There is a lot wrong with the Supreme Court brief filed by Ted Olson and David Boies on behalf of the anti-Prop 8 plaintiffs in Hollingsworth v. Perry. Prop 8’s proponents will of course address the major argument flaws in their reply brief (due March 19). In a few posts, I’m instead going to expose some of the lesser myths and distortions that the brief propagates. Let’s get started:
Myth/Distortion #1: The Supreme Court’s previous descriptions of the right to marry can plausibly be interpreted outside the understanding of marriage as a union of a male and a female. (See Brief at 1 (stating that the Court has “described [marriage] at least 14 times as a right protected by the Due Process Clause”).)
Reality: In the opening line of their brief, plaintiffs purport to quote the 1978 case of Zablocki v. Redhail as stating that marriage is “the most important relation in life.” (Brief at 1.) But that passage in Zablocki is actually a quote from the 1888 ruling in Maynard v. Hill, which likewise describes marriage as “the foundation of the family and of society” (and which—unremarkably, of course—quotes in passing excerpts from other courts referring to marriage as “the relation of husband and wife” and to the “rights of husband and wife). It is the male-female nature of marriage, and the procreative potential of heterosexual intercourse, that explains why the Court has repeatedly recognized marriage as “fundamental to our very existence and survival.” E.g., Loving v. Virginia (1967). Indeed, Zablocki itself involved a child conceived outside of wedlock, and it protected the plaintiff’s right to “marry and raise the child in a traditional family setting.”
Did the drafters of the brief really imagine that by failing to note that Zablocki was quoting Maynard and by failing to note the facts of Zablocki they could obscure that the Court in Zablocki was obviously referring to marriage as the union of male and female that it had always been understood to be? Would they really have us believe that the Court in 1972 in Baker v. Nelson would have dismissed a constitutional claim for same-sex marriage as not even meeting the low threshold of presenting a substantial federal question, yet that the “14 times” before and after Baker that the Court has referred to marriage as a right protected by the Due Process Clause might plausibly be understood to extend to the radically novel and emerging reconception of marriage to include same-sex couples?
Myth/Distortion #2: Prop 8 proponents’ definition and conception of marriage is not grounded in historical reality but rather is “imagined,” “newly constructed,” and “litigation-inspired.” (Brief at 2, 21.)
Reality: The only thing “imagined,” “newly constructed,” or “litigation-inspired” is plaintiffs’ conception of marriage as blind to the opposite-sex nature of the spouses. This is amply demonstrated in Prop 8 proponents’ brief which, as plaintiffs admit (Brief at 39 n. 6), relies “on historical writings by dozens of philosophers, sociologists, and political scientists—from Locke to Blackstone, Montesquieu to Kingsley Davis.”
Myth/Distortion #3: Proponents’ responsible procreation argument “consumed very little of their attention at trial,” and only “now,” before the Supreme Court, do they contend that marriage is designed to address the problem of “opposite-sex couples who might beget children “unintentionally.’” (Brief at 39 (emphasis in original).) Proponents “abandoned at trial the main Protect Our Children argument they made during the Prop 8 campaign.” (Brief at 38.)
Reality: The link between marriage and responsible procreation has always been the central theme of proponents’ defense of Prop 8. In the summary judgment brief (see pp. 63-68) they filed before trial, for example, Proponents argued at length that “the traditional institution of marriage promotes stability and responsibility in naturally procreative relationships.” Proponents maintained this focus on responsible procreation at trial. See, e.g., Proponents’ Proposed Finding of Fact #7 (“A core purpose of marriage is to guarantee that, insofar as possible, each child is emotionally, morally, practically, and legally affiliated with the woman and the man whose sexual union brought the child into the world.”); PFF #8 (“As a matter of biological reality, societies must develop a method to bind men to their offspring.”); PFF #200 (“Unintended pregnancies, which can only occur in opposite-sex relationships, present society with unique challenges.”).
Myth/Distortion #4: Proponents “abandoned at trial the main Protect Our Children argument they made during the Prop 8 campaign.” (Brief at 38.) The Prop 8 “campaign materials even suggested that Proposition 8 was necessary to protect children from gay men and lesbians themselves.” (Brief at 11 (citing J.A. Exh. 103).)
Reality: The “Protect Our Children” argument from the Prop 8 campaign in large part was the responsible procreation argument, i.e., that the traditional institution of marriage protects children by encouraging their mothers and fathers to stay together and raise them. The Yes-on-8 campaign argued that Proposition 8 would protect children by protecting marriage, not by protecting them from gays and lesbians. See, e.g., PX0001 at 56 (“Proposition 8 protects marriage as an essential institution of society. While death, divorce, or other circumstances may prevent the ideal, the best situation for a child is to be raised by a married mother and father.”); PX0097 (“Protecting the interests of children is the reason the state has for regulating marriage to begin with.”); PX0138 (“Marriage … provides the ideal relationship to commit men and women to each other, to provide for the procreative continuation of civilization and to raise children with both a mother and father.”).
The only supposed “campaign material” cited by Plaintiffs that can fairly be thought to support their claim (J.A. Exh. 103) was not produced by the official Yes-on-8 campaign. Rather, it was a letter written by Hak-Shing William Tam, who testified that he had no involvement in formulating the official campaign’s strategy or messaging, see Trial Transcript at 2002, and that he did not share his views on homosexuality with anyone from the official campaign at any time during the campaign, id. at 1989.
Myth/Distortion #5: Proponents’ “construct of marriage means that the State could constitutionally deny any infertile couple the right to marry, and could prohibit marriage altogether.” (Brief at 2 (emphasis in original).)
Reality: The link between marriage and responsible procreation explains why the tradition of marriage has developed as a male-female union. The tradition, as it has in fact developed, is open to opposite-sex couples, and it has never required the administration of Orwellian fertility tests. (The purpose of marriage is advanced even when a husband and wife can’t procreate together because one of them is infertile, as the marital obligation of fidelity helps ensure that the fertile spouse doesn’t have children outside the marriage.) It is that traditional understanding of marriage that the Due Process Clause protects.