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Hollingsworth v. Perry (formerly Perry v. Schwarzenegger):
California lawsuit challenging constitutionality of Prop. 8

2013-JAN & FEB: Three Amicus Curia briefs
for Prop. 8 filed with the U.S. Supreme Court.

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Continued from a previous essay.

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In this web site, "SSM" is an acronym for "same-sex marriage."

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2013-JAN-22: Supporters of Prop. 8 file brief with the U.S. Supreme Court (SCOTUS):

Supporters of Prop. 8 have prepared a 65 page brief and filed it with the Supreme Court. They argue that the court should:

"... allow the public debate regarding marriage to continue through the democratic process. ... 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."

In practice, this would mean that whenever a state has a Democratic majority in both houses, and a Democratic or Independent governor, and if the majority of adults are in favor of SSM, then marriage equality will probably happen eventually, either through a citizen initiative or legislative action. This process is currently underway in Illinois, New Jersey, Oregon, Rhode Island, etc. Assuming that support for SSM continues to increase and opposition continues to decrease at its recent rate, perhaps one or two states a year would achieve marriage equality.

This is the process by which interracial marriage was made available in a growing number of states in the middle of the 20th century, until the U.S. Supreme Court finally issued a ruling in the case Loving v. Virginia during 1967 that legalized such marriages across the entire country.

The brief is base partly on their belief that marriage is:

"... 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 child rearing." 1

This is a scary opinion to some people. Carried to its logical conclusion, it would conclude that couples who are infertile as a result of age, or a vasectomy, or by having one's fallopian tubes tied, or who simply don't want to have children should not be allowed to marry. Since, by themselves, they cannot procreate, their marriage would be considered invalid by the above criteria. That criteria might lay the foundation for future exclusion from marriage both of infertile couples and of couples who have made the decision to not procreate.

Also on JAN-22, Jay Carney, the White House press secretary, said that President Obama continues to believe that SSM is a state issue, not a federal matter. Carney said:

"The president's position on this has been clear in terms of his personal views. He believes that individuals who love each other should not be barred from marriage. We have taken positions on various efforts to restrict the rights of Americans, which he generally thinks is a bad idea." 1

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2013-JAN & FEB: Additional supporting brief filed with the U.S. Supreme Court:

  • Two conservative groups -- Judicial Watch and the Allied Educational Foundation -- filed a joint amicus curiae brief with the U.S. Supreme Court supporting the constitutionality of Prop. 8. They criticised the 9th Circuit U.S. Court of Appeals' ruling that Prop 8 is unconstitutional partly because it "imputes the worst possible motives to voters." They believe that if the Supreme Court upholds the Appeals Court's ruling that the people of California would be deprived of:

    "... the right to decide for themselves the ways in which they want to restrict or liberalize their marriage laws -– or not. ...The Ninth Circuit’s sleight of hand decision … constitutes a dangerous erosion of the principle of rational basis review … Furthermore, the Ninth Circuit decision expands the reaches of the Equal Protection clause [of the U.S. Constitution] in such a way as to eclipse the people’s sovereignty to make laws for their own governance … Finally, this [Supreme] Court should find that petitioners have standing to bring this appeal, as a contrary ruling would undermine the people’s rights to initiative and referendum in twenty-six states." 2

Actually, the ruling by the 8th U.S. Circuilt Court of Appeals narrowed the lawsuit to declare unconstitutional any citizen initiative that bans same-sex marriage after SSM has been previously legalized in a state. To our knowledge, this sequence of legalizing same-sex marriage and later restoring the ban on SSM has only happened in two states:

  • In California where SSM was legalized by the state court in 2008-MAY and the ban was very narrowly restored by Prop. 8 in 2008-NOV.

  • In Maine where SSM was legalized by the Legislature in 2009-MAY, and the ban was very narrowly restored by a citizen initiative in 2009-NOV.

In the case of Maine, SSM was legalized for the second time by a narrow vote during for a citizen referendum on election day in 2012-NOV. Thus if the Supreme Court follows the lead of the Court of Appeals, its decision would only apply to California. As the date for oral arguments approaches, there is considerable speculation about whether the Supreme Court will retain the narrow focus of the Court of Appeals or widen it to include 9 or even all 50 states.

In 1967, the U.S. Supreme Court already acknowledged that "the people’s sovereignty to make laws for their own governance" is not unlimited in the case of the criteria for couples to marry. In that year, the court declared unconstitutional the laws in 16 continguous South-eastern states that banned interracial marriage.

The brief compared SSM on an attack on marriage by the Bolsheviks in early 20th century Russia where:

"... the consequences of early Bolshevik family engineering were documented as: an epidemic of divorces; economic hardship on women and children, particularly among the peasantry; an increase in 'shelterless' (bezprizorni) children; and an ultimately diminished social status for women despite the feminist Bolshevik rhetoric." 2

However, the move towards marriage equality across the U.S. does not involve major revamping of marriage and family structure; it only seeks to expand who is permitted to marry.

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2013-FEB-25: Group of prominent Republicans files brief in opposition to Prop. 8 and in favor of SSM:

(This note is a duplicate of a list of accelerating steps toward same-sex marriage (SSM), LGBT equality etc. for 2013-FEB)

Over 100 prominent Republicans sign legal brief in support of SSM! Page A1, the front page, of the New York Times reported that many senior Republicans, including top advisers to former President George W. Bush, four former governors, and two members of Congress have signed a legal brief supporting the right of same-sex couples to marry. The brief was written by Seth P. Waxman, a former solicitor general under President Clinton, and by Reginald Brown, who was in the White House Counsel’s Office under George W. Bush. 3 Most of the signatories are now retired, because if a Republican currently holding office were to support SSM they would be committimg political suicide. The current Republican national platform calls for an amendment of the U.S. Constitution to ban SSM across the entire United States.

The brief will be submitted to the U.S. Supreme Court in connection with California's Proposition 8 lawsuit. Prop. 8 terminated same-sex marriage in the state starting on 2008-NOV. The Court is reviewing a decision by the 9th Circuit Court of Appeals' that Prop. 8 is unconstitutional. The brief argues in favor of SSM because it is pro-family. It allows children of same-sex couples to have two married parents with the protections and status that marriage brings to the family. It also advances the fundamental Republican policy of limiting government intrusions in people's lives, and maximizing individual freedom. Among the signatories are:

  • Deborah Pryce, a former member of the House Republican leadership from Ohio, who said:

    "Like a lot of the country, my views have evolved on this from the first day I set foot in Congress. I think it’s just the right thing, and I think it’s on solid legal footing, too."

  • Jon M. Huntsman Jr., the former governor of Utah who opposed SSM during his 2012 presidential campaign.

  • Ken Mehlman, the former chairman of the Republican National Committee, who is now openly gay. He said:

    "We are trying to say to the court that we are judicial and political conservatives, and it is consistent with our values and philosophy for you to overturn Proposition 8."

Tom Goldstein, publisher of Scotusblog, a web site that analyzes Supreme Court cases, said the brief:

"... has the potential to break through and make a real difference. ... The person who is going to decide this case, if it’s going to be close, is going to be a conservative justice who respects traditional marriage but nonetheless is sympathetic to the claims that ... [opposition to SSM] is just another form of hatred. If you’re trying to persuade someone like that, you can’t persuade them from the perspective of gay rights advocacy." 3

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2013-FEB-25: USA: The New York Times sponsored a national survey on SSM:

It shows that:

  • About 33% of Republicans now favor letting same-sex couples marry.
  • About 70% of voters under the age of 30 agree.
  • Both values are rapidly increasing. However it will probably take a decade before most Republicans support SSM. 3

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This topic continues in the next essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Justin Snow, "Prop. 8 proponents file Supreme Court brief supporting same-sex marriage ban," Polliglot, 2013-JAN-22, at:
  2. "JW, Allied Educational Foundation File Supreme Court Amicus Curiae Brief in Support of California Proposition 8," Judicial Watch, 2013-JAN-31, at:
  3. Sheryl Gay Stolberg, "Republicans Sign Brief in Support of Gay Marriage," New York Times, 2013-FEB-26, at:

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Home page > "Hot" topics > Homosexuality > Couples > California > Prop 8 > here

Copyright © 2013 by Ontario Consultants on Religious Tolerance
Original posting: 2013-JAN-24
Latest update: 2013-MAR-01
Author: B.A. Robinson

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