Bench Memos

Prop 8 Proponents’ Brief on Appeal

Prop 8 proponents and Imperial County filed their opening briefs in the Ninth Circuit yesterday.  The Prop 8 proponents’ outstanding brief is available online here.  I’m not yet aware of an online link to Imperial County’s brief.

Here and below the fold (click “full article” or title of this post) is the introduction from Prop 8 proponents’ brief:

“Under rational-basis review, where a group possesses distinguishing characteristics relevant to interests the State has authority to implement, a State’s decision to act on the basis of those differences does not give rise to a constitutional violation.” Board of Trustees v. Garrett, 531 U.S. 356, 366-67 (2001). Given that marriage is “an institution regulated and controlled by public authority . . . for the benefit of the community,” Maynard v. Hill, 125 U.S. 190, 213 (1888), there is no doubt that the state has both interests in the institution of marriage and authority to implement them. At issue here is California’s decision to reaffirm the traditional definition of marriage as a union “between a man and a woman.” CAL. CONST. art. I, § 7.5. The essential question in this case, then, is whether such unions possess distinguishing characteristics that are relevant to marriage.

This is not a hard question. Indeed, because of the distinguishing procreative characteristics of heterosexual relationships, until quite recently “it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex.” Hernandez v. Robles, 855 N.E.2d 1, 8 (N.Y. 2006) (emphasis added). And marriage has existed in virtually all societies, from the ancients to the American states, because it serves a vital and universal societal purpose—a purpose, indeed, that makes marriage, as the Supreme Court has repeatedly emphasized, “fundamental to the very existence and survival of the [human] race.Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (emphasis added). That purpose is, and has always been, in the words of the California Supreme Court, to “channel biological drives that might otherwise become socially destructive” into enduring family units and thereby “ensure the care and education of children in a stable environment.” De Burgh v. De Burgh, 250 P.2d 598, 601 (Cal. 1952).

Before the recent movement to redefine marriage to include same-sex relationships, it was commonly understood and acknowledged that the institution of marriage owed its very existence to society’s vital interest in responsible procreation and childrearing. Indeed, no other purpose can plausibly explain the ubiquity of the institution. As Bertrand Russell put it: “But for children, there would be no need of any institution concerned with sex.” BERTRAND RUSSELL,MARRIAGE & MORALS 77 (Liveright Paperbound Edition, 1970). “[I]t is through children alone that sexual relations become of importance to society, and worthy to be taken cognizance of by a legal institution.” Id. at 156.

And until quite recently, the abiding link between marriage and society’s existential interests in responsible procreation and child-rearing was routinely recognized, without a hint of controversy, not only by the California Supreme Court, as noted above, but by every state appellate court to address the purpose of marriage. Likewise, eminent scholars, from all eras and all relevant academic fields, were agreed on the animating purpose of marriage. Blackstone put it well: the relation “of parent and child . . . is consequential to that of marriage, being its principal end and design; and it is by virtue of this relation that infants are protected, maintained, and educated.” BLACKSTONE, 1 COMMENTARIES *410. Marriage has served this universal societal purpose throughout history by providing, in the words of sociologist Kingsley Davis, “social recognition and approval . . . of a couple’s engaging in sexual intercourse and bearing and rearing offspring.” The Meaning & Significance of Marriage in Contemporary Society 5, in CONTEMPORARY MARRIAGE: COMPARATIVE PERSPECTIVES ON A CHANGING INSTITUTION (Kingsley Davis, ed. 1985) (ER428).

In light of all this, it is hardly surprising that every appellate court decision, both state and federal, to address the validity of traditional opposite-sex marriage laws under the federal Constitution has upheld them as rationally related to the state’s interest in responsible procreation and child-rearing. As the Eighth Circuit said in upholding Nebraska’s marriage amendment in 2006, the state’s interest in “ ‘steering procreation into marriage’ . . . justifies conferring the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on same-sex couples, who cannot.” Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 867 (8th Cir. 2006). Indeed, in the first reported decision addressing the issue, the Minnesota Supreme Court emphasized the defining link between marriage and “the procreation and rearing of children” in rejecting a gay couple’s due process and equal protection challenges to Minnesota’s marriage law. Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971). The United States Supreme Court dismissed the couple’s appeal for want of a substantial federal question—and thereby affirmed the decision below on the merits. Baker v. Nelson, 409 U.S. 810 (1972). Not a single Justice found the couple’s constitutional claims—the same ones at issue here—substantial enough even to warrant plenary review. These claims simply did not present hard questions.

The district court below, however, broke with this uniform line of appellate decisions, and did so without so much as citing, let alone addressing, a single one of them. The district court held that marriage has been universally defined and practiced as an opposite-sex institution by virtually every society in recorded history for no good reason. “The evidence did not show any historical purpose,” according to the district court, for the opposite-sex definition of marriage. ER148. “The tradition of restricting marriage to opposite-sex couples does not further any state interest.” ER159. It followed, accordingly, that the age-old, cross-cultural, opposite-sex definition of marriage is irrational.

Along the way to reaching this startling conclusion, it was necessary for the district court to make legislative fact “findings” that are even more startling. Most critically, the court found that there are no “real and undeniable differences” between same-sex and opposite-sex couples “that the government might need to take into account in legislating.” ER157. Specifically, same-sex couples are “situated identically” and are “exactly the same” as opposite-sex couples “for all purposes relevant” to marriage in California. ER165. This finding led the district court, in turn, to the remarkable conclusion that same-sex “unions encompass the historical purpose and form of marriage,” ER149, and “are consistent with the core of the history, tradition and practice of marriage in the United States,” ER148.

These findings are, we respectfully submit, patently false, and only by ignoring the “history, tradition, and practice of marriage in the United States,” and everywhere else, could the district court make them. Nowhere in its 136-page opinion does the district court even cite any of the evidence overwhelmingly acknowledging responsible procreation and child-rearing as the animating purpose of marriage. All of the evidence—the judicial authority from California and almost every other State, the works of eminent scholars from all relevant academic fields, the extensive historical evidence—is simply ignored. And the district court ignored it quite willfully; in the court’s view, apparently only oral testimony presented at trial constituted “evidence” on the issue (and its treatment of even this evidence was egregiously selective and one-sided, see infra at 38-43). As the district court explained, “Blackstone didn’t testify. Kingsley Davis didn’t testify.” ER350.

Having blinded itself to the genuine animating purpose of marriage, the district court was obliged to offer a different rationale for the institution, presumably one that is entirely indifferent to the gender of the spouses. Marriage, according to the district court, is mainly designed to provide official recognition and status to the “deep emotional bonds and strong commitments” of loving adult relationships. ER112, 115. While this purpose is indeed served by marriage, it obviously cannot begin to explain why the institution is a ubiquitous, enduring, cross-cultural feature of the human experience, nor why the right to marry ranks as fundamental—that is, why it is “ ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if [it] were sacrificed.’ ” Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (quoting Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937)). It is equally obvious that marriage is “fundamental to the very existence and survival of the [human] race,” Zablocki, 434 U.S. at 384, not because it provides official recognition to loving adult relationships, but because it serves society’s existential interest in maximizing the likelihood that children are produced and raised in a stable, enduring family environment by the couple that brought them into the world.

Finally, the district court judge found that over seven million Californians, lacking any conceivable rational basis for supporting Proposition 8, were motivated solely by animosity and condescension toward gays and lesbians. “The evidence shows conclusively,” according to the district court, “that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples,” ER170, and that Proposition 8’s supporters were motivated either by “nothing more than a fear or unarticulated dislike of same-sex couples,” ER167, or by “a moral view that there is something ‘wrong’ with same-sex couples,” ER168. This charge is false and unfair on its face, and leveling it against the people of California is especially unfounded, for they have enacted into law some of the Nation’s most sweeping and progressive protections of gays and lesbians, including a domestic partnership law that gives same-sex couples all of the same substantive benefits and protections as marriage. And it defames as anti-gay bigots not only seven million California voters, but everyone else in this Country, and elsewhere, who believes that the traditional opposite-sex definition of marriage continues to meaningfully serve society’s interests—from the current President of the United States, to a large majority of legislators throughout the Nation, both in statehouses and in the United States Congress, and even to most of the scores of state and federal judges who have addressed the issue.

The simple truth is that “[t]here are millions of Americans,” as one of the Plaintiffs’ own expert witnesses has acknowledged, “who believe in equal rights for gays and lesbians … but who draw the line at marriage.” M.V. LEE BADGETT, WHEN GAY PEOPLE GET MARRIED 175 (2009) (ER1351) (quoting Rabbi Michael Lerner). And the people of California, 44 other states, and the vast majority of countries throughout the world continue to draw the line at marriage because that institution continues to serve a vital societal interest that is equally ubiquitous—to channel potentially procreative sexual relationships into enduring, stable unions for the sake of responsibly producing and raising the next generation.


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