performed under court order.
Justice Kennedy also wrote the majority opinion in the Romer case -- one of the most passionate he has ever written, and one which is unmistakable in its support for the rights of gays and lesbians to be free from official discrimination. So Prop 8's supporters next seek in their brief to convince him that their case is not like the Romer case. The Colorado case, they write, involved a "'sweeping' and 'unprecedented' political disability on all individuals identified 'by a single trait," thus effectively deeming 'a class of persons a stranger to its laws.'" (citations omitted by me). Prop 8 isn't like that, they contend, because:
For one thing, although California has restored the traditional definition of marriage, it has not in any other way altered or eliminated the numerous laws that provide gays and lesbians in California what that State's largest statewide advocacy organization for gays and lesbians acknowledges are "some of the most comprehensive civil rights protections in the nation."
This is the argument that Prop 8 isn't really discriminatory; that it's designed only to reflect the voters' wish to preserve "traditional" marriage by limiting it to heterosexual couples. I bet that a great deal of the oral argument will turn here, on whether and to what extent California's ban on same-sex marriage is akin to Colorado's Amendment 2, which prohibited any state measures designed to protect gays and lesbians from discrimination. The question today is, which justice will ask one of these lawyers to explain why a same-sex couple in California whose marriage would be invalidated by Prop 8 shouldn't feel discriminated against?
Our petitioners' passage next takes on Loving v. Virginia, a case about two consenting adults who were refused by law from marrying. A case which, for obvious reasons, has always been a big part of the same-sex marriage fight. In the Loving case, Prop 8's lawyers write, Virginia "embraced explicit 'racial discrimination' of the sort 'it was the object of the Fourteenth Amendment to eliminate.'" The Prop 8 case isn't about race, the lawyers argue, and neither Loving nor the Supreme Court's segregation decision in Brown v. Board of Education "provides any support for judicial restructuring the vital social institution of marriage."
Finally, the petitioners come to the heart of what same-sex marriage foes long have argued in this case. It is this next argument which turned so devastatingly against Prop 8's supporters when it was offered up, without much supporting evidence, in the trial court of U.S. District Judge Vaughn Walker, the Bush I appointee who practically begged the lawyer defending Prop 8 to introduce more and better evidence in support of his case. From the new brief:
Marriage is thus inextricably linked to the objective biological fact that opposite-sex couples, and only such couples, are capable of creating new life together and, therefore, are capable of furthering, or threatening, society's existential interests in responsible procreation and childrearing. That fact alone is dispositive of Respondents' equal protection claim, for this Court's precedents make clear that a classification will be upheld when "the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not."
I added the emphasis above because the courts below seem to have so thoroughly discredited this argument -- which was never adequately supported by any compelling evidence offered up by the initial team of lawyers who defended Proposition 8. For example, Judge Walker, in his lengthy vivisection of the constitutional arguments supporting Prop 8, on his way toward producing a ruling which declared that there was no rational basis for depriving gay couples of the right to marry, offered up this nugget:
At oral argument on proponents' motion for summary judgment, the court posed to proponents' counsel the assumption that "the state's interest in marriage is procreative" and inquired how permitting same-sex marriage impairs or adversely affects that interest. Doc #228 at 21. Counsel replied that the inquiry was "not the legally relevant question," id, but when pressed for an answer, counsel replied: "Your honor, my answer is: I don't know. I don't know." Id at 23. Despite this response, proponents in their trial brief promised to "demonstrate that redefining marriage to encompass same-sex relationships" would affect some twenty-three specific harmful consequences. Doc #295 at 13-14.
At trial, however, proponents presented only one witness, David Blankenhorn, to address the government interest in marriage. Blankenhorn's testimony is addressed at length hereafter; suffice it to say that he provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate. During closing arguments, proponents again focused on the contention that "responsible procreation is really at the heart of society's interest in regulating marriage." Tr 3038:7-8. When asked to identify the evidence at trial that supported this contention, proponents' counsel replied, "you don't have to have evidence of this point." Tr 3037:25-3040:4.
In other words, what the petitioners themselves now call the single "dispositive fact" on which the Prop 8 case is based is itself based upon no credible evidence offered at trial. Justice Sotomayor, the former trial judge, surely will ask Prop 8's lawyers to explain this. And Justice Elena Kagan will likely jump out of her chair wondering why, if the state's interest in marriage is procreation, no state requires married couples to procreate or forbids non-married couples from having children.
But don't be fooled. It's Justice Kennedy who counts here -- and this first brief is vivid proof that same-sex marriages most ardent foes know it.