Prop 8 Plaintiffs File Supreme Court Brief. So Do Republicans! Is President Obama Next?












Olson_boiesFor us, the freedom to marry sits squarely within the American progressive tradition of fundamental fairness and equality. Constitutional lawyers have special terms — substantive due process and equal protection — for those basic concepts and both are on prominent display in AFER's brief to the Supreme Court. The decision to marry, AFER argues, is a right of fundamental importance, one recognized by the Supreme Court 14 times in a diverse array of cases. It is so fundamental that the Court has refused to limit the right of even prison inmates to marry, for example. When a right is so fundamental, any restrictions on that right have to pass a high hurdle to pass constitutional muster; Prop 8 doesn't even clear a low hurdle. Prop 8 also violates equal protection because it treats identical couples differently simply on the basis of their sexual orientation. AFER argues that such discrimination can only be constitutional if it passes a high hurdle — namely, heightened scrutiny — that puts a considerable burden on Prop 8 proponents to argue that banning gays from marrying somehow advances an important social interest; but the brief makes the correct argument that Prop 8 cannot survive under any level of scrutiny. Of course, raising well-adjusted children encouraging opposite-sex couples to have their children inside marriage are not consequences of keeping gays out of the institution of marriage. Therefore, marriage discrimination must go.


The Republicans who filed their brief in support of the freedom to marry don't disagree with AFER's analysis; in fact, their brief starts from the premise of the existence of the fundamental right to marry. But they chose to emphasize a different part of the American legal and political tradition and imply that Prop 8 is no longer justified rather than never justified. The Republicans argue that the institution of marriage is central pillar of human freedom and limited government, situating themselves within the classically liberal tradition of individual rights. They also argue that although the judicial directive is one of restraint, courts cannot remain blind to developing social science: Prop 8, like other laws that outlived their purposes, is "outmoded" and subject to equal protection challenge because the newest social science evidence suggests that there is no difference between opposite-sex and same-sex couples.

Notably, I agree with where the Republicans' brief ends up — namely, calling for the end of Prop 8 and all bans on the freedom to marry; but I cannot abide either of the Republicans' arguments. Marriage is not simply about freedom. If it were, why is the state involved in it at all? And, for that matter, why are we stopping at two-person marriages? Plus, Prop 8 is not "outmoded." It was never a constitutionally justified form of social policy. It was always bald discrimination regardless of whether 75 Republicans bought into the biased pseudo-science and outright lies that got Prop 8 passed in the first place.

WhitmanI also cannot bring myself to embrace the theory that all these Republican signatories have legitimately "evolved" on the freedom to marry. Some of them, including prominent congressional voices from the past decade, came to Congress before "gay marriage" entered the public consciousness. They may have truly evolved, and I heartily embrace their support! But, Republicans like Meg Whitman, who ran for governor of California on a staunch pro-Prop 8 platform just 2 years ago, is either the beneficiary of rapid social chance or a craven politician who never really believed in discrimination but was willing to say anything to get elected. In a way, that form of anti-gay leader is worse than the true believer. The latter has the benefit of honesty of conviction, however disgusting and hateful those convictions might be. The Meg Whitmans of the world were willing to destroy the lives of gays just to achieve power. 

But the Republicans' brief may serve an essential legal and political purpose. It is clear that if Prop 8 is going to be declared unconstitutional, it will be because of the vote(s) of one or several of the Court's conservative justices. The Republicans' brief not only gives these justices a conservative legal argument to vote against Prop 8, it also gives them political cover and provides evidence of an emerging consensus across the political spectrum that bans on gay marriage are things of the fringe.

This argument is unpersuasive. The justice most likely to support a ruling against Prop 8 — Anthony Kennedy — has shown remarkable affinity for the progressive vision at the heart of AFER's brief, making the Republicans' arguments a nice cushion, at best. His opinions in Romer v. Evans and Lawrence v. Texas reveal as much. After all, as Kenji Yoshino has noted, "Justice Kennedy likes two things: states rights and gay rights."

But even if I disagree with the thrust of the Republican brief legal vision, it puts just the right amount of pressure on President Obama to file his own brief in opposition to Prop 8. There is no reason why he shouldn't: Everyone knows he is in favor of the freedom to marry and the uplifting rhetoric of his second inaugural address suggests that he no longer clings to the quixotic states-rights version of civil rights progress. The Republican brief now puts some members of the opposition party at the vanguard of the marriage debate. The President cannot cede that space to the Republicans, even if the lion's share of the Republican Party still supports marriage discrimination.


Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues.


  1. Jim says

    I think it’s great that some Republicans are finally standing against Prop 8. You have a very flattering picture of Meg Whitman, who signed the brief. But, when she ran for Governor and was derailed by her undocumented housekeeper, she was for the implentation of Prop 8. I think her flip flop is more trying to make nice with the many lgbt folk who work in her industry, than a change of heart.

  2. Zack says

    Even though I disagree with most of her politics,Ileana Ros-Lehtinen has been one of the few Republicians from the start who has been on the side of the gay community because of her transgender son.
    You can question the motives of the others but she has been willing to stand aside from her own party on this issue long before other Republicians did.

  3. Lars says

    The lesson here seems pretty clear: a great number of GOP figures privately support marriage equality, but they are too chickensh*t to do so publicly for fear of the political ramifications. That’s why they only come ‘out’ after abandoning positions of power (if not influence, entirely).

    It’s called cowardice.

  4. BABH says

    @John W: I was confused on this too, but last week’s DOJ brief was on the DOMA case, not the Prop 8 case. Obama has till Thursday to decide whether to file in the Prop 8 case.

  5. BABH says

    Richard Socarides asks “What’s the downside” for the Administration in deciding whether to file a brief. My guess is that there’s a good chance the Court will split the baby: uphold Prop 8 by 4-5, but strike down DOMA by 6-3 or even 7-2. It’s always better to be on the winning side, but there’s a deeper issue too.

    Boies and Olson tell a wonderful (and in my view correct) story, but they have to overcome the fact that Prop 8 was about as democratic as anything can be in our democracy. Yes, there’s a “tyranny of the majority” question, and I personally agree that this kind of thing is exactly what the Federal Constitution is there to protect against. But politically – just as we are starting to win at the ballot box! – it might not be a good idea to invalidate a popular vote that happened not to go our way.

    Obama may not wish to be perceived (read: “to be branded by Fox News”) as “undemocratic” at this point in his presidency, especially if we don’t actually win the case.

  6. MM says

    Considering Mississippi just ratified the 13th amendment… 148 years later… what if slavery was put on the ballot box or segregation or women’s rights? Would your tune change then? Why are gay rights acceptable to vote on at the ballot box but other “more important” social issues are not? Just food for thought…

  7. says

    I gave a talk at UWyoming College of Law on Valentine’s Day on these cases and had a lot of fun doing so. The students were a great audience.

    My prediction, for what it’s worth:

    1. In Hollingsworth (the Prop 8 case) the Court finds no standing for the referemdum supporters, hence no jurisdiction in the Supreme or Appellate Court and the Trial Court’s Judgment takes effect permanently enjoining Prop 8 and legalizing marriage equality in California.

    2. In Windsor (the estate tax case) the Court avoids ruling on Boehner, et al., having standing, rules that the US Government appeal gives the Court jurisdiction, and strikes down Section 3 of DOMA.

    3. The big question is whether the Court adopts a Standard of Review for sexual orientation cases. If it does so and applies heightened scrutiny then marriage equality will become (on a case by case basis) the law of the land.

  8. Anthony says

    I believe that they will dismiss prop 8 case based on standing, and strike down DOMA and make sexual orientation a suspect class, which would mean all the marriage bans are thrown out state by state.

  9. Rich says

    Another possibility is that the Court will reject Prop 8 based on standing but as obiter dictum opine that it concurs with Judge Walker’s analysis. This would give the other 40 states time to scramble for cover but make it clear what would happen if their own Constitutional provisions were to be litigated.

    It might also prod Congress to repeal Section 2 of DOMA, though I wouldn’t hold my breath.

Leave A Reply