Several of the leading LGBT legal organizations slightly changed their tune on Thursday, filing a brief (pdf) tonight supporting the Proposition 8 challenge brought in federal court by mega-lawyers Ted Olson and David Boies on behalf of the new organization, the American Foundation for Equal Rights (AFER), whose news release on the development is available below the jump.
The Olson/Boies lawsuit is a challenge to Proposition 8 that ultimately attacks the opposition to marriage equality at its base. It claims that both Due Process and Equal Protection clauses of the U.S. Constitution prohibit Proposition 8 from prohibiting same-sex couples to marry in California. This goes past DOMA, assuming its invalidity, by arguing that even an individual state doesn’t have the ability to prohibit same-sex couples from marrying.
After initial, full-force opposition by every national LGBT group, the group behind the Olson/Boies challenge announced this evening that “ACLU, Lambda Legal and the National Center for Lesbian Rights support AFER lawsuit in newly filed court documents!”
The groups argued to the court that Proposition 8 “is uniquely transparent in its unconstitutionality” and that, even under the lowest, rational basis, level of court review, Proposition 8 is invalid because it “d[id] not advance a legitimate government purpose.” They do attempt to limit the argument for the Olson/Boies suit in their amicus brief. The groups write:
While amici also agree that Proposition 8 violates the federal guarantees of equal protection and due process, amici submit this brief to emphasize the singular nature of the case presented by Proposition 8, and the California-focused analysis that accordingly is warranted. Amici therefore address only the question of whether, in light of the particular circumstances of this ballot measure, plaintiffs are likely to succeed on the merits of their equal protection claim.
Amicus ACLU et al., at 1. The groups go through the unique factual circumstances in California, where the Supreme Court of the state held that marriage discrimination was prohibited by the state’s Constitution and then a ballot measure to amend the Constitution reversed the availability of that recently granted right. The groups conclude:
Proposition 8 did something that no other state constitutional amendment has ever done—namely, it detached the substantive core of the fundamental right to marry under the state constitution and statutes from the status of marriage in order to withdraw equal citizenship from lesbian and gay couples while otherwise leaving their substantive legal rights intact. The novelty of that effort—together with the decidedly “untraditional” severing of the formal and substantive aspects of marriage—defeats any attempt to portray Proposition 8 as rationally advancing a legitimate, non-animus-based goal of restoring a “traditional” definition of marriage.
Amicus ACLU et al., at 17.
This is very big news. The initial response, across the board, was that the Olson/Boies suit was a poorly planned, hastily arranged lawsuit by people outside of the “gay establishment” — including from those behind the smart and successful lawsuits brought repeatedly by the Gay & Lesbian Advocates & Defenders (GLAD). Initially, the LGBT groups — which included all of the groups from Thursday’s filing, the major political LGBT groups and Evan Wolfson’s Freedom to Marry — wrote:
The groups released a new publication, “Why the ballot box and not the courts should be the next step on marriage in California.” This publication discourages people from bringing premature lawsuits based on the federal Constitution because, without more groundwork, the U.S. Supreme Court likely is not yet ready to rule that same-sex couples cannot be barred from marriage.
Now, the three legal groups other than GLAD apparently have filed court briefs supporting the Olson/Boies suit. [As I wrote in comments, it would appear they’re looking for a middle ground between opposing the suit and giving all-out support, finding the narrowest winning case they believe they can find — and then arguing for that.]
GLAD is notably absent, as is Freedom to Marry [which is less notable because the group, despite being headed by a lawyer, is more focused on education than litigation]. Is this a sign of a break in Gay, Inc., on the Olson/Boies suit?
[LAW DORK EXCLUSIVE UPDATE: GLAD's Carisa Cunnigham writes to say:
While we’re in constant conversation with the other legal groups, this is a California case and our bailiwick is New England. The other groups do work in California, and we do not, so it’s not a case we would officially take part in.
GLAD was, of course, a signatory to the initial statement criticizing "premature lawsuits based on the federal Constitution." GLAD's new statement, then, suggests that, at the least, the ACLU/Lambda/NCLR brief was not done without at least some communication between the groups. As such, this isn't apparently a "break" in the legal groups so much as it is a decision to, as I wrote, narrow the Olson/Boies suit in an effort to make it a more likely "winnable" case.]
[ALSO: San Francisco City Attorney Dennis Herrera previously had filed a brief in support of the suit. The release on June 18 noted:
SAN FRANCISCO (June 18, 2009) -- City Attorney Dennis Herrera today filed a friend of the court brief (pdf) on behalf of the City and County of San Francisco in support of a federal lawsuit brought by two California couples challenging the validity of Proposition 8, the state constitutional amendment that eliminated the fundamental right of marriage for gay and lesbian citizens in California.]
* * * * *
ACLU, LAMBDA LEGAL AND NCLR FILE AMICUS BRIEF
BACKING FEDERAL CHALLENGE TO PROP. 8
EDS: Background at equalrightsfoundation.org.
JUNE 25, 2009 – The American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights filed an amicus curiae (friend of the court) brief late tonight backing the federal challenge to Proposition 8 led by the American Foundation for Equal Rights and attorneys Theodore Olson and David Boies.
“Proposition 8 violates the federal guarantees of equal protection and due process,” the brief states. “Proposition 8 denies same-sex couples the right to marry in a unique historical context in which the denial can only be deemed a declaration of inequality.”
“We are pleased to have the support of the ACLU, Lambda Legal and NCLR, which have brought inspiring leadership and legal expertise to the cause of ensuring all Americans are treated equally under the law,” said Foundation Board President Chad Griffin. “This case is about the denial of fundamental Constitutional rights, and its significance is underscored by the united front presented by the coalition backing this case.”
The coalition that has led the legal fight against Proposition 8 is now formally supporting the federal challenge. The ACLU, Lambda Legal and NCLR led the battle in the State Supreme Court to overturn Proposition 8 after the November 2008 election. They also joined the City and County of San Francisco, which filed an amicus brief last week, in spearheading the successful litigation that led to the California Supreme Court in May 2008 recognizing marriage as a fundamental right guaranteed to all Californians under the state constitution.
A hearing on the case is scheduled in the U.S. District Court, Northern District of California, on July 2. The suit was filed last month and also calls for an injunction against Proposition 8 until the case is resolved, which would immediately reinstate marriage rights to same sex couples.
Also last week, Gov. Arnold Schwarzenegger, who is named in the suit in his capacity as the state’s chief executive, filed papers with the court that did not dispute Proposition 8’s unconstitutionality and called for swift action by the courts to ensure people’s constitutional rights are protected. Two weeks ago, Attorney General Jerry Brown, who is named in the suit in his capacity as the state’s chief legal officer, filed papers that called Proposition 8 unconstitutional.
The suit was filed by two same-sex couples who wish to be married but, because of Proposition 8, have been denied marriage licenses.
“This unequal treatment of gays and lesbians denies them the basic liberties and equal protection under the law that are guaranteed by the Fourteenth Amendment of the United States Constitution,” the suit states.
Olson is a former U.S. Solicitor General who represented George W. Bush in 2000’s Bush v. Gore, which decided the presidential election. Boies represented Al Gore in that case. Olson, widely regarded as one of the nation’s preeminent constitutional lawyers, has argued 55 cases in the U.S. Supreme Court. Boies ranks as one of the leading trial lawyers of his generation, having secured landmark victories for clients in numerous areas of the law. This is the first time they have served alongside each other as co-counsel.
“More than 30 years ago, the United States Supreme Court recognized that marriage is one of the basic rights of man,” the suit states, referring to the Court’s decision in Loving v. Virginia, which struck down bans on interracial marriage.
According to the suit, Proposition 8:
- Violates the Due Process Clause by impinging on fundamental liberties.
- Violates the Equal Protection Clause of the Fourteenth Amendment.
- Singles out gays and lesbians for a disfavored legal status, thereby creating a category of “second-class citizens.”
- Discriminates on the basis of gender.
- Discriminates on the basis of sexual orientation.
The plaintiffs in the case are Kris Perry & Sandy Stier, and Paul Katami & Jeff Zarrillo. They have issued the following joint statement: “We and our relationships should be treated equally under the law. Our goal is to advance the cause of equality for all Americans, which is the promise that makes this nation so great.”
Kris Perry and Sandy Stier have been together for 9 years and are the parents of four boys. Perry is Executive Director of First 5 California, a state agency that promotes education and health for children under five. She holds a BA from UC Santa Cruz and an MSW from San Francisco State University. Stier is Information Technology Director for the Alameda County Behavioral Health Care Services Agency. She is originally from Iowa and is a graduate of the University of Iowa.
Perry and Stier first tried to marry in 2004, after the City of San Francisco began issuing licenses. They live in Berkeley, CA. Paul Katami and Jeff Zarrillo have been together for 8 years. Katami is a fitness expert and business owner who graduated from Santa Clara University before receiving his graduate degree from UCLA. Zarrillo is the General Manager of a theater exhibition company. A native of New Jersey, Zarrillo graduated from Montclair State University. Having wanted to marry each other for more than two years, they considered options including traveling to other states for a “civil union,” but felt any alternative fell short of marriage. They live in Burbank, CA.
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Popularity: 2% [?]
Chris Geidner is the senior political writer at D.C.'s Metro Weekly and has written for The Atlantic Online, Advocate.com, Salon and other publications, as well as at his blog, Law Dork. Prior to moving to D.C. in 2009, he served as an attorney on the senior staff at the Ohio Attorney General's Office and had earlier worked for a leading Columbus law firm. An extended biography can be found
Is this an about-face or simply resignation that they won’t dissuade Olson/Boies so they might as well join in? I can’t imagine it would do any of these organizations any good to be sitting on the sidelines if this suit does move all the way to the top.
So is someone finally trying to use Romer?
Framed as a matter of LGBT equality, it probably can’t avoid citing Romer, but that’s different from making Romer a significant basis of the argument by claiming that Prop. 8 is an expression of animus toward gays and therefore not surviving even rational basis scrutiny.
That’s the argument I’m curious to see played out, because it’s one that can’t be used in a lot of marriage litigation (e.g. couldn’t work in Hernandez v. Robles, because it’s absurd to suggest that 100-year-old marriage statutes were written for the purpose of being hostile to homosexuals).
But it is particularly relevant in CA where domestic partnership has given same-sex couples 99.9% of marriage status — so what reason other than hostility toward gays is there to have this separate “domestic partnership” for same-sex couples?
This argument wouldn’t work as well in states that have no status for same-sex couples at all, because those states presumably can drag out a rational basis for that, whereas there’s no rational basis to have different labels for same-sex versus opposite-sex commitments.
Thanks for rounding up the briefs, they make for interesting reading.
Both the rights group amicus brief and the Herrera brief (correctly, I think) attack the arguments that Proposition 8 was designed to protect children. Neither, I think, does this subject full justice, although Herrera comes closer. One of the key (if I remember my history correctly) elements of winning “Brown v. Board of Education” was the preponderence of psychological evidence that overt harm was being done to children.
Herrera at least alludes to this with the quote from (was it the APA?), but I really think there’s room for at least another brief to flesh this subject out. There *is* research out there which attempts to quantify the damage done to children by othering same-sex desires and relationships.
“RESULTS. Higher rates of family rejection were significantly associated with poorer health outcomes. On the basis of odds ratios, lesbian, gay, and bisexual young adults who reported higher levels of family rejection during adolescence were 8.4 times more likely to report having attempted suicide, 5.9 times more likely to report high levels of depression, 3.4 times more likely to use illegal drugs, and 3.4 times more likely to report having engaged in unprotected sexual intercourse compared with peers from families that reported no or low levels of family rejection. Latino men reported the highest number of negative family reactions to their sexual orientation in adolescence.” (Pediatrics, http://pediatrics.aappublications.org/cgi/content/abstract/123/1/346 ).
Research on this is old news, 20 years ago the earlier Bush administration attempted to closet studies that began to link teen suicide rates to homophobia. The suppression of those studies and evidence like it, when combined with the clarity of the results of studies like it, clearly evidence the hypocrisy of arguments of “protecting children”.
(See also: http://userwww.service.emory.edu/~hmialon/Tolerance_and_HIV.pdf)
Anyway, I’ll get off my soapbox, my point is, “If we want to argue that it’s BS that Prop 8 protects children”, there’s a wealth of evidence-based data that demonstrates the opposite, and a brief laying that out in four-party harmony with complete orchestration would strengthen the argument.
Here we are in federal 9th circus over an initial illegally ruling by the CA supremes. The CA supremes cannot change the state constitution by a ruling you need an amendment. It is the gay legals that must provide the amendment since gay marriage is the new thing. We got here by a bunch of corrupt state and fed judges ignoring the law, succession time per the mechanism of the league of the south.
First of all, better late than never in supporting Perry, Stier, Katami and Zarrillo v Schwarzenegger or the Olson-Boies efforts in federal lawsuit against Prop 8.
Of course, GLAD does disappoint me. I have decided to cut my support for them by half, and give it to them.
Nothing dramatic…only $500.00 monthly..
What concerns me is the hypocrisy of their opposition. They have a DOMA federal lawsuit, and their arguments compliment each other, not rival it.
You know, EVERY New England state (and I am a native New Englander) took six months to nine months to start the marriages after winning the suit. That time frame, as opposed to TWO WEEKS for Iowa, suggests that HATEFUL HOMOPHOBES, INCORPORATED have time to wreak havoc before ONE marriage is solemnized.
MA and CT took six months, and the latter went from CU to CM. VT takes until September 1, and ME until September 15 initially, and now who knows if or when.
NH must wait until NEW YEARS DAY, 2010.
THERE HAS NEVER ANYONE who has been able to answer the simple question WHY? WHY does it take a half year or more for justice to be frustrated further, and lives lost, and children harmed further, for this time frame? Why did CA and IA take no time whatsoever?? PS- IT IS GLAD THAT OVERSEES THESE LAWSUITS.
Isn’t Olson representing AIG and Boies representing CV Starr? Fantastic they can work for and against one another at the same time.
Whether or not you take them seriously is a matter of opinion and perspective.
I think you overstate any scientific controversy when this question is limited to studies published in reputable, peer-reviewed journals. However, I think you misread my intent (partly my fault), and I’d like to focus my reply on that.
Second, ultimately the burden of proof falls to same-sex advocates to show by a preponderance of the evidence that children living in same-sex families does not constitute heightened peril to these children
I believe you misunderstand me.
With respect to the legal argument, the idea I attempted to raise doesn’t follow this path. I am not saying “prohibiting same-sex marriage hurts children so you have to allow same-sex marriage.”, that argument, you and I would agree, would require a very high standard of proof, and understandably so. (Personally and emotionally, I think that a couple thousand dead queer kids a year qualifies, but I accept that that’s not a winning legal argument yet.)
Instead, I note that the Herrera brief attempts as a prong of it’s argument the demonstration of animus. I believe that the arguments presented by proponents of Proposition 8 about protecting children do reflect animus, and I believe that the serious scientific evidence, as well as it’s lack of presence in the Prop 8, amply helps to demonstrate that animus.
(My analogy to Brown is far weaker than it probably reads. It was meant to imply “the sociological data has weight in the debate”, not “we can win the same way.” I apologize for confusion on that point.)
My feeling is that there is not enough consensus among academia to convince the court to overturn centuries of traditional thinking regarding this issue.
If what you mean is, “harm to children isn’t enough to legally force same-sex marriage legally on its own”, I agree. But I do think the significant preponderance of evidence of harm done by same-sex marriage bans and such does have weight in debates over the true motives of proponents of Prop. 8 in particular, which goes to animus, which is relevant as per the Herrera brief.
Herrera touches on this evidence, but I think a little “harmony” from a reputable scientific organization laying out what information exists from reputable peer-reviewed sources, pro and con, would be thus be valuable.
PS: Thanks for the reply!
I’m not a lawyer, but I would be thrilled to see the christian Taliban get their balls crushed, to be blunt about it.
If only we could take those people, make them gay, and time machine them back to Nazi germany. And time machine out of nazi germany the real gays, and the Jews and other victims.
At least one good thing could come out of a nation that murdered 50 million people, headed by a Catholic who grew up and learned his hatreds in very Catholic Austria. And also spawned Pope BennieBoy , who learned his trade – total control of minds – in his youth, at the hands of a master who btw was a total maniac.
That’s what I’m waiting for the briefs to determine … but, yup, you’ve figured out the question …
Actually, after reading the briefs, I think they’re looking for a middle ground, finding the narrowest winning case they can find — and then arguing for that.
Well, the initial Complaint makes pretty clear in Para. 43 that Romer would provide part of the legal rationale for this case, so it’s not too surprising to see the ACLU, et al., brief citing it.
But really, how could a federal challenge resulting from a popular vote on LGBT equality avoid citing Romer?
How likely is it that a judge would rule only on the constitutionality of Prop 8 and not on the companion issue of whether the US must recognize the marriages?
If Prop 8 is struck down, doesn’t it have implications for states that have recognized marriages but don’t yet grant licenses? (NY, RI, possibly MD by that point.)
If Prop 8 is struck down narrowly, my sense is that SCOTUS wouldn’t even hear the case. It occured to me that that’s the outcome ACLU et al want. Thoughts?
If the 9th circuit decision includes a finding that the non-recognition of the marriages is unconstitutional, can that finding be considered by SCOTUS independently of an anti-Prop 8 finding in the same decision?
If prop 8 is struck down as part of the initial trial scheduled for July 2, then it would be appealed to the 9th circuit court of appeals. They would likely strike it again, as that court is FAMOUSLY liberal. Appeal from that court goes directly to the US supreme court. The supreme court could (and likely would) refuse to hear the case, so Prop 8 would be permanently stricken, and related case law would apply only to those jurisdictions under the 9th circuit (western US). Interestingly, amici briefs are careful to note Prop 8 is unique in that it removed rights previously granted, so a ruling could be framed to have limited practical use in undermining other constitutional bans on SSM.
I think you are probably correct here. In Baker v. Nelson the Minnesota Supreme Court held that limiting marriage to opposite-sex couples did not violate the United States Constitution.
The court was not persuaded by the petitioner’s assertion that the right to marry without regard to the sex of the parties is a fundamental right of all persons, nor that restricting marriage to only couples of the opposite sex is “irrational and invidiously discriminatory”.
The petitioners appealed to the United States Supreme Court for relief. The US Supreme Court dismissed the appeal “for want of [a] substantial federal question”. That dismissal by the Supreme Court of the United States constituted a decision on the merits, and established Baker v. Nelson as the controlling precedent as a matter of federal constitutional law on the issue of same-sex marriage
As a matter of law, it will be difficult to persuade SCOTUS that marriage statutes are based on hostile animus towards homosexuals based on this federal case.
I understand your frustration regarding the whole argument about “protecting the children”.
I think the problem here is two-fold.
First, by your own admission, there is a wealth of information that speaks to the potential damage that children may experience within same-sex marriages directly or indirectly. Whether or not you take them seriously is a matter of opinion and perspective. Nevertheless, they are scholarly reviews, studies, and research that are legitimate in their scope and have been reviewed by their peers.
The same can be said for the numerous studies and research that has been put forward by same-sex advocates. Naturally, these scientific studies will be taken seriously by those who sympathize with same-sex marriages while those who are against same-sex marriages will find them unconvincing. Some of the objections put forward by those against same-sex marriages are that the studies are mostly small sample research studies and therefore not easily generalizable to the greater population, and there are no true long-term studies to draw inferences from. Still another concern is that many of the studies showing no adverse effects to children raised within same-sex families are plagued with problems in the way the studies were designed and therefore their conclusions are flawed. I have read some of these studies, and I must say some of these concerns are justified.
But again, this is simply a matter of opinion and perspective.
Second, ultimately the burden of proof falls to same-sex advocates to show by a preponderance of the evidence that children living in same-sex families does not constitute heightened peril to these children, a conclusion that the courts(at least at the federal level) are reluctant to draw.
My feeling is that there is not enough consensus among academia to convince the court to overturn centuries of traditional thinking regarding this issue.
The GLAD DOMA challenge and the Olson/Boies mess are two completely different legal arguments- they don’t compliment each other AT ALL. The Olson/Boies debacle is asserting that there is a “fundamental right to marry.” While a simple argument and the correct argument, it won’t work right now. SCOTUS has never stepped that far ahead of public opinion- not with women, interracial marriage, sodomy, etc. There need to be more states with marriage equality before SCOTUS will come along. This mess is just going to be Bowers all over again. The GLAD DOMA challenge is arguing that states have the right to determine who is married and that the federal government can’t discriminate between classes of legally married couples. Its aimed to chip away at DOMA. The Olson/Boies lawsuit has nothing to do with DOMA.
I understand your anger towards them. However, I can think of a better revenge. We must live our lives honestly, healthy, happy, and equally protected, under the law. This would be a direct reflection of their failures, and it is already happening.
Gay marriage has been legal in Massachusetts for 5 years, and nothing negative has happened as a result of it. This is a troubling sign for the hateful homophobes!
Conversely, if the injunction is granted against proposition 8, we’ll see the greatest happy protest at our Civic Center, in San Francisco!
Be well!
But it would at least have a chilling effect on the efforts, however unlikely, in Iowa and Maine to overturn marriage. It would also be a GREAT talking point in blue state legislatures that are considering equality: NJ, NY, MD, RI particularly.