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Prop 8 Amicus Briefs

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The following list links to PDF copies of major amicus briefs filed in support of the constitutional challenge to California's Proposition 8, the 2008 ballot measure that eliminated equal marriage rights for same-sex partners.  This case was brought by the American Foundation for Equal Rights, and joined as a co-plaintiff by the City and County of San Francisco.

The list has been categorized into general subject areas of emphasis, with signatories and topic summaries listed also.  

Equal Protection

United States

Equal Protection: Classifications based on sexual orientation merit heightened scrutiny and Proposition 8 fails heightened scrutiny. In addressing the question of whether Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment, the President and Attorney General determine that classifications based on sexual orientation should be subject to heightened scrutiny. Prop 8 fails heightened scrutiny because it does not further interests articulated by the proponents, and because its elimination of marriage rights for California couples who otherwise enjoy all substantive rights of marriage violates the Equal Protection Clause.

Leadership Conference on Civil and Human Rights, Bar Associations and Public Interest and Legal Service Organizations

Equal Protection: Classifications based on sexual orientation merit heightened scrutiny. The Court should apply heightened scrutiny to laws that classify on the basis of sexual orientation. The Court applies heightened scrutiny when a group has experienced a history of discrimination based on a factor that has no relation to the groups' ability to contribute to society. The Court sometimes also considers immutability or relative political power. All of these considerations support heightened scrutiny of laws that discriminate against gay men and lesbians.

Constitutional Law Scholars Bruce Ackerman, Ash Bhagwat, Lee Bollinger, Erwin Chemerinsky, Michael C. Dorf, Lee Epstein, Barry Friedman, John C. Jeffries, Jr., Lawrence Lessig, William Marshall, Frank Michelman, Jane S. Schacter, Suzanna Sherry, Geoffrey R. Stone, David Strauss, Laurence Tribe, and William Van Alstyne

Equal Protection: Classifications based on sexual orientation merit heightened scrutiny. The Court should apply heightened scrutiny to laws that classify on the basis of sexual orientation. The Court generally considers four factors in determining whether heightened scrutiny applies: 1) history of discrimination against a group, 2) the group's ability to contribute to society, 3) the group's political powerlessness, and 4) whether the classification is based on a characteristic that is "immutable" or "defining." Each of those factors is satisfied here.

National Women’s Law Center, Williams Institute Scholars Of Sexual Orientation And Gender Law, and Women’s Legal Groups

Equal Protection: Classifications based on sexual orientation merit heightened scrutiny. Classifications based on sexual orientation are similar to classifications based on sex: both are frequently rooted in sex and gender stereotypes, and both should be subject to heightened scrutiny.

Organization of American Historians and the American Studies Association

Equal Protection: History of discrimination. Lesbians and gay men have been subjected to widespread and significant discrimination in the United States, commencing as soon as they emerged as a group into the American public consciousness and continuing today.

Political Science Professors

Equal Protection: Political Powerlessness. Gay men and lesbians lack political power in the United States because they cannot form the majority coalitions necessary to protect their interests. They are underrepresented in political office, face strong opposition from powerful and well-funded groups, and have limited influence over their political allies.

Gay and Lesbian Medical Association

Equal Protection: Immutability. The existence of an immutable characteristic is not required for a law to be subjected to heightened scrutiny under the Equal Protection Clause. However, immutability can support the application of heightened scrutiny, and a vast body of credible scientific research establishes that sexual orientation is innate and fundamentally determined--i.e., that genetic, hereditary and biological influences are major factors in determining sexual orientation.

Lambda Legal Defense and Education Fund, Inc. and Gay & Lesbian Advocates & Defenders

Equal Protection: Prop 8 fails Rational Basis Review. Proposition 8 violates the Equal Protection Clause by 1) creating a gay-only exception to the California Constitution's Equal Protection Clause, and 2) excluding same-sex couples from marriage for no rational basis, as confirmed by rulings of the California Supreme Court. Proposition 8 sends a message of inferiority that causes significant harm to same-sex couples and their families.

National Center for Lesbian Rights

Equal Protection: Literal Violation. Proposition 8 violates equal protection in the most literal way -- by carving out one group from the full protection of California Constitution's Equal Protection Clause.

William N. Eskridge Jr., Rebecca L. Brown, Daniel A. Farber, and Andrew Koppelman

Equal Protection: Caste Legislation. Proposition 8 is caste legislation inconsistent with the Equal Protection Clause.

The Cato Institute and Constitutional Accountability Center

Equal Protection: Text and History. The text and history of the Equal Protection Clause make clear that Proposition 8 denies equal protection to same-sex couples.

Beverly Hills Bar Association, et al.

Equal Protection: Violation Based On Different Treatment Based on the Date Proposition 8 Was Enacted. Under California law, the 18,000 marriages of same-sex couples that occurred before November 5, 2008, are valid and lawful; however, no same-sex couples can marry after that date. Intra-group distinctions cannot be based on the date on which a right was afforded or terminated unless there is a rational basis for drawing the date-based line. There is no such rational basis here.

California Assembly Speaker John A. Perez and Law Professors Concerned with Representative Democracy

Equal Protection: Laws That Prevent Equal Political Participation Merit Heightened Scrutiny. In enacting Proposition 8, the voters eliminated more than the equal right to marry. Proposition 8 eliminated the ability of those seeking equal marriage rights to avail themselves of any ability to pursue equal marriage rights through the political actions of their accountable elected representatives. Because Proposition 8 prevents equal political participation for a historically disadvantaged minority group with respect to the right marry, it should be subject to heightened scrutiny.

 

Due Process

Edward D. Stein, Joanna L. Grossman, Kerry Abrams, Holning Lau, Katharine B. Silbaugh and 32 Other Professors of Family Law and Constitutional Law

Due Process: Proposition 8 violates the Due Process Clause by denying same-sex couples the fundamental right to marry.

 

Responsible Procreation & Optimal Parenting/Inequality of Domestic Partnership/Impact of Proposition 8 on Children & Families

California Professors of Family Law

Responsible Procreation/Optimal Parenting. Twenty-six professors of family law, from fourteen California law schools, refute the proponents' argument that marriage may be withheld from same-sex couples to encourage opposite-sex couples to raise their children within marriage. Proposition 8 harms some children-those with same-sex parents-by depriving them of the benefits marriage can bring to a family and by branding their families as less worthy. California and federal law prohibit using children to shape the behavior of adults in this way.

American Academy of Matrimonial Lawyers and the Association of Certified Family Law Specialists

Responsible Procreation/Optimal Parenting. Marriage offers a host of emotional, spiritual, legal and financial benefits to those allowed to participate in it. It provides as well a stable and nurturing environment for the rearing of children. These bases for marriage compel that its protections be afforded to same-sex couples. The procreation-related reasons offered by Petitioners to limit marriage to opposite-sex couples cannot pass Constitutional muster.

American Sociological Association

Children of Same-Sex Couples Fare Just As Well As Children of Opposite-Sex Couples. The clear and consistent consensus in the social science profession is that across a wide range of indicators, children fare just as well when they are raised by same-sex parents when compared to children raised by opposite-sex parents. Decades of methodologically sound social science research confirms that positive child wellbeing is the product of stability in the relationship between the two parents, stability in the relationship between the parents and child, and socioeconomic stability. Whether a child is raised by same-sex or opposite-sex parents has no bearing on a child’s wellbeing.

The American Psychological Association, The American Medical Association, The American Academy Of Pediatrics, The California Medical Association, The American Psychiatric Association, The American Psychoanalytic Association, The American Association For Marriage and Family Therapy, The National Association Of Social Workers and Its California Chapter, and The California Psychological Association

Scientific knowledge concerning sexual orientation and family. "Scientific evidence strongly supports the conclusion that homosexuality is a normal expression of human sexuality; that most gay, lesbian, and bisexual adults do not experience their sexual orientation as a choice; that gay and lesbian people form stable, committed relationships that are equivalent to heterosexual relationships in essential respects; and that same-sex couples are no less fit than heterosexual couples to raise children and their children are no less psychologically healthy and well-adjusted than children of heterosexual couples."

Bay Area Lawyers for Individual Freedom (and numerous other Bar Associations, Legal Groups and municipalities)

Domestic Partnership Is Not An Adequate Alternative to Marriage. Because Proposition 8 excludes them from marriage, gay men and lesbians and their families are stigmatized, deprived of benefits enjoyed by their heterosexual counterparts, and exposed to increased discrimination. These effects are repugnant to the Constitution’s equality guarantee and are in no way mitigated by access to the separate and inherently inferior mechanism of domestic partnership.

American Anthropological Association, American Academy of Pediatrics, California, and Robert M. Galatzer-Levy, M.D.

Stigma and its Effects. By singling out same-sex couples for elimination of the right to use the official designation of “marriage” for their relationships, the State of California enshrines the stigmatization of gay men and women. This stigmatization has severe psychological and social impacts on same-sex couples and their children.

 

States and International

Massachusetts, Connecticut, Delaware, District of Columbia, Illinois, Iowa, Maine, Maryland, New Hampshire, New Mexico, New York, Oregon, Vermont and Washington

States. Denying same-sex couples the right to marry does not advance any legitimate state interest. To the contrary, every state interest in marriage is furthered by permitting same-sex couples to marry.

State of California

California. Proposition 8 proponents do not have standing to defend the measure in federal court. If the Court finds they do have standing, it should affirm the Ninth Circuit's decision because taking away same-sex couples' right to marry did not further any legitimate state interest.

Foreign and Comparative Law Experts Harold Hongju Koh, Sarah H. Cleveland, Laurence R. Helfer, and Ryan Goodman

International. From Spain to Canada to South Africa to Argentina, courts and legislatures have concluded that excluding same-sex couples from marriage violates principles of liberty, human dignity, and equality—principles that are enshrined in our Constitution’s Fourteenth Amendment. Moreover, not one of the 11 countries that has marriage to same-sex couples has rescinded the promise of equality and no nation has returned same-sex couples to a separate and unequal status, as Proposition 8 does. The reasoning of other jurisdictions provides strong support for the US Supreme Court to conclude that Proposition 8 is unconstitutional. To do so will confirm our nation’s leadership in the field of personal freedom and human rights.

International Human Rights Advocates

International. Surveying foreign law developments and arguing that the Court should sustain the international trend toward marriage equality by holding that denying same-sex couples the right to marry constitutes a deprivation of due process and a violation of equal protection.

 

Standing and Procedure

Walter Dellinger

Standing. The proponents did not have Article III standing to appeal the district court’s judgment holding Proposition 8 unconstitutional because they have only a generalized interest in the enforcement of that law, and the Court has repeatedly held that such an interest is not sufficient to establish a case or controversy under Article III. The Court should therefore vacate the court of appeals’ opinion and remand with directions to dismiss the proponents’ appeal.

Columbia Law School Sexuality & Gender Law Clinic and the Society of American Law Teachers

Standing. The proponents did not have Article III standing to appeal the district court’s judgment.

Equality California

Standing. The proponents did not have Article III standing to appeal the district court’s judgment.

Constitutional Law and Civil Procedure Professors Erwin Chemerinsky and Arthur Miller

Appropriateness of Evidentiary Factfinding. Proponents and their amici dismiss the role of evidentiary fact-finding in constitutional litigation and rely on assumptions and tautologies. But in our system, judicial resolution of constitutional issues must be informed by facts, and disputes over these facts are best resolved through adversarial proceedings before a trial court judge who can oversee the proper presentation of those facts. The trial in this case produced, undoubtedly, the most detailed factual record ever assembled in a lawsuit challenging legislation targeting gay and lesbian individuals and the district court’s factual findings address the core questions that this Court must answer.

 

Identity Groups (Religion, Business, Labor, Teachers, Other)

Religious and Faith Groups including Bishops of the Episcopal Church in the State of California; The Rabbinical Assembly; Unitarian Universalist Association; United Church of Christ; The United Synagogue of Conservative Judaism; Covenant Network of Presbyterians

Religion. A wide cross-section of American religious traditions recognizes the dignity of lesbian and gay people and their relationships. For many religions, this includes celebrating and solemnizing the relationships and marriages of same-sex couples. Recognizing the necessary distinction between civil and religious marriage, a growing number of faiths support civil marriage equality. Furthermore, recognizing civil marriages of same-sex couples will not impinge upon religious beliefs, practices, or operations, but rather will prevent one set of religious beliefs from being imposed through civil law. It is constitutionally impermissible to impose religious views through civil law to curtail the right of same-sex couples to marry.

Anti-Defamation League and others including The Interfaith Alliance Foundation; The Japanese American Citizens League; and Women’s League for Conservative Judaism

Religion. This Court has refused for three-quarters of a century to uphold laws disfavoring minority groups based on religious or moral disapproval alone—with the one, now-discredited exception of Bowers v. Hardwick, 478 U.S. 186 (1986). And for good reason: Time and again throughout our nation’s history, laws that disadvantaged or degraded particular groups have been justified by resort to morality and religion. And time and again, our society has come to see those laws as repugnant, and the religious and moral justifications for them as little more than a means to enshrine the status quo.

American Jewish Committee

Religion. It is not appropriate, or even rational, to prohibit same-sex civil marriage to avoid having to address issues of religious liberty. The proper resolution of conflicts between religious liberty and the rights of married same-sex couples will need to be worked out case by case, depending on, among other things, the nature of the claim, the availability of alternative suppliers of a service, and the nature of the religious institution.

California Council of Churches; California Faith for Equality; Unitarian Universalist Legislative Ministry California; Northern California Nevada Conference, United Church of Christ; Southern California Nevada Conference, United Church of Christ; Pacific Association of Reform Rabbis; California Network of Metropolitan Community Churches

Religion. Civil marriage is a secular institution, that “does not require any religious ceremony for its solemnization.” Maynard v. Hill, 125 U.S. 190, 210 (1888). Nor should it require compliance with any religious doctrine or dogma. Governmental limitations on the right to marry may seriously abridge citizens’ religious liberty. Proposition 8 does exactly that by outlawing marriages of same-sex couples which – until Proposition 8 put an end to them – were being lawfully solemnized in hundreds of California’s churches and synagogues.

American Companies

Business. Leading companies (including Morgan Stanley, Apple, AIG, Nike, Mesirow Financial, Facebook, Intel, Verizon and Google) explain the numerous ways that their businesses, employees, clients and customers are negatively impacted by Proposition 8 and similar laws. It offends principles of equal treatment, stigmatizes gay men and lesbians, and makes it difficult for businesses to recruit top employees who do not want to live in states where they are second-class citizens.

American Federation of Labor and Congress of Industrial Organizations and Change To Win

Labor. Marriage equality matters to workers. Taken together, Proposition 8 and DOMA deny same-sex couples and their children significant benefits associated with work, including access to healthcare, Social Security, workers' compensation, and retirement benefits. They also harm same-sex couples by stigmatizing them in the workplace.

Red State LGBT Coalition Groups (Utah Pride Center, Campaign For Southern Equality, Equality Federation and Twenty-Five State-Wide Equality Organizations)

Red States. Millions of Americans live in states that have enacted systems of serious legal discrimination against their LGBT citizens. The Court should affirm the fundamental rights and equality of gay Americans and adopt heightened scrutiny of laws that target gay people.

Kenneth B. Mehlman, et al.

Prominent Conservatives. Marriage promotes conservative values of stability, mutual support, and mutual obligation. There is no legitimate reason to exclude committed same-sex couples from marriage. The Court should protect the fundamental right of civil marriage by ensuring that it is available to same-sex couples.

Chris Kluwe and Brendon Ayanbadejo

Professional Football Players. Professional athletes encourage the Court to affirm the Ninth Circuit's decision overturning Proposition 8.

Howard University School of Law Civil Rights Clinic

Race. Opponents of marriage rights for same-sex couples rely on the same arguments that were once used to justify marriage restrictions on the basis of race, e.g., that it is threat to social order, contrary to nature, or harmful to children. These arguments have been rejected in the context of marriages between persons of different races and should be similarly rejected here.

Southern Poverty Law Center

Animus. The evidence presented at trial conclusively demonstrated that Proposition 8 was passed based on moral disapproval and without any rational basis.

California Teachers Association and the National Education Association

Teachers. The purported educational interest in ensuring that public school children are not taught to treat marriage between two men or two women as the moral or legal equivalent of marriage between a man and a woman is merely animus by proxy. Proposition 8 in no way alters the carefully calibrated California Education Code provisions that regulate how public school educators address the topics of marriage and sexuality in school. In addition, Proposition 8 has heightened tensions related to sexual orientation within schools (and attendant problems, such as bullying) by lending official sanction to discriminatory attitudes towards gay and lesbian students.

Adoption and Child Welfare Advocates

Adoption. Adoptive families are fully equal to biological families. Contrary to Proponents' suggestion, a biological connection between parents and children is not necessary for "responsible childrearing." Proponents' argument that same-sex couples should be denied the right to marry because of biology would also apply to infertile couples and the elderly.

 

Personal Voices Briefs

Parents and Friends of Lesbians and Gays

Families' Voices. Using the personal stories of parents of gay men and lesbians the brief explains how: 1) Proposition 8 dishonors gay men and lesbians; 2) domestic partnership is no substitute for marriage; and 3) the marriage of same-sex couples does not pose any risks to the marriages of opposite-sex couples.

Family Equality Council; Colage; Our Family Coalition; Gay, Lesbian, and Straight Education Network; The Center On Children And Families; The Child Rights Project; and Sarah Gogin

Children's Voices. Laws that deny same-sex couples the right to marry harm two groups of children: 1) Children of same sex-couples who are prevented from marrying, and 2) LGBT youth who wish to marry someday and will be the next generation of same-sex parents. In this briefs, children express in their own words how laws like Proposition 8 and DOMA hurt them.

Marriage Equality USA

Couples' Voices. Same-sex couples share the same hopes and dreams about marriage as other Americans. In this brief, gay men and lesbians express in their own words what marriage means to them.

Survivors of Sexual Orientation Change Therapies

Voices of Survivors of Sexual Orientation Change Efforts. Personal stories from survivors of SOCE, which are representative of the experiences of countless other lesbian, gay, bisexual and transgender people, that illustrate the immutability of sexual orientation and the history of discrimination and animosity faced by gay men and lesbians based solely on a trait that bears no relationship to their ability to contribute to society.

 

Other

Dr. Maria Nieto

Biology. Dr. Nieto is a professor of biology. She argues that the definition of "man" and "woman" is not as clear as it seems. Many people who are genetically male appear to be women, and vice versa. There is no rational basis for using the imprecise classifications of "man" and "woman" to limit the right to marry.

Gary Gates (Williams Institute demographer)

Demographics. This brief presents and analyzes demographic data about LGBT adults and same-sex couples. Among other things, it notes that 6 million American children and adults have an LGBT parent.

Hon. Judith S. Kaye (Ret.), Profs. Stephen Gillers, Charles G. Geyh, James J. Alfini, and Mark I. Harrison

Recusal and Ethics. Various of Petitioners’ amici charge that the district judge who heard and decided this case and the author of the Ninth Circuit opinion affirming the District Court's decision had an obligation to recuse themselves. These arguments are not properly before the Court and find no support in the recusal doctrine.

   
   
 
Last updated: 3/19/2014 10:06:41 AM