In briefs filed with the high court, lawyers for two same-sex couples who challenged California's Proposition 8 raised broad arguments in a bid to persuade the justices to invalidate the 2008 voter-approved ban on gay marriage. The court will hear arguments in the case on March 26, and will consider the federal government's ban on same-sex marriage benefits the following day.
"Proponents (of Proposition 8) have not once set forth any justification for discriminating against gay men and lesbians by depriving them of this fundamental civil right," the couples' lawyers wrote. "The unmistakable purpose and effect of Proposition 8 is to stigmatize gay men and lesbians -- and them alone."
The Supreme Court in December agreed to review a federal appeals court's ruling finding Proposition 8 unconstitutional, and whether backers of the law have a legal right to defend the law in the federal courts when the governor and attorney general refuse to do so. Proposition 8 lawyers last month offered up their arguments to persuade the Supreme Court to overturn the appeals court and leave the same-sex marriage ban intact, saying the state's voters had a right to restrict marriage to heterosexual couples.
Among other arguments, Proposition 8 backers maintain states have the authority to define marriage for a variety of reasons, including its importance to procreation and child-raising. More than a dozen states have backed Proposition 8's legality in briefs filed several weeks ago.
The 9th U.S. Circuit Court of Appeals took a narrow approach to striking down Proposition 8, saying it was unconstitutional because it stripped away a prior right in California for same-sex couples to marry. But lawyers for same-sex couples urged the Supreme Court to take a broader approach to declaring state bans on gay marriage unconstitutional.
"We felt it was extremely important to present to the Supreme Court the entire panoply of this case," said former U.S. Solicitor General Theodore Olson, one of the key lawyers for the two couples.
Lawyers for the couples say gay marriage foes have failed to prove allowing gay and lesbian couples to marry would harm the institution of marriage. San Francisco City Attorney Dennis Herrera on Thursday also filed the city's legal arguments against Proposition 8, saying it was aimed at "relegating gay couples to a lesser status."
Groups aligned behind the couples have until Feb. 28 to file further legal arguments against Proposition 8. The Obama administration is weighing whether to file arguments with the high court by that deadline.
The Justice Department already has taken the position in court that the 1996 federal Defense of Marriage Act is unconstitutional. Olson, who met with administration officials last month to urge them to side with them against Proposition 8, said Thursday that he is hopeful the federal government will jump in against the California law.
"It would be important for us for the United States to make it clear this is a matter of importance ... to all Americans."
ProtectMarriage.com lawyers, who back Proposition 8, also met with administration officials to make their arguments that the government should stay out of the case.
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