Anti-Prop 8 Amici Briefs

I discussed an amicus brief in support of Prop 8 while noting the notable fact that many states did not join even when their own practice would seem to merit it two weeks back. A few more notable briefs were released today opposing Prop 8: thirteen states (including four states without even a civil union/domestic partnership regime*) and D.C., the state of California (leading with an argument against standing that might be the path ultimately taken) and the U.S.** As a whole, largely predictable, covering now familiar themes; few thoughts below.

First, it is interesting that a few states in effect joined a brief that goes beyond the current law of their states.  Second, the states brief does something not seen much in the various briefs though addressed in the district ruling: a direct reminder that sex discrimination is involved:

Proposition 8 similarly restricts the right to marry by drawing distinctions according to gender and by using that personal characteristic to define an appropriate category of marital partners.

I personally think this is a strong point, but for one reason or another, the various parties focus on sexual orientation discrimination. The Obama Administration brief is in promotion of just that -- it argues that sexual orientation deserves heightened scrutiny and Prop 8 does not meet that test.  Its DOMA brief added a few pages to note that "rational basis with teeth" also is violated, but does not appear to go that route here.  Other parties would gladly go along but also wish to point out that rational basis  fails too.  The Administration might be wary on that front in respect to state marriage laws given the potential reach of the results though does note that "particular circumstances presented by California law" (e.g., broad rights to same sex couples)  make this specific case something of a narrow question.

The states brief uses the gender point to deny the arguments set forth by their opposite members that striking down Prop 8 will make marriage regulations too hard to come by -- "a personal characteristic, unrelated to one’s qualification for marriage" is the problem here.  For instance, age is not an "intrinsic trait," but a changing, temporary barrier.  Incest rules are based on the "nature of relationship" (in practice, it applies to certain blended family relationships not based solely on blood). Consent is another proper concern, one not merely based on "personal relationship."

The California brief argues that it is sensible for Art. III purposes to only allow actual government officials, not merely private parties to defend ballot measures, especially because there is a democratic check on the officials involved.  I am not really convinced since the net result here is that a means specifically set up as a popular check is somewhat nullified [but see edit] if the state is not going to defend it as it works its way up the courts.  Not a big fan of the proposition system but as long as it is deemed legitimate, the state supreme court (accepted by the 9th Cir.) standing approach (based on reading of state law) seems valid. Still, the argument [edit: this brief provides possible ways to defend the concern I cited, only making the argument stronger] might reflect current doctrine, at least enough to be used to punt, and it has some valid aspects  The state adds an argument on the merits, including -- contra the pro amici -- noting that marriage equality (to cite a subheading) "Furthers California’s Interests in Ensuring a Stable Home for Its Children." 

The matter will be argued late March.

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* Prop 8 is a problem in particular because the right in question was removed without proper cause, violating rational basis review in the process.  Still, the overall tenor of the briefs go beyond the limited question and honors the unions in question. At the very least, the states brief has arguments that call into question the laws of the states that signed on whom have no specific means to protect the interests of same sex couples.  Latter day state DOMA laws come to mind here.

** As noted at the link, even though it did not appear to necessarily be what would happen, the brief deals with a narrow question, not addressing the standing issue. The federal interest is more apparent on the merits (equal protection) than respecting standing in respect to state ballot measures. Still, it could advance its arguments to support the state's argument regarding the proper advocates in court, including against the claim the U.S. should not have standing even in the DOMA case since it supported (though still enforcing the law) the lower court ruling.