End of day today is the deadline to file amicus briefs in Hollingsworth V. Perry, the Prop 8 case before the US Supreme Court. NBC News correspondent Pete Williams tweeted that the Justice Department is expect to file a brief urging the Court to let marriages resume in California. Given the recent avalanche of briefs asking the Supreme Court to overturn Prop 8, as well as the so-called Defense of Marriage Act (DOMA) from a slew of Republicans, major corporations and civic and civil rights organizations, it’s not unthinkable that the DOJ could ask the Court for a more expansive marriage equality ruling beyond California. Oral arguments in the Prop 8 case will be heard on March 26, DOMA arguments on March 27.
But one brief filed today by openly gay California Assembly Speaker John A. Pérez (D-Los Angeles) and 22 legal scholars offers a salient point I don’t think is fully addressed elsewhere. Perez and counsel-of-record Laura W. Brill argue that Prop 8 deprives California citizens of achieving marriage equality through their state legislature, which California voters have done twice in the past – only to have those marriage bills vetoed by Gov. Schwarzenegger. A new Field Poll shows that support for marriage equality among registered California voters is up 61% to 32% among all age groups, regions and ethnic groups. Support among Republicans has even grown from 26% to 39% since 2010.
In a statement, Perez said:
“Proposition 8 eliminated more than the equal right to marry, Proposition 8 also eliminated the ability of those seeking equal marriage rights to pursue those rights through their elected representatives. That deprives a historically disadvantaged group – a group of which I am a member – of access to traditional representation in a representative democracy. And that deprivation violates the Constitution.
Proposition 8 clearly inhibits my legislative role, preventing me and my peers from moving forward legislation on marriage equality, although clearly we would likely do so if it were allowed. Further, if a constituent requests that I or one of my elected colleagues pursue marriage equality legislation, none of us would be able to see such a bill signed into law, due to the restrictions placed upon us by Proposition 8.”
Here is an excerpt from the brief:
The Legislature, as a matter of law following Proposition 8, cannot pass legislation to provide equal marriage rights, although it would likely do so if it were allowed. See infra, p. 17-18. And although both the democratically elected Governor and Attorney General ran and won in 2010 on platforms supporting equal marriage rights and vowing to oppose the continued effect of Proposition 8, neither of them can take action to end this case as the voters desire them to do.
In this way, the will of the people as expressed through their elected representatives is nullified. The structural protections that our founders recognized as central to the preservation of minority rights and human dignity, along with the promise of equal political participation, are compromised. The courts are the only remaining bulwark to safeguard minority rights. Gay and lesbian people, a tiny political minority who have suffered a documented history of discrimination in California, have no political recourse other than a new initiative—an effort that entails enormous expense, that provides no avenue for deliberation or accountability, and that is subject to massive manipulation. They cannot recall or vote out the initiative proponents, who were never elected in the first place. And they can do nothing to empower their elected representatives to take action on their behalf. The state’s system of checks and balances has become distorted with power concerning this issue held only by the “People” and the courts.
The initiative proponents agree that this is the result they have achieved…..
Petitioners are careful to say that the only democratic process available now to address same sex marriage is direct democracy, effectively conceding that Proposition 8 has nullified the power of any of the people’s duly elected representatives with respect to marriage equality. Yet, prior to Proposition 8, the California Legislature had the power to create marriage equality through simple legislation, the Attorney General had the power to represent the State in civil litigation and to determine when it was in the best interests of the State to acquiesce in a judgment rather than to appeal, and the Governor had power to sign or veto enacted statutes and the power to execute the law.
As the Court addresses the federal constitutional issues in this case, it should be mindful of the unique aspects of California law and the ways in which Proposition 8 has eliminated not just equal marriage rights formerly guaranteed by the State Constitution, but also the ability of gay men and lesbians in California to achieve marriage equality through the normal political process. If gay people can be denied access to representative government to achieve equal treatment with respect to an important status such as marriage, then in California, any other small, historically disadvantaged minority group can also be denied the right to representation with respect to seeking any other fundamental or important right…..
Under any level of scrutiny, Proposition 8’s complete elimination of access to representative democracy in connection with efforts to achieve equal marriage rights for same-sex couples fails. Proponents’ claimed desire to foster compromise and deliberation, Pet’rs Br. at 56-57, is wholly inconsistent with placing equal marriage rights into a political status that eliminates the power of the very institutions designed to promote these values. There is no fit between any legitimate or important state interest and nullification of the powers of the Legislature, Governor, and Attorney General to speak for the current California electorate. Nor is there any fit between any legitimate or important state interest and the elimination of the rights of gay men and lesbians to have access to representative democratic institutions to pursue marriage equality or any right central to human dignity. Despite the claims of the Proponents that they desire to promote democratic institutions, the effect of Proposition 8 is anti-democratic because none of State’s democratically elected officials can take effective action to promote marriage equality. The imposition of such a political barrier on a historically disadvantaged group, “undertaken for its own sake,” is precisely the type of law that the Fourteenth Amendment guards against. Romer, 517 U.S. at 635.
The judgment of the United States Court of Appeals for the Ninth Circuit should be affirmed.