Prop 8 Proponents’ Reply Brief

by Ed Whelan

Here is the Introduction to the reply brief (some citations omitted) that Prop 8 proponents filed today:

At the heart of this case are two competing conceptions of marriage. The traditional conception—which has prevailed throughout recorded history in virtually all societies—holds that marriage is by its nature a gendered institution. Its central purpose—its raison d’être—is to channel potentially procreative sexual relationships into enduring, stable unions for the sake of responsibly producing and raising the next generation. This understanding of marriage has been uniformly recognized throughout history by authorities in every academic discipline who have studied the institution, as well as lawmakers and courts that have given legal recognition and effect to marriage.

Plaintiffs deny this historical account, deriding both the gendered definition and the intrinsically procreative purpose of marriage as “newly constructed” and “litigation-inspired.” They offer a genderless conception of marriage that is essentially unconcerned with procreation: marriage is designed, they say, to recognize and promote the “liberty, privacy, association, . . . commitment,” and “love” of adult couples.

How do Plaintiffs explain away, then, the views of the “dozens of philosophers, sociologists, and political scientists—from Locke to Blackstone, Montesquieu to Kingsley Davis”—on which we rely? None of these “historical writings,” Plaintiffs proclaim, “expresses an opinion about same-sex marriage.”

This is not entirely true. Bishop’s authoritative 1852 treatise on the law of marriage explained that “it has always . . . been deemed requisite to the entire validity of every marriage . . . that the parties should be of different sex,” and that “[m]arriage between two persons of one sex could have no validity.” And Davis, writing in 1985, said that “true marriage” is, inter alia, a “heterosexual relationship in which reproduction and child care are assumed.” But it is certainly true that most historical authorities did not address the idea of marriage between persons of the same sex. There can be no doubt, however, that if they had, they would have said the same thing. After all, they were discussing “marriage,” a gendered term whose meaning was unambiguous and known to all. It meant, as Blackstone said, the relationship between “husband and wife,” also gendered terms whose meanings were unambiguous and known to all. The idea of a “same-sex marriage” was, literally, contradictio in terminis to these authorities, and they would have thought it no more necessary to say that such a marriage is not possible than to say that a female husband or a male wife is not possible.

The truth is that Plaintiffs’ genderless, adult-centered understanding of marriage is a recent academic invention; its pedigree originates with the modern movement to redefine marriage to include same-sex couples. And because it deliberately severs the abiding connection between marriage and the unique procreative potential of male-female unions, Plaintiffs’ conception of marriage can offer no explanation whatever for why the institution is a ubiquitous, cross-cultural feature of the human experience, nor why it is, as this Court has consistently emphasized, “fundamental to our very existence and survival.” Loving v. Virginia, 388 U.S. 1, 12 (1967); accord Zablocki v. Redhail, 434 U.S. 374, 384 (1978).

Which brings us to this Court’s marriage cases. These cases have recognized from the beginning that marriage “ha[s] more to do with the morals and civilization of a people than any other institution, [and] has always been subject to the control of the legislature.” Maynard v. Hill, 125 U.S. 190, 205 (1888). Plaintiffs, nonetheless, say that these cases establish “the constitutional liberty to select the partner of one’s choice,” a claim that would sweep aside not only the gendered definition of marriage, but other familiar restrictions on marital choice that are deeply rooted in the history and traditions of Western civilization.

Plaintiffs’ reading of this Court’s marriage cases is plainly wrong. They were, after all, about “marriage,” a term that has always meant “the union for life of one man and one woman.” Murphy v. Ramsey, 114 U.S. 15, 45 (1885). And the Court, like the authorities discussed above, has used the term without any concern that this gendered meaning could possibly be misunderstood to include parties of the same sex. All of this Court’s cases vindicating the fundamental right to marry have involved opposite-sex couples. And the Court’s repeated references to the vital link between marriage and “our very existence and survival” would make no sense if the Court had viewed marriage as a genderless institution with no intrinsic link to procreation. See also, e.g., Zablocki, 434 U.S. at 386 (vindicating right to “marry and raise the child in a traditional family setting”); Bowers v. Hardwick, 478 U.S. 186, 215 (1986) (Stevens, J., dissenting) (marriage is societal “license to cohabit and to produce legitimate offspring”).

In short, the right upheld in this Court’s cases was the right to enter the relationship of husband and wife, and there can be no doubt that they would have come out differently had the parties claimed the constitutional right to enter the relationship of husband and husband, or wife and wife. We know this with certainty because Baker v. Nelson, 409 U.S. 810 (1972), which Plaintiffs relegate to the end of a long footnote, was brought by a same-sex couple who challenged Minnesota’s gendered definition of marriage and, relying primarily on Loving, raised the same equal protection and due process claims raised here. This Court (including four Justices who joined the decision in Loving) denied those claims on the merits, summarily and unanimously. Plaintiffs simply cannot escape the fact that they are asking this Court to redefine marriage.

Although the constitutional case for a right to same-sex marriage thus lacks merit, the political case for redefining marriage has resonated with growing numbers of Americans in recent years, and has carried the day in several States. At the same time, the long-term implications of redefining marriage are profound, for they go to the basic nature of our civilization, and are still impossible to predict with confidence. It is therefore hardly surprising that the People of most States have decided, at least for now, not to redefine this bedrock social institution. Perhaps, their views will change as experience with same-sex marriage in other States matures. And perhaps not. But whether marriage should be redefined is for the People to decide.

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