Thursday, February 28, 2013

Obama Administration files brief against Prop8

As we all hoped, the Obama Administration/DoJ has filed an amicus brief calling DOMA unconstitutional.  They do this in the context that separate is not equal, and say that offering the benefits of marriage (civil unions) without the name is not right.  If the Court went with this, it would affect not just CA but also 7 other states.

Fron the estimable Scotusblog:
In essence, the position of the federal government would simultaneously give some support to marriage equality while showing some respect for the rights of states to regulate that institution. What the brief endorsed is what has been called the “eight-state solution” — that is, if a state already recognizes for same-sex couples all the privileges and benefits that married couples have (as in the eight states that do so through “civil unions”) those states must go the final step and allow those couples to get married. The argument is that it violates the Constitution’s guarantee of legal equality when both same-sex and opposite-sex couples are entitled to the same marital benefits, but only the opposite-sex couples can get married. 
The brief recommended that the Court, for the first time, apply a tough constitutional standard that courts are to use in judging laws that treat gays and lesbians less favorably. That standard goes by the technical name “heightened scrutiny.” It means that such a law must serve an important government interest, and be effective in doing so. 
Applying that test to California and the other states that now withhold marriage itself from only one group of couples when all couples who share a committed relationship are entitled to the other benefits of marriage, the administration argued that this amounts to a form of discrimination based on sexual orientation and thus cannot stand.
The brief is here.  And just so you can enjoy it, this is the concluding paragraph.  (I've stripped the citations):
California’s extension of all of the substantive rights  and responsibilities of marriage to gay and lesbian domestic partners particularly undermines the justifications for Proposition 8. It indicates that Proposition 8’s  withholding of the designation of marriage is not based  on an interest in promoting responsible procreation and  child-rearing—petitioners’ central claimed justification  for the initiative—but instead on impermissible prejudice. As the court of appeals observed,  that is not necessarily to say “that Proposition 8 is the  result of ill will on the part of the voters of California.”  ‘‘Prejudice, we are beginning to understand, rises not  from malice or hostile animus alone. It may result as  well from insensitivity caused by simple want of careful,  rational reflection or from some instinctive mechanism  to guard against people who appear to be different in  some respects from ourselves.”   Prejudice may not, however, be the basis  for differential treatment under the law.

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