As if defensive about how bigoted they really are, ProtectMarriage's Prop 8 brief states that "[t]he gendered definition of marriage has prevailed in all societies throughout human history not because of anti-gay animus but because marriage is closely connected to society's vital interests in the uniquely procreative nature of opposite-sex relationships. It has always been, and is now, supported by countless people of good faith who harbor no ill will toward gays and lesbians." States allow opposite-sex couples to marry because they have a "vital" interest in "responsibly creating and nurturing the next generation." After all, "an animating purpose of marriage is to increase the likelihood that children will be born and raised in stable and enduring family units by their own mothers and fathers," ProtectMarriage goes on to argue. "Because relationships between persons of the same sex do not have the capacity to produce children, they do not implicate this interest in responsible procreation and childrearing in the same way."
ProtectMarriage would have us believe that opposite-sex procreation makes gay couples sufficiently dissimilar from heterosexual couples to justify the discrimination inherent in Prop 8. In other words, the two types of couples are not similarly situated because only one can accidentally have a child out of wedlock. Therefore, the state should be allowed to encourage heterosexuals to marry because we don't want children to be raised in unstable households.
This is ProtectMarriage's best argument for enshrining discrimination in the California Constitution and yet, it fails to address the very question raised by Hollingsworth v. Perry. Our community's challenge to the constitutionality of Prop 8 does not question society's interest in encouraging people to marry; it challenges the notion that banning gays from marrying is in any way related to or necessary for the government realizing that social interest. The mere fact that gay couples do not reproduce in the same manner as opposite-sex couples neither means that a ban on gays marrying is necessary to encourage heterosexuals to have their children in wedlock nor justifies official discrimination against gays.
ProtectMarriage also argues that "[c]ontroversial social policy issues such as [marriage] are particularly well suited, of course, for the give and take of the democratic process, where individuals may persuade or be persuaded, and where broad public participation, compromise, and incremental change are not only possible but likely." And, in a not-so-subtle reference to the political fallout from cases like Roe v. Wade, the group reminds the Court that "[d]ecisions reached through this process are more likely to be regarded by a free people as legitimate and to be widely accepted than decisions reached in any other manner."
Of course, the group ignores the fact that its members and its allies like the National Organization for Marriage lie, mislead, and engage in fearmongering whenever the freedom to marry is on the ballot. The brief is blind to the group's undemocratic preference for secrecy and ignorant of the fact that regardless of the popular will, no one, no matter how large a majority, is allowed to enact laws that blatantly violate the U.S. Constitution.
Whereas ProtectMarriage's Prop 8 brief decided to respond to some question other than the one specified by the Court, it is not internally incoherent: it's just a bad, weak argument. The House Republicans' brief in support of DOMA, however, makes no sense (pictured, right, lead attorney Paul Clement). At times, the brief argues for states' rights, echoing ProtectMarriage's view that marriage is best decided in the political sphere at the state level. But, even House Republicans concede that DOMA enacts a federal definition of marriage, something we know is an unprecedented intrusion of federal power into the traditional and exclusive realm of the states. It jumps head first into this morass while not completely understanding DOMA itself!
The brief states that "DOMA reflected Congress' determination that each sovereign should be able to determine for itself how to define marriage for purposes of its own law. DOMA does not override or invalidate any sovereign’s decision to modify the definition of marriage, but it does preserve that prerogative for each sovereign." True, but that's Section 2 of the statute, the one that prevents the definition of marriage in one state from pulling every other state along with it. But, at issue in Windsor v. United States is Section 3, which defines marriage, for federal purposes, as a union between one man and one woman. In that way, DOMA takes aware the sovereign power of the states. It insists that, for the first time, states will not be in control of determining who is married and who is not for federal purposes. DOMA does not enhance state experimentation and states rights; it erodes them.
At the same time, it misunderstands the heightened scrutiny question. If you recall, a central issue of the case is what level of scrutiny to give to state discrimination on the basis of sexual orientation: the higher the hurdle, the harder it will be for the statute to pass constitutional muster. House Republicans believe that only "politically powerless" groups get heightened scrutiny, but that position shows they haven't done their homework. The heightened scrutiny factor is more about whether a group can achieve their goals through the political process alone. Judging by the number of constitutional amendments banning gay marriage and the difficulty in undoing those travesties of justice, it doesn't matter how many officials support gay rights. It's not a numbers game; it's a question of our continued victimization by the tyranny of the majority, the country's history in placing special burdens on us and discriminating against us, and our inability to exercise our equal rights through politics alone.
The weakness of our opponents' briefs in both the Prop 8 case and the DOMA case offers a heartening reminder that the law is on our side. We may still be jittery because rare is the court decision that is a pure exercise of legal reasoning without the dirty imprint of politics and bias. And yet it is hard to imagine Justice Kennedy, and maybe even Chief Justice Roberts, letting themselves be bamboozled into thinking DOMA protects states rights. It is equally hard to imagine even conservative justices falling for the magician's misdirection employed in ProtectMarriage's brief. We have the benefit of the best legal argument, and that's more than half the battle.
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.