Equality and Liberty

by Jeremy Leaming

California State Assembly Speaker John A. Pérez (D-Los Angeles) and 22 legal scholars are urging the U.S. Supreme Court to invalidate the discriminatory Proposition 8, saying it not only yanks constitutional rights from lesbians and gay men, but also prevents state lawmakers like Pérez from pushing for marriage equality legislation.

In the friend-of-the-court brief lodged in Hollingsworth v. Perry, the speaker and law professors argue that until Proposition 8 came along the state recognized that gay couples should not be treated differently than opposite-sex couples.

“Many gay couples in California are raising children. Many gay teenagers in California need a vision of the future in which they are full participants in the life of their families and communities. And many gay men and lesbians have a fundamental longing to know that as they pass through their days, their lives will not go unnoticed. The State recognizes these basic human feelings for heterosexuals, and before the passage of Proposition 8, the California Constitution protected gay people as well, recognizing their fundamental right to marry,” the brief states.

But after enactment of Proposition 8, the brief continues, “voters eliminated more than the equal right to marry. Under principles of California law and current interpretations by the California Supreme Court, Proposition 8 eliminated the ability of those seeking equal marriage rights to avail themselves of any ability to pursue such rights through the political actions of their accountable elected representatives.”

Pérez, in a press statement about the brief, said the constricting nature of the antigay law “deprives a historically disadvantaged group – a group of which I am a member – of access to traditional representation in a representative democracy. And the deprivation violates the Constitution.”

And other California politicians would like to help advance equality. The Pérez brief notes that Edmund Brown and Kamala Harris “ran and won in 2010 on platforms supporting equal marriage rights and voting to oppose the continued effect of Proposition 8, neither of them can take action to end this case as the voters desire them to do.” Brown is the governor and Harris the attorney general.

The Obama administration, though not a party in the case, filed a brief yesterday with the high court also calling for an end to Proposition 8 and for a broad approach to protecting equality. Some commentators say the Obama brief did not call for an end to all state laws that prevent marriage equality. Yet the brief did call for laws classifying the LGBT community to be subjected to heighted scrutiny. This means that if government, federal or state, bars a group of people from getting married, like lesbians and gay men, but allows their straight counterparts to wed, it should be prepared to overcome a heavy burden as to why equal protection should be flaunted. And As the San Francisco Chronicle’s Bob Egelko notes that “underlying rational – that laws discriminating against gays and lesbians must be struck down unless they serve some important government purpose – could, if adopted by the court, invalidate bans on same-sex marriage in all 41 states that have them.”

The Pérez brief urges the high court, when addressing the “federal constitutional issues” in Hollingsworth, to “be mindful of the unique aspects of California law and the ways in which Proposition 8 has eliminated not just equal marriage rights formerly guaranteed by the state Constitution, but also the ability of gay men and lesbians in California to achieve marriage equality through the normal political process. If gay people can be denied access to representative government to achieve equal treatment with respect to an important status such as marriage, then in California, any other small, historically disadvantaged minority group can also be denied the right to representation with respect to seeking any other fundamental right.”

Beyond advancing a profoundly compelling argument for equal protection, the brief reveals how Proposition 8 is fundamentally anti-democratic policy.  

by Jeremy Leaming

The Obama administration is weighing in on the constitutional challenge to California’s anti-gay initiative Proposition 8. And like it did in a separate case before the Supreme Court challenging the so-called Defense of Marriage Act, the administration is advancing a call for equality.

The case, Hollingsworth v. Perry is from the U.S. Court of Appeals for the Ninth Circuit, which last year invalidated Proposition 8, in part, because it “served no purpose and no effect, other than to lessen the status and human dignity of gays and lesbians.”

The Obama administration had no obligation to weigh in, but did so on the last day to lodge briefs with the high court.

“California law provides to same-sex couples registered as domestic partners all the legal incidents of marriage, but it nonetheless 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 government interest. Proposition 8 thus violates equal protection,” the administration’s brief states.

SCOTUSblog’s Lyle Denniston says the administration’s brief “could be read to support a right to marriage equality in every state, but it did not endorse that idea explicitly.”

Denniston continues, “What the brief endorsed is what has been called the ‘eight-state solution’ – that is, if a state already recognizes for same-sex couples all the privileges and benefits that married couples have (as in the eight states that do so through ‘civil unions’) those states must go the final step and allow those couples to get married. The argument is that it violates the Constitution’s guarantee of legal equality when both same-sex and opposite-sex couples are entitled to the same marital benefits, but only the opposite-sex couples can get married.”

The administration’s brief nonetheless provides what could also be seen as a robust call for equality stretching from coast to coast. For example, the administration argues that laws classifying lesbians and gay men should be subject to “heightened scrutiny.”

“For certain protected classes, however, heightened scrutiny enables courts to ascertain whether the government has employed the classification for a significant and proper purpose, and provides an enhanced measure of protection in circumstances where there is a greater danger that the classification results from impermissible prejudice or stereotypes. Because sexual orientation is a factor that ‘generally provides no sensible ground for different treatment,’ laws that classify based on sexual orientation should be subject to heightened scrutiny,” the brief states.