Bench Memos

Prop 8 Proponents’ Supreme Court Brief

Today the defenders of California’s Proposition 8 filed their merits brief in the Supreme Court. The remainder of this post (here and below the fold) is the Introduction section from the brief:

Over the course of the last decade or so, our Nation has been involved in a “great debate,” Pet.App.17a, about whether to redefine the age-old and vitally important institution of marriage to include same-sex couples. That question – which implicates the most profound social, philosophical, religious, moral, political, and legal values of the People – is, as the court below acknowledged, “an issue over which people of good will may disagree.” Id. The People’s democratic institutions are now fully engaged. Nine States have decided to redefine marriage. The rest, California among them, have decided, most by express constitutional amendment, to preserve the traditional definition of marriage as the union of a man and a woman. The voters of California reaffirmed this traditional definition in 2008, passing Proposition 8 after a highly contentious and costly public debate that riveted the attention of voters for months. The arguments advanced by the advocates of redefining marriage attracted substantial support, persuading over 47 percent of the electorate. Indeed, just two months ago those same arguments carried the day in three states, including Maine, where the voters were acting to reverse a referendum that had rejected the redefinition of marriage just three years earlier. The public debate continues throughout the Nation.

Respondents argue in this case, however, that the public debate over redefining marriage, in California and elsewhere, was and is meaningless; they say that the issue was taken out of the People’s hands in 1868, when the Fourteenth Amendment was ratified, and that our Constitution itself defines marriage as a genderless institution. Until the decision below, every state and federal appellate court to consider the issue, including this one, see Baker v. Nelson, 409 U.S. 810 (1972), had rejected the claim that the Federal Constitution prohibits a State from embracing the traditional gendered definition of marriage. They have thus permitted the “earnest and profound debate about the morality, legality, and practicality” of redefining marriage “to continue, as it should in a democratic society.” Washington v. Glucksberg, 521 U.S. 702, 735 (1997).

No precedent or established constitutional precept justifies federal judicial intervention into this sensitive democratic process. This is not a case, like Lawrence v. Texas, 539 U.S. 558 (2003), where the State has punished as a crime “the most private human conduct, sexual behavior, and in the most private of places, the home,” or sought “to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.” Id. at 567. By reaffirming the traditional definition of marriage, the People of California have not even discouraged, let alone criminalized, any private behavior or personal relationship. Rather, California has simply reserved a special form of recognition and support to those relationships that have long been thought to uniquely further vital societal interests. And it has done so while at the same time providing substantial recognition and support to same-sex couples and their families through expansive domestic partnership laws. This Court has long recognized that “[t]here is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy.” Maher v. Roe, 432 U.S. 464, 475 (1977); see also Christian Legal Soc’y v. Martinez, 130 S.Ct. 2971, 2989 n.17 (2010) (emphasizing “the distinction between state prohibition and state support”). Indeed, as the California Court of Appeal aptly put it, “[t]he right to be let alone from government interference is the polar opposite of insistence that the government acknowledge and regulate a particular relationship, and afford it rights and benefits that have historically been reserved for others.” In re Marriage Cases, 143 Cal.App.4th 873, 926 (2006), rev’d, 183 P.3d 384 (Cal. 2008); see also Hernandez v. Robles, 855 N.E.2d 1, 10 (N.Y. 2006) (“Plaintiffs here do not, as the petitioners in Lawrence did, seek protection against state intrusion on intimate, private activity. They seek from the courts access to a state-conferred benefit that the Legislature has rationally limited to opposite-sex couples.”).

Nor is this a case like Romer v. Evans, 517 U.S. 620 (1996),


where Colorado had imposed a “[s]weeping” and “unprecedented” political disability on all individuals identified “by a single trait,” id. at 627, 633, thus effectively deeming “a class of persons a stranger to its laws,” id. at 635. For one thing, although California has restored the traditional definition of marriage, it has not in any other way altered or eliminated the numerous laws that provide gays and lesbians in California what that State’s largest statewide advocacy organization for gays and lesbians acknowledges are “some of the most comprehensive civil rights protections in the nation.” J.A.Exh.2. Further, it is not Proposition 8, which simply restored the venerable definition of marriage that has prevailed in California for all but a few months of its history, but Respondents’ claim – that the Fourteenth Amendment requires that this ubiquitous institution be fundamentally redefined in a manner unknown in the record of human history until a few short years ago – that is unprecedented. As this Court has recognized, “[i]f a thing has been practised for two hundred years by common consent, it will need a strong case for the Fourteenth Amendment to affect it.” Glucksberg, 521 U.S. at 723. And no institution has been more universally practiced by common consent – not only throughout the history of this Nation, but until little more than a decade ago, everywhere and always – than that of marriage as a union between man and woman. This fact alone precludes Respondents’ remarkable claim, adopted by the court below, that the traditional definition of marriage is irrational and, thus, can be explained only as designed to dishonor gays and lesbians as a class. To the contrary, a social institution that has prevailed continuously in our history and traditions and virtually everywhere else throughout human history – with nearly universal support from politicians, courts, philosophers, and religious leaders of all stripes – can justly be said to be rational per se. And we submit that countless Californians of goodwill have opted in good faith to preserve the traditional definition of marriage because they believe it continues to meaningfully serve important societal interests and they cannot yet know how those interests will be affected if marriage is fundamentally redefined.

Finally, this is not a case like Loving v. Virginia, 388 U.S. 1 (1967), or Brown v. Board of Education, 347 U.S. 483 (1954), where the State had embraced explicit “racial discrimination” of the sort “it was the object of the Fourteenth Amendment to eliminate.” Loving, 388 U.S. at 11. By enforcing “the central meaning of the Equal Protection Clause” in those cases, id. at 12, this Court vindicated a constitutional norm that the People of this Nation had fought and died to establish and had expressly and democratically enacted as an Amendment to the Constitution. And while the antimiscegenation laws invalidated in Loving had existed in some (though by no means all) of the States for part of this Nation’s history, race was never understood to play a fundamental part in the definition of marriage. Indeed, even in antebellum America, the leading treatise on the law of marriage described racial restrictions on marriage as mere “impediments, which are known only in particular countries, or States.” JOEL PRENTISS BISHOP, COMMENTARIES ON THE LAW OF MARRIAGE & DIVORCE §213 (1st ed. 1852). By contrast, the same scholar categorically stated that “[i]t 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.” Id. §225 (emphasis added). Neither Loving nor Brown provides any support for judicially restructuring the vital social institution of marriage.

In short, there is no warrant in precedent or precept for invalidating marriage as it has existed in California for virtually all of its history, as it was universally understood throughout this Nation (and the world) until just the last decade, and as it continues to be defined in the overwhelming majority of States and Nations – and in diverse philosophical and religious traditions – throughout the world. Further, the definition of marriage has always been understood to be the virtually exclusive province of the States, which, subject only to clear constitutional constraints, have “absolute right to prescribe the conditions upon which the marriage relation between [their] citizens shall be created.” Sosna v. Iowa, 419 U.S. 393, 404 (1975). More important still, the institution of marriage has also always been understood to owe its very existence to society’s vital interests in responsibly creating and nurturing the next generation. As this Court has aptly put it, marriage is “fundamental to our very existence and survival.” Loving, 388 U.S. at 12. Marriage is thus inextricably linked to the objective biological fact that opposite-sex couples, and only such couples, are capable of creating new life together and, therefore, are capable of furthering, or threatening, society’s existential interests in responsible procreation and childrearing. That fact alone is dispositive of Respondents’ equal protection claim, for this Court’s precedents make clear that a classification will be upheld when “the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not.” Johnson v. Robison, 415 U.S. 361, 383 (1974). Indeed, it was only by “undervalu[ing] the State’s interest,” Planned Parenthood v. Casey, 505 U.S. 833, 873, 875 (1992) (plurality), in the traditional definition and purposes of marriage that the Ninth Circuit and the district court were able to conclude that Proposition 8 is unconstitutional.

Our Constitution does not mandate the traditional gendered definition of marriage, but neither does our Constitution condemn it. This Court, accordingly, should allow the public debate regarding marriage to continue through the democratic process, both in California and throughout the Nation.


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