Plantiff Files Prop 8 Brief For Supreme Court

[rockpond]

In light of the "marriage equality is a social experiment" argument...

Other social experiments from the past:

Democracy

Abolition

Miscegenation

Women's Suffrage

Polygamy

...to name a few.

[california boy]

The HUGE problem with your answer is that gay couples are not adopting children that have a mother and a father present in the home. In fact, they have neither a mother or a father willing to raise them. I know of no instance where a gay couple has adopted a child from a family where the mother and father were raising the child. So even if you can make a case that it is better for a child to be raised by both a mother and a father, it does not apply to the children gay couples are raising. And as you probably already know, studies have shown no difference in children being raised by a mother and a father and a same sex couple. So even if gay couples were stealing children from intact homes, you have no data supporting your premise.

The only question for you is "do you think it is in the best interest of the children to be raised in a relationship where a marriage commitment has been made, or do you think it is better for children to be raised in families that have not made a marriage commitment. That is the reality of the group of children we are talking about.

[california boy]

President Obama Asks Supreme Court to Strike Down Prop 8 And More: An ANALYSIS of the Brief

BY ARI EZRA WALDMAN

Ten years ago, the Supreme Court decided Lawrence v. Texas, striking down sodomy criminalization laws. Justice Kennedy's opinion in that case is the most important and sweeping gay rights decision in history; that is, until this June -- almost ten years to the day -- when the Court will decide Hollingsworth v. Perry (the Prop 8 case) and Windsor v. United States (the DOMA case).

In Lawrence, the most exciting supportive amicus brief filed came from the Cato Institute, which usually supports Republican and conservative policies. Cato's support should not really have been surprising, though, given its libertarian leanings. Hollingsworth has its pro-gay marriage Republicans, more than 100 of whom signed on to their own amicus brief. Then came a sweeping filing from the United States government, the importance of which cannot be overstated. Amicus briefs are sometimes a dime a dozen: lots of individuals and groups file "friend of the court" briefs and, especially if all they do is restate the argument of the main briefs, neither the justices nor their clerks pay much attention to them. But, when the President makes his voice heard, he commands attention. As a co-equal branch of the federal government, the Executive branch's position on any legal issue before the Supreme Court merits consideration as a firm statement of public policy.

President Obama and his legal team ask the Supreme Court for three things: (1) heightened scrutiny for discrimination on the basis of sexual orientation, (2) a declaration that California's Prop 8 is unconstitutional, and, by implication from that argument, (3) an end to several other states' bans on same-sex marriage. It is the third point that is getting lost in some of the coverage of the Administration's amicus brief and what I would primarily like to talk about today.

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The Administration's brief argues two related legal points: That Prop 8, like all other state discrimination on the basis of sexual orientation, deserves heightened scrutiny, and that Prop 8 fails to meet the requirements of the Equal Protection Clause under that standard.

Note two things right off the bat. First, whereas the President's brief argues that Prop 8 violates equal protection, AFER's brief argues that Prop 8 violates the Equal Protection Clause and the Due Process Clause. As will become clear in a moment, this gives the President's brief a significantly narrower reach. Second, the President dismisses the lowest form of scrutiny -- rational basis -- and argues only under a heightened scrutiny standard. Scrutiny levels are akin to the height of a hurdle that you have to jump over during a race: the higher the hurdle, the harder it is for you to win. By focusing only on heightened scrutiny, the President's brief may be implying that the President is taking no position on whether Prop 8 could survive rational basis. By contrast, if you recall Judge Vaughn Walker's original district court decision striking down Prop 8, he held that Prop 8 failed under any level of scrutiny.

The President's heightened scrutiny argument is familiar; it is, in fact, the same argument it submitted in its Windsor brief, calling for the Court to strike down Section 3 of DOMA. Anti-gay discrimination deserves heightened scrutiny, i.e., the higher hurdle to jump, because (1) gays have been discriminated against throughout history, (2) being gay has no bearing on a person's ability to contribute to society, (3) anti-gay discrimination is based on a defining, deeply personal characteristic that defines gay persons as a group (this is sometimes erroneously referred to as the "immutability requirement"), and (4) despite political progress, gays are still a minority group with limited political power.

All of that is true and the Obama Administration has been arguing this point with great force ever since Stuart Delery (left), the openly gay Principal Deputy Assistant Attorney General, and his team started arguing against DOMA at the intermediate courts of appeal. You might be worried about the fourth requirement -- sometimes erroneously referred to as the "political powerlessness" requirement -- given that the President is openly on our side. Justices Scalia and Thomas are notorious adherents to the fallacy that a few victories and some progress at the ballot box show that gays are not politically powerless, for example. However, powerlessness is not the shibboleth of this test. As Prop 8, and the multitude of other state bans on the freedom to marry suggest, the gay community cannot hope to realize its constitutional rights with a political strategy alone. That Sean Patrick Maloney just won a seat in Congress or that Tammy Baldwin is our first openly gay senator are red herrings: a gay leader or a gay victory here and there have no effect on the tyranny of the majority.

The Administration's equal protection argument may not be as familiar, though I discussed it on Towleroad more than two years ago. AFER's brief argues that bans on the freedom to marry violate equal protection because, pursuant to Prop 8 and other similar bans, some couples can get married and some cannot and the only reason why some cannot is because the individuals seeking to marry happen to be of the same sex. That argument could apply to any ban on same-sex marriage.

President Obama's argument appears to blend this broad equal protection argument with parts of the Ninth Circuit's decision below. Recall that the Ninth Circuit issued a narrow decision centered on the fact that Prop 8 took away rights previously granted to gay people, much like Colorado did in Romer v. Evans. What Prop 8 did, the Court said, was narrow yet profound: it only took away the word "marriage," but left intact the slew of California laws that allowed gays to adopt, gave them all the state benefits of marriage through domestic partnerships, and so on. Denying gays the social significance of the word "marriage" was particularly irrational because keeping all those other pro-gay California laws made Prop 8 bald discrimination for discrimination's sake.

This is the heart of President Obama's argument.

He argues that Prop 8 fails heightened scrutiny because none of the justifications offered by proponents, either in their briefs or at any time before, are "substantially related to an important government interest" (the high hurdle). For example, Prop 8 cannot be justified as a way of protecting against opposite-sex couples having "unintended pregnancies" out of wedlock because not allowing gays to marry does not encourage heterosexuals to marry. Nor can it be justified as a way of encouraging the "optimal parenting arrangement" because "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 of same-sex couples from marriage bears no substantial relation to any interest in promoting responsible procreation and parenting."

In other words, if all Prop 8 did was deny gay couples the word "marriage," but still allowed them to raise kids, establish families, and enjoy the benefits of marriage, Prop 8 is entirely pointless and certainly not substantially related to the goal of encouraging good parenting.

The central implication of this position is that it stakes out a middle ground between AFER's broad argument that all bans on same-sex marriage violate equal protection and due process and the Ninth Circuit's argument that Prop 8 violates the Constitution because it took away rights previously granted. AFER's argument could apply nationwide -- anywhere couples are denied the right to marry simply because they are gay, their fundamental right to marry is impinged. The Ninth Circuit's argument only applies to California, which first granted then took away marriage rights.

[california boy]

On the the real reasons why it is important for people to read and compare these briefs is because when the Supreme Court rules against Prop 8. as most people feel they will, there shouldn't be a cry of activists judges if you educate yourself on what the real legal arguments are.. There are real legal constitutional issues that make Prop 8 a law that should be banished. Eventually gay marriage will be legal in the entire United States for those same constitutional issues. Whether this very conservative Supreme Court makes that broad of ruling at this time is probably a long shot.

[cdowis]

The HUGE problem with your answer is that gay couples are not adopting children that have a mother and a father present in the home. In fact, they have neither a mother or a father willing to raise them.

Many states are beginning to allow adoptions by unmarried couples. http://www.nolo.com/...aq-29095-4.html

I know of no instance where a gay couple has adopted a child from a family where the mother and father were raising the child.

I note that you are quoting your personal knowledge as the source.

So even if you can make a case that it is better for a child to be raised by both a mother and a father, it does not apply to the children gay couples are raising. And as you probably already know, studies have shown no difference in children being raised by a mother and a father and a same sex couple.

As you probably know, such research is totally meaningless in the context of long-term effects. We need at least almost a generation to judge the effects.

So even if gay couples were stealing children from intact homes, you have no data supporting your premise.

Again, neither you nor I can predict the eventual consequences of SS couples raising children on society. We need decades if not generations to see the ultimate outcome.

The only question for you is "do you think it is in the best interest of the children to be raised in a relationship where a marriage commitment has been made, or do you think it is better for children to be raised in families that have not made a marriage commitment. That is the reality of the group of children we are talking about.

A better solution for these children is to create incentives for stable couples and families to adopt children, both financial and medical. Some corporations, such as Hewlett Packard, have such incentives, and other corporations and legislators can look at creative solutions, especially for hard to place children. Same sex parents is potentially a dysfunctional solution, a social experiment with potentially disastrous results.

[Zeta-Flux]

In light of the "marriage equality is a social experiment" argument...

Other social experiments from the past:

Democracy

Abolition

Miscegenation

Women's Suffrage

Polygamy

...to name a few.

To name a few more....

monarchy

slavery

no-fault divorce.

We've seen the effects of no-fault divorce on families. At the time it was billed as a positive thing. It wasn't.

If the evidence from the recent studies on homosexuals parenting children are a clue, we should at the very least be very cautious.

[rockpond]

To name a few more....

monarchy

slavery

no-fault divorce.

We've seen the effects of no-fault divorce on families. At the time it was billed as a positive thing. It wasn't.

If the evidence from the recent studies on homosexuals parenting children are a clue, we should at the very least be very cautious.

Yes... some experiments yield positive results, some yield negative results.

But, you, like cdowis, comment as if we are discussing whether or not gay couples can be parents. The already can and they are. Prop 8 is not about whether these couples can bear and/or raise children.

[cdowis]

Yes... some experiments yield positive results, some yield negative results.

But, you, like cdowis, comment as if we are discussing whether or not gay couples can be parents. The already can and they are. Prop 8 is not about whether these couples can bear and/or raise children.

If you go back to the thread, this is the argument presented by some of the advocates as if it were fact ("as you already know...etc". I am pointing out that this is an assertion, an assumption.

[Zeta-Flux]

But, you, like cdowis, comment as if we are discussing whether or not gay couples can be parents. The already can and they are. Prop 8 is not about whether these couples can bear and/or raise children.

I'm not sure I see the disconnect. Before no-fault divorce, people were also able to get divorces. Does that have any bearing on whether or not no-fault divorce had a negative impact on the marriage culture, and children in particular?

[rockpond]

I'm not sure I see the disconnect. Before no-fault divorce, people were also able to get divorces. Does that have any bearing on whether or not no-fault divorce had a negative impact on the marriage culture, and children in particular?

Okay, so what negative impact would legally recognized marriage have on a gay couples' ability to raise children?

[california boy]

If you go back to the thread, this is the argument presented by some of the advocates as if it were fact ("as you already know...etc". I am pointing out that this is an assertion, an assumption.

I am afraid it is a fact. Gay couples in California can adopt and raise kids whether they are allowed to marry or not. Do you think that this is not the case????

[california boy]

I thought you might get something out of this analysis of President Obama's brief.

The President's brief has two arguments. First, Prop 8, like the Defense of Marriage Act (DOMA) and any other government action that discriminates on the basis of sexual orientation, should get heightened scrutiny. Heightened scrutiny refers to the burden that proponents of discrimination have to carry in order for their law to pass constitutional muster. Think of it like hurdles on a track: the higher the hurdle, the fewer runners are going to make it over; the higher the scrutiny, the fewer laws are going to make it, as well. Second, Prop 8 fails heightened scrutiny because it denies the word "marriage" while leaving in tact California's progressive and otherwise equal family law regime that grants all possible rights (except "marriage") to gay persons.

This argument sounds good, but it simply doesn't logically follow. To see why, consider the hurdling analogy. Say you're a college track coach and you're running a tryout to pick the five best hurdlers. Fifty people show up to compete. If you keep the hurdles absurdly low, almost every runner will be able to pass the easy test while weeding out only the absolutely unqualified. As you raise the hurdle, more and more of the runners in the lower ranks are going to trip, fall, or fail to clear the bar. The same is true for the level of scrutiny: the higher the level of scrutiny, the more and more discriminatory laws are not going to pass the test.

The President is saying that if we accept heightened scrutiny, California's -- and presumably, Delaware's, Hawaii's, Illinois's, Nevada's, New Jersey's, Oregon's, and Rhode Island's -- bans on same-sex marriage fail. But, denying the word "marriage" while treating gays and their families equally in every other respect is just the most irrational thing a state can do. For example, you cannot, with a straight face, look a judge in the eye and say, "We don't think gays should marry because opposite-sex couples make the optimal parents," while at the same time allowing those very same gays to be parents! Nor can you rationally argue that bans on gay marriage encourage opposite-sex couples to have unplanned pregnancies within marriage when all you're doing is saying that gays cannot have the word "married" on their civil union certificate.

In other words, marriage discrimination in President Obama's 8 states fail constitutional muster under rational basis review -- the lowest hurdle, the easiest one for runners to jump over. His argument for heightened scrutiny, if adopted, would help invalidate many more bans on the freedom to marry, if not all of them. The 8 State Solution, therefore, makes no legal sense.

Why would the President make this confusing and illogical argument and force himself into a strange corner of the 8 State Solution when we all know he believes in a general freedom to marry for gay Americans? There are legal and political reasons.

The legal reason is consistency. If you recall, when Attorney General Eric Holder wrote his letter to House Republicans telling them that the Obama Administration will no longer defend DOMA, he stated the President's position that anti-gay discrimination merits heightened scrutiny and that DOMA fails under that standard. As Windsor and the other DOMA cases wound their way through the federal district and appellate courts, the Second Circuit and the Northern District of California adopted heightened scrutiny, making it an increasingly viable legaldevelopment. Therefore, when the President filed his brief asking the Court to strike down DOMA, he argued for heightened scrutiny. Prop 8, like DOMA, is an example of state anti-gay discrimination, so it gets heightened scrutiny, as well.

Politics probably played a bigger role in the 8 State Solution. The President is a cautious and highly skilled politician keenly aware of the political winds that affect the Supreme Court. He knows that going too far too fast could not only back fire, but also put off some of the more conservative justices on the Supreme Court who may be supportive of a constitutionally-protected freedom to marry. The 8 State Solution gives the Court a way to strike a victory for equality without feeling like Hollingsworth would be imposing the freedom to marry on states not quite ready. By leaving intact a comprehensive regime that recognizes "everything but marriage," the 8 states implicated by the President's brief are, at a minimum, more ready to adapt to a reality with the freedom to marry. The social impact of a pro-gay decision in Hollingsworth would be less drastic in those states, thus reassuring the Court's conservatives or libertarians.

The LInk

[semlogo]

These arguments have been discussed extensively in the other thread.

There is no validity to the argument that gays are discriminated against. They have exactly the same right to marriage as anyone else. They have the exactly same restrictions in that marriage contract as anyone else. It is the nature of law is to govern and restrict choices and behaviour.

It is a matter for state law, and not a constitutional issue.

Except the right to marry their sweet hearts. Or protection from being fired for being gay, or denied housing.

But other than that, totally.

[Zeta-Flux]

Broad defense of marriage.

[rockpond]

Broad defense of marriage.

Hold the phone!

Are you telling me that The Foundry and the Alliance Defending Freedom believe that "The pro-marriage arguments are deep, rich, well-reasoned, common sense- and common good-based, and worthy of serious reflection by the Court..."

I do, however, agree with the initial point that the article makes: Prop 8 & DOMA have apparently generated many more amicus briefs than previous lawsuits. The court has much to consider.

[Daniel2]

Broad defense of marriage.

I admit, I chuckled at the headline of this article. In light of the growing number of states legalizing marriage equality, and the polling that shows a clear trend that legal recognition of same-sex marriage is inevitable sooner rather than later, it made me wonder at what point so called 'defenders' of 'traditional' marriage would admit that their 'defense' isn't actually as 'broad' as they are trying to portray and stop trying to blame a liberal media bias for the numbers. Will they keep claiming 'broad defenses' all the way up until the entire nation recognizes marriage equality, sort of like Fox News anchors were predicting a Romney landslide all the way up until Obama won the election...?

[Zeta-Flux]

Refuting 5 minor myths from the plaintiff's brief.

[rockpond]

Refuting 5 minor myths from the plaintiff's brief.

I read through the article... It keeps going back to this idea of the value and importance of heterosexual marriage. But heterosexual marriage is not on trial. Nobody is trying to remove the right nor ability for heterosexual couples to marry.

Fortunately, overturning Prop 8 will not impede heterosexual marriages. All the benefits of that "tradition" (quoting the article) remain fully intact.

[Zeta-Flux]

Myths 6-9 busted (and this seems to answer your concern rockpond)

[rockpond]

Myths 6-9 busted (and this seems to answer your concern rockpond)

#6 How would homosexual marriage harm the institution of heterosexual marriage? It would deinstitutionalize it. Hmmm... okay.

#7 & #8 These two base their conclusions on the Netherlands study. If you want to review/discuss that study, reference it, and I'll do my best.

#9 What strikes me as interesting is this quote: "There is no empirical evidence that marriage would provide any incremental benefit to the children of gays and lesbians beyond what domestic partnerships provide." There is also no empirical evidence that it wouldn't provide benefit to those children. And, in fact, the key assertion here is that marriage benefits children of heterosexual parents. So are we really gonna go in front of SCOTUS with the argument that children of heterosexual parents benefit from state recognized marriage but children of homosexual parents don't?

Zeta - I don't really see any of these 9 points as "myths" or "distortions" as the author labels them... just differing points of view.

[Zeta-Flux]

Zeta - I don't really see any of these 9 points as "myths" or "distortions" as the author labels them... just differing points of view.

I'm surprised by that. It seems to me that they are demonstrably false factual assertions. It isn't just a differing point of view to make the (false) assertion that Proponents have “never identified a single harm that they, or anyone else, would suffer as a result of allowing gay men and lesbians to marry.” It is distorting the record and context to say "Proponents’ counsel mustered only ‘I don’t know. I don’t know.’" etc...

[rockpond]

I'm surprised by that. It seems to me that they are demonstrably false factual assertions. It isn't just a differing point of view to make the (false) assertion that Proponents have “never identified a single harm that they, or anyone else, would suffer as a result of allowing gay men and lesbians to marry.” It is distorting the record and context to say "Proponents’ counsel mustered only ‘I don’t know. I don’t know.’" etc...

The links that you provided don't identify the harm that anyone would suffer as a result of allowing homosexual marriage. I don't believe that speculating is the same as identifying.

And, "I don't know" was the counsel's response. He went on to elaborate but, as the quote in your article showed, his elaboration was still reinforcing the "I don't know" answer: "Its implications of a social and cultural nature, not to mention its impact on marriage over time, can’t possibly be known now." In other words, he doesn't know and he admits that he can't know.

[Zeta-Flux]

The links that you provided don't identify the harm that anyone would suffer as a result of allowing homosexual marriage. I don't believe that speculating is the same as identifying.

In the context of the briefs, the Plaintiffs are claiming that the Proponents have not even identified potential harms. That is factually incorrect. The link I provided identifies one such potential harm: deinstitutionalization. There are, of course, others.

They clearly are not asking for them to identify harms that have already occurred in California, since same-sex marriage (except in a very few cases) was never made legal for any length of time.

And, "I don't know" was the counsel's response. He went on to elaborate but, as the quote in your article showed, his elaboration was still reinforcing the "I don't know" answer: "Its implications of a social and cultural nature, not to mention its impact on marriage over time, can’t possibly be known now." In other words, he doesn't know and he admits that he can't know.

You seem to have missed the point. Yes, he doesn't know the future. Yes, he admits that he can't know the future until it comes to pass. The issue is that the Plaintiffs' brief claims that this was all they could muster, to a question asked by the judge about potential harms.

First, the Plaintiffs misrepresent what the judge asked. Second, they misrepresent what the plaintiffs did muster to that specific question. For example, they fail to mention them saying that “there appear to be a number of adverse social consequences in The Netherlands from” same-sex marriage, including that “the effort to channel procreative activity into the institution [of marriage] has abated quite a bit.”

[rockpond]

In the context of the briefs, the Plaintiffs are claiming that the Proponents have not even identified potential harms. That is factually incorrect. The link I provided identifies one such potential harm: deinstitutionalization. There are, of course, others.

I don't see the quote where the Plaintiffs are claiming that the Proponents have not identified "potential" harms. If "potential" is in there, than I agree with you. Proponents have speculated about potential harm.

They clearly are not asking for them to identify harms that have already occurred in California, since same-sex marriage (except in a very few cases) was never made legal for any length of time.

You seem to have missed the point. Yes, he doesn't know the future. Yes, he admits that he can't know the future until it comes to pass. The issue is that the Plaintiffs' brief claims that this was all they could muster, to a question asked by the judge about potential harms.

First, the Plaintiffs misrepresent what the judge asked. Second, they misrepresent what the plaintiffs did muster to that specific question. For example, they fail to mention them saying that “there appear to be a number of adverse social consequences in The Netherlands from” same-sex marriage, including that “the effort to channel procreative activity into the institution [of marriage] has abated quite a bit.”

I disagree that they have misrepresented interaction between the judge and counsel. I think that contextually they have correctly represented the interaction: judge asked if counsel could identify harms. Counsel said that he didn't know and can't know.

Applying the Netherlands study is just a hypothesis. It is not identifying an actual harm. Correlation is not causation.

[Zeta-Flux]

I don't see the quote where the Plaintiffs are claiming that the Proponents have not identified "potential" harms. If "potential" is in there, than I agree with you. Proponents have speculated about potential harm.

The question itself is about potential harms. To quote again (with my emphasis added): "never identified a single harm that they, or anyone else, would suffer as a result of allowing gay men and lesbians to marry"

I disagree that they have misrepresented interaction between the judge and counsel. I think that contextually they have correctly represented the interaction: judge asked if counsel could identify harms. Counsel said that he didn't know and can't know.

You need to reread Ed's article, where he points out the difference between the brief and the actual question the judge asked.

Applying the Netherlands study is just a hypothesis. It is not identifying an actual harm. Correlation is not causation

Agreed. But again, they were asked about potential harms. Correlation is not causation, but it does give quite a bit of information, and sufficient cause to stop and wait.