Prop. 8: California A.G. backs gay marriage in Supreme Court brief
California’s top law enforcement officer told the U.S. Supreme Court on Wednesday that Proposition 8’s ban on same-sex marriage should be overturned because its sole purpose was to “strip loving relationships of validation and dignity under the law,” according to an amicus brief.
In a friend of the court brief, Atty. Gen. Kamala D. Harris also argued that the proponents of Proposition 8 — California's voter-approved measure limiting marriage to a man and a woman — did not have legal authority or “standing” to appeal a federal district court decision overturning the 2008 ballot measure.
After years of litigation in lower courts, the U.S. Supreme Court is scheduled to hear arguments about the constitutionality of the ban next month. The court could decide whether the Constitution's promise of equal treatment gives gays and lesbians a right to marry. But the justices also left themselves the option to rule narrowly or even to duck a decision.
Harris said that ProtectMarriage, the sponsors of the ban, lacked standing under federal law because they weren’t hurt by same-sex marriage and have no authority to enforce laws. State officials have refused to defend Proposition 8 and did not appeal a district court judge’s 2010 ruling that found the measure unconstitutional.
The U.S. 9th Circuit Court of Appeals found ProtectMarriage had standing but also decided last year that the measure was unconstitutional. The appeals court ruled 2-1 in a narrow decision that a majority may not take away a minority's rights without legitimate reasons.
If the high court agrees ProtectMarriage has standing, the court should strike down the ban because it served no valid state purpose, Harris’ office argued.
“The fact that same-sex couples cannot conceive a biological child is not a legitimate reason to deny them civil marriage,” the attorney general argued. “ A biological distinction is not alone sufficient to satisfy the Equal Protection Clause; rather, that difference must be related to some legitimate governmental interest.”
The argument by backers of Proposition 8 that it promotes California’s interest in having a child reared by a man and a woman “falsely assumes that California law prefers children to be raised by their biological parents,” the brief said.
“The state’s interest in protecting children, including the over 40,000 children in California being raised by same-sex parents, is poorly served by allowing so many of them to grow up feeling inferior because their family unit is not validated and honored by law,” Harris argued.
It continued: "California’s interests in protecting all of its children — and their basic dignity and understanding of fairness and justice — are best served by allowing same-sex couples to enjoy the same benefits of marriage as opposite-sex couples."
— Maura Dolan and Jessica Garrison
Photo: A same-sex marriage proponent holds a gay marriage pride flag in front of the Supreme Court in Washington on Nov. 30. Credit: Chip Somodevilla / Getty Images