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

2013-FEB: Obama Administration files
Amicus Curia brief with the U.S. Supreme Court.
Probable impact of Supreme Court's decision.

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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-FEB-28: Department of Justice brief filed:

On the very last day, Solicitor General Donald B. Verrilli, Jr. filed a 40 page amicus curiae brief on behalf of the Obama administration.

Some of the key points raised in the brief are:

  • Laws that target gay and lesbian people for discriminatory treatment should be subject to heightened scrutiny because:

    1. Gay and lesbian people have suffered a significant history of discrimination in this country;

    2. Sexual orientation generally bears no relation to ability to perform or contribute to society;

    3. Discrimination against gay and lesbian people is based on an immutable or distinguishing characteristic that defines them as a group; and

    4. Notwithstanding certain progress, gay and lesbian people -- as Proposition 8 itself underscores -- are a minority group with limited power to protect themselves from adverse outcomes in the political process.

  • Private respondents [to the lawsuit], committed gay and lesbian couples, seek the full benefits, obligations, and social recognition conferred by the institution of marriage. California law ... denies them the designation of marriage allowed to their opposite-sex counterparts. Particularly in those circumstances, the exclusion of gay and lesbian couples from marriage does not substantially further any important governmental interest. Proposition 8 thus violates equal protection.

  • "... the exclusion of same-sex couples from marriage bears no substantial relation to any interest in promoting responsible procreation and child-rearing.

  • "... petitioners argue that Proposition 8 furthers an interest in proceeding with caution before departing from the traditional understanding of marriage. ... similar calls to wait have been advanced -- and properly rejected -- in the context of racial integration. ... Even if proceeding with caution were important enough to deny gay and lesbian people the right to marry in California now, Proposition 8 does not embody such an approach but rather goes to the opposite extreme. It permanently amends the California Constitution to bar any legislative change to the definition of marriage."

  • "... petitioners [do not] point to any evidence that permitting same-sex couples to marry will affect the 'traditional' marriages of opposite-sex couples.

  • "... protecting children from being taught about same-sex marriage is not a permissible interest insofar as it rests on a moral judgment about gay and lesbian people or their intimate relationships. See Lawrence v. Texas ... Nor does Proposition 8 substantially further any such interest given California’s educational policies, which have never required teaching children about same-sex marriage and which prohibit instruction that discriminates based on sexual orientation.

  • "California has ... recognized that same-sex couples form deeply committed relationships that bear the hallmarks of their neighbors’ opposite-sex marriages: they establish homes and lives together, support each other financially, share the joys and burdens of raising children, and provide care through illness and comfort at the moment of death. Proposition 8 nevertheless forbids committed same-sex couples from solemnizing their union in marriage,and instead relegates them to a legal status -- domestic partnership -- distinct from marriage but identical to it in terms of the substantive rights and obligations understate law. Indeed, Proposition 8 made clear that it left undisturbed California’s conferral of the same substantive rights and obligations of marriage on same-sex domestic partners and that its sole purpose was to deny same-sex partners access to marriage. ... California is not alone in this regard. Seven other states provide, through comprehensive domestic partnership or civil union laws, same-sex couples rights substantially similar to those available to married couples, yet still restrict marriage to opposite-sex couples: Delaware ... Hawaii ... Illinois ... Nevada ... New Jersey ... Oregon ... and Rhode Island. ... The designation of marriage, however, confers a special validation of the relationship between two individuals and conveys a message to society that domestic partnerships or civil unions cannot match."

    "Proposition 8’s denial of marriage to same-sex couples, particularly where California at the same time grants same-sex partners all the substantive rights of marriage, violates equal protection. The Fourteenth Amendment’s guarantee of equal protection embodies a defining constitutional ideal that 'all persons similarly situated should be treated alike'. ..."

    "Proposition 8, by depriving same-sex couples of the right to marry, denies them the 'dignity, respect, and stature' accorded similarly situated opposite-sex couples under state law. ... and does not substantially further any important governmental interest. It thereby denies them equal protection under the law. ..."

"The [Proposition 8] Voter Guide asserts in favor of Proposition 8 an interest in adopting the definition of marriage as between a man and a woman, consistent with what 'human history has understood marriage to be.' ... Although petitioners state that Proposition 8 'preserve[s] the traditional definition of marriage', ... they do not raise that interest as an independent justification for Proposition 8. Rather, petitioners rely on what they describe as 'plausible reasons' for California’s adherence to the traditional definition of marriage, ... including the interests in responsible procreation and child-rearing ... and proceeding cautiously, ... that indirectly implicate an interest in the traditional definition. That is for good reason: reference to tradition, no matter how long established, cannot by itself justify a discriminatory law under equal protection principles. See ... [cases] invalidating long standing tradition of single-sex education at Virginia Military Institute. ... '[N]either history nor tradition could save a law prohibiting miscegenation from constitutional attack'. Many of our people’s traditions, such as de jure segregation and the total exclusion of women from juries, are now unconstitutional even though they once coexisted with the Equal Protection Clause. ..."

"As the constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. ... The state therefore must explain what interests support continuing a 'tradition,' especially when that tradition is defined by a classification burdening a minority'group. ..."

"Petitioners give no reason to believe Proposition 8’s denial of the right to marry to same-sex couples makes heterosexual marriages more widespread, more stable, or more enduring. To the contrary, the best available evidence suggests that '[p]ermitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages. ..."

" The Voter Guide expressed in favor of Proposition 8 an interest in ensuring that children will not be taught that same-sex marriage is 'okay.' '[Proposition 8] protects our children from being taught in public schools that same-sex marriage is the same as traditional marriage.' Notably, petitioners abandoned that interest below and do not advance it in this Court. ..."

"California’s extension of all of the substantive rights and responsibilities of marriage to gay and lesbian domestic partners particularly undermines the justifications for Proposition 8. It indicates that Proposition 8's withholding of the designation of marriage is not based on an interest in promoting responsible procreation and child-rearing -- petitioners’ central claimed justification for the initiative -- but instead on impermissible prejudice. As the court of appeals observed ... that is not necessarily to say 'that Proposition 8 is theresult of ill will on the part of the voters of California. Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.' ... Prejudice may not, however, be the basis for differential treatment under the law."

We are amazed that the lawyers in the Department of Justice make the same elementary mistake as is regularly seen in the media: they assume that all same-sex couples are composed of either two male gays or two lesbians. They ignored the minority of same-sex relationships that include one or two bisexuals.

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What will be the impact of the Supreme Court's decision?

The outcome of the court case is probably going to have little long term impact in California:

  • If the Court declares Prop 8 to be unconstitutional on the basis claimed by the lawsuit -- that California courts once legalized SSM, and that Prop 8 made SSM no longer available, then loving, committed same-sex couple will be able to marry as soon as the ruling becomes effective.

  • If the Court rules that Prop. 8 is constitutional, then a new citizen initiative is certain to be launched -- perhaps for election day in 2014-NOV. Since public opinion polls show that support for SSM in California has increased significantly since 2008 and is now in excess of 60%, and since the polls show that opposition to SSM has correspondingly dropped, a referendum to restore SSM would almost certainly pass with a strong margin. Either way, SSM seems certain to return to California.

However if the majority on the court accept the assertion in the Department of Justice's brief that civil unions violate the 14th Amendment of the U.S. Constitution then the court could conceivably order that the other seven states that provide civil unions or domestic partnerships allow loving committed same-sex couples to marry. This would increase the number of political jurisdictions that allow SSM from 10 to 17, including the District of Columbia and 16 states. We suspect that this is an unlikely ruling. Courts normally like to make their decisions as restrictive as possible.

We predict that the Supreme Court will limit its decision to California only, and that it will issue a ruling with the usual 5:4 majority. But we haven't the foggiest idea whether the constitutionality of Prop. 8 will be upheld or overturned. Again, this brings to mind the ancient Chinese curse: "May you live in interesting times."

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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. David Jackson, "Obama my weigh in on gay marriage case," USA Today, 2013-FEB-21, at:
  4. "Brief for the United States as Amicus Curiae supporting respondents," Scribd, 2013-FEB-28, at:

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Site navigation:

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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