New York, February 28, 2013—The United States Supreme Court should dismiss an appeal of a decision striking down California’s Proposition 8 because the sponsors of the ban on marriage for same-sex couples do not have standing to defend the law, Columbia Law School Professors Suzanne B. Goldberg and Henry P. Monaghan argue in an amicus brief filed with the court Wednesday.
Because California’s top law enforcement official agrees with the same-sex couple plaintiffs that Prop. 8 is unconstitutional, the initiative’s sponsors, ProtectMarriage.com, do not have the right to continue their case, the professors argue in their brief filed on behalf of the Columbia Law School Sexuality & Gender Law Clinic and the Society of American Law Teachers.
“Like donors or citizens who supported Proposition 8, the sponsors are simply private actors who lack authority to defend or enforce the California law in the courts of the United States,” the professors write, adding that “Only by contorting [the Constitution] can the sponsors successfully claim to act on the state’s behalf and engineer the . . . case for review.”
Initiative sponsors, like ordinary citizens, cannot go to federal court when they are unhappy with their government’s decision not to defend a law, Goldberg and Monaghan argue. Instead, the political process “is the venue our system provides when private actors are irritated, but not injured, by their government’s conduct,” the professors write.
Federal courts would have a serious problem if groups like ProtectMarriage.com are allowed to stand in for government officials to defend a voter-initiated law, Goldberg and Monaghan write. None of the government accountability rules apply to these groups, leaving them free to defend a law with arguments that contradict state law and policy.
Prop. 8’s sponsors have made such contradictory arguments, insisting that childrearing concerns justify excluding same-sex couples from marriage even though state law says that “gay individuals are fully capable of . . . responsibly caring for and raising children.”
Prop. 8 was enacted by California voters in 2008, overriding a state Supreme Court decision requiring marriage for same-sex couples in the state. Both the federal district and appeals courts have ruled that the proposition is unconstitutional. A ruling from the Supreme Court is expected at the end of the high court’s term in June. For now, same-sex couples cannot marry in California.
Separately, in U.S. v. Windsor, a case challenging the federal Defense of Marriage Act, Goldberg, Professor Katherine M. Franke, and other scholars of equal protection law filed an amicus brief Wednesday arguing that the Court should adopt a more flexible approach when reviewing constitutional discrimination claims in the socially and demographically complex 21st century United States.
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