By Nan Hunter-
The proponents of Prop 8 filed their opening brief in the Ninth Circuit on Friday, clarifying the strategy that was obscured by their seemingly inept performance at trial: their theory of the case turns entirely on whether procreation is the sine qua non of marriage, or at least whether that belief was a rational basis for voters to amend the state constitution.
Judge Walker's opinion, they argue, characterized marriage as providing official recognition and protection for the "deep emotional bonds and strong commitments" of adult relationships.
While this purpose is indeed served by marriage, it obviously cannot begin to explain why the institution is a ubiquitous, enduring, cross-cultural feature of the human experience, nor why the right to marry ranks as fundamental [under the law. Marriage is fundamental] not because it provides official recognition to loving adult relationships, but because it serves society's existential interest in maximizing the likelihood that children are produced and raised in a stable, enduring family environment by the couple that brought them into the world...
The central animating societal purpose [of marriage] has always and everywhere been to channel potentially procreative sexual relations into enduring stable family unions for the sake of producing and raising the next generation.
Preserving this view of marriage, they argue, is the genuine purpose of Prop 8 - not, as Judge Walker concluded, enforcing one group's moral or religious beliefs or antiquated gender stereotypes. Thus it "defames" the 7 million Californians who voted for Prop 8 to label them "as anti-gay bigots;" many of them believe in equal rights for lgbt people, but "draw the line at marriage."
At this point in the argument, the standard of review can be decisive. Must the defenders demonstrate not only that Prop 8 serves a compelling state purpose, but also that it is necessary to achieve it? That is the burden they face if strict scrutiny applies, triggered either by the judicial designation of marriage as a fundamental right or the conclusion that sexual orientation distinctions in the law should be subject to strict scrutiny. Or - as Prop 8's defender's argue - are they held to a much more deferential standard of whether Prop 8 is rationally related to some legitimate governmental interest?
Even if the Court of Appeals accepts their assertion about the "central purpose" of marriage, they lose if strict scrutiny is applied. Conversely, if the level of review is minimal, many judges will find it tough to conclude that the belief in the marriage-procreation link is irrational, even if far from airtight.
It's a well-written brief, and I think the defenders have taken their best shot. Even aside from all the other nits one could pick with their argument, however, it has one huge, gaping, immense flaw -- perhaps it suggests a rational basis for the institution of marriage as a mechanism for protecting the children of different-sex partners, but it provides nothing as a basis for excluding same-sex partners. Since no one is arguing that different-sex partners can't be included in who has access to marriage, the question is and must be about the justification for the exclusion. And on that point, the Prop 8 defenders virtually default.
Moreover, on the level of cultural framing (not to mention historical accuracy), I think their strongest argument is also their greatest weakness. Increasingly, statistics show that Americans do think that the right to marry is fundamentally about the partner relationship at least as much as it is about the parent-child relationship. After all, marriage used to be "really" about property, long before it was about protecting children. The Prop 8 defenders' brief cites numerous sources - from the Supreme Court to Claude Levi-Strauss - in support of their assertion that procreation is key. It may be that during the time period of most of those citations - mid-19th to mid-20th century - that procreation was the central purpose. But marriage changes, just like any other social institution. So the question of why the right to marry is considered fundamental in American law is trickier than they seem to recognize.
There is much more to the brief of course, but this is the heart of it.
On the standing issue, they argue that California law accords standing to the sponsors of a ballot initiative when state officials decline to defend it; or, in the alternative, that Imperial County officials have standing. (More on the Imperial County brief in a later post.) I don't know this area of law well enough to have a sense of how strong the arguments really are on each side, although there seems to be enough wiggle room in current law for the court to go either way. I have a hunch based more on pragmatism than doctrine that the Ninth Circuit will find that someone has standing to appeal; I just don't think the court will throw out the majority vote based on a procedural technicality.
If they do, however, the defendants offer them a way to preserve the essential outcome of the election: limit the scope of the district court's injunction against enforcement of Prop 8 to just the four individual plaintiffs. Their argument is that because Perry is not a class action, the outcome cannot apply beyond the particular plaintiffs. Another quasi-pragmatic hunch: the Court of Appeals won't buy this either. It's a stretch to say the least.
On October 18, the plaintiffs will file their brief, and on November 1, the defenders will file a reply brief. The amici on both sides - all gajillion of them - will also file their briefs on November 1. Argument will be in early December; the three-judge panel will be announced about a week before the argument.
Not on the court's docket, but perhaps the most important date: on November 2, Californians will elect a new governor and a new attorney general. The Republican candidates for both positions have announced that they would reverse the Schwarzenegger and Brown positions of declining to defend Prop 8. It is unclear what role either official could assume at that stage in the proceedings, but scrambling the line-up will only make the complicated procedural puzzle in this case even more challenging for the Court of Appeals.
There is no deadline for when the court must rule after hearing oral argument.
For more from Nan Hunter visit - hunter of justice, a blog about sexuality, gender, law and culture
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