The government needs to identify its interests in filing an amicus brief in a case to which it is not a party. Here the government articulates two interests. First, the government wants to achieve a consistent resolution of the level of scrutiny to apply to sexual orientation discrimination claims, referencing the simultaneous consideration of Windsor, in which the government is arguing for heightened scrutiny. The brief points out that the government has submitted amicus briefs in the past when the Supreme Court was considering what level of review to give to an equal protection claim in a case brought by private litigants against a state or local government, as the government has an interest in the resolution of that question because some of its own programs and policies might be affected by the outcome. That is certainly true here. A holding on heightened scrutiny could affect the constitutionality of any federal law or policy that subjects gay people to unequal treatment, by making those laws presumptively unconstitutional and putting the burden on the government to justify them by showing that they substantially advance an important governmental interest.
The brief also notes as a government interest that many of the arguments made by the Proponents in support of Prop 8 have also been made in support of DOMA Sec. 3, and thus the government has an interest in consistent resolution of those issues as well, because the Court’s treatment of them would affect the outcome in both cases.
On the merits, the brief basically replicates the argument from the government’s Windsor brief about why heightened scrutiny is appropriate (but does so more concisely, with references to the other brief), and counters arguments to the contrary from Charles Cooper’s brief for Proponents of Proposition 8. After pointing out that California law provides all the state law rights of marriage to same-sex couples and that Prop 8 does not withdraw any of those rights, the brief states, “Particularly in those circumstances, the exclusion of gay and lesbian couples from marriage does not substantially further any important governmental interest. Proposition 8 thus violates equal protection.”
In other words, the brief, as an amicus brief in support of the AFER plaintiffs (Respondents in the Supreme Court), focuses on whether Prop 8 is constitutional, not more broadly on whether states can deny same-sex couples the right to marry. It is not pitched in the weight of its argument as a Romer-style “withdrawal of rights” case, and so it differs in this respect from the brief filed by the City of San Francisco. Instead, its focus is on why there is no rational basis for giving same-sex couples all the rights of marriage and then denying them marriage itself. It is implying that the same argument could be made in all the other civil union/domestic partnership states; that resisting the next step to marriage violates Equal Protection after a jurisdiction has determined that same-sex couples should have all the rights and benefits in a state-sanctioned status similar to marriage. This would justify the government in submitting similar amicus briefs in the pending Hawaii and Nevada marriage cases, where the district courts have granted summary judgment against the plaintiffs and the cases are on appeal to the 9th Circuit. (Illinois is different, since the litigation there is pending in a state trial court under the state constitution, but the substantive legal arguments would be the same.) The brief lists the other states with civil union laws on page 11. After listing them, the brief says: “The designation of marriage, however, confers a special validation of the relationship between two individuals and conveys a message to society that domestic partnerships or civil unions cannot match.” Thus, without citing the opinion, this brief is really channeling the argument accepted by the Connecticut Supreme Court in Kerrigan v. State, when it ruled that Connecticut civil unions violated state equal protection and the state had to open up marriage to same-sex couples to cure the violation.
This is not a brief that overtly advocates that same-sex couples have the right to marry as such. Rather, it advocates that if a state has resolved the policy issues in favor of providing the rights, benefits and responsibilities of marriage to same-sex couples, it violates equal protection for the state to nonetheless deny same-sex couples the right to marry. And, focusing, as a brief in an actual case should, on the circumstances of the parties in the case, it argues that these particular circumstances, with the vote to amend the state constitution to end same-sex marriages, violates equal protection, as none of the arguments that were advanced in support of Prop 8 when it was enacted would suffice under heightened scrutiny to justify such unequal treatment for same-sex couples. When heightened scrutiny is the correct standard of review, the defenders of Prop 8 are theoretically limited to the justifications presented to the voters in 2008, not the various “new” arguments thought up by their attorneys for this lawsuit, but the government argues that those “new” arguments – particularly the “accidental procreation” nonsense – won’t suffice as even a rational basis for Prop 8, since Prop 8 does nothing to change existing California family law, under which same-sex domestic partners have all the parental rights and responsibilities of married couples, and has no logical effect on the problem of “accidental procreation” by heterosexuals.
The government brief points out, as other briefs filed in the case do, that in a heightened scrutiny equal protection case, the question for the Court is whether the defenders of Prop 8 have made valid arguments that would justify excluding same-sex couples from marrying, not whether the government might have some reason to encourage different-sex couples to channel their procreative activities within marriage. There is no logical connection between the two.
This is a subtly constructed brief. The arguments it makes could well support a challenge de novo against a state DOMA or the failure of a state to provide marriage (whether or not the state has adopted civil unions/domestic partnerships), by arguing against the constitutional salience of the justifications argued on behalf of Prop 8 (and Sec. 3 of federal DOMA), but here those arguments are summoned specifically to support a consistent approach to the government’s position in the DOMA case and to knock the props out from under Prop 8.
It is helpful to have this brief on file making these arguments, because although it is similar in many respects to the arguments in AFER’s brief and the City of San Francisco’s brief, it provides a plausible alternative analytical route for the Court to strike down Proposition 8 without immediately invalidating all state DOMA laws and constitutional amendments. However, its analysis of the level of scrutiny issue and of the arguments usually made in support of denying marriage to same-sex couples seem to preordain the outcome in favor of same-sex marriage rights in a case presenting the broader argument. If a majority of the Court agrees with AFER’s arguments, we could have same-sex marriage nationwide immediately, but that seems a less plausible outcome. If the Court agrees with the government’s argument in this amicus brief, it would strike down Prop 8, perhaps in an opinion that would send a clear signal to the 9th Circuit to rule for same-sex marriage in the Hawaii and Nevada cases and to all lower federal courts on the likely outcome of federal constitutional challenges in states with civil union laws or perhaps even any state with a DOMA. Perhaps the result would not be as sweeping as Lawrence v. Texas (2003) was in the context of sodomy laws, but it could potentially have the same impact, and could accelerate the trend towards enactment of marriage equality laws by state legislatures, where efforts are now pending in several states.
Counsel of Record for the brief is Solicitor General Donald B. Verrilli, Jr. Other Justice Department lawyers listed on the brief are Principal Deputy Assistant Attorney General Stuart F. Delery, Deputy S.G. Sri Srinivasan, Assistant to the S.G. Pratik A. Shah, and DOJ attorneys Michael Jay Singer, Helen L. Gilbert, and Jeffrey E. Sandberg.