Olson and Boies’ Supreme Court brief against Prop 8

02.21.2013, 6:03 PM

David Boies & Ted Olson after Prop 8 oral arguments at 9th Circuit Court of Appeals

For discussion, I’m posting the entire introduction to Olson and Boies’ Supreme Court brief, which is excellent.

I especially like, and agree with, their point that it is the opponents of marriage equality who are “redefining marriage” with their “cramped definition of marriage as a utilitarian incentive devised by and put into service by the State.”

You can read the entire brief here. You can read the entire brief from the folks defending proposition 8 here, in pdf form. (If you don’t have time to read the whole thing, read pages 20-26).

The text of Olson and Boies’ introduction, with most of the legal citations omitted to make it more readable, is below. Credit for this edit of the text belongs to Rob Tisinai of the excellent blog Waking Up Now.

This case is about marriage, “the most important relation in life,” a relationship and intimate decision that this Court has variously described at least 14 times as a right protected by the Due Process Clause that is central for all individuals’ liberty, privacy, spirituality, personal autonomy, sexuality, and dignity; a matter fundamental to one’s place in society; and an expression of love, emotional support, public commitment, and social status.

This case is also about equality. After a $40 million political campaign during which voters were urged to “protect our children” from exposure to the notion that “gay marriage is okay,” and “the same as traditional marriage,” and thus deserving of equal dignity and respect, Proposition 8 engraved into California’s constitution the cardinal principle that unions among gay men and lesbians are not valid or recognized as marriages, and therefore second-class and not equal to heterosexual marriages. Proposition 8 thus places the full force of California’s constitution behind the stigma that gays and lesbians, and their relationships, are not “okay,” that their life commitments “are not as highly valued as opposite-sex relationships,” and that gay and lesbian individuals are different, less worthy, and not equal under the law. That “generates a feeling of inferiority” among gay men and lesbians—and especially their children— “that may affect their hearts and minds in a way unlikely ever to be undone.” Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954).

Proponents accuse Plaintiffs (repeatedly) of “redefining marriage.” But it is Proponents who have imagined (not from any of this Court’s decisions) a cramped definition of marriage as a utilitarian incentive devised by and put into service by the State—society’s way of channeling heterosexual potential parents into “responsible procreation.” In their 65-page brief about marriage in California, Proponents do not even mention the word “love.” They seem to have no understanding of the privacy, liberty, and associational values that underlie this Court’s recognition of marriage as a fundamental, personal right. Ignoring over a century of this Court’s declarations regarding the emotional bonding, societal commitment, and cultural status expressed by the institution of marriage, Proponents actually go so far as to argue that, without the potential for procreation, marriage might not “even..exist[ ] at all” and “there would be no need of any institution concerned with sex.” (internal quotation marks omitted). Thus, under Proponents’ peculiar, litigation-inspired concept of marriage, same-sex couples have no need to be married and no cause to complain that they are excluded from the “most important relation in life.” Indeed, Proponents’ state-centric construct of marriage means that the State could constitutionally deny any infertile couple the right to marry, and could prohibit marriage altogether if it chose to pursue a society less committed to “responsible” procreation.

This, of course, reflects a complete “failure to appreciate the extent of the liberty at stake,” not to mention matters such as love, commitment, and intimacy that most Americans associate with marriage. As Proponents see it, marriage exists solely to serve society’s interest; it makes no sense to speak of an individual’s right to marry.

Proponents view this case as a referendum on whether the institution of marriage should exist in the first place, focusing almost exclusively on why it makes sense for the States to grant heterosexuals the right to marry. But this case is not about whether marriage should be abolished or diminished. Quite the contrary, Plaintiffs agree with Proponents that marriage is a unique, venerable, and essential institution. They simply want to be a part of it—to experience all the benefits the Court has described and the societal acceptance and approval that accompanies the status of being “married.”

The only substantive question in this case is whether the State is entitled to exclude gay men and lesbians from the institution of marriage and deprive their relationships—their love—of the respect, and dignity and social acceptance, that heterosexual marriages enjoy. Proponents have not once set forth any justification for discriminating against gay men and lesbians by depriving them of this fundamental civil right. They have never identified a single harm that they, or anyone else, would suffer as a result of allowing gay men and lesbians to marry. Indeed, the only harms demonstrated in this record are the debilitating consequences Proposition 8 inflicts upon tens of thousands of California families, and the pain and indignity that discriminatory law causes the nearly 40,000 California children currently being raised by same-sex couples.

The unmistakable purpose and effect of Proposition 8 is to stigmatize gay men and lesbians—and them alone—and enshrine in California’s Constitution that they are “unequal to everyone else,” that their committed relationships are ineligible for the designation “marriage,” and that they are unworthy of that “most important relation in life.” Neither tradition, nor fear of change, nor an “interest in democratic self-governance,” can absolve society, or this Court, of the obligation to identify and rectify discrimination in all its forms. If a history of discrimination were sufficient to justify its perpetual existence, as Proponents argue, our public schools, drinking fountains, and swimming pools would still be segregated by race, our government workplaces and military institutions would still be largely off-limits to one sex—and to gays and lesbians, and marriage would still be unattainable for interracial couples. Yet the Fourteenth Amendment could not tolerate those discriminatory practices, and it similarly does not tolerate the permanent exclusion of gay men and lesbians from the most important relation in life. “In respect of civil rights, all citizens are equal before the law.” Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting).


50 Responses to “Olson and Boies’ Supreme Court brief against Prop 8”

  1. [...] the respect, and dignity and social acceptance, that … … Read the rest here: Olson and Boies' Supreme Court brief against Prop 8 « Family … ← DAILY POST: Advice to SINGLE People From MARRIED People [...]

  2. annajcook says:

    Thanks for posting both of these, Barry! I’m downloading them right now to read over the weekend.

    Needless to say, my wife and I will experience a direct effect on our citizenship status if the Supreme Court chooses to deal not just with Proposition 8 (the California law), but also the constitutionality of DOMA at the federal level, since right now we are married in the eyes of our state but not in the eyes of our country. (Well, yes in the eyes of one of my wife’s countries, now, since she has dual US-UK citizenship.)

    I’d like to underscore the point made in Olson and Boies’ introduction:

    Proponents have not once set forth any justification for discriminating against gay men and lesbians by depriving them of this fundamental civil right. They have never identified a single harm that they, or anyone else, would suffer as a result of allowing gay men and lesbians to marry.

    I think it’s important to remember that, when we’re talking about citizenship rights, there has to be an overwhelming, compelling state interest to deprive citizens of those rights — that is, the burden of proof resides with those seeking to restrict rights, rather than those seeking to expand/equalize them.

    I realize that I am heavily invested in these debates as someone whose rights are being put up for discussion (and, actually, I think it’s important to remember that the people at the center of these debates are being materially harmed by discrimination). But I do believe that America, as a nation, is founded on a fairly strong tradition of presuming citizens have broad liberty to pursue happiness (including establishing committed relationships with one another), and that there needs to be a very, very strong case made for barring them from doing so. One that the anti-ssm side has failed time and again to make.

  3. David Hart says:

    I had a “doctor day” today which gave me plenty of time to read and re-read this thing. The ultimate reality is that the “responsible procreation” argument is baloney. Irrespective of whether gays can marry, the same hetero couples are going to crank out no more, no fewer and no different children.

    Some of Boies’ utter disdain clearly made it into the brief.

    They also make a very good case for heightened scrutiny reminding the justices that we have no federal employment, housing and other protections and only have some protection in 29 states.

  4. Greg Popcak says:

    Indeed, Proponents’ state-centric construct of marriage means that the State could constitutionally deny any infertile couple the right to marry, and could prohibit marriage altogether if it chose to pursue a society less committed to “responsible” procreation.

    What an incredibly offensive and intentional mischaracterization of the position of those who stand against the redefinition of marriage.

    Infertile couples can still be admitted to marriage because (a) infertility is not always absolute and (b) even when it is, infertile couples can be married without having to necessarily insist that a children’s right to a mother AND a father is discriminatory.

    Allowing same-sex marriage effectively requires the redefinition of the natural needs of the child to simply having “parent 1″ and “parent 2″ instead of “mother” and “father.” Every child naturally aches for both a mother and a father and every child deprived of one or the other is keenly aware of the absence. Same-sex marriage would require society, and mental health professionals in particular, to tell any child (not just children of homosexual parents) who is grieving the absence of either mother or father that their grief is irrational and unacceptable and–at best–a distant second to society’s need to appease the narcissistic desires of adults.

    Apparently, in the “new” conversation on marriage. Children should be seen and not heard.

  5. zztstenglish says:

    Awarding benefits to a couple in love is not a compelling reason to recognize any marriage including same-sex marriage. The state does not regulate love.

    To the contrary, equal protection applies “where individuals in the group affected by a law have distinguishing characteristics relevant to [State] interests….” See Cleburne v Cleburne Living Center or Substantive Due Process.

  6. Kevin says:

    “Infertile couples can still be admitted to marriage because (a) infertility is not always absolute…:

    You misunderstand the concept involved: that marriage is about procreation, evidently AND non-procreators create bad press for that concept. So it’s not that, say, the elderly couple might have a baby; the far greater likelyhood that they won’t requires that they don’t get to marry, because their childless marriage will, evidently, send the wrong message to others about what marriage is for.

    Somehow we are not adequately informed as to why same-sex couples raising children are not good models for “marriage as a child-raising vehicle.”

    “Allowing same-sex marriage effectively requires the redefinition of the natural needs of the child…”

    Big fail. Same-sex marriage is not the same thing as same-sex parenting. If you object to same-sex parenting, then you don’t have to object to same-sex marriage.

    Mental health professionals are not required to tell anybody anything. Where do you come up with this stuff?

    ‘english, the state and society most definitely have an interest in seeing that all citizens are treated equally under the law, and that every child has the opportunity to be raised by married parents, that is, raised inside not outside of wedlock. In a secure parenting environment, such as marriage provides.

    The government is a lot less interested in procreation that is persistently claimed by the anti-gays: the government legalized abortion, birth control and divorce, major antidotes to baby-making.

  7. zztstenglish says:

    Wrong. Infertile couples are permitted because the state doesn’t know if you are infertile or not. You never heard of doctor-patient confidentiality? For evidence, see Standhardt v Arizona(“government inquiry into a couple’s procreation plans or requiring sterility tests before issuing a marriage license would raise serious constitutional questions”)

  8. David Hart says:

    Greg Popcak:

    The brief is in response to arguments actually made.

    In order for responsible procreation to make sense, gay marriage would have to cause straight couples to have more, fewer or different children. There is no evidence in the record to support that contention. Hence, Mr. Boies and Mr. Olson are precisely correct.

  9. David Hart says:

    BTW, also absent from the record is any attempt to define “irresponsible procreation.” The best witness for proponents of Proposition 8 was, well, David Blankenhorn …. and we all know how that worked out ;-) The record is what it is. It didn’t change in the 9th Circuit and the Supreme Court is not a trier of fact. That’s done. That cake is baked.

  10. Matt N says:

    Greg Popcak: “Every child naturally aches for both a mother and a father and every child deprived of one or the other is keenly aware of the absence.[...]Apparently, in the ‘new’ conversation on marriage. Children should be seen and not heard.

    Okay, hear me now: the belief that I required a mother and a father was used to legitimize abuse. This belief damaged me as a child. This belief harms at least some of the children you’re purporting to speak for.

    Same-sex marriage would require society, and mental health professionals in particular, to tell any child (not just children of homosexual parents) who is grieving the absence of either mother or father that their grief is irrational and unacceptable

    Okay, here’s a question, do you think a child would instinctually mourn a dead parent, tautologically because they were their parent, or do you think they mourn the continuation of the relationship that could have been? All the potential care and kindness lost? The connection that’s been severed and transformed from their life to how their life used to be?

    Likewise, how do you see these pathologization of mourning even remotely foreshadowed in this or other bills? How do marital laws even indirectly connect to our understanding of grief?

    and–at best–a distant second to society’s need to appease the narcissistic desires of adults.

    I’ll redirect you to the above. A lot of SSM opponents claim they’re speaking for people like me – but they usually have never met someone raised by a same-sex couple and in my experience willfully disregard my experiences and perspective. If you just put words in my mouth and don’t actually listen to what I’m saying, you’re not speaking on my behalf – you’re using me as a political prop. Don’t do that, and then claim that someone else was the one doing that.

  11. David Hart says:

    zztstenglish:

    As politely as I can put this, nobody would make such an argument in a federal court. It’s nonsense. Infertile couples, elderly couples and even couples where a partner is incarcerated are permitted to marry because the purpose of marriage is not procreation; It is to create a marital estate.

    If the purpose of marriage was “responsible procreation” one has to prove how gays marrying changes who has which children.

    In the final analysis, proponents have a religious objection to marriage equality. All of this gobbledygook is an effort to find a secular argument in opposition.

  12. Kevin says:

    “Infertile couples are permitted because the state doesn’t know if you are infertile or not.”

    Wrong. Infertile couples are permitted because, so long as they are opposite-sexed, aka, straight. The state could easily post signs in marriage license bureaus informing the public that only fertile couples, and couples who intend to have children, may marry. Word would get around pretty quickly that marriage has a purpose now, and some folks don’t need marriage (non-procreators), based on that purpose.

    In fact, if marriage is (solely) about procreation, to the point that non-procreativeness is a disqualifier (the argument used to exclude same-sex couples), marriages could be dissolved after a certain period of time with no children produced. And letting non-procreative straight couples marry would be no less “damaging” to marriage than letting same-sex couples marry.

  13. Tim says:

    Olson has been among the very few people who has expressed confidence that the Supreme Court will issue a sweeping and definitive ruling recognizing a fundamental right for same-sex couples to marry. I had previously thought that the Court might duck doing the right thing and come up with some very narrow ruling tailored to the peculiar circumstances of California. But now I think Olson may be correct. At least, it is clear that he and Boies are going for the home run in their brief. While they recognize the particular circumstances in which Prop 8 was passed, including the animus that motivated it, they build an excellent case for a broad ruling.

  14. zztstenglish says:

    @Kevin: Am I wrong about infertile couples? Really? I just quoted Standhardt v Arizona? Where’s your counter evidence? I also got more

  15. zztstenglish says:

    @David: Too bad for you the Supreme Court has linked marriage and procreation. See Baker v Nelson

  16. Manny says:

    But Kevin, as we all know, marriages aren’t dissolved if they don’t have children, and infertile couples are allowed to have children, so it obviously isn’t about ability. Indeed infertility was not a traditional grounds for divorce either, there is no right to be guaranteed children, only a right to be allowed to try to have children. On the other hand, sibling marriages are dissolved even if they have already had children, and also even if they are infertile. Marriage is only for couples that are allowed to have children, that have an ethical right to have children together. There is no age limit or fertility requirement because they aren’t required to have children, it’s OK if they cannot. But it is not OK if they may not. If it would be unethical or bad public policy to allow that kind of relationship to procreate, then they are never allowed to marry. There has never been a marriage that was also prohibited from procreating (those infertile cousin marriages and prisoner marriages are not prohibited from procreating).

  17. Karen says:

    ….would require society, and mental health professionals in particular, to tell any child (not just children of homosexual parents) who is grieving the absence of either mother or father that their grief is irrational and unacceptable

    Yet, this is EXACTLY what is already now happening in the “donor” conception/”surrogacy” debate. The professionals, industry, parents tell those were intentionally created by an absent father/mother, they are just “donors”, just dna, to be grateful to be alive, no one choses their parents, everyone has life challenges, they were loved/wanted, the real father(s)/mother(s) are the ones who raised you, at least you are not abused, others have it worse, it shouldn’t matter, if it does you are maladjusted, have a pathology, mourning/grieving for something that doesn’t exist etc. etc. etc.

    But yet society tells us that fathers and mothers are supposed to matter, just not in our cases when the loss is intentional, industrialized and condoned by society, promoted in the media and the politically correct.

  18. Will D. Raison says:

    It’s not true that checking for infertility is required for excluding infertile couples from marriage. One could simply ask for proof of procreation after about 5 years of marriage. That would cause infertile couples to “self-deport” from marriage. There are also elderly couples who we know are infertile due to age. They aren’t excluded from marriage because marriage isn’t necessarily about procreation.

    Neither is marriage about promoting optimal parenting, as a commenter above suggests. If it were, then we would exclude couples older than 40 from marrying since their children have a higher risk of having congenital disorders, and having a parent die when they are young. Couples in poverty would also have to be excluded.

  19. Kevin says:

    “@David: Too bad for you the Supreme Court has linked marriage and procreation. See Baker v Nelson”

    In a way that excludes non-procreative couples? Has our society ever practiced excluding non-procreative couples from marriage? So why start now?

  20. Manny says:

    Same-sex couples are not “non-procreative” they just have to use unethical methods such as purchasing sperm and eggs and separating the child from one of its parents on purpose in order to procreate.

  21. JHW says:

    If you really think that marriage’s exclusive purpose is “responsible procreation,” and that including couples who don’t directly fulfill that purpose (like same-sex couples) is damaging to the institution, you might still be able to find a good policy argument for not excluding infertile different-sex couples. (I doubt it, though. You could ban marriage for the elderly; you could require people before marrying to affirm that they know of no reason why they would be incapable of procreation. Neither of those would involve administratively difficult or overly intrusive inquiries. And, with all due respect, it’s entirely obvious that the reasons infertile different-sex couples are permitted to marry as a matter of unquestioned consensus have little to do with the strained rationales invented by people trying to defend against same-sex marriage arguments.)

    What you certainly can’t do, though, is claim that there would be a constitutional argument against excluding those couples. If marriage is solely about responsible procreation, then why should the right to marry extend to couples who can’t procreate? If marriage is solely about responsible procreation, and couples who can’t procreate accidentally weaken the institution, then right there is a rational basis for banning infertile couples from marrying.

    But, as Olson and Boies aptly illustrate, there is no chance whatsoever that such a ban would be constitutionally tolerable. It is just that, in the current situation, a special exception is carved out for same-sex couples: for them, and no others, weak and implausible utilitarian policy rationales are supposed to control their access to marriage.

  22. Tim says:

    It is noteworthy that in the introduction, Olson and Boies cite Brown v. Board of Education. This immediately signals the context in which they are placing this court and pleads for a landmark decision. I think they will get it. Not only is their brief brilliantly written, the brief by the opponents is devoid of serious argument. It is too much to hope for a unanimous decision, given the seats occupied by Scalia and Thomas, but I would not be surprised by a 6-3 decision on the Prop 8 case and a 7-2 decision striking down DOMA.

  23. mythago says:

    Baker v. Nelson is a STATE supreme court case (that is, Minnesota). Setting aside the question of whether its reasoning is sound or still good given that it was decided in 1972, it’s profoundly dishonest to suggest that it is the view of ‘the Supreme Court’.

  24. zztstenglish says:

    @mythago wrote “it’s profoundly dishonest to suggest that it is the view of ‘the Supreme Court’.”

    Nope. See http://en.wikipedia.org/wiki/Baker_V_Nelson. Here’s a quote (“The plaintiffs appealed, and on October 10, 1972, the United States Supreme Court dismissed the appeal “for want of a substantial federal question. Because the case came to the federal Supreme Court through mandatory appellate review (not certiorari), the summary dismissal constituted a decision on the merits and established Baker v. Nelson as a precedent”)

    And, in fact, you’ll see its precedent has been used in Nebraska, Indiana, and recently in Nevada (2012). It’s profoundly dishonest on your part to not research it.

  25. Tim says:

    zztstenglish: Baker v. Nelson has been repudiated by every appellate court in which it has been brought up in the last ten years. If all you have to pin your hopes on for a Supreme Court decision that you would like in the DOMA and Proposition 8 cases is a 1971 summary judgment that did not even include an opinion, then I would like to sell you a bridge I won in Brooklyn. The Nevada opinion, written by a Mormon district judge, will not be taken seriously in the Ninth Circuit if it is even heard there. It is in abeyance awaiting the Supreme Court’s opinion in the Prop 8 case.

  26. [...] David’s Family Scholars Blog, Barry Deutsch, political cartoonist and longtime veteran of the war on marriage, admiringly posts [...]

  27. Kevin says:

    I find it interesting that groups opposed to legal same-sex marriage seem to have different reasons for their opposition, depending on their audience.

    For public purposes, they’ve used reasons such as “schools will teach kids how to be gay,” or “gay parents are a threat to kids,” and other pieces of misinformation. But they don’t push the “marriage is about procreation” argument publicly, reserving that for court cases.

    Why? Would it be too offensive to childless straight couples to question their right to marry? I wonder.

  28. zztstenglish says:

    @Tim – US v Windsor regarding DOMA is about Federal Benefits. Baker v Nelson was a challenge to the Federal Constitution.

    Two different legal questions.

    Please rectify your ignorance.

  29. zztstenglish says:

    @Kevin – Expanding benefits to more childless marriages yields no benefit to the state. If anything, it’s a waste of tax money.

    Besides, why do you think the government is subsidizing marriage? You think they do it for fun? What’s the logical reasoning behind it?

  30. Jason Jackson says:

    http://www.theamericanconservative.com/dreher/why-conservatives-are-losing-the-marriage-battle/

    This–differing assumptions– is why debates over gay marriage are so divisive.

  31. annajcook says:

    Same-sex couples are not “non-procreative” they just have to use unethical methods such as purchasing sperm and eggs and separating the child from one of its parents on purpose in order to procreate.

    Manny, I think others have spoken to this point, but American law and culture has NEVER required that couples seeking to marry pass some sort of “good parents” or “ethical procreation” test. If you believe that ART is unethical, this is a separate argument from the argument over whether there should be sex-based discrimination around which consenting adults can and cannot marry. Heterosexual married couples also use these technologies which you are uncomfortable with, while many same-sex couples choose to remain non-parents.

    These conversations are, of course, both part of a larger conversation about diversity of family forms, but one could disagree that any same-sex couple could ethically be parents, while still accepting their right to marry.

  32. Kevin says:

    “Besides, why do you think the government is subsidizing marriage? You think they do it for fun? What’s the logical reasoning behind it?”

    I don’t think there is a particularly logical reason but it certainly makes sense to get people to pair up and take care of each other, so the taxpayer doesn’t have to. Marriage brings a lot of benefits to its practitioners, such as longer life, and greater wealth. A married person is less likely to commit a crime.

    And for me, the biggest reason to encourage couples to marry is if they are raising children. Children are much better off if raised by a couple that intends to stay together, and marriage is such a commitment.

    I don’t think most government marriage benefits cost the state anything, do they? Not having to testify against a spouse doesn’t cost anything; granting a spouse unfettered access to a hospitalized spouse doesn’t cost anything. I think couples filing income tax actually pay more as a married couple.

    Every couple should have the right to tell the world who their life partner is, and make that as official as possible. It also serves to put the world on notice: these two individuals are not available for courting; they’re “off the market” as it were. That alone is a big stability factor for a relationship. Gay couples lack this protective defense for their relationships and it creates instability for them.

  33. I feel a bit guilty for not participating in this discussion; I’ve been too absorbed by the discussion of slavery on David B’s thread, and now I have to go spend the weekend working at a comic book convention, so I won’t have time to participate. :-(

    Thanks to everyone who has posted comments here.

  34. David Hart says:

    Correct me if I am wrong (I am sure that you will). There is a certain contingent that objects to marriage equality on the premise that it will spawn more children conceived through ART.

    Certainly, that is possible but it is not an argument made by proponents of Proposition 8 and, therefore, it is not part of this case. Nevertheless, the concern deserves attention.

    Surrogacy is going to be extremely rare, in my opinion, due to the inherent risks and tremendous cost. Male couples are more likely to adopt which means that they are providing parents to children who have none. Some lesbian couples will utilize artificial insemination for one of the partners to conceive. To what extent remains completely unknown.

    I think that we need to scale this issue to put it in proper perspective. If the experience in Spain is any indication, roughly 3% of all marriages are going to be same-sex marriages. Therefore, we are concerned about a small percent of a small percent. Then there may be a statistically insignificant difference between their occurrence with, or without, the recognition of same-sex marriage.

    In other words, there exists no reason to correlate a great difference in ART due to marriage equality. Gay people are forming families regardless of legal recognition. That may be the very reason that people who are concerned – based on ART – should support marriage equality. Equal marriage assures those kids of having married parents with its attendant legal protections.

  35. Tim says:

    zzstenglish, I believe you are the ignorant one. The Nevada case, on appeal to the Ninth Circuit, challenges the Nevada civil union law on the very same grounds that the Ninth Circuit ruled Proposition 8 unconstitutional. The Mormon judge at the district level cited Baker v. Nelson. The Ninth Circuit put the Nevada case, along with a Hawaii case, on hold pending the Supreme Court action on the Prop 8 case. I said nothing about the Windsor case.

    IF the Supreme Court rules broadly in the Prop 8 case, they will establish a fundamental right to same-sex marriage, which will bring same-sex marriage to Nevada and make the Nevada case irrelevant. If they rule narrowly or uphold Prop 8 on procedural grounds, the Ninth Circuit will use those rulings as a precedent and order that Hawaii and Nevada offer same-sex marriage.

  36. David Hart says:

    Kevin:

    I find it interesting that groups opposed to legal same-sex marriage seem to have different reasons for their opposition, depending on their audience.

    Mr. Olson and Mr. Boies make that observation repeatedly in the brief. They have also included exhibits demonstrating that Prop 8 proponents were relying on an intellectually dishonest theme of “oppose homosexual marriage to protect your children.”

    Now I am going to take my fat Jewish tush out for a lengthy walk. Have a nice weekend all.

  37. Manny says:

    “American law and culture has NEVER required that couples seeking to marry pass some sort of “good parents” or “ethical procreation” test. ”

    The ethical procreation test is very simple: do not be siblings, do not be a father and daughter, etc, do not be married to someone else, do not be a child, etc. Other than those certain relationships, we allow all people to marry someone, because it is a basic human right.

  38. zztstenglish says:

    @Tim – Again, you mentioned DOMA before SCOTUS which would be US v Windsor. My reply was directly to that NOT prop 8. Read carefully.

  39. zztstenglish says:

    @Kevin says “I don’t think there is particularly a logical reason [as to why the government subsidizes marriage]…”

    http://www.law2.byu.edu/jpl/Vol22.2/Black.pdf

    See page 333. “[Marriage benefits] is, rather, the recognition of the extra costs in maintaining CHILDREN…” See footnote 12 taken from the US Treasury.

    The FACT that the state is subsidizing marriages for children should tell you something. That’s why I said that expanding benefits to MORE childless marriages yields no benefit to the state. If anything, it’s a waste of tax money.

  40. Manny says:

    “If marriage is solely about responsible procreation, then why should the right to marry extend to couples who can’t procreate?”

    JHW, marriage is not solely about procreation, and there is a basic right to marry even if you are infertile, and no age limits because it would be arbitrary and unnecessary, but no one is allowed to marry someone in a relationship that is prohibited from procreating. Same-sex couples should be prohibited from procreating, it is not true that they cannot, they just cannot do it ethically. No matter how it would be done, it is unethical and bad public policy, and they should find someone else if they want to procreate, just like siblings would have to.

  41. zztstenglish says:

    @Manny – Artificial procreation is not only unethical but it’s also harmful. See My Daddy’s Name is Donor. There’s abundant evidence artificial procreation is harmful but the law hasn’t caught up to the science yet.

    Google Side Effects to Artificial Insemination

    or

    Google Health Crisis born of artificial procreation

    And I got lots more…

  42. Tim says:

    zztsenglish, you really project your own failures onto others. You need to learn to read carefully. I made a general statement that I thought that the Supreme Court would issue a broad ruling on the Proposition 8 case by a 6-3 margin and a ruling on the DOMA case by a 7-2 margin. So?

    The court has agreed to hear TWO marriage cases. Although they are separate cases with distinct issues, and will require two separate decisions, the Court has linked them, issuing writs of certoriari at the same time, and scheduling oral arguments on successive days.

    The Court will almost certainly declare DOMA unconstitutional. The real question there is whether they will declare that gays are a protected class. If they do, they will in effect issue the most important ruling in the history of gay and lesbian issues before the court. Such a ruling would in effect end legal discrimination against gay people.

    The Court will also almost certainly declare Proposition 8 unconstitutional. The question here is whether they will do so in a way that establishes a fundamental right for same-sex couples to marry. If they do that, all the bans on same-sex marriage will fall. However, they may uphold the Ninth Circuit ruling on narrow grounds or rule that the Proponents on Proposition 8 did not have standing to appeal in the first place.

  43. Kevin says:

    “The FACT that the state is subsidizing marriages for children should tell you something. That’s why I said that expanding benefits to MORE childless marriages yields no benefit to the state. If anything, it’s a waste of tax money.”

    Why would the state distinguish between children raised by a married different-sex couple and children raised by a married same-sex couple? If marriage is about children, then the gender composition of the parents is irrelevent.

    Even if marriage is particularly beneficial for different-sex couples, that doesn’t mean it’s irrelevent to same-sex couples. The benefits of marriage are tangible and intangible. As I said earlier, having an official stamp of recognition is an important signal to each spouse, and to the world (that these two individuals are out of the dating pool, so don’t pursue either one as a potential partner).

    This is an important defense mechanism for a couple, both as a deterrent to others and a deterrent to the couple themselves. In my opinion, that’s the reasoning behind the wedding: making a very public proclamation of your new status, and that you’re no longer available.

    Wearing wedding rings helps, too. :-)

  44. zztstenglish says:

    @Kevin – Except gays (and their supporters) are the ones trying to delink marriage and kids. So, all your talk about gay parenting is secondary as far as I’m concerned. Not to mention there’s lots of data that challenges gay parenting. Besides, most gay couples are not even raising kids.

    Google ABC News Census 2010: One-quarter of gay couples raising children.

    Hence, 75% of gay couples are not raising children. Again, it’s a waste of tax money to expand benefits to more childless marriages.

  45. David Hart says:

    zztstenglish:

    Again, you are making arguments that are not in the record of either Hollingsworth v Perry or US v Windsor. Again, at the core of the arguments made by the petitioner in Perry is the notion of “responsible procreation.”

    In order for that to be compelling, allowing gays to marry would have to affect the children of heterosexual marriages and there is nothing in the record to substantiate that notion in any way whatsoever. Nor, for that matter, is there anything in the record to substantiate the idea that allowing gays to marry affects traditional marriages. David Blankenhorn was supposed to provide that link and he failed to do so. Judging from his testimony, David was already having the doubts that eventually caused him to accept marriage equality.

    And by the way, gays are currently raising some two million children in this country. Should we give them back or deal with the facts as they are?

  46. zztstenglish says:

    @David says “that allowing gays to marry affects traditional marriages”

    Of course, it affects heterosexual marriages in that if gay marriage is legalized, they’ll be awarded benefits that comes from the public purse. In fact, Stephen Black (law professor at BYU) argues it jeopardizes those benefits that would affect hetero couples to no fault of their own.

    http://www.law2.byu.edu/jpl/Vol22.2/Black.pdf

    See pg 352 (“Congress would have to either repeal all benefits for marriage or engage in a major overhaul of the tax code. Failure to do so would mean inconsistency and years of litigating marriage benefit issue.”)

    Example: US v Windsor

    Hence, the very benefits that you seek are being jeopardized.

  47. John D says:

    I think Professor Black is mistaken. Absent DOMA, married couples would file joint federal tax returns. I don’t see a cause for litigation here. In fact, the IRS admits that DOMA causes problems for the agency. Black does not cover the example of a same-sex couple married in one of the community property states. Under court decision, married couples in community property states must practice income splitting. Under DOMA, same-sex married couples may not file jointly. What should a married same-sex couple in a community property state do? The IRS doesn’t know.

    Congress need neither repeal all benefits of marriage nor overhaul the tax code (unless their goal was to deny all benefits to same-sex couples).

    The whole point of US v. Windsor is that DOMA forces an unjust application of the tax code. If Edith Windsor had married a man named Theo, her spouse’s estate would not have been hit with a tax bill.

    Once again, there is only a problem here if your goal is to mistreat gay people.

  48. JHW says:

    Stephen Black’s claim is quite weird. He worries that in a post-DOMA world, the federal government would have to recognize whatever marriage scheme states devise, and therefore if the states designed bizarre marriage schemes (which Professor Black appears to think is imminently likely in the absence of DOMA), Congress would probably have to act. But he ignores the fact that until 1996, federal law did actually defer to states, and none of the consequences he fears developed. Certainly none of them would follow from federal recognition of same-sex marriages, which would probably save the federal government money on net.

  49. Jason Jackson says:

    Stephen Black works at the Franklin Pierce Law Center; his work happened to be published in a BYU Journal.

  50. Kevin says:

    “Of course, it affects heterosexual marriages in that if gay marriage is legalized, they’ll be awarded benefits that comes from the public purse.”

    But America’s entitlement programs are designed to avoid exactly what you “fear”, because if you meet a standard, you get the entitlement. Not, we have a finite pot, and only so many people can partake. And I doubt a legal right will ever depend on the government’s financial situation, or what a government budget says is available for disbursement.

    If financial gain or loss could be used to deny legal rights to a minority, then white home owners would be able to “redline” their neighborhoods, since home values have often declined when a critical mass of minority families move into a neighborhood. I remember years ago when Cadillac faced a situation where they believed that their vehicles were becoming less desirable because so many black consumers were buying them. In neither homeowner or business situations were lawsuits successfully pursued to limit a group’s legal or civil rights, based on real or perceived financial losses to a group or company.

    “Except gays (and their supporters) are the ones trying to delink marriage and kids.”

    I think they’re trying to dispel the new definition of marriage as related to procreation or potential procreation (as compared to child-rearing). Americans do not understand marriage to be the exclusive refuge of the procreational, nor have they practiced marriage this way. The “procreation” argument is based on an anti-gay tactic: find something that describes only straight couples and then quickly redefine marriage to be exclusively about that thing. It’s hugely insulting to the millions of childless married couples, but I guess that’s acceptable collateral damage, and one reason the argument is reserved by the anti-gays to court cases, and not part of their public relations efforts.