Same-Sex Marriage Advocates Don't Want Supreme Court to Decide Issue Now

By Matt Cover | August 27, 2012 | 4:39 PM EDT

Protests while Judge Waughn Walker heard California Proposition 8 case in 2010. (AP photo)

( – Opponents of California’s Proposition 8 have filed a brief urging the Supreme Court not to take the case, saying that the 9th Circuit Court of Appeals’ decision should be allowed to stand.

Proposition 8 was a 2008 ballot measure that banned gay marriage in California. The measure, which passed with majority support, was ruled unconstitutional by the 9th Circuit in February, ruling that a state could not deny gay couples the right to marry.

Former George W. Bush Solicitor General Theodore Olson and David Boies, lead attorney for former Vice President Al Gore’s failed 2000 presidential bid, submitted their brief opposing the granting of a writ of certiorari Aug. 24, arguing that the Supreme Court did not need to hear the case.

“While there are circumstances that might make review of this obviously important issue attractive at this time,” Olson and Boies wrote, “those considerations must be weighed against the substantial and irreparable harm the period of additional review would impose on Plaintiffs and those situated similarly to them.

“Each day Plaintiffs’ rights to marry are denied is a day that can never be returned to them—a wrong that can never be remedied.”

Nevertheless, Boies and Olson called the legal debate over gay marriage “the defining civil rights issue of our time.”

If the court does not take the case, the 9th Circuit’s ruling would stand and Proposition 8 would be struck down, making gay marriage legal in California again. It was originally made legal by the California State Supreme Court in May 2008.

Boies and Olson argue – as they did before the 9th Circuit – that Proposition 8 would deny gay and lesbian couples their “fundamental right to marry” and therefore “cannot possibly” be constitutional under the Due Process Clause.

“Proposition 8, which prevents hundreds of thousands of gay and lesbian Californians from exercising their fundamental right to marry the person of their choice, cannot possibly be squared with the protections afforded to all Americans by the Due Process Clause.”

Boies and Olson said that by denying gay and lesbian couples the right to marry, California had created a “permanent underclass” of citizens based solely on a majority of voters’ disapproval of gay marriage.

“It creates a permanent “underclass” of hundreds of thousands of gay and lesbian Californians,” they wrote, “who are denied the right to marry available to all other Californians simply because a majority of voters deems gay and lesbian relationships inferior, morally reprehensible, religiously unacceptable, threatening to children, or simply not ‘okay.’”

Olson and Boies do admit that there is no legal difference between marriage and domestic partnership in California, noting that the state confers the same civil and legal benefits to couples in domestic partnerships as it does to married couples. Nevertheless, they argue that denying gay and lesbian couples the imprimatur of using the term ‘marriage’ violates their constitutional rights.

“Under California law, domestic partners are granted nearly all the substantive rights and obligations of a married couple, but are denied the venerated label of “marriage” and all of the respect, recognition and public acceptance that goes with that institution.”

Boies and Olson also addressed the arguments of Proposition 8 supporters that allowing gay marriage will be harmful to children and destructive to traditional families by pointing out that the law “bears no relationship whatsoever” to the goal of supporting traditional families, because California law allows straight couples who cannot produce children to marry.

“But depriving gay men and lesbians of the uniquely cherished status of ‘marriage,’” they write, “obviously does not affect the likelihood that heterosexuals will procreate responsibly or raise their children in Proponents’ preferred family structure.

“There are many classes of heterosexual persons who cannot procreate unintentionally, including the old, the infertile, and the incarcerated,” Boies and Olson continue. “All of these classes of heterosexual persons are as unlikely to engage in “[ir]responsible procreation and childbearing” as a same-sex couple, yet Proposition 8 leaves these classes of heterosexual persons free to marry.”

Boies and Olson argue that for these reasons, Proposition 8 violates both the Equal Protection and Due Process clauses of the Constitution, saying that the 9th Circuit’s decision is so thorough it does not merit Supreme Court review.

“That holding,” they said, “does not—indeed, could not—conflict with any decision of this Court or any decision of a court of appeals or state court of last resort.

“The petition should be denied,” the added.