Karen Ocamb

Supreme Court Swamped with Briefs in Prop 8 Case [Overview]

Filed By Karen Ocamb | March 03, 2013 1:00 PM | comments

Filed in: Marriage Equality, Politics
Tags: 9th Circuit Court of Appeals, amicus brief, Department of Justice, John Perez, Ken Mehlman, Prop 8, Republican amicus brief, Supreme Court

Such an overwhelming flurry of amicus briefs (read Lambda Legal's brief here, Equality California brief here and the American Sociological Association brief here) supporting the constitutional challenge to Prop 8 swamped the Supreme Court before the Feb. 28 filing deadline - including one from the Obama Administration (read Justice Department brief here or below; see and read President Obama comments on the filing below) - many LGBT political observers had little time to stop gasping and rejoice. A new Field Poll released Feb. 27 indicates that 61 percent of registered California voters of all ages, regions and ethnic backgrounds now approve of same-sex marriage, while only 32 percent disapprove - lead by Republicans and political conservatives. But Republican support for marriage equality has also increased - from 26 percent in 2010 to 39 percent today.

AFER-news-conference.jpg(Chad Griffin, now President of the Human Rights Campaign, on Feb. 8 2012 as leader and co-founder of the American Foundation of Equal Rights, opening a news conference celebrating the ruling by the 9th Circuit Court of Appeals that Prop 8 is unconstitutional. Also pictured are plaintiffs Paul Katami and Jeff Zarrillo (with Jeff's parents) and Kris Perry and Sandy Stier (with two of their kids) and attorneys Ted Boutrous and Ted Olson (far right). Photo by Karen Ocamb)

Indeed, one of the deepest gasps was the brief supporting the Prop 8 challenge in Hollingsworth v. Perry filed by more than 100 prominent Republicans - including Beth Myers, Mitt Romney's 2008 campaign manager and 2012 senior advisor; former Utah governor and GOP presidential candidate Jon M. Huntsman Jr.; B. J. Nikkel, a district director for severely-antigay Colorado Rep. Marilyn Musgrave whose only issue in Congress seemed to be passing a federal marriage amendment, and former California gubernatorial candidate Meg Whitman. The brief was organized by Ken Mehlman, an American Foundation for Equal Rights (AFER) boardmember who was George W. Bush's closeted 2004 reelection campaign manager and former chair of the Republican National Committee. But Republican support for overturning Prop 8 has been building since May 27, 2009 when AFER announced that the lead attorneys on the case would be Republican legal star and former U.S. Solicitor General Ted Olson and his star Democratic counterpart, David Boies. Olson has effectively used the media to win Republican hearts and minds - but the strong amicus brief was a surprise.

"We are trying to say to the court that we are judicial and political conservatives, and it is consistent with our values and philosophy for you to overturn Proposition 8," Mehlman told the New York Times.

Thumbnail image for ken-mehlman.jpg(AFER board member and prominent Republican Ken Mehlman. Photo by Karen Ocamb)

Scotusblog publisher Tom Goldstein told The Times the brief "has the potential to break through and make a real difference....The person who is going to decide this case, if it's going to be close, is going to be a conservative justice who respects traditional marriage but nonetheless is sympathetic to the claims that this is just another form of hatred. If you're trying to persuade someone like that, you can't persuade them from the perspective of gay rights advocacy."

The Obama administration brief said the government has an interest in the Court's resolution of the question of "whether California's denial of the right to marry to same-sex couples violated equal protection, particularly in light of its participation in United States v Windsor," the case before the Supreme Court challenging the constitutionality of the Defense of Marriage Act. The Obama administration thinks both cases afford an opportunity to determine that "classifications based on sexual orientation should be subject to heightened scrutiny for equal protection purposes" and that Prop 8 fails that test.

"California's extension of all of the substantive rights and responsibilities of marriage to gay and lesbian domestic partners particularly undermines the justifications for Proposition 8," Solicitor General Donald B. Verrilli Jr. wrote in the brief. "It indicates that Proposition 8's withholding of the designation of marriage is not based on an interest in promoting responsible procreation and child-rearing -- petitioners' central claimed justification for the initiative -- but instead on impermissible prejudice."

While the brief notes that seven other states - Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island - have similar domestic-partnership laws, Verrilli did not ask for the court to rule on them. However, Attorney General Eric Holder suggested a more expansive consideration in a statement: "In our filing today in Hollingsworth v. Perry, the government seeks to vindicate the defining constitutional ideal of equal treatment under the law. Throughout history, we have seen the unjust consequences of decisions and policies rooted in discrimination. The issues before the Supreme Court in this case and the Defense of Marriage Act case are not just important to the tens of thousands Americans who are being denied equal benefits and rights under our laws, but to our Nation as a whole." Verrilli has asked the court for permission to join in oral arguments.

The DOJ brief also takes on "tradition:"

"The Fourteenth Amendment's guarantee of equal protection embodies a defining constitutional ideal that "all persons similarly situated should be treated alike." That is for good reason: reference to tradition, no matter how long established, cannot by itself justify a discriminatory law under equal protection principles. Indeed, marriage has changed in certain significant ways over time--such as the demise of coverture and the elimination of racial restrictions on marital partners--that could have been characterized as traditional or fundamental to the institution. See Pet. App. 212a-213a. CA-John-Perez.jpgAs this Court has observed, "laws once thought necessary and proper" may in fact "serve only to oppress," and, "[a]s the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom." Lawrence, 539 U.S. at 579."

(California Assembly Speaker John A. Perez at LA County Democratic Party event last year. Photo by Karen Ocamb)

Another powerful brief was filed by openly gay California Assembly Speaker John A. PĂ©rez and 22 legal scholars who argued that Prop 8 directly impacts democracy. "Proposition 8 eliminated more than the equal right to marry, Proposition 8 also eliminated the ability of those seeking equal marriage rights to pursue those rights through their elected representatives," Perez said in a statement. "That deprives a historically disadvantaged group - a group of which I am a member - of access to traditional representation in a representative democracy. And that deprivation violates the Constitution." Perez asked the Supreme Court to uphold the 9th Circuit Court of Appeals ruling overturning Prop 8.


A rally before the oral arguments before SCOTUS will be held downtown LA on March 24 around 5:00.

On Friday, March 1, President Obama was asked about the administration's filing during a news conference on the sequester.

Here's the transcript of his exchange with Chicago Tribune reporter Christi Parsons:

Obama: Christi Parsons.

Question: Thank you.

Obama: Hey, Christi.

Question: Mr. President, your administration weighed in yesterday on the Proposition 8 case. A few months ago it looked like you might be averse to doing that, and I just wondered if you could talk a little bit about your deliberations and how your thinking evolved on that. Were there conversations that were important to you? Were there things that you read that influenced your thinking?

Obama: As everybody here knows, last year, upon a long period of reflection, I concluded that we cannot discriminate against same-sex couples when it comes to marriage; that the basic principle that America is founded on - the idea that we're all created equal - applies to everybody, regardless of sexual orientation, as well as race or gender or religion or ethnicity.

And I think that the same evolution that I've gone through is an evolution that the country as a whole has gone through. And I think it is a profoundly positive thing. So that when the Supreme Court essentially called the question by taking this case about California's law, I didn't feel like that was something that this administration could avoid. I felt it was important for us to articulate what I believe and what this administration stands for.

And although I do think that we're seeing, on a state-by-state basis, progress being made - more and more states recognizing same-sex couples and giving them the opportunity to marry and maintain all the benefits of marriage that heterosexual couples do - when the Supreme Court asks, do you think that the California law, which doesn't provide any rationale for discriminating against same-sex couples other than just the notion that, well, they're same-sex couples, if the Supreme Court asks me or my Attorney General or Solicitor General, do we think that meets constitutional muster, I felt it was important for us to answer that question honestly - and the answer is no.

Question: And given the fact that you do hold that position about gay marriage, I wonder if you thought about just - once you made the decision to weigh in, why not just argue that marriage is a right that should be available to all people of this country?

Obama: Well, that's an argument that I've made personally. The Solicitor General in his institutional role going before the Supreme Court is obliged to answer the specific question before them. And the specific question presented before the Court right now is whether Prop 8 and the California law is unconstitutional.

And what we've done is we've put forward a basic principle, which is - which applies to all equal protection cases. Whenever a particular group is being discriminated against, the Court asks the question, what's the rationale for this - and it better be a good reason. And if you don't have a good reason, we're going to strike it down.

And what we've said is, is that same-sex couples are a group, a class that deserves heightened scrutiny, that the Supreme Court needs to ask the state why it's doing it. And if the state doesn't have a good reason, it should be struck down. That's the core principle as applied to this case. Now, the Court may decide that if it doesn't apply in this case, it probably can't apply in any case. There's no good reason for it. If I were on the Court, that would probably be the view that I'd put forward. But I'm not a judge, I'm the President. So the basic principle, though, is let's treat everybody fairly and let's treat everybody equally. And I think that the brief that's been presented accurately reflects our views.

The DOJ filing:

U.S Government Amicus Brief, Hollingsworth v. Perry by

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