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February 04, 2010

LGBT groups file amicus brief in Perry urging narrower grounds for decision

On Wednesday the ACLU, Lambda and NCLR filed a joint amicus brief in Perry v. Schwarzenegger arguing that the court can find Prop 8 unconstitutional on grounds uniquely applicable to Prop 8.  In other words, the brief invites the court to invalidate Prop 8 on grounds that are sufficiently narrow that they will apply only to Prop 8 and not to any other state's laws. Such a ruling would make for a limited victory (if there is a victory), but also for a more likely victory, at least at the appellate level, because it would probably be easier to persuade a court to strike down one state constitutional amendment rather than 29 (plus the laws in 16 additional states where restrictions on same-sex marriage are statutory rather than constitutional). The legal arguments being made so far by the plaintiffs' lawyers would potentially invalidate every one of those 45 laws.

The brief's opening paragraph:

...The ban on same-sex couples marrying brought about by Proposition 8 ... is different from ...other states' laws in at least two important respects.  First, unlike the law in every other jurisdiction, Proposition 8 amended the state's constitution after same-sex couples' right to marry had been conclusively held to be a component of that constitution's guarantee of equality, and it did so by creating an exception to the state's equal protection clause that applies only to gay people. Second, and again unlike every other state's law adopted to restrict marriage, Proposition 8 stripped from lesbians and gay men the right to the privileged designation and status of marriage, while leaving the substantive, legal rights and obligations of same-sex, registered couples both intact and, under state constitutional requirements, identical to the rights and obligations of different-sex married couples. Both of these circumstances establish beyond question that the purpose of Proposition was to declare same-sex couples unequal under the law to different-sex couples.

This difference in strategy - whether to offer the court a way to rule for the plaintiffs without invalidating other states' laws - has been a persistent bone of contention, since the beginning of the case, between the lgbt groups - which are worried about attempting to win such a sweeping decision from the current U.S. Supreme Court - and Olson/Boies litigation team. The new brief adds a scalpel-like argument - and not just a meatax - to the array of arguments being presented to Judge Walker.


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I wish you'd mentioned the other -- and to my mind stronger -- briefs by other organizations supporting the Plaintiffs on wider grounds. These include (with sample "money quotes")

a) A number of California Professors of family law: "any laws that deprive individuals of access to marriage raise substantial concerns regarding the promotion of family life and the well-being of adults and children. Amici support plaintiffs’ claims that there are no reasonable justifications, relevant to the purposes of family law, for depriving individuals of the opportunity to marry someone of the same sex and that Proposition 8 therefore violates plaintiffs’ rights under the Due Process and Equal Protection Clauses of the United States Constitution..."

b) a number of legal organizations for people of color: "Defendants’ argument that this court should only examine whether a minority group can attract the attention of lawmakers (the Attention Test), is unworkable and runs afoul of more than 70 years of Equal Protection jurisprudence. Indeed, the Attention Test urged by Defendants would threaten the well-established protected status afforded many minorities under the Equal Protection Clause, all of whom have demonstrated a historical and present ability to get the ‘attention of lawmakers.’ A finding that the mere ability to attract the attention of lawmakers is, by itself, sufficient to prevent protected minorities from receiving heightened judicial scrutiny would eliminate suspect classifications for all persons under the Equal Protection Clause. In this respect, gay men and lesbians are no different than any other group who, in the face of societal discrimination, should be entitled to demonstrate through empirical evidence that homophobic prejudice, like racism or sexism, has curtailed their ability to rely on political processes to protect them from state actions motivated by bias, hate and prejudice"

c)American Anthropological Assn, American Psychoanalytic Assn, National Assn. of Social Workers, American Academy of Pediatrics California Chapter: "The positive benefits children accrue from being raised by civilly married parents are independent of those parents’ sexual orientation. It is the consensus view of the field of developmental psychology of children, the traits of an effective parent do not depend on the gender of that parent. This is because the factors that must affect child development … have nothing to do with parental gender or sexual orientation.”

d)Judge Donald A King ("a preeminent family law authority and has authored more family law opinions than any other appellate Justice in California history. Among his honors are the State Bar’s Family Law Judicial Officer of the Year award. The state bar has since renamed this honor the Justice Donald B. King Family Law Judicial Officer of the Year Award.") "Proposition 8 is but one example of how a majority can trample upon the fundamental rights of a disfavored minority by stoking the public’s fears and prejudices. Constitutional protections become meaningless when they can be overturned by a mere majority vote because an individual’s inalienable and fundamental rights then only exist by a license that is revocable"

And finally the group of pro-equality religious organizations which argued "The real threat to religious liberty comes from enforcing as law religious doctrines of society’s most powerful sects, to outlaw marriages that others both recognize and sanctify."

I understand the 'scalpel v. meatax' approach -- which is another way of arguing 'keep it out of the Supreme Court until we have a more favorable bench' -- in fact I've argued this way in previous posts -- but I think these briefs and the trial record are so strong that the risk has become worth taking.

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