Lambda Legal and Gay & Lesbian Advocates & Defenders (GLAD) last week submitted a friend-of-the-court brief in Hollingsworth v. Perry urging the U.S. Supreme Court to affirm the historic decision by the U.S. Ninth Circuit Court of Appeals declaring California’s discriminatory Proposition 8 unconstitutional.
“Prop 8 violates the express command of the federal Equal Protection Clause,” said Jon Davidson, Legal Director of Lambda Legal. “What Prop 8 did was to add a subsection to the California Constitution’s equal protection clause, amending it to specifically exclude lesbians and gay men from the state’s equality guarantee when it comes to marriage. Prop 8 caused California’s charter to protect everyone but gay people against inequality in marriage—protecting even those convicted of murdering a prior spouse. In effect, Prop 8 turned the state’s equal protection clause into a clause mandating unequal protection.”
In the brief, Lambda Legal and GLAD argue that, “Proposition 8 required the state to provide lesbians and gay men less protection against inequality than anyone else, which literally violates the mandate of the federal Equal Protection Clause.”
The brief also argues that, although laws such as Prop 8 that discriminate based on sexual orientation should be subjected to heightened scrutiny—a more rigorous standard of constitutional review—Proposition 8 does not even pass the less strict, rational basis standard. That is so, the brief explains, because California has recognized that same-sex couples are similarly situated to different-sex couples when it comes to marriage’s purposes and that relegating same-sex couples to the inferior status of domestic partnerships stigmatizes and harms them and their families. The brief argues that because Prop 8 had no purpose or effect other than to mark same-sex couples and their relationships as inferior, it violates federal equal protection under even rational basis review.
“The ability to commit in marriage to the person you love is profoundly important and should not have been taken away from loving committed same-sex couples," said Lee Swislow , GLAD executive director. "Treating these couples differently than opposite-sex couples for the purpose of marriage undermines their family security in every aspect of life and death. Our Constitution does not allow for such unequal treatment.”
Lambda Legal, GLAD and other civil and LGBT rights organizations have been fighting for same-sex couples to have the freedom to marry for decades— including the first historic victory in California in 2008. Lambda Legal first fought for marriage equality in Hawaii almost 20 years ago, won a unanimous decision for marriage from the Iowa Supreme Court in 2009, and has ongoing marriage lawsuits in New Jersey, Illinois and Nevada. GLAD won the first state court decision for marriage equality in Massachusetts in 2003, then in Connecticut in 2008, and has helped win the freedom to marry in all but one of the New England states.
Lambda Legal has joined with multiple LGBT and civil rights organizations to file friend-of-the-court briefs throughout the course of the litigation in Hollingsworth v. Perry, brought by the American Foundation for Equal Rights and attorneys Ted Olson and David Boies, and its briefs were relied upon significantly in the historic Ninth Circuit decisions.
In addition to Davidson, other lawyers on the brief include: Jennifer Pizer, Hayley Gorenberg, Susan Sommer and Camilla Taylor of Lambda Legal; and Mary Bonauto and Gary Buseck of GLAD.
The plaintiffs are represented by the law firms of Gibson, Dunn & Crutcher and Boies, Schiller, & Flexner and the plaintiff-intervenor is represented by the San Francisco City Attorney’s office.