American Foundation for Equal Rights

Amicus Briefs Filed in Support of Olson/Boies Prop. 8 Challenge

“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.” – Amicus Brief of Justice Donald P. King

FEBRUARY 5, 2010 — Amicus briefs were filed this week in support of the case against Proposition 8 led by Theodore Olson and David Boies, who were brought together by the American Foundation for Equal Rights to lead the federal Constitutional challenge to the California ballot initiative that stripped gay men and lesbians of their right to marry.

Leading civil rights organizations, legal scholars, doctors, scientists, and religious organizations filed briefs, including: the California NAACP, Mexican American Legal Defense & Educational Fund (MALDEF), Asian Law Caucus, National Black Justice Coalition, South Asian Bar Association of Northern California, ACLU, Lambda Legal Defense and Education Fund, National Center for Lesbian Rights, retired California Court of Appeal Justice Donald King, family law professors from across the state, American Anthropological Association, American Psychoanalytic Association, National Association of Social Workers,  and the American Academy of Pediatrics California Chapter.

Testimony in Perry v. Schwarzenegger ended last Wednesday. Chief Judge Vaughn R. Walker has said he will reconvene the trial for closing arguments after a period during which he will analyze the evidence and testimony presented between Jan. 11 and Jan. 27.

At trial, Olson and Boies demonstrated the unconstitutionality of the initiative through the presentation of 17 witnesses and revealing cross-examination of the defendant-intervenors’ witnesses. Put simply, the case against Prop. 8 was made by our witnesses and theirs.


See all briefs at:

Some details:

California Professors of Family Law

Comprising eminent legal scholars from 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.

“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 brief continues.

  • “Marriage is a unique local, social, and cultural status that provides advantages that cannot be matched by a domestic partnership.”
  • “Civil marriage is a state-created legal status.”
  • “Choice of partners is a critical aspect of marriage.”
  • “The desire to preserve a ‘traditional’ definition of marriage does not justify unequal treatment.”
  • “Same-sex unions and opposite-sex unions are functionally equivalent with respect to purposes of marriage.”

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

“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.”

  • “Proposition 8 constitutes a per se violation of the Equal Protection Clause.”
  • “The unique characteristics of Proposition 8 establish that it fails even proper application of rational basis review.”

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

“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.”

  • “Recent legislation protecting the rights of gay men and lesbians are dwarfed by the inequalities they face daily.”
  • “Gay men and lesbians are underrepresented in government.”
  • “Gay men and lesbians are the victims of political backlash.”

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

“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.”

  • “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

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.

“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.”

  • “Proposition 8 is an illegitimate exercise of state power.”
  • “Proposition 8 was part of a continuing practice that discriminates against gays and lesbians by making constitutional protections contingent upon a majority vote.”
  • “Proposition 8 was an irrational expression of voter prejudice.”
  • “The fundamental right of marriage applies equally to same-sex and opposite-sex couples.”
  • “The traditional definitions of marriage do not preclude same-sex marriage.”
  • “Children in particular are harmed by their parents’ not being allowed to marry.”
  • “The right to marry per se creates benefits that should be available to same sex partners and their children.”

Unitarian Universalist Legislative Ministry California, Unitarian Universalist Legislative Ministry Action Network CA, Unitarian Universalist Association, California Faith for Equality, California Council of Churches, Church Impact, Northern California Nevada Conference of the United Church of Christ, Southern California Conference of the United Church of Christ, General Synod of the United Church of Christ, Universal Fellowship of Metropolitan Churches, Pacific Association of Reform Rabbis, Progressive Jewish Alliance

These groups represent Jews and protestant and orthodox Christians and clergy across California.

“No one can force clergy of any denomination to solemnize any wedding that conflicts with his or her faith tradition, and no church, synagogue or other place of worship loses its tax exempt status for refusing religious rites of marriage to citizens possessing a civil right to marry,” their brief states. “Proponents’ television ads and other materials warned that if same-sex couples may legally marry, ministers who decline to officiate will face legal liability, and their churches will lose their tax-exempt status. None of this was true. … That atheists and agnostics enjoy the same legal right to marry as those who revere marriage as a divine institution poses no threat to anyone’s religious liberty. No atheist or agnostic couple may force any church or synagogue to open its doors to them. … Recognizing same-sex couples’ legal right to marry threatens religious liberty of those who reject such marriages no more than recognizing the legal right of mixed-race couples in Perez v. Sharp and in Loving v. Virginia.”

“By separating this group, solely on the basis of their minority status, the State has done precisely what the Supreme Court condemned in Brown,” their brief states, in reference to Brown v. Board of Education (1954) which struck down “separate but equal” laws. “Throughout history, state interference with the ability to marry has been a means of oppression and stigmatization of disfavored groups, serving to degrade whole classes of people by depriving them of the full ability to exercise their fundamental right to marry. Just as the anti-miscegenation laws of the past century propounded state-sponsored stigmatization of the basis of race, Proposition 8 does the same on the basis of sexual orientation.

  • “Proposition 8 denies, rather than protects religious liberty.”