03/01/2013 10:24 am ET Updated Feb 02, 2016

Analysis: The Prop 8 Plaintiffs Debunk the 'Responsible Procreation' Argument for Good

Last week, the plaintiffs challenging the constitutionality of Proposition 8 filed a brief with the Supreme Court in response to the arguments that the law's defenders had made in their filing with the Court last month.  At first blush, the most significant feature of the plaintiffs' brief might seem to be their decision to opt for the legal equivalent of a two-point conversion over the extra point.  Provided the opportunity to argue a narrower, California-specific case for marriage equality akin to the one made by the Ninth Circuit when it struck down Prop 8, the plaintiffs have instead chosen to argue that gay and lesbian Americans have a fundamental right to marry, full stop.

This isn't a new position for the Prop 8 plaintiffs; in fact, it's a logical extension of the arguments they've been making since their initial legal complaint in 2009.  But it is still a big deal.  A fundamental right to marriage equality would by default be a national right, one that gay and lesbian citizens in Alabama would be entitled to as much as those in California.  A Supreme Court ruling recognizing such a fundamental right would affect the laws of the 41 states without marriage equality either immediately or perhaps after a few years and a couple more lawsuits.

But even though the plaintiffs' brief does not adopt the Ninth Circuit's more limited framing of constitutional questions at issue in Prop 8 case, it still contains a remarkable array of arguments besides the fundamental right framing from which the Supreme Court can choose.  As a procedural issue, the plaintiffs argue that the proponents of Prop 8 lack what is called 'Article III standing,' which would essentially mean that they should never have been allowed to appeal the district court decision invalidating the law in the first place. The plaintiffs also make a persuasive case that laws which pertain to gays and lesbians should be considered under heightened scrutiny, a more searching form of legal review that courts have historically used when considering laws which classify based on race, sex and national origin.

Despite these extremely important arguments (which could dramatically affect the ultimate outcome of the case) and the invocation of a fundamental right to marry under the due process clause, the bulk of the plaintiffs' brief focuses on Prop 8 as a violation of equal protection rights.  This is the course most legal observers expect the Supreme Court to take in its eventual decision on Prop 8, although the scope of any such decision could certainly be limited to California if the Court wished to do so.  And as it happens, the equal protection clause provides one of most persuasive arguments against laws that limit marriage rights for same-sex couples.

Similarly situated, dissimilarly affected

At its core, the equal protection clause mandates that you cannot take two individuals (or two classes of individuals) who are 'similarly situated' and treat them differently.  The situation for gay and lesbian couples in California is a perfect expression of the kind of situation equal protection was designed to prohibit.  California has one of the most expansive domestic partnership laws in the country, and the state explicitly protects same-sex couples' rights to adopt and parent children.  In fact, in its decision upholding Prop 8 as constitutional in the court case Strauss v. Horton, the California Supreme Court went out of its way to stress, as the plaintiffs note in their Supreme Court brief, that "Proposition 8 diminished none of these protections."

In their filing arguing in defense of Prop 8, however, the law's proponents disputed the idea that same-sex and opposite-sex couples are 'similarly situated,' writing that there is an "undeniable biological reality that opposite-sex unions--and only such unions--can produce children."  The "animating purpose of marriage," they went on to say, is to "steer potentially procreative conduct into stable and enduring family units."  Because of this, they argued, Prop 8 is constitutional: it simply assigns two different names to two different things.

But digging a little deeper into the responsible procreation argument--which the proponents of Prop 8 come to again and again in their brief, essentially relying on it as the foundation of their legal defense--demonstrates that this justification in fact belies the proponents' entire rationale for Prop 8's existence.  To put it simply, Prop 8 does not encourage responsible procreation, and even if it did, the manner in which it attempts to do so would still constitute an equal protection violation.

The proponents of Prop 8 are correct in pointing out the "undeniable biological reality" that the sexual union of same-sex couples cannot naturally produce children.  But at the risk of stating the obvious, gay and lesbian couples are not the only unions incapable of procreation.  As the plaintiffs write in their Supreme Court brief, "Proponents' state-centric construct of marriage means that the State could constitutionally deny any infertile couple the right to marry, and could prohibit marriage altogether if it chose to pursue a society less committed to 'responsible' procreation."

Society's interest vs. individual liberties

This type of 'reduction to the absurd' logic points out the central, inescapable flaw in the Prop 8 proponents' reasoning: when you take the issue of sexual orientation out of the equation, it is fundamentally absurd to limit the institution of marriage only to couples who can procreate.  Yet that is essentially what the proponents argue in their briefs before the Supreme Court when they make the case that the biological fact of same-sex couples' inability to reproduce by natural means merits denying them marriage rights.

By this same logic, a state could rationally refuse to marry an opposite-sex infertile couple, claiming that their union differs from (to coin a strange phrase) fertile couples and therefore should not be afforded the same societal and legal recognition.  But such a law would go against decades of American jurisprudence that declares marriage a fundamental right to liberty, privacy and the pursuit of happiness.  This is the argument the plaintiffs challenging Prop 8 tap into when they write in the brief that allowing same-sex couples to marry "would not require the recognition of a new right, but would instead afford gay men and lesbians access to the fundamental right to marry guaranteed to all persons." The words 'all persons' are important there: the right to marry isn't just a right of fertile Americans, or heterosexual Americans; it is a right of all Americans.

Just as importantly, basing the right to marry on a couple's fertility status would ignore one of the most important aspects of marriage: the union of two individuals who have chosen to express their commitment and fidelity to each other.  The state's interest in maximizing the opportunities for children to be born into stable, loving households is undeniable, and marriage is indeed a tool to further that interest.  But there is an equally important individual interest--and, by extension, individual right--that every American is entitled to: "The right to marry," the Prop 8 plaintiffs write in their brief, "has always been based on, and defined by, the constitutional liberty to select the partner of one's choice."

Prop 8 undermines that individual right, and in the process establishes a precedent (at least according to its defenders' logic) for denying that same right to any opposite-sex couple who cannot procreate naturally.  And when the 'responsible procration' defense is taken away, the only thing that remains is Prop 8's laser focus on one specific class of 'infertile' couples: those with gay or lesbian partners.  In legal terms, this defense is no defense at all.  It would require differentiating between opposite-sex couples and same-sex couples who are 'similarly situated' in their biological inability to procreate.  In this way, Prop 8 is a perfect expression of the type of discrimination the equal protection clause was designed to root out and declare unjust and un-American.

The Prop 8 proponents will no doubt rely on the responsible procreation argument at the Supreme Court when the justices consider the case in March.  They've been doing so over the last three-plus years that the trial has been going on, and  it is increasingly beginning to look like this argument is the only leg the proponents have to stand on.  Unfortunately for them, it's a pretty flimsy one at that.

This piece originally appeared at