Equality On Trial

In Prop 8 case, proponents suggest that the “extreme edges” of “both sides” of the debate are “animated by hostility”

September 4, 2012

Prop 8

By Scottie Thomaston

The proponents of Proposition 8 appealed the case – now known as Hollingsworth v. Perry – to the Supreme Court, filing its petition for certiorari on July 31. On August 24, the plaintiffs filed their response to the petition, asking the Court to decline to review the narrowly-written decision by the Ninth Circuit Court of Appeals. The city and county of San Francisco also filed a response, asking the Court not to review the case.

In their response brief, the plaintiffs had argued that, though “the question whether the States may discriminate against gay men and lesbians in the provision of marriage licenses is the defining civil rights issue of our time” and the case might be “attractive” to the Justices, they should deny review because, (1) the Ninth Circuit correctly applied Supreme Court precedent (Romer v. Evans), (2) the Ninth Circuit’s decision does not conflict with any other decision in any court of appeals or in the Supreme Court, (3) there are Article III ‘standing’ – the legal right to appeal in federal court – present in this case, (4) if the Court does not think Romer was applied properly, alternative grounds still lead to the conclusion that Proposition 8 is unconstitutional, because gays and lesbians have a due process and equal protection right to marry.

In their reply to the plaintiffs’ response, the proponents of Proposition 8 take on all of these claims one by one. First, they describe the issues at stake in this litigation as nationally important, and write that, “the decision below warrants review even if it could plausibly be confined to California: surely a highly controversial two-to-one decision placing the traditional, age-old definition of marriage “outside the arena of public debate and legislative action,” Washington v. Glucksberg, 521 U.S. 702, 720(1997), in a State that is home to nearly one out of every eight Americans warrants this Court’s attention.”

In Romer v. Evans, the Supreme Court struck down Amendment 2 to the Colorado state constitution. The amendment would have eliminated existing non-discrimination ordinances in the state, removing protections for gays and lesbians. Plaintiffs argued that the Ninth Circuit applied the decision to this case appropriately, because Proposition 8 was designed to take away the existing right to marry by state constitutional amendment. But the proponents argue instead that the Supreme Court suggested instead that, “Amendment 2 established an “unprecedented” and “sweeping and comprehensive” ban on any legal protectionsfor gays and lesbians against “an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society [...] The amendment, in short, deemed gays and lesbians “stranger[s] to [Colorado’s] laws[.]”” Since the definition of marriage does not go that far, they argue, it’s an error to apply Romer to this case.

The proponents then suggest that the Ninth Circuit’s decision conflicts with a Supreme Court decision, Crawford v. Board of Education, because, “Crawford emphatically “reject[ed] the contention that once a State chooses to do ‘more’ than the Fourteenth Amendment requires, it may never recede.” This answers a point that plaintiffs had made about Crawford in their reply brief, when they wrote that, “Proponents repeatedly point to Crawford’s language “‘reject[ing] the contention that once a State chooses to do ‘more’ than the Fourteenth Amendment requires, it may never recede.’” Pet. 4 (quoting 458 U.S. at 535); Pet. 15 (same). But they ignore the important corollary to that rule: Crawford, even before Romer, recognized that “if the purpose of repealing legislation is to disadvantage a . . . minority, the repeal is unconstitutional for this reason.” 458 U.S. at 539 n.21. Crawford, just like Romer and the decision below, therefore examined the purposes allegedly served by the amendment—for example, “the educational benefits of neighborhood schooling”—by looking at the state court’s findings and the relevant campaign literature. Id. at 543-44. Unlike Romer and this case, however, there was ample evidence in Crawford to demonstrate that Proposition I was “not motivated by a discriminatory purpose.”

Proponents argue, again, that a one-sentence summary dismissal “for want of a substantial federal question” in Baker v. Nelson – a case involving same-sex marriage and equal protection – in 1972, is on point in this litigation.

The proponents argue that the “extreme edges” of “both sides” of the debate on same-sex marriage are “animated by hostility or irrational fears and prejudice.” (“It is true, of course, that at the extreme edges of both sides of this public debate are those who are animated by hostility or irrational fears and prejudice,” their brief states.)

“The voices at the extremes can be heard whenever divisive social issues implicating deeply held values are debated,” they suggest.

In a footnote, they elaborate on this argument, writing that, “Respondents attempt to smear millions of Californians who supported Proposition 8 with a handful of carefully selected snippets from the cacophony of messages that were before the voters – and even with testimony from trial that obviously was not before the voters.”

Regarding their legal right to appear in federal court, they write, “[a] State unquestionably has standing to defend the validity of its laws, both in the first instance and on appeal” and “the question who is authorized to represent the State’s interest in the validity of its laws is plainly an issue of state law.” The Ninth Circuit had certified the question of standing for ballot initiative proponents in California to the California supreme court, which ruled that ballot initiative proponents can represent the state’s interest in defending the initiative.

And while San Francisco had argued that the Supreme Court should let the issue of marriage equality “percolate” in the lower courts before it reviews the issue, proponents suggest, “the issues presented by this case have “percolated” for years in numerous state and federal courts, and there is very little, if anything, to be gained by delaying this Court’s inevitable consideration of them. Besides, this Court will very likely consider this Term the constitutionality of the traditional definition of marriage anyway in connection with the DOMA case, and this Court’s analysis would no doubt be assisted by considering at the same time the validity of this definition as adopted by a State.”

The Court could decide to take up the petition at its September 24 conference, or in early October.

h/t Kathleen for this filing

12-144 Proponents’ Reply

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