Prop 8 Goes To Washington

Feb 22 2013 @ 3:37pm

Lyle Denniston checks in on the Prop 8 battle. He analyzes the Olson-Boies pro-equality brief (above):

The two California same-sex couples’ fifty-four-page brief was a bold attempt to portray the constitutional idea of marriage equality as a victim of homophobia, and to persuade the Court not to settle for a California-only decision, or for one that moved gays and lesbians only a bit closer to marriage, but rather to give them a right to wed as fully as any other couple has, regardless of race, sex, or sexual orientation.

With such a sweeping approach, the brief took a considerable risk that it might be more than the Justices were ready to accept.  But it also has the potential virtue of making it easier for the Court to settle for a ruling for same-sex marriage on narrower grounds – as the Ninth Circuit Court had done in striking down Proposition 8 a year ago.

An excerpt from the brief:

Proponents accuse Plaintiffs (repeatedly) of “redefining marriage.” But it is Proponents who have imagined (not from any of this Court’s decisions) a cramped definition of marriage as a utilitarian incentive devised by and put into service by the State—society’s way of channeling heterosexual potential parents into “responsible procreation.” In their 65-page brief about marriage in California, Proponents do not even mention the word “love.” They seem to have no understanding of the privacy, liberty, and associational values that underlie this Court’s recognition of marriage as a fundamental, personal right. Ignoring over a century of this Court’s declarations regarding the emotional bonding, societal commitment, and cultural status expressed by the institution of marriage, Proponents actually go so far as to argue that, without the potential for procreation, marriage might not “even..exist[ ] at all” and “there would be no need of any institution concerned with sex.” (internal quotation marks omitted). Thus, under Proponents’ peculiar, litigation-inspired concept of marriage, same-sex couples have no need to be married and no cause to complain that they are excluded from the “most important relation in life.” Indeed, Proponents’ state-centric construct of marriage means that the State could constitutionally deny any infertile couple the right to marry, and could prohibit marriage altogether if it chose to pursue a society less committed to “responsible” procreation.

This, of course, reflects a complete “failure to appreciate the extent of the liberty at stake,” not to mention matters such as love, commitment, and intimacy that most Americans associate with marriage. As Proponents see it, marriage exists solely to serve society’s interest; it makes no sense to speak of an individual’s right to marry.

Also, various DOMA briefs are being filed today.