Briefs have now been filed on behalf of the Prop 8 Respondents, the two same-sex couples on whose behalf the lawsuit challenging California Proposition 8 was filed, and the City and County of San Francisco, which was allowed by District Judge Walker to intervene as a co-plaintiff in the case. These briefs, filed in Hollingsworth v. Perry, No. 12-144, on February 21, are different in their focus, reflecting the different roles of the plaintiffs and the intervenor, and the different motivations for bringing the case.
For the four plaintiffs and their attorneys, who were hired by the American Foundation for Equal Rights with the ultimate goal of getting the Supreme Court to declare that same-sex couples have an equal right with opposite-sex couples to marry, anywhere in the United States, their brief is about getting the Supreme Court to that point. Although they argue, briefly, that the Proponents of Proposition 8, who are the Petitioners before the Supreme Court, lack constitutional “standing” to appeal the District Court’s Order striking down Prop 8, and alternatively that if the Court finds that Petitioners do have standing, it should affirm the 9th Circuit’s narrow ruling that Prop 8 is invalid because there was no rational justification for withdrawing the right to marry that same-sex couples in California enjoyed prior to its passage, they focus their main fire on the underlying question posed by Petitioners and evaded by the 9th Circuit: Does it violate the 14th Amendment for California (or any state) to deny same-sex couples the same right to marry that different-sex couples have?
By contrast, the City of San Francisco brief focuses more extensive attention on the standing question, and then addresses the merits mainly to support the 9th Circuit’s holding that there was no rational basis for California to withdraw the right to marry from same-sex couples.
In some respects, the merits arguments are quite similar, since they hope to persuade the court that the Petitioner’s purported justifications for Proposition 8 are pathetically inadequate. By taking these different orientations, however, the two Respondents (Plaintiffs below and Intervenors below) give the Court plausible alternatives for reaching a result that would revive same-sex marriages in California and, perhaps, make it available throughout the country.
Commentators have been speculating about what would happen if the Court agrees with Respondents that the Proponents of Proposition 8 — Dennis Hollingsworth and his three confederates and their campaign organization, ProtectMarriage.com-Yes on 8 — lack federal constitutional standing. In that event, the Supreme Court does not have jurisdiction and should dismiss the appeal and, similarly, the 9th Circuit would also have lacked jurisdiction and should have dismissed the appeal. That leaves Judge Walker’s 2010 decision as an unappealed district court decision. Some have speculated that, as such, it would be binding only for the four plaintiffs and the two county clerks who denied them marriage licenses. Petitioners argue this, contending that because the case was not brought as a class action on behalf of all unmarried same-sex couples in California, and because no attempt was made to certify a defendant class of all California county clerks, the trial court would not have authority to award statewide relief. Both Respondent briefs attack this argument, but the City of San Francisco brief develops it at greater length, which is logical considering that the Intervenor’s main concern is reviving same-sex marriage in California (and, particularly, in San Francisco, whose city clerk was not one of the defendants). The Briefs argue, persuasively, that the case is a facial challenge to the constitutionality of Prop 8. If it is unconstitutional as to the plaintiffs, it is also unconstitutional as to all similarly situated people. Furthermore, argues the City of San Francisco brief, the county clerks are agents of the state when they issue marriage licenses and accept certificates for filing, so an order running against the state officials charged with supervisory authority is sufficient to have statewide effect. These arguments are very convincing and should allay the fears of those who suggest that a victory on standing would have no immediate effect beyond the two couples who agreed to be plaintiffs in this case.
The plaintiffs’ brief addresses standing briefly, because although they are bound to make the argument — after all, they raised it as soon as Proponents sought a stay of Judge Walker’s Order — but they really don’t want the Court to decide this as a standing case, because their goal is a ruling on the merits that extends the right to marry nationwide. Unless the Court has jurisdiction, it can’t issue such a ruling, and unless the Petitioners have standing, the Court has no jurisdiction to rule on the merits.
By contrast, the City of San Francisco brief eagerly pursues the standing issue, since it is a potential big winner for their constituency — the LGBT community in San Francisco. And they have great arguments to make. Their research also uncovered a particularly helpful authority to cite: a law review article authored by Chief Justice John G. Roberts, Jr., baack when he was a practicing lawyer, titled “Article III Limits on Statutory Standing,” 42 Duke L.J. 1219 (1993). They quote Roberts: “[O]ne thing [Congress] may not do is ask the courts in effect to exercise . . . oversight responsibility at the behest of any John Q. Public who happens to be interested in the issue.” This is a c.f. cite, of course, but nonetheless on point to the main line of the argument. They also make the point, calculated to strike terror in the hearts of federal judges, that if Proponents’ standing is upheld, then in future every initiative proponent will write into their constitutional amendment initiatives a provision authorizing the proponents to defend the initiative in court in case state officials decide not to do so, thereby automatically conferring standing. Furthermore, state legislature might insert such provisions into their statutes, in case a future administration should decide not to defend a prior enactment (see, e.g., DOMA Section 3!).
On the merits, the City of San Francisco sharply disputes the Petitioners’ attack on the logic of the 9th Circuit’s narrowly-focused ruling, while taking on the merits of the purported justifications for Prop 8. At the heart of their argument is the irrefutable fact that the California Supreme Court has ruled that the only effect of Prop 8 is to deny same-sex couples the label of marriage, since the Domestic Partnership Law confers all state law rights of marriage on legally-partnered same-sex couples, and California family law has evolved to the point of treating same-sex couples and different-sex couples with just about total equality when it comes to parenting rights and responsibilities. The heart of the Petitioners’ argument is that Prop 8 is justified as a means of encouraging responsible procreation, but the City of San Francisco brief cogently points out that Prop 8 did not affect California law relating to procreation and parenting in any way — other, of course, than to disadvantage the children being raised by same-sex couples who will be barred from marriage. They concentrate on showing that there is no rational basis for Prop 8 as a measure rescinding rights, and don’t push for a higher level of judicial reivew.
The brief filed on behalf of the plaintiffs — Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo — makes the same points, but aims most of its firepower at a broad-ranging equal protection argument that seeks to place this case in the mainstream of the Court’s equal protection jurisprudence. The argument is not, at its foundation, significantly different in its attack on the Petitioner’s justifications for Prop 8, but the orientation is different, since the brief devotes little attention to defending the 9th Circuit’s narrow approach. Their goal is a broader ruling. The City of San Francisco would be happy with a broader ruling, of course, and their brief would support it, but most of their emphasis goes towards arguing that this case, like Romer v. Evans, is about taking away rights that previously existed, making it California-specific. The City brief thus devotes more attention to the nasty campaign waged by Proponents to enact Prop 8. Both briefs, however, do a brilliant job at skewering the logic of the “responsible procreation” argument.
And the Plaintiffs’ brief also does a brilliant job at countering Petitioners’ argument on the level of judicial review. This brief argues that strict scrutiny or heightened scrutiny would be justified in cases involving sexual orientation discrimination, perhaps even going a bit further than the Justice Department has gone in its arguments in the DOMA case. Although the heading for this part of the brief asserts that “Discrimination on the basis of sexual orientation triggers heightened scrutiny,” they assert at the outside that “the undisputed fact that gay men and lesbians have been subjected to a history of discrimination based on a trait that bears no relationship to their ability to contribute to society is sufficient, in and of itself, to render classifications based on sexual orientation ‘suspect’ and to give rise to heightened scrutiny.” This one sentence conflates the two levels of judicial review. If a classification is “suspect,” then it gets strict scrutiny, which puts a heavy burden on the defender of the challenged enactment to show that it is necessary to achieve a compelling governmental interest – a burden that really cannot conceivably be met in this case, especially as we come up on the 9th anniversary of same-sex marriages in Massachusetts with no evidence of any of the horrible consequences hypothesized by the Petitioners in their defense of Prop 8. And yet, the brief ends the sentence by referring to heightened scrutiny. The argument deftly veers back and forth, pushing towards a strict scrutiny approach. Perhaps this like bargaining with the Court; showing that strict scrutiny would be justified by the form of analysis the Court has used in the past, which would make mere “heightened scrutiny” an “easier lift” for the Court. Either way, the Petitioner’s arguments to justify Prop 8 would be unavailing were the Court to apply any form of “heightened scrutiny” to the case.
Perhaps most importantly, both Respondent briefs point out that the concept of marriage described by the Petitioners is out of touch with reality, invented for the purpose of litigation, and has no relationship to the arguments that Proponents made in 2008 to get their measure approved by the voters. As I observed in my prior analysis of the Petitioners’ brief, it conspicuously fails to acknowledge the personal aspect of marriage. For the Petitioners, marriage is all about children and not about the marital partners and their relationship. The Petitioners argue as if all marriages revolve around children, and same-sex partners don’t have children. For the Respondents, marriage is about love, devotion, making a life together, forming a family (which may include children), taking responsibility for each other, etc. The City brief reiterates several times the record evidence of approximately 40,000 children being raised by same-sex couples in California, and forcefully makes the point that denying marriage to their parents disadvantages them. And on each point both briefs find support for the non-child-centered elements of marriage in prior rulings by the Supreme Court.
There is no doubt in reading these briefs that they were drafted by masterful appellate advocates, who should be acknowledged for their achievement. David Boies and his partners and associates at Boies, Schiller & Flexner LLP, and Theodore B. Olson and his partners and associates at Gibson, Dunn & Crutcher LLP, have turned out a brief that is a true masterpiece, precise, passionate, every word calculated to make its mark. S.F. City Attorney Dennis J. Herrera can be proud of the forceful brief produced by Chief Deputy City Attorney Therese M. Stewart and her team of Deputy City Attorneys. Both briefs could be models for courses on drafting appellate briefs, and deserve to be studied by anybody interested in the issues in these cases, procedural and substantive. Bravo! (But make no mistake, some of the briefs filed on the other side, standing on their own, appear quite strong and forcefully written. It’s just that their arguments fall to pieces under the combined assault of the two Respondent’s briefs.)
The next stage in the Prop 8 case will be filing of amicus briefs in support of Respondents, and then a Reply Brief from the Petitioners, with oral argument to be held on March 26. The immediate drama now focuses on the White House, where President Obama is under mounting pressure to authorize the Justice Department to file an amicus brief in this case. The federal government is not a party to this case about the constitutionality of a state measure, and is busy preparing to attack Section 3 of DOMA in the oral arguments to be held on March 27 in U.S. v. Windsor. Many of the arguments that the Solicitor General will make in attacking the “justifications” for DOMA will be pertinent to the Prop 8 case – not least about the level of judicial review – so filing an amicus brief in this simultaneously considered case would be redundant from a legal point of view, but it could be meaningful from the point of view of strategy and signalling to the Court and the public.Tags: David Boies, gay marriage, Prop 8, Proposition 8, same-sex marriage, Theodore Olson, Therese Stewart, United States Supreme Court