After quotations from the likes of Lawrence, Romer and Loving, and after the dozens of pages of legal arguments on strict scrutiny, rational basis review, standing and the rest, gay marriage supporters offer some heart-wrenching current events in their latest filing in the case against Prop 8.
“Last month, in a widely publicized tragedy, a young Rutgers student jumped to his death from the George Washington Bridge after being outed on the Internet as gay,” reads the brief filed late Monday to the Ninth U.S. Circuit Court of Appeals. “A few days later, across the Hudson River in the Bronx, two 17-year-old young men were beaten and tortured to the brink of death by a gang of nine because they were suspected of being gay.”
It continues: “Incidents such as these are all too familiar to our society. And it is too plain for argument that discrimination written into our constitutional charters inexorably leads to shame, humiliation, ostracism, fear, and hostility. The consequences are all too often very, very tragic.”
The brief is in Perry v. Schwarzenegger.
California’s Prop 8, which a district court rendered unconstitutional this summer, was proposed as necessary to “protect marriage and children,” reads the brief authored by Theodore Olson, of Gibson, Dunn & Crutcher. “[B]ut its unmistakable purpose and effect is to isolate gay men and lesbians and their relationships as separate, unusual, dangerous, and unworthy of the marital relationship.”
The appellate fight follows a 12-day bench trial before Northern District Chief Judge Vaughn Walker, which included 19 witnesses and some 900 exhibits.
In the new court papers, Olson says the Supreme Court has stated 14 times that marriage is a fundamental right of all individuals. And in the fifth graph, Lawrence v. Texas makes its first appearance, with Olson’s brief offering that the Constitution “now fully embraces the truth that, no less than heterosexual persons, ‘[p]ersons in a homosexual relationship’ enjoy ‘constitutional protection [for] personal decisions relating to marriage.’”
Prop 8 proponents in their brief last month took particular aim at Walker’s finding that the ban failed to meet rational basis review. Procreation is a distinguishing characteristic between straight and gay couples that gives the state authority to act on the basis of such a difference, they argued.
But that version of rational basis review, Olson’s counters, “would be profoundly unjust and absolutely incompatible with our Nation’s tradition of equality.” Oral arguments are set for early December.