Pro-Prop 8 Brief

Senate Dems have unveiled a new re-authorization of VAWA legislation, blocked by House Republicans after it managed to get some Republican votes in the Senate because of provisions involving gays, undocumented immigrants and Native Americans.  Meanwhile, SCOTUSBlog discussed the latest briefs in the Prop 8 and DOMA cases.  I'll focus on the former, which is the somewhat weaker case for the side of good. 

The brief’s argument about the constitutionality of “Proposition 8” focused on three central themes: marriage in the U.S. has always been under the control of the states, the states from time immemorial have restricted that institution to opposite-sex couples, and the timing of when a state reaffirms its support for the traditional version of marriage makes no constitutional difference.

The question here would be if this specific regulation of marriage was legitimate and the "timing" here can make a difference.  The split in two Ten Commandments display cases comes to mind here though it mostly only convinced that lesser known swing justice, Justice Breyer, who has actually been in such a place repeatedly.  Another situation that comes to mind is drug testing of students, where he too took a less liberal position than Justice O'Connor. Anyway, the point there was a long standing display could be acceptable, but another more recent one had an illegitimate purpose.  All displays aren't the same.  The context matters.  This applies in the equal protection context too, as seen in the area of felony disenfranchisement, which is generally accepted, except when there is a clear illegal motive.  See, Hunter v. Underwood. 

This is a major difference too between longstanding marriage laws that only allow different sex couples to marry and johnny come lately affairs that specifically target same sex couples ala Prop 8. Likewise, the discriminatory background of such laws are more blatant, specifically the targeting of homosexuals and same sex couples.  Factors like this can up the ante, justifying a higher test to meet, the "rational basis with teeth" rule that O'Connor in Lawrence et. al. put in place.


I personally think same sex marriage should be protected as a general matter on constitutional grounds, but these things develop over time.  The 9th Cir. did not decide that matter -- it held that this specific law was a problem.  And, the specific timing and background is relevant.  Finally, yes, restriction to opposite sex couples was a general rule, but so was not providing domestic partnership rights that provide broad protections to same sex couples.  We live in a different world and you have to address the reasonableness with that in mind. 

The Lawrence precedent, the brief said, was about punishing criminally acts of private human conduct in the home, while “Proposition 8″ does not even discourage let alone criminalize any private behavior or personal relationship. The Romer decision, it said, involved the imposition of a sweeping form of political disability because of a person’s single trait, while the California measure has made no change whatsoever in a series of laws that provide gays and lesbian couples with very comprehensive civil rights.  The Loving and Brown rulings, the brief added, dealt with explicit racial discrimination, while the California amendment involves only the definition of marriage without regard to race.

Lawrence did expressly note that state recognition of this nature was not involved, but the general principles of the case justify equal respect here.  Likewise, earlier rulings did not involve interracial marriage, but eventually, the basic principles was applied to that context.  Loving also concerns broader principles than the specific ones applied, including equal protection and honoring fundamental liberties in different contexts.  Generally speaking, Justice Blackmun was right in his Bowers dissent [FN5] that the "parallel between Loving and this case is almost uncanny."  Next, come on -- if Prop 8 does not even "discourage" this sort of thing vis-a-vis different sex unions, what is the point?  If anything, it then becomes bare animus, which blatantly violates Romer and Lawrence.  Prop 8 was not as broad as the law in Romer, but it did "change" a significant liberty in ways that provide a suitable parallel, focused upon  a "single trait" as well.*

Meanwhile, there also is a discussion of the defense of DOMA, including how somehow it honors federalism and the "go it slow" labatories allowed there by selectively harming states that authorize same sex marriage.  All in time for Valentine's Day.

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* Cf. Prof. Kerr doing one of his clueless professor routines and apparently with a straight face wonders why even a supporter of SSM would necessarily find voting for Prop 8 a problem. We are supposed to remember he is not a bigot.  No, he is just aiding and abetting them here with such selective pretextual reasoning. Since that would be in bad form, we are left with those who just note the problems with his reasoning.