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:
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.