After playing to coy all week, the Obama Justice Department has filed an amicus brief in support of the gay Appellee in the appeal of the 9th Circuit ruling that found Proposition 8 to be unconstitutional. The Justice Department's brief is one of a host of briefs filed by parties ranging from PFLAG to prominent Republicans - a full list and descriptions of such briefs can be found here - that argue positions that vary from the proposition that Proposition 8 is unconstitutional to arguing that the U. S. Constitution requires marriage equality nation wide. The Justice Department brief can be found here. Here are some excerpts from the Justice Department brief:
[T]he president and attorney general have determined that classifications based on sexualorientation should be subject to heightened scrutiny for equal protection purposes. 12-307 J.A. 183-194 (letter from Eric H. Holder, Jr., Attorney General of the United States, to John A. Boehner, Speaker, U.S. House of Representatives (Feb. 23, 2011). this case, like Windsor,presents the Court with the opportunity to address the question whether laws that target gay and lesbian people for discriminatory treatment should be subject to heightened scrutiny.
classifications based on sexual orientation call for application of heightened scrutiny. each of the four relevant considerations identified by this Court supports that conclusion: (1) gay and lesbian people have suffered a significant history of discrimination in this country; (2) sexual orientation generally bears no relation to ability to perform or contribute to society; (3) discrimination against gay and lesbian people is based on an immutable or distinguishing characteristic that defines them as a group; and (4) notwithstanding certain progress, gay and lesbian people—as proposition 8 itself underscores— are a minority group with limited power to protect themselves from adverse outcomes in the political process.
B. Proposition 8 fails heightened scrutiny. Neither the interests asserted by Petitioners nor Proposition 8’s “actual purposes” as approved by its official sponsors suffice under that standard.
First, petitioners’ central argument is that Proposition 8 advances an interest in responsible procreation and child-rearing because only heterosexual couples can produce “unintended pregnancies,” and because the “overriding purpose” of marriage is to address thatreality by affording a stable institution for procreation and child-rearing. But, as this Court has recognized, marriage is far more than a societal means of dealing with unintended pregnancies. see Turner v. Safley, 482 U.S.. 78, 95-96 (1987); Loving v. Virginia, 388 U.S. 1, 12 (1967). Even assuming, counterfactually, that the point of proposition 8 was to account for accidental offspring by opposite-sex couples, its denial of the right to marry to same-sex couples does not substantially further that interest.
Second, petitioners argue that Proposition 8 furthers an interest in proceeding with caution before departing from the traditional understanding of marriage. That was not one of the contemporaneous justifications for Proposition 8 and thus cannot properly be consideredunder heightened scrutiny. in any event, similar calls to wait have been advanced—and properly rejected—in the context of racial integration, for example. see, e.g., Fiatson v. City of Memphis, 373U.S. 526, 528-529 (1963). even if proceeding with caution were important enough to deny gay and lesbian people the right to marry in California now, Proposition 8 does not embodysuch an approach but rather goes to the opposite extreme.
. . . [P]rotecting children from being taught about same-sex marriage is not a permissible interest insofar as it rests on a moral judgment about gay and lesbian people or their intimate relationships. see Lawrence v. Texas, 539 U.S. 558, 577-578 (2003). nor does Proposition8 substantially further any such interest given California’s educational policies, which have never required teaching children about same-sex marriage and which prohibit instruction that discriminates based on sexual orientation.
Proposition 8’s denial of marriage to same-sex couples, particularly where California at the same time grants same-sex partners all the substantive rights of marriage, violates equal protection. the fourteenth amendment’s guarantee of equal protection embodies a defining constitutional ideal that “all persons similarly situated should be treated alike.”City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). The object of California’s establishment of the legal relationshipof domestic partnership is to grant committed same-sex couples rights equivalent to those accorded a married couple. but Proposition 8, by depriving same sex couples of the right to marry, denies them the “dignity, respect, and stature” accorded similarly situated opposite-sex couples under state law, Strauss, 207 p.3d at 72, and does not substantially further any important governmental interest. it thereby denies them equal protection under the law.
. . . even assuming that creating a safety net for “unintended pregnancies” was an actual and adequate justification, proposition 8 does not advance—much less bear a substantial relation to—that interest. petitioners (unsurprisingly) cite no evidence that denying same-sex couples the designation of marriage operates in any way to encourage opposite-sex couples to marry and procreate responsibly; it is difficult to conceive of any logical connection, let alone a substantial one, between that interest and Proposition 8. see pet. app. 75a (“we are aware of no basis on which this argument would be even conceivably plausible.”); cf. Lawrence, 539 U.S. at 605(Scalia, j., dissenting) (rejecting “encouragement of procreation” as a basis for prohibiting same-sex marriage “since the sterile and the elderly are allowed to marry”).
There's much more, but you get the point. There is NOTHING to support Proposition 8 - and similar constitutional amendments such as Virginia's - except religious based discrimination and out right animus. If anything, the Justice Department is too polite to the religious and extremists who support Proposition 8. They seek to punish gays, lesbians and same sex couples for refusing to conform to the hate, ignorance and fear based tenants of far right Christianity. That is their true agenda first and last and Proposition 8 personifies this anti-gay animus. End of discussion.