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Topics In the News
Opponents of Proposition 8 File U.S. Supreme Court Brief
Posted by: Claude J. Summers on 02/21/13
Last updated on: 02/22/13
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Theodore Olson on the Rachel Maddow Show.

On February 21, 2013, acclaimed attorneys Theodore Olson and David Boies filed their main brief in the Proposition 8 case, Hollingsworth v. Perry, which will be decided by the Supreme Court of the United States during the current session. In their 63-page brief, the attorneys told the Court that the case is about marriage and equality. They build a sweeping argument for same-sex marriage as a fundamental right, while also arguing more narrowly that Proposition 8, which banned same-sex marriage in California, is unconstitutional because it serves no legitimate government interest and was motivated by animus.

The brief describes marriage as "a relationship and intimate decision that this Court has variously described at least 14 times as a right protected by the Due Process Clause that is central for all individuals' liberty, privacy, spirituality, personal autonomy, sexuality, and dignity; a matter fundamental to one's place in society; and an expression of love, emotional support, public commitment, and social status."

It continues by saying that "This case is also about equality. After a $40 million political campaign during which voters were urged to 'protect our children' from exposure to the notion that 'gay marriage is okay,' . . . and 'the same as traditional marriage,' . . . and thus deserving of equal dignity and respect, Proposition 8 engraved into California's constitution the cardinal principle that unions among gay men and lesbians are not valid or recognized as marriages, and therefore second-class and not equal to heterosexual marriages. Proposition 8 thus places the full force of California's constitution behind the stigma that gays and lesbians, and their relationships, are not 'okay,' that their life commitments 'are not as highly valued as opposite-sex relationships,' . . . and that gay and lesbian individuals are different, less worthy, and not equal under the law. That 'generates a feeling of inferiority' among gay men and lesbians--and especially their children--'that may affect their hearts and minds in a way unlikely ever to be undone.'"

Olson and Boies also eviscerate the argument put forward by the proponents of Proposition 8 that marriage is exclusively about procreation.

"Proponents," they write, "accuse Plaintiffs (repeatedly) of 're-defining 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.'"

They point out that "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.'"

"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."

Olson and Boies conclude:

"Because of their sexual orientation--a characteristic with which they were born and which they cannot change--Plaintiffs and hundreds of thousands of gay men and lesbians in California and across the country are being excluded from one of life's most precious relationships. They may not marry the person they love, the person with whom they wish to partner in building a family and with whom they wish to share their future and their most intimate and private dreams.

Although opening to their participation in the unique and immensely valuable institution of marriage will not diminish the value or status of marriage for heterosexuals, withholding it causes infinite and permanent stigma, pain, and isolation. It denies gay men and lesbians their identity and their dignity; it labels their families as second-rate.

That outcome cannot be squared with the principle of equality and the unalienable right to liberty and the pursuit of happiness that is the bedrock promise of America from the Declaration of Independence to the Fourteenth Amendment, and the dream of all Americans. This badge of inferiority, separateness, and inequality must be extinguished. When it is, America will be closer to fulfilling the aspirations of all its citizens."

The Supreme Court will hear arguments in the case on March 26, 2013 and is expected to issue its decision in late June.

The brief may be read below.

Perry Respondents' Merits Brief by

In the video below, released by the American Foundation for Equal Rights (AFER), the sponsor of the litigation challenging the constitutional of Proposition 8, Matt Baume explains the brief.

In the video below, from February 2012, Theodore Olson appears on MSNBC's Rachel Maddow Show to explain the ruling from the Ninth Circuit of Appeals that declared Proposition 8 unconstitutional. In the video, he expresses confidence that the Supreme Court will issue a landmark decision.

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