Thursday, February 21, 2013

Our argument at its core in Hollingsworth v Perry

I had ample time, today, to read and re-read our reply brief in Hollingworth v Perry     the Proposition 8 case. The brief covers numerous arguments including things like standing and heightened scrutiny. Yet, in my opinion, at the core of the argument made by Mr. Olson and Mr. Boies is a very simple truth.

During the campaign for Proposition 8, proponents claimed that Proposition 8 protected children. Knowing that wouldn't fly in a court of law, they changed the argument to the claim that the state has an interest in encouraging and promoting responsible procreation.

The simple truth I referred to is this: Irrespective of whether or not the state recognizes same-sex marriage, the same heterosexual couples are going to have no fewer, no more and no different children. Or, as Mr. Olson and Mr. Boies state it:
While they no longer rely on the Protect Our Children argument they used during the campaign, they instead now principally contend that Proposition 8 is rationally related to the State’s interest in “responsible procreation.” But denying gay and lesbian individuals the right to marry does not increase the likelihood that opposite-sex couples capable of procreating will decide to get married; nor would permitting gay men and lesbians to marry decrease that likelihood. And it is undisputed that the Constitution protects the right of all heterosexual individuals—including the infertile, the elderly, and the incarcerated—to marry irrespective of their ability or desire to procreate. Proposition 8 singles out gay men and lesbians, and them alone, for disfavored treatment.
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