The proponents of Proposition 8 in California have petitioned the Supreme Court for certiorari to review the case, in a long-awaited and expected move.
The question presented in the case is: "Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman." The proponents tell the Court that they should answer the "profoundly important question whether the ancient and vital institution of marriage should be fundamentally redefined to include same-sex couples." They write that leaving the Ninth Circuit's decision intact would have "widespread and immediate negative consequences" and would leave the impression that any "experiment" with marriage would be "irrevocable."
The proponents list five reasons for granting review of the Ninth Circuit's decision: (1) the question presented is exceedingly important (2) the decision below conflicts with Crawford v. Board of Education (3) the decision below "misapplies" Romer v. Evans and conflicts with other courts (4) the decision below conflicts with Baker v. Nelson (5) the Ninth Circuit's holding that Prop 8 serves no legitimate purpose conflicts with other courts.
For point one, the petitioners argue that the Ninth Circuit's decision calls into question the laws of Hawaii, Nevada, and Oregon, based on its reasoning. Those states grant all the incidents of marriage but disallow same-sex couples the word 'marriage.' The second point is regarding a Ninth Circuit holding that suggests if a state does more than what is required by the Fourteenth Amendment, it is incorrect to say it may "never" recede. Petitioners suggest that states are free to take away previously afforded rights.
In short, the fundamental lesson of Crawford is that a State is no less free to withdraw state constitutional rights that exceed federal constitutional requirements than it was to extend them (or not) in the first place. This Court should grant review to resolve the conflict between the decision below and Crawford.
The third point involves the Ninth Circuit's application of Romer v. Evans, a 1996 case that struck down Colorado's anti-gay Amendment 2 as a violation of the Equal Protection Clause. The petition rejects the Ninth Circuit's contention that Romer was based on the granting of rights and then taking those rights away, suggesting:
At the root of the Ninth Circuit's error is its assertion that Romer turned on the timing of Colorado's Amendment 2 rather than its substance. See App.64a. But nothing in Romer suggests that Amendment 2 would have been valid had it only been enacted before Aspen, Boulder, and Denver passed ordinances banning discrimination on the basis of sexual orientation. Nor did Romer suggest that a constitutional amendment identical to Amendment 2 would be valid in a State that had no preexisting local laws protecting gays and lesbians from discrimination. Indeed, this Court struck down Amendment 2 on its face, not merely as applied in the handful of local jurisdictions that had previously enacted antidiscrimination ordinances protecting gays and lesbians.
The fourth point is the rejected contention that Baker v. Nelson forecloses a decision to strike down Prop 8. Baker was a 1972 case in which a gay couple applied for a marriage license in Minnesota but was rejected. The Supreme Court summarily dismissed the case "for want of a substantial federal question."
And lastly, petitioners argue that Proposition 8 furthers society's interest in child-rearing and procreation and proceeding cautiously when redefining marriage. The petitioners claim that the purpose of Proposition 8 is not to "dishonor" gays and lesbians. They suggest:
This charge makes sense only if marriage is itself nothing more than, as the panel majority would have it, see App. 91a, an honorific bestowed by society on relationships it approves and withheld from relationships it disapproves. But support for the traditional definition of marriage is rooted precisely in resisting this reductive view of marriage in favor of one that maintains the inherent link between the institution and its traditional procreative purposes. And this traditional view of marriage has nothing to do with disapproval of gays and lesbians.
They suggest that since there are reasons to support traditional marriage beyond animus, Proposition 8 is not based on hatred of gays and lesbians.
The Supreme Court will decide whether to hear the case at its conference in early October.
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