Doug NeJaime is Associate Professor of Law at Loyola Law School - Los Angeles. He teaches in the areas of Ethical Lawyering and Law & Sexuality.
The unwillingness of California's Attorney General and governor to defend Proposition 8 - and the corresponding presence of Proposition 8 proponents as the amendment's defenders - has yielded a procedural mess. But with all the discussion of Proposition 8 proponents' impact on procedure, it is easy to overlook their significant impact on substance: With the actual supporters of the proposition replacing the increasingly pro-gay state as the law's defender, the explicit connection between sex and sexual orientation discrimination has surfaced.
When the California Attorney General defended California's (statutory) marriage restriction in the state litigation (In re Marriage Cases), he refused to rely on governmental interests related to procreation and dual-gender childrearing. As I have noted elsewhere, this refusal reflected the mainstreaming of a gay equality norm as both a political and legal matter. In the awkward position of defending the law without resort to its key substantive purposes, the Attorney General merely asked the court to defer to the voters' desire (as evidenced by Proposition 22) to preserve the traditional definition of marriage.
With the shift toward more federal litigation on gay rights issues, we have seen a similar trajectory in the arguments offered by the (increasingly pro-gay) government in defense of anti-gay laws. For instance, the Justice Department has refused to stand behind rationales related to procreation and childrearing when defending the Defense of Marriage Act (DOMA) in federal litigation in Massachusetts. Indeed, in arguing that "the government does not believe that DOMA can be justified by interests in ‘responsible procreation' or ‘child-rearing,' " Justice Department lawyers admitted that "children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents." When Judge Tauro found DOMA unconstitutional as applied to married same-sex couples in Massachusetts, he noted the government's unwillingness to stand behind DOMA's actual purposes and rejected the government's newly manufactured rationale, which had no substantive content and amounted to a wait-and-see approach to marriage equality.
In Perry v. Schwarzenegger, the federal litigation challenging Proposition 8, the California Attorney General resolved his earlier inconsistency (and unease) by moving wholeheartedly to the side of marriage equality and leaving no government lawyers to defend the amendment. Enter the Proposition 8 proponents as the party charged in the federal litigation with defending its constitutionality. Finally, the substantive reasons behind marriage restrictions get their day in court. The proponents urged Judge Walker to uphold Proposition 8 not merely based on deference to voter preferences and tradition, but also as part of the government's role in channeling procreation and childrearing into dual-gender, married households. Children, Proposition 8 proponents argued, need a mother and a father because mothers and fathers (wives and husbands, women and men) fulfill different and complementary roles. Through this lens, men function as breadwinners while women become homemakers and caretakers; men teach their children about ambition, hard work, and independence, while women nurture their children with love and encouragement. As Protect Marriage's Ron Prentice put it (in a statement that Judge Walker quoted in his opinion):
Children need the chance to have both mother love and father love . . . [M]oms and dads, male and female, complement each other. They don't bring to marriage and to a family the same natural set of skills and talents and abilities. They bring to children the blessing of both masculinity and femininity.
In this framework, preventing same-sex couples from marrying preserves the sex-differentiated roles that Proposition 8 proponents believe men and women should play in marriage and the family.
Marriage equality advocates have pointed out the connection between marriage restrictions and gender roles in earlier litigations. But state courts considering same-sex couples' right to marry have consistently rejected or neglected the way in which marriage restrictions rely on and perpetuate sex stereotypes that subordinate women. While disappointing, this hardly seems surprising; state officials defending the restrictions increasingly refuse to explicitly rely on gender norms, and arguments about sex stereotypes are often buried in amicus briefs.
But Proposition 8 proponents' direct role in the Perry litigation forced Judge Walker to fully consider the sex-based implications of Proposition 8. Arguments based on sex stereotypes now constituted part of the principal case put forward by the proposition's defenders. And where Proposition 8 supporters saw legitimate justifications for the amendment, Judge Walker saw impermissible sex stereotypes, concluding that "Proposition 8 amends the California Constitution to codify distinct and unique roles for men and women in marriage."
For all the confusion introduced by Proposition 8 proponents' role in the litigation, their presence has made one thing crystal clear: Laws that prohibit marriage for same-sex couples constitute just one part of a broader normative framework of the family that harms individuals based on both sex and sexual orientation.
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