Last Updated:July 30 @ 06:50 pm

Supreme Court urged to strike down California's voter approved gay marriage ban

By San Jose Mercury News

Gay marriage advocates on Thursday urged the U.S. Supreme Court to strike down California's ban on same-sex nuptials and declare all such state laws unconstitutional.

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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(c)2013 San Jose Mercury News (San Jose, Calif.)

Visit the San Jose Mercury News (San Jose, Calif.) at www.mercurynews.com

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11 Comments

  1. Chuck AnziulewiczComment by Chuck Anziulewicz
    February 22, 2013 @ 7:59 am

    Yes, California voters approved Proposition 8 by a narrow margin. But the fact remains that Proposition 8 conflicts with the Constitution of the United States, specifically the 14th Amendment guarantee of equal protection under the law.

    As Judge Vaughn Walker said in his decision overturning California‚Äôs Proposition 8: “Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.” It was a view shared by the courts in the Golinski case against DOMA, where a Bush appointee in the Northern District of California concurred: “The exclusion of same-sex couples from the federal definition of marriage does nothing to encourage or strengthen opposite-sex marriages.”

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    • bna42Comment by bna42
      February 22, 2013 @ 10:22 am

      Chuck, when did a state issue, marriage, become a 14th Amendment issue for equal protection? No one has a “constitutional right” to marry. Marriage for thousands of years has been defined as being between a man and a woman for the purpose of procreation (producing offspring). Therefore, same-sex marriage should be attacked simply because of its inability to procreate because that means same-sex marriage is fundamentally “unequal” to heterosexual marriage.

      The gay community has thrived without same-sex marriage for decades, so why is it now an issue? I suspect it’s because they want to FORCE their agenda by use of the courts, being declared a “protected class” which also makes them “unequal” from the rest of the population, which by the way is a huge MAJORITY.

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    • Chuck AnziulewiczComment by Chuck Anziulewicz
      February 22, 2013 @ 10:45 am

      DEAR BNA42:

      You write, “The gay community has thrived without same-sex marriage for decades, so why is it now an issue?”

      Because throughout the history of this country, Gay couples have been forced to help subsidize all the legal benefits and protections that Straight couples enjoy, while we have been prohibited from taking part in those same incentives to marry.

      Social Security is a good example. According to my last SSA statement, my married spouse would be eligible for over $1400 per month (after retirement) in the event of my death. I think anyone would agree that $1400 per month is a pretty hefty chunk of change. However, it is money that my significant other would not be eligible for, because we would not be allowed to get married. I would like to provide for the financial well-being of my spouse, just as I’m sure any heterosexual would, but in essence I’m throwing away money on a fund that my partner cannot take advantage to in the event of my death.

      The federal government does not make the existence of children a condition these benefits, so Straight couples who either are unable or unwilling to have children are not prohibited from taking part. Why should Gay couples be prohibited? There’s no justification for such unequal treatment under the 14th Amendment.

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    • MarcusComment by Marcus
      February 22, 2013 @ 10:50 am

      bna42,

      You must have very little acquaintance with constitutional law. Surely you are familiar with the Brown v. Board of Education decision in 1954, which prohibited the states from operating racially segregated public school systems. The Brown decision was based entirely on the 14th Amendment guarantee of equal protection. It was one of a long line of decisions holding that the 14th Amendment applies to state governments, just as it applies to the federal government.

      You say that no one has a constitutional right to marry. That is true — no state is required to issue marriage licenses. But, if they do, they must issue such licenses on a non-discriminatory basis. That is what this case is all about: whether states may discriminate based on gender in the issuance of marriage licenses.

      Apparently, “the gay community” doesn’t feel that they have “thrived” while being discriminated against by their own government, or they wouldn’t be seeking marriage equality. Do they want “to FORCE their agenda by use of the courts?” I suppose one could say that about any plaintiff in any case. But when “their agenda” is simply to be treated equally, they are only seeking the rights guaranteed to them by the U. S. Constitution, rights which all conservatives cherish.

      Continuing to defend gender discrimination in the issuance of marriage licenses, especially in the face of majority public opinion opposed to such discimination, is a burden which conservatives can no longer bear. It is making the Republican Party look backward and ignorant, as all attempted arguments against marriage equality appear insubstantial at best and bigoted at worst.

      The time has come to abandon this lost cause. Hopefully, the Supreme Court will resolve this matter once and for all in June, and we can turn our energies to the immense challenges facing our country, which certainly don’t include keeping people from getting married.

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    • BillzillaComment by Billzilla
      February 22, 2013 @ 1:24 pm

      There can be no gay marriage because: one partner will always lack the necessary equipment to physically consummate the “marriage”. If I make the choice as a hetrosexual male to live with, but not to marry my female partner, then I too will not be entitled to certain benefits that I would have otherwise received had I married her. Choice I’m told is a good thing, perhaps I’ve been misinformed.

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  2. camdenme2Comment by camdenme2
    February 22, 2013 @ 10:10 am

    It’s we the people ! You gays need to remember that !

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    • Chuck AnziulewiczComment by Chuck Anziulewicz
      February 22, 2013 @ 11:02 am

      And if the U.S. Civil Rights Act of 1964 had been put up for a popular vote by “We The People” of the Deep South, I think we all know how THAT would’ve turned out!

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  3. gm1919Comment by gm1919
    February 22, 2013 @ 11:33 am

    We need to get rid of marxist judges. There in lies the problem. When a vast majority of the electorate is anti gay marriage and it is a gay marriage state voters need to vote where their moral compass takes them. We are being hijacked every day by those who would destroy america. Our only recourse is the vote. Get out and vote and quit complaining.

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    • Chuck AnziulewiczComment by Chuck Anziulewicz
      February 22, 2013 @ 11:57 am

      DEAR GM1919:

      I suppose it’s easy enough to call a judge a “Marxist” when he issues a ruling you don’t agree with, huh?

      Well sorry to disappoint you, but is not job of courts and judges to uphold the precise will of the majority of the people. That’s what elections are for. The job of the courts is to uphold the Constitution, regardless of whether the necessary decisions fall in line with the will of the majority. It is up to the judges to determine, without bias from the rest of the population, what constitutes equality under the law, or equal protection. It seems more than obvious to me that to exclude Gays from the institution of marriage is a clear violation of any notion of “equality,” and I have yet to see anyone dispute that on a rational level. Therefore, it is not “activism” on the part of judges to declare that Gay and Straight couples should be treated equally under the law, rather it is an example of judges performing their rightful duty.

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  4. librabobComment by librabob
    February 22, 2013 @ 12:42 pm

    As a California resident and a conservative (very rare indeed), I did vote for Proposition 8 only to have it overturned by our ultra liberal 9th circuit appeals court. Frustrating! Now, I anxiously await the high court’s ruling on this important issue of our times. Given the makeup of the supreme court and the leftist leaning political climate we have, encouraged on by Obama’s unprecedented progressive agenda, it seems likely the high court will rule against the will of the people and in favor of the 9th Cir court in this matter. I can only hope that if the court determines that states can no longer bar homosexual marriages, they put a clause in their ruling that permanently protects religious institutions from subsequent civil litigation if they choose to deny the right of homosexuals to be married in their places of worship. I think we can all see the handwriting on the wall with respect to that issue.

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  5. Pingback: Gays challenging California's same-sex union ban ask Supreme Court for … – The Reporter | GAYFRIENDSCHAT.com

  6. rzraickComment by rzraick
    February 22, 2013 @ 6:22 pm

    Get the government out of this. Let this be debated elsewhare. Legislating religion and morality never works.

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  7. Pingback: Gays challenging California's same-sex union ban ask Supreme Court for … – The Reporter | GAYFRIENDSCHAT.com

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  10. Pingback: Gays challenging California's same-sex union ban ask Supreme Court for … – The Reporter | GAYFRIENDSCHAT.com

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