January 29, 2013 | Case

Brief in Support of California Proposition 8

Judicial Watch  joined with the Allied Educational Foundation (AEF) in filing an amicus curiae brief with the United States Supreme Court in support of California’s Proposition 8, establishing that “only marriage between a man and a woman is valid or recognized in California.” On February 7, 2012, the U.S. Court of Appeals for the Ninth Circuit ruled Proposition 8 unconstitutional by a vote of 2-1, in a decision the amicus brief says “imputes the worst possible motives to voters.”

According to the Judicial Watch-AEF amicus brief, should the Supreme Court fail to overturn the Ninth Circuit’s decision, the people of California would be deprived of “the right to decide for themselves the ways in which they want to restrict or liberalize their marriage laws – or not.”

According to the Judicial Watch-AEF brief, “The Ninth Circuit’s sleight of hand decision … constitutes a dangerous erosion of the principle of rational basis review … Furthermore, the Ninth Circuit decision expands the reaches of the Equal Protection clause in such a way as to eclipse the people’s sovereignty to make laws for their own governance … Finally, this [Supreme] Court should find that petitioners have standing to bring this appeal, as a contrary ruling would undermine the people’s rights to initiative and referendum in twenty-six states.”

The Judicial Watch-AEF amicus brief also argues that:

• The Supreme Court should re-affirm rational basis standard of review (the concept that a law is valid if a legislature has a legitimate interest in enacting a statute):  “the law the Proposition 8 enacted bears a rational relationship to the legitimate state goal of increasing the chances that both parents will raise children they unintentionally conceive.” The brief adds, “Only by severing the meaning of marriage from procreation can the Ninth Circuit deny that Proposition 8 is rationally related to responsible procreation … If the courts can overturn laws by reimagining their purpose, the judiciary’s power over the legislative process will be enormous.”

• Democratic decision-making should be protected from the overbearing judicial power respondents prefer. “The Ninth Circuit’s decision relies on the creative argument that Proposition 8 is unlawful because it functioned to ‘take away’ a previously granted right,” the brief states. “If allowed to stand, the Ninth Circuit’s ruling would create a new ‘one-way ratchet’ rule allowing state judiciaries to grant new rights which are instantly irrevocable by the citizens of that state.”

• If proponents of Prop 8 do not have standing to defend the law in court, democratic self-governance across the nation will be threatened. Former California Governor Arnold Schwarzenegger and current Governor Jerry Brown both refused to defend Proposition 8 in court, prompting proponents of the initiative to seek to intervene as defendants. The Judicial Watch-AEF brief argued, “A ruling that Proposition 8’s supporters did not have the standing to defend their law would therefore constitute a devastating blow to the people’s right to direct democracy across the country.”

The brief asserts that redefining marriage would have a deleterious social impact and, as a result, a rational state interest in preserving traditional marriage.  Citing an assault on traditional marriage by the Bolsheviks in Russia, the brief details how “the consequences of early Bolshevik family engineering were documented as: an epidemic of divorces; economic hardship on women and children, particularly among the peasantry; an increase in “shelterless” (bezprizorni) children; and an ultimately diminished social status for women despite the feminist Bolshevik rhetoric.”

On Election Day 2008, 52% of voters in California elected to change the California State constitution to state that “only marriage between a man and a woman is valid or recognized in California.” The proposition led to a number of lawsuits challenging the proposition. In one lawsuit (Strauss v. Horton), the California Supreme Court upheld Proposition 8, but allowed existing same sex marriages to stand.

On August 4, 2010, District Judge Vaughn Walker ruled that Proposition 8 violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. On August 16, 2010, the U.S. Court of Appeals for the Ninth Circuit ordered the judgment stayed pending an appeal. On February 7, 2012, the Ninth Circuit Court upheld Judge Walker’s decision, but stayed the ruling preventing additional same sex marriages from taking place until the appeals process has been exhausted. (The Ninth Circuit Court also refused to invalidate Judge Walker’s ruling on the grounds that he failed to disclose that he had been in a homosexual relationship for ten years prior to registering his ruling on Proposition 8 and therefore had a conflict of interest.)

In addition to its most recent U.S Supreme Court brief, Judicial Watch filed an amicus curiae brief in 2011 with the Supreme Court for the State of California, supporting the right of California citizens to defend Proposition 8 in court, and an amicus curiae brief with the U.S. Supreme Court in 2012 on behalf of the proponents of Proposition 8, urging the court to hear the case. Judicial Watch also filed a FOIA lawsuit against the Obama Justice Department to find out why the nation’s top law enforcement agency reversed course and decided to not defend the Defense of Marriage Act in court.