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History in the high court

State of California weighs in on U.S. Supreme Court challenge to Proposition 8

Thursday, February 28, 2013

The state of California on Thursday filed its own amicus brief in the U.S. Supreme Court challenge to Proposition 8, the state’s voter approved ban on same-sex marriage.

The state argued that Proposition 8 violates the Fourteenth Amendment, but also that the petitioners — four of the Proposition 8 sponsors — do not have Article III standing to represent California’s interests in federal court.

The sole yet profound effect of Proposition 8 was to take away the right of gay and lesbian couples to call their union a “marriage” and to strip loving relationships of validation and dignity under law. It did not change any of the legal rights and responsibilities afforded same-sex couples and their children under California law.

To be clear, Proposition 8’s singular purpose was to prevent same-sex couples from marrying, and its only function was to stigmatize the relationships of gay and lesbian families. There is absolutely no legitimate or rational state interest in doing so. Proposition 8 is therefore unconstitutional.


Unlike state officials, proponents have no authority to enforce Proposition 8, and suffered no injury-in-fact from the district court’s judgment enjoining its enforcement.

The brief also addresses arguments made by Prop 8 proponents —, the original sponsor of Proposition 8 — that assert preserving “traditional” marriage furthers society’s “existential interests in responsible procreation and childrearing.”

“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,” propoents wrote in their brief, submitted in January. “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.”

In response, the state of California argues:

The fact that same-sex couples cannot conceive a biological child is not a legitimate reason to deny them civil marriage. … Propenents argue that Proposition 8 advances “society’s vital interest in responsible procreation and childrearing.”

Properly understood in the context of California’s family law, Proposition 8 has no impact on how children will be reared in California, which affords the same parental rights to same-sex couples as opposite-sex couples.

Proponents’ related argument, that Proposition 8 advances the state’s interest in ensuring that “unplanned pregnancies” occur in a stable, marital relationship, also fails. This rationale is premised on an indefensible distinction between planned and unplanned children, trivializes the marital bond, and in any event is not furthered by Proposition 8.

The state’s brief is here; Prop 8 proponents’ brief is here.

The Obama administration also asked the Supreme Court on Thursday to overturn California’s ban on same-sex marriage and take a skeptical view of similar bans elsewhere, making a historic argument for gay rights.

The Obama administration’s friend-of-the-court brief marked the first time a U.S. president has urged the high court to expand the right of gays and lesbians to wed.

The high court will hear arguments March 26 in the Proposition 8 case, and the following day in the DOMA challenge.

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9 more reader comments:

  1. yay

    Posted on Thursday, February 28, 2013 at 9:17pm
  2. what a bunch of whole asses

    Posted on Thursday, February 28, 2013 at 9:20pm
  3. @kimberly, who are you referring to?

    Posted on Thursday, February 28, 2013 at 9:23pm
  4. It’s time California!

    Posted on Thursday, February 28, 2013 at 9:54pm
  5. All we want is simple equality.

    Posted on Thursday, February 28, 2013 at 10:01pm
  6. I’m going to prophesy here: We will be victorious!!!!! Equality shall reign in the New Age.

    Posted on Thursday, February 28, 2013 at 10:59pm
  7. This is amazing news!!!

    Posted on Friday, March 1, 2013 at 12:45am
  8. it would be a momentous victory, albeit, a stilted one. Until there is a FEDERAL law in place to recognize same-sex marriages Nationwide, there still remains tremendous work to be done. If a heterosexual marriage is recognized Nationwide, no matter what State in the Union issued the license then same-sex marriages require the same validity.

    Posted on Friday, March 1, 2013 at 1:28am
  9. @Sandy… Baby steps are difficult. I remember 20+ years ago when this started in Hawaii. We will get there. And I am sure you and I will be celebrating that we have seen it in our lifetimes. Yay.

    Posted on Friday, March 1, 2013 at 8:43am