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Proposition 8 (California)  
 
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Judge Smith's dissent was weak and vacuous, saying in effect that almost any possible reason, no matter how implausible, would satisfy the "rational basis" standard.

However, same-sex weddings did not resume in California immediately. The proponents of Proposition 8 sought an en banc review by the Ninth Circuit. When that was denied, they then sought review by the Supreme Court of the United States.

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Most observers thought that the Supreme Court would deny review and that same-sex marriages would quickly resume in California. However, in something of a surprise, on December 7, 2012, the Supreme Court announced that it would hear the case, now known as Hollingsworth v. Perry.

The Court indicated that among the issues it would consider in the Prop 8 case was the question of standing, i.e., whether the proponents of the Proposition even had the right to defend it after the Governor and Attorney General declined to do so.

On February 21, 2013, attorneys Olson and Boies filed their main brief in the case. In their 63-page brief, the attorneys told the Court that the case is about marriage and equality. They built 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.

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

"Proponents," they wrote, "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 pointed 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.'"

On March 26, 2013, the Supreme Court heard oral arguments pertaining to Proposition 8. The most striking impression left by the arguments was how weak the justification for Proposition 8 remained. The proponents of California's ban on same-sex marriage could articulate no compelling reason for denying equal rights to gay and lesbian citizens. On the other hand, the hearing also left unclear whether the Supreme Court had the courage to make a definitive ruling that would establish same-sex marriage as a fundamental right across the country.

In his oral argument, Theodore Olson emphasized that marriage is a personal individual liberty and a fundamental right. In a bid for a broad decision by the Court, he said that any ban on same-sex marriage violates due process.

Olson forcefully described the effects of Proposition 8: "It walls off gays and lesbians from marriage, the most important relation in life," he said, "thus stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal and not O.K."

Solicitor General Donald Verrilli appeared before the Court to argue on behalf of the Obama administration that Proposition 8 should be subjected to heightened scrutiny. However, very little time was devoted to the question of scrutiny.

Most of the hearing was devoted to the question of standing and to the scope of a possible ruling invalidating Proposition 8.

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