Not only has Attorney General Kamala Harris declined to defend Proposition 8 in the courts, but on Wednesday she filed a “friend-of-the-court” or amicus brief in the US Supreme Court, “arguing that Proposition 8 is unconstitutional and the initiative’s sponsors do not have the right to claim to represent the interests of California by defending the law in federal court.”
“Equal protection under the law is a bedrock of our Constitution and fulfills our nation’s binding principle that all people are created equal and should live free of discrimination,” said Attorney General Harris in a release. “I look forward to the day when all Californians are granted their full civil rights and can marry the person they love.”
In August 2010, a federal district court invalidated Proposition 8 on the grounds that it violated the equal protection guarantee of the Fourteenth Amendment of the United States Constitution by taking away the right of same-sex couples to marry, without a sufficient governmental interest.
U.S. Federal Court Judge Vaughn R. Walker, in a 136-page ruling, said “Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.”
“Proposition 8 cannot survive any level of scrutiny under the Equal Protection Clause,” wrote Mr. Walker. “Excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest.”
“The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples,” Judge Walker continued.
Judge Walker added: “Plaintiffs seek to have the state recognize their committed relationships, and plaintiffs’ relationships are consistent with the core of the history, tradition and practice of marriage in the United States.”
“Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license,” Walker wrote. “Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.”
Governor Jerry Brown and Attorney General Harris both refused to defend Proposition 8 on the basis that the law is unconstitutional.
In her amicus brief, Attorney General Harris laid out the harm done by Proposition 8 in preventing marriage between same sex couples.
“The sole yet profound effect of Proposition 8 was to take away the right of gay and lesbian couples to call their union a ‘marriage’ and to strip loving relationships of validation and dignity under law. It did not change any of the legal rights and responsibilities afforded same-sex couples and their children under California law,” the amicus brief states. “To be clear, Proposition 8’s sole purpose was to prevent same-sex couples from marrying. There is absolutely no legitimate or rational state interest in doing so. Proposition 8 is therefore unconstitutional.”
The brief affirms that creating a stable home for children is an important interest served by marriage under California law – and one that is furthered by allowing all couples to marry.
“The state’s interest in protecting children, including the over 50,000 children in California being raised by same-sex parents, is poorly served by allowing so many of them grow up feeling inferior because their family unit is not validated and honored by law,” the amicus brief states. “California’s interests in protecting all of its children – and their basic dignity and understanding of fairness and justice – are best served by allowing same-sex couples to enjoy the same benefits of marriage as opposite-sex couples.”
Attorney General Harris also argued that the sponsors of Proposition 8 cannot defend the law in federal court because they do not have legal standing to bring this appeal. The brief argues that, unlike state officials, the sponsors lack enforcement authority and therefore do not suffer “injury-in-fact” as a result of a federal district court’s judgment enjoining Proposition 8’s enforcement.
“The decisions below invade proponents’ interest only to the extent that they, like other voters, have a generalized interest in the enforcement of Proposition 8,” the amicus brief states. As a result, the Proposition 8 sponsors “can only assert the kind of undifferentiated interest in the validity of state law that this Court has held to be insufficient for [legal] standing.”
“If this Court concludes that proponents have Article III standing, then it should affirm the decision below that Proposition 8 violates the Fourteenth Amendment,” she argues.
“Proposition 8 serves no interest recognized by California as legitimate. The fact that same-sex couples cannot conceive a biological child is not a legitimate reason to deny them civil marriage,” Ms. Harris continues.
Former Republican candidate for governor, Meg Whitman, changed her view on gay marriage and signed a legal brief backing the overturning of Prop 8.
In a statement posted on LinkedIn, Ms. Whitman explained her changed stance on Prop. 8, which she supported as she ran for governor beginning in 2008.
“At the time, I believed the people of California had weighed in on this question and that overturning the will of the people was the wrong approach,” Ms. Whitman wrote. “The facts and arguments presented during the legal process since then have had a profound impact on my thinking.”
Ms. Whitman wrote that there is “no legitimate, fact-based reason for providing different legal treatment of committed relationships between same-sex couples,” calling marriage “the fundamental institution that unites a society.”
“It is the single greatest contributor to the well-being of adults and children because it promotes eternal principles like commitment, fidelity and stability,” she wrote. “It makes no different whether the marriage is between a man and woman or a woman and woman. Marriage makes society better.”
She continued: “Laws like California’s Proposition 8 do not fortify traditional marriage, they merely prevent hundreds of thousands of children of same-sex couples from enjoying the benefits that accrue from marriage…. Same-sex couples and their children should have equal access to the benefits of marriage.”
The U.S. Supreme Court will hear oral arguments in the matter on March 26.
—David M. Greenwald reporting
It’s wonderful that Ms. Harris is doing this. But I wish she’d pay more attention to all the district attorneys she is responsible for. That is a much more difficult issue to improve. All the wrongfully accused in jail and prison need their civil rights, too.
It’s wonderful that Ms. Harris is doing this. But I wish she’d pay more attention to all the district attorneys she is responsible for. That is a much more difficult issue to improve. All the wrongfully accused in jail and prison need their civil rights, too.
JD expand on your assertion that the AG is ‘Responsible’ for DA’s.
This action by Ms. Harris and this week’s vote in the Senate to reauthorize the Violence Against Women Act
have made me very, very happy.
AdRemmer, How in the world could I mention individual District Attorneys? I am fearful of retaliation. It is Ms. Harris’ job to examine the job performance of District Attorneys. I hope her office continues to do that. And I wish David G. would interview her re:”cash for convictions”. Thank you.