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The Obama Administration files an Amicus Curiae Brief in Supreme Court Proposition 8 case

Two new Amicus Curiae Briefs have been filed in the Proposition Supreme Court case.

Click here to read the Lambda Legal-Glad Amicus Curiae Brief

Click here to read the Obama Administration Amicus Curiae Brief

President Obama’s administration has filed an Amicus Curiae Brief

Just this past month, February 2013, the Obama Administration took a bold step in Equal Protection and Civil Rights issues with the filing of an Amicus Curiae Brief in the Proposition 8 case which is currently before the Supreme Court.

In the Brief submitted by the Obama Administration (Obama Brief), the legal argument as presented by the Obama Brief, simply put, is the exclusion of gay and lesbian couples from marriage does not substantially further any important governmental interest and therefore, Proposition 8 violates equal protection. This conclusion is reached through an in depth analysis of important legal concepts. These concepts include the level of scrutiny to which the law in question is subjected.


The Obama Brief posits that the law in question must be subjected to Heightened Scrutiny. A detailed discussion may be found in the brief. The Obama Brief then asserts that proposition 8 fails heightened scrutiny because neither the interests asserted by the petitioners nor Proposition 8’s purpose as represented by the official sponsors meet that standard.


Some of the more amusing ‘purposes’ of the law as stated by the official sponsors and the Obama Brief’s responses are:

Purpose: Responsible procreation and child-rearing because only heterosexual couples can produce “unintended pregnancies,” and because the “overriding purpose” of marriage is to address that reality by affording a stable institution for procreation and child-rearing.

Obama Brief Response: The exclusion of same-sex couples from marriage bears no substantial relation to any interest in promoting responsible procreation and child-rearing.

Purpose: Maintaining the Democratic Process.

Obama Brief Response: The point of heightened scrutiny is to protect minority from unjustified targeting (descrimination) in the democratic process.

Purpose: Preserving a tradition of limiting marriage to heterosexuals.

Obama Brief Response: That “reference to tradition, no matter how long established, cannot by itself justify a discriminatory law under equal protection principles”

In summary, the arguments of the Obama Brief are essentially that by depriving same-sex couples of the right to marry, Proposition 8 denies them the “dignity, respect, and stature” accorded similarly situated opposite-sex couples under state law, and does not substantially further any important governmental interest. Therefore, Proposition 8 denies same-sex couples equal protection under the law and is unconstitutional.

A Background of the Case

After several same-sex couples were denied their application for a marriage licenses in California, in May of 2008, the issue was heard before the Supreme Court of California and the Court held that the California Constitution guaranteed to same-sex couples the fundamental right to marry. The Supreme Court then invalidated a state statute that had restricted civil marriage to opposite-sex couples. After this decision many (18,000) same-sex couples legally married in California.


In November of 2008 a ballot measure which amended the California Constitution to take away the rights of same-sex couples to marry was presented to the voters of the State of California and passed by a very small majority. The constitutionality of this amendment to the state Constitution was litigated and made its way to the California Supreme Court where the constitutionality of the amendment was upheld. The Supreme Court also determined at that time that proposition 8 did not invalidate the 18,000 marriages involving same-sex couples performed before its enactment.


Soon thereafter, private individuals, same-sex couples who wished to marry, brought this matter before a Federal District Court. The Federal District Court, after hearing argument, decided that Proposition 8, which took the right to marry away from a select group of individuals, was unconstitutional under the Equal Protection and Due Process clauses of the Fourth Amendment to the U.S. Constitution.  The issue was brought up on appeal and the Court of Appeals stayed the District Courts decision until the Appeal court be heard and decided. After hearing argument the Court of Appeals ultimately affirmed the District Court’s decision. The proponents of Proposition 8 then Petitioned the Supreme Court for Certiorari, which means that the Supreme Court would have the last say in whether the discriminatory law is constitutional.


The Supreme Court is not required to hear every case filed or for which Certiorari is requested. If the Supreme Court had not granted Certiorari the decision of the Court of Appeals would have become final. However, on 12/07/2012 the Supreme Court granted a Petition for Certiorari to address the question of whether proposition 8 violated the equal protection clause of the Fourth Amendment. The parties were instructed to submit their Briefs in following with a specific timeline. In addition to the Briefs of parties, the Supreme Court may also consider Amicus Briefs, that is ‘Friend of the Court’ Briefs by those who have some form of stake in the outcome of the case.

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Tags: 8, Amicus, Briefs, Court, Proposition, Supreme, marriage, same-sex


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