Prop 8 Proponents’ Reply Brief in Ninth Circuit

by Ed Whelan

The proponents of Proposition 8 filed their reply brief yesterday in support of their appeal of Judge Vaughn Walker’s wild ruling. (Some time soon, the reply brief should be posted online at this Ninth Circuit site, along with other briefs in the case.) I haven’t yet read through the reply brief, but am pleased to post substantial excerpts from its excellent introduction (citations omitted). Note how the end of the fourth excerpted paragraph borrows a page from the rhetoric of the gay-rights movement to illustrate the obvious point of how ugly and baseless it is to stigmatize supporters of traditional marriage as irrational bigots.

Oral argument in the Ninth Circuit has been set for Monday, December 6. The composition of the Ninth Circuit panel will be announced, I believe, during the preceding week.

The remainder of this post is from the introduction to the reply brief:

At the heart of this case are two competing definitions of marriage. The traditional definition of marriage—the one that has prevailed throughout recorded history in virtually all known societies and that was preserved in California by Proposition 8—holds that marriage is by its nature a gendered institution, for it is designed to serve society’s vital interest in channeling potentially procreative sexual relationships into enduring, stable unions for the sake of responsibly producing and raising the next generation. As demonstrated in our opening brief, this understanding of the social meaning and purpose of marriage has been confirmed throughout history by all of the esteemed authorities on the subject, from the lexicographers who have defined marriage, to the eminent scholars in every relevant academic discipline who have explained marriage, to the legislatures and courts that have given legal recognition and effect to marriage.

Plaintiffs, arguing that “gender restrictions … were never part of the historical core of the institution of marriage,” offer a competing definition of marriage that is carefully framed to be genderless …. Plaintiffs’ genderless, adult-centered understanding of the social meaning and purposes of marriage is a recent academic invention; it can trace its pedigree no farther back than the modern movement to redefine marriage to include same-sex couples. And because it deliberately severs the abiding connection between marriage and the uniquely procreative potential of male-female unions, Plaintiffs’ definition of marriage can offer no explanation for why the institution is a ubiquitous, cross-cultural feature of the human experience, nor why it is, as the Supreme Court has consistently emphasized, “fundamental to our very existence and survival.”

The issue here, however, is not which of these competing definitions of marriage is the wiser, more prudent choice for the State of California and her communities and people. That issue was before the voters of California in November 2008, and they decided to preserve the traditional definition, at least for now. The issue here is whether people of good will can differ in good faith over these competing definitions of marriage. Plaintiffs, and the court below, say that the answer is no, and that those who disagree with them are not rational.…

[T]he falsity of Plaintiffs’ claim is patent as soon as it is uttered. For it cannot stand up to the fact that every appellate court, both state and federal, to address the validity of traditional opposite-sex marriage laws under the United States Constitution has upheld them as rationally related to the state’s interest in responsible procreation and child-rearing. These rulings certainly are not attributable to a bare desire to harm gays and lesbians or a lack of rational reflection by the judges who rendered them. Nor can Plaintiffs’ claim stand up to the fact that President Obama and a host of other well-known champions of equal rights for gays and lesbians nonetheless support the traditional definition of marriage. Nor, finally, can Plaintiffs’ claim stand up to this simple truth: Every one of us, including the Members of this Court, is close to someone who opposes redefining marriage to include same-sex couples—they are our family members, our friends, our  colleagues, our co-workers, and for some of us, ourselves. Are they (we) all either bigoted or benighted? …

[T]he overwhelming majority of people on both sides of the same-sex marriage debate, in California and throughout the country, are good and decent Americans, coming from all walks of life, all political parties, all races and creeds. Their opinions on this issue are motivated by nothing more than “a sincere desire to do what’s best for their marriages, their children, their society,” and are entitled to consideration and respect.…

People of good will can and do differ in good faith on the issue of same-sex marriage, and their differences should be resolved through the political process, not here.

Bench Memos

NRO’s home for judicial news and analysis.