By Sunnivie Brydum
Originally published on Advocate.com February 28 2013 3:08 PM ET
President Obama met Thursday's deadline and filed a "friend of the court" brief with the Supreme Court as it considers whether to overturn Proposition 8. The administration already filed a brief opposing the so-called Defense of Marriage Act, but the administration waited until the last day possible to file an amicus brief opposing California's Prop. 8, which revoked marriage equality by popular vote in 2008.
Attorney General Eric Holder issued a statement as the adminstration filed its brief. "In our filing today in Hollingsworth v. Perry, the government seeks to vindicate the defining constitutional ideal of equal treatment under the law," said Holder. "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.”
In its brief, the Obama administration argues that Prop. 8 violates the Equal Protection Clause of the U.S. Constitution, and says that LGBT people should be subject to heightened scrutiny, as are issues concerning other immutable characteristics like race, sex, or national origin.
The administration's brief also plainly rejects arguments made by Prop. 8 proponents claiming that marriage equality should be decided by a popular vote. "Use of a voter initiative to promote democratic self-governance cannot save a law like Proposition 8 that would otherwise violate equal protection," reads the brief.
The brief goes on to deconstruct additional antigay arguments in favor of Prop. 8, including the allegation that "traditional marriage" should be preserved, and the highly effective scare-tactic that marriage equality would lead to children being taught about gay sex in schools.
"First, preserving a tradition of limiting marriage to heterosexuals is not itself a sufficiently important interest to justify Proposition 8," reads the brief. "Second, protecting children from being taught about same-sex marriage is not a permissible interest insofar as it rests on a moral judgment about gay and lesbian people or their intimate relationships."
The brief also tackles the red herring that civil unions or domestic partnerships are equivalent to marriage, even when they include identical rights and privileges. It reads: "The designation of marriage...confers a special validation of the relationship between two individuals and conveys a message to society that domestic partnerships or civil unions cannot match."
The administration's brief directly addresses Prop. 8 proponents' legal argument that heterosexual marriage must be "protected" because only opposite-sex couples can result in "unintended pregnancies."
"Marriage is far more than a societal means of dealing with unintended pregnancies," reads the brief. "Even assuming, counterfactually, that the point of Proposition 8 was to account for accidental offspring by opposite-sex couples, its denial of the right to marry to same-sex couples does not substantially further that interest."
The administration argues that the issue of same-sex marriage is important to the federal government, especially in light of the Department of Justice's participation in U.S. v. Windsor, the case currently before the Supreme Court challenging the so-called Defense of Marriage Act. The Obama administration announced it would stop defending that law in court in 2011, and filed a brief in the case in February.
Other last-minute filers include conservative actor Clint Eastwood and more than 100 Republicans who asked the Supreme Court to affirm the legal ability of gay and lesbian couples to wed. The list of Republicans includes former Utah governor Jon Hunstman, former New Jersey governor Christine Todd Whitman, and Hewlett-Packard CEO Meg Whitman, who supported Prop. 8 when she ran for governor of California.
The American Sociological Association also filed a brief today supporting marriage equality, highlighting social science that indicates children raised by same-sex parents are just as well-adjusted, healthy, and likely to succeed as those raised by opposite-sex parents.
"When the social science evidence is exhaustively examined — which the ASA has done — the facts demonstrate that children fare just as well when raised by same-sex parents," states the ASA amicus brief. "Unsubstantiated fears regarding same-sex child rearing do not overcome these facts and do not justify upholding DOMA and Proposition 8."
Building upon evidence that the country is rapidly evolving in its stance on marriage equality, a Field poll reported by The Sacramento Bee found that 61% of Californians now support marriage equality — an overall increase of ten percentage points since Californians approved Prop. 8.
The Supreme Court is scheduled to hear oral arguments on two cases relating to marriage equality in late March. Perry v. Hollingsworth challenges the constitutionality of California's voter-approved revocation of marriage equality, and U.S. v. Windsor challenges section 3 of the so-called Defense of Marriage Act, which forbids federal agencies from recognizing legally married same-sex couples as spouses for the purposes of taxation and benefits.