Roundup of Amicus Briefs Filed on Plaintiffs’ Side

By Julia Rosen

Just because the testimony is over, that does not mean that there isn’t action going on with the case. A number of organizations have banded together to file several amicus briefs in support of the plaintiff’s case. We heard from gust poster Rev. Lindi Ramsden, Executive Director of the Unitarian Universalist Legislative Ministry on Friday about the brief filed by a number of religious organizations.

But here is a bit of background courtesy of the American Foundation for Equal Rights on the rest of the briefs filed.

California Professors of Family Law

A number of eminent legal scholars from schools such as Stanford, UC Berkeley, UCLA, USC, Pepperdine, Hastings, Loyola Marymount, USF, California Western, UC Davis, Whittier, Santa Clara, University of the Pacific, and Golden Gate University filed an amicus brief.

It reads in part:

“Amici agree with both the plaintiffs and defendants in this case that marriage is a critical institution in society. Through both law and culture, marriage imparts distinctive personal, psychological, and social benefits to adults and children. Thus, any laws that deprive individuals of access to marriage raise substantial concerns regarding the promotion of family life and the well-being of adults and children. Amici support plaintiffs’ claims that there are no reasonable justifications, relevant to the purposes of family law, for depriving individuals of the opportunity to marry someone of the same sex and that Proposition 8 therefore violates plaintiffs’ rights under the Due Process and Equal Protection Clauses of the United States Constitution,” their brief states. “The legal meaning of marriage has evolved considerably since the beginning of California’s Statehood, especially with respect to such basic elements as who may marry, the roles of the spouses, the management and control of marital assets, and the duration of the marital entity. … Since Statehood, the only constant element has been the goal of facilitating the decision of two people to integrate their lives into a single entity called marriage.”

“By consigning lesbian and gay couples to a marriage substitute, the State signals that their relationships are inferior and less worthy.”

The ACLU, Lambda Legal Defense and Education Fund, National Center for Lesbian Rights

This brief by these three groups is particularly interesting given their relationship to the case. While not initially supportive of this lawsuit, they have worked to support the efforts by AFER, and this brief is further evidence of that. There is background on the case’s Wikipedia entry about these three organization’s relationship to this case, for those who are interested. And here are some snippits from their brief:

“The purpose of Proposition 8 was to declare same-sex couples unequal under the law to different-sex couples. California recognizes that same-sex couples are similarly situated to different-sex couples, but Proposition 8 requires that same-sex couples’ relationships be designated as unequal to the relationships of heterosexual couples who marry, thereby denying the families of same-sex couples the dignity and respect afforded different-sex couples’ families through marriage,” their brief states. “There are some things that the Equal Protection Clause prohibits so absolutely that they can be considered per se violations of the clause’s guarantee. The government may not decide that two groups of people are similarly situated with regard to the purposes of a law, but nonetheless have that law treat them differently. The government may not treat some people differently than others merely to declare them unequal. And the government may not permanently forbid itself from protecting a group of people against unequal treatment. Proposition 8 unconstitutionally does all these things.”

People of color organizations

The following groups also filed a joint amicus brief with the court: Asian Law Caucus, Asian American Justice Center, Asian Pacific American Bar Association of Los Angeles, Asian Pacific Legal Center, Asian Pacific Bar Association of Silicon Valley, Bienstar Human Services, California State Conference of the NAACP, Coalition for Humane Immigrant Rights, Japanese American Bar Association, La Raza Centro Legal, Mexican American Legal Defense & Educational Fund, National Black Justice Coalition, South Asian Bar Association of Northern California, Zuna Institute.

It reads in part:

“Defendants’ argument that this court should only examine whether a minority group can attract the attention of lawmakers (the Attention Test), is unworkable and runs afoul of more than 70 years of Equal Protection jurisprudence. Indeed, the Attention Test urged by Defendants would threaten the well-established protected status afforded many minorities under the Equal Protection Clause, all of whom have demonstrated a historical and present ability to get the ‘attention of lawmakers.’ A finding that the mere ability to attract the attention of lawmakers is, by itself, sufficient to prevent protected minorities from receiving heightened judicial scrutiny would eliminate suspect classifications for all persons under the Equal Protection Clause. In this respect, gay men and lesbians are no different than any other group who, in the face of societal discrimination, should be entitled to demonstrate through empirical evidence that homophobic prejudice, like racism or sexism, has curtailed their ability to rely on political processes to protect them from state actions motivated by bias, hate and prejudice,” their brief states.

“For example, with respect to race, it cannot be contended that blacks had ‘no ability to attract the attention of lawmakers’ at the time the Court applied heightened scrutiny to the anti-miscegenation statute at issue in Loving v. Virginia,” their brief continues. “Like racial minorities and women, the existence of state laws that prohibit discrimination on the basis of sexual orientation is not an indicium of political power but a reflection and recognition of the enduring prejudice this group faces in almost all facets of American life. Accordingly, the argument that recent enactments of legislation protecting gay men and lesbians from certain isolated or limited forms of discrimination end the political powerlessness inquiry is without merit.”

American Anthropological Assn, American Psychoanalytic Assn, National Assn. of Social Workers, American Academy of Pediatrics California Chapter

This brief focused in part on the effects of the denial of marriage to children of gay couples.

“Moreover, the substantial social and psychological effects of this stigmatization are borne not only by same-sex couples and individuals, but by their children as well. … The positive benefits children accrue from being raised by civilly married parents are independent of those parents’ sexual orientation. It is the consensus view of the field of developmental psychology of children, the traits of an effective parent do not depend on the gender of that parent. This is because the factors that must affect child development … have nothing to do with parental gender or sexual orientation.”

They also added:

• “Depriving same-sex couples of the ability to marry has adverse effects on their children.”
• “The stigma created by the state’s differential treatment of gay men and women has severe psychological and social impacts.”
• “Singling our gay men and women as ineligible for the institution of marriage invites the public to discriminate against them.”

Justice Donald B. King (ret.), California Court of Appeal

According to AFER, Justice King is a preeminent family law authority and has authored more family law opinions than any other appellate Justice in California history. Among his honors are the State Bar’s Family Law Judicial Officer of the Year award. The state bar has since renamed this honor the Justice Donald B. King Family Law Judicial Officer of the Year Award.

From Justice King’s brief:

“Proposition 8 is but one example of how a majority can trample upon the fundamental rights of a disfavored minority by stoking the public’s fears and prejudices. Constitutional protections become meaningless when they can be overturned by a mere majority vote because an individual’s inalienable and fundamental rights then only exist by a license that is revocable,” he writes in his brief. “Marriage is among those fundamental rights that are protected for all people by the Due Process Clause of the Fourteenth Amendment. There is no rational reason for an exception to be carved out for how this fundamental right applies to gays and lesbians, just as there was no rational reason for an exception to be carved out for how this fundamental right applies to interracial couples.”

All together these groups represent a wide array of professionals, every day citizens and advocates. The arguments will butress those laid out in court and will be part of what Judge Walker spends his time studying during this period between oral and closing arguments.