Anti Prop 8 Attorneys Outline Arguments

Attorneys challenging the constitutionality of California's Proposition 8 in federal court have outlined their arguments for striking down the ballot initiative state voters passed last year.

In a trial brief submitted late Tuesday, the attorneys, who represent two California couples denied marriage licenses and the city and county of San Francisco, argue that Prop. 8 denies a fundamental right to a minority subjected to a "history of purposeful unequal treatment," and that the ballot measure fails to serve "a single, compelling, or even legitimate state interest."

The brief further dismisses claims from the opposition that prohibiting marriage equality is vital for "responsible procreation" and upholding tradition.

"Plaintiffs will show that they are denied the fundamental right to marry, and that domestic partnerships are an unequal and unconstitutional substitute for the 'expression of emotional support and public commitment associated only with marriage,'" the attorneys, led by former U.S. solicitor general Theodore B. Olson (pictured), argued in the brief.

U.S. Supreme Court case law cited in the brief includes Loving v. Virginia, which struck down state laws prohibiting interracial marriage; Turner v. Safley, which held that prisoners have the right to marry; and Lawrence v. Texas, which invalidated sodomy laws, overruling a previous high court decision.

Olson's brief immediately employed an earlier gaffe made by pro-Prop. 8 legal counsel as ammunition. During an October hearing, U.S. district court judge Vaughn Walker asked attorney Charles J. Cooper what societal harm would result in allowing gay and lesbian couples to marry.

"Your honor, my answer is: I don't know," Cooper replied. "I don't know."

Attorneys also revisited Walker's earlier rebuttal of Cooper's assertion that affording marriage rights to heterosexual couples only is essential in order "to channel naturally procreative sexual activity between men and women into stable, enduring unions," he argued.

"The last marriage that I performed involved a groom who was 95, and the bride was 83," Walker replied during the hearing. "I did not demand that they prove that they intended to engage in procreative activity. Now, was I missing something?"

Regarding the claim that "traditional" marriage is sacrosanct to American culture, attorneys argue that the union historically has never been a clear-cut, static relationship: "Race- and gender-based reforms in civil marriage law did not deprive marriage of its vitality and importance as a social institution."

In the brief, the attorneys also quote court opinion in Lawrence written by Justice Anthony M. Kennedy, who is seen by many legal observers as the crucial vote should the case end up before the high court. "Times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress," Kennedy wrote in 2003.

A final pretrial hearing on the suit is scheduled for December 16. The trial begins January 11.

A PDF of the court brief is available here.