Andrew Cohen of The Atlantic acts as if these strong pro-marriage arguments offered by the proponents of Proposition 8 haven't existed before -- they have -- but at least he and other writers are acknowledging them now that the question has reached the Supreme Court. Ted Olson may hog the cameras, but Chuck Cooper is the real legal eagle:
It has been 1,515 days since November 4, 2008. That's the day California voters approved Proposition 8, the ballot initiative designed to end the Golden State's heralded experiment with same-sex marriage. During that time, Prop 8 has been forcefully challenged as a violation of the equal protection and due process clauses of the Constitution, has been the subject of a one-sided bench trial, has twice been declaredunconstitutional, and has been accepted for review by the justices of the United States Supreme Court. And during all that time it has never really enjoyed a coherent defense. Until now.
On Tuesday, the first substantive brief was filed in Hollingsworth v. Perry, the Prop 8 case now under review by the Supreme Court. The document was filed by lawyers representing a group of citizens who took over the case after California's elected officials refused to continue to defend the measure. I'm still not convinced that their arguments are going to persuade Justice Anthony Kennedy to save Prop 8. And without his vote the measure is doomed. But these are about the best legal arguments that can be offered in support of this dubious measure, and they are laid out more impressively here than I have yet seen while covering this case.
Here is the link to the brief. For our purposes, the most important passage -- an example of strong legal writing -- comes at pages 20 through 26, and I suggest you take the time to read all seven pages. The gist of this text is likely to animate the Prop 8 case from here on in, through oral argument in late March to the decision in late June. And the rhetoric contained here surely poses a new challenge to the initiative's famous foes, lawyers David Boies and Ted Olson, who until now have largely won the legal war in court over Prop 8 as well as the public relations war beyond it.
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The hypocrisy of the left is palpable.
On any given day the media elites write about which conservative jurists will be swayed; yet, never do they ever conceive of a single scenario where any of the four liberal jurists would ever go against the dictates of their handlers.
If I were one of the those four jurist I would not like to be remembered for being a reliable rubber stamp for an ideology that stands in opposition to the Constitution I swore to uphold.
A quick observation: "Procreation" is the centerpiece of the prop 8 proponents' argument here. What I find interesting is that nowhere ---NOWHERE--- in the brief do they cite the Regnerus study. Does this mean Pugno, Cooper, et. al. don't have enough confidence in the study to cite it? or will be leaving any cites to the Amici?
Regnerus's study is part of a long line of gold-standard research proving that children do best when raised by their married mother and father. What the Prop 8 team *should* cite is the article published by Dr. Marks, alongside Regnerus's, which demolishes the shady body of research purported to show that children do best when raised by same-sex couples in a romantic relationship.
I'm wondering of the author of this piece knows much of the ssm caselaw. He claims that some liberal justices might be very interested in knowing how ssm harms the proffered state interest in responsible procreation. But these justices would likely know that the proper question for judicial inquiry is how ssm would *further* the state interest. Almost anything can be foisted on the public when courts stray from proper judicial review and demand that the state "prove" that the granting of a special interest group's desire will obstruct state objectives. No, no, no. Under rational basis review, the burden is on the one *challenging* the legislative classification to negate every conceivable basis for the law--whether or not that basis is on the state record or offered in court. Rational basis review is the "paradigm of judicial restraint" and prevents the replacing of the decisions of the electorate with "the policy preferences of unelected judges."
The author suggests that the infertile heterosexual couples reality will undermine the Prop 8 defense. Not so under genuine rational basis review, which does not require that laws be drawn with mathematical nicety. Surely even the liberal justices will remember their own court's precedent.
Get a load of the clueless commenters. The author himself cited a portion of the brief which distinguishes Loving from ssm as a race-based challenge (which, unlike sexual orientation, warrants strict scrutiny), and true to form they start talking about voting on the civil rights of Black people. Amateurs.
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Even with the "best legal argument" to date, this "dubious" law is likely to be vetoed by the Supreme Court. Did you read the article before you posted it?
If NOM wants to block SSM on the basis that children do best with a married mom and dad, then why doesn't the organization try to ban all marriages that do not provide this. For example, why not ban people who have children from previous from re-marrying, as these marriages will not provide the children with a married mom and dad?
“society recognizes the institution of marriage and grants married persons preferred legal status” is that it “has a deep and abiding interest in encouraging responsible procreation and child-rearing.”
The first step in an equal protection analysis is to ‘identify the classes involved, and determine if they are similarly situated. If the classes are not similarly situated, then it is not necessary to analyze the challenge further. The classes here have been identified as same-sex couples, (homosexuality) and opposite gendered couples (heterosexuality)
It is undisputed that as a class opposite-sex couples can naturally procreate and as a class same- sex couples cannot. Thus, allowing opposite-sex couples to marry furthers this interest and allowing same-sex couples to marry would not do so.
Ash wrote:
"What the Prop 8 team *should* cite is the article published by Dr. Marks, alongside Regnerus's, . . . "
And yet, they don't.
I'll repeat, nowhere ---NOWHERE--- in the brief do Pugno, Cooper et al., cite Regnerus or Marks, for that matter. In fact, Dr. Marks was originally scheduled as an expert witness in the original bench trial ---WAY--- back in 2008, but the Prop 8 proponents withdrew him after a particularly unfortunate cross-examination.
I’ll repeat: citing Regnerus’s study is unnecessary, as it is just an affirmation of previous gold-standard research (like what they do cite from Kristen Anderson Moore). Marks’s APA knock-out is far more relevant, but may only be needed response to claims that “decades of research” shows that children in same-sex households do just as well as those raised by “heterosexual parents”; or the claim that same-sex parenting is great because the APA has endorsed it.
Although I’m sure other briefs will discuss the matter, overall, references to parenting research may be unnecessary, as the government would still have an interest in as many children as possible being cared for by their biological parents. As long as the issue of whether children do best when raised by their married mother and father is at least debatable, then the court will accept it as a legitimate rationale from the state.
Hey, let's start doing something to make sure as many children as possible are being cared for by their biological parents. What can we do to make that happen in society?