Judicial Watch, Allied Educational Foundation File Amicus Curiae Brief With Supreme Court in Support of California Proposition 8 Protecting Marriage

Ninth Circuit Ruling Represents a 'Dangerous Erosion of the Principle of Federalism, an Anti-Democratic Limitation on the People's Right to Popular Initiative and Referendum; and a Drastic Revision of the Concept of Rational Basis in Equal Protection Analysis'

WASHINGTON, DC--(Marketwire - Sep 5, 2012) - Judicial Watch announced today that on August 31, 2012, it filed an amicus curiae (No. 12-144) brief with the United States Supreme Court in conjunction with the Allied Educational Foundation (AEF) in support of California's Proposition 8, which states that "only marriage between a man and a woman is valid or recognized in California." On February 7, 2012, the U.S. Court of Appeals for the Ninth Circuit ruled Proposition 8 unconstitutional by a vote of 2-1, while failing to address the larger issue of whether same sex couples have a federal constitutional right to marry.

According to the Judicial Watch-AEF amicus brief, opponents of Proposition 8 recognize that Supreme Court precedent is not in their favor and therefore do not want the High Court to settle the case. However, the lower court's decision "raises important issues of constitutional law which should be heard by this Court."

[A]mici are concerned that the Ninth Circuit has unlawfully limited the right of the people and states to self-governance, and are concerned about the effect of that decision on American democracy. Among the harms caused by the Ninth Circuit's decision are: a dangerous erosion of the principles of federalism; an anti-democratic limitation on the people's right to popular initiative and referendum; and a drastic revision of the concept of "rational basis" in Equal Protection analysis. For these and other reasons, amici urge the Court to grant the Petition for a Writ of Certiorari.

With respect to the "rational basis" test, a judicial standard of review used by courts to determine if a legislature had a legitimate interest in enacting a statute, the brief states: "The Ninth Circuit's sleight-of-hands decision... constitutes a dangerous erosion of the principle of rational basis review, namely that any legitimate interest put forth in support of legislation is sufficient to uphold the law."

In 2008, the California Supreme Court ruled 4-3 that same-sex couples had the right to marry, leading to approximately 18,000 same-sex marriages over the next five months. (In its amicus curiae brief with the Court, Judicial Watch asked the Court to uphold the traditional definition of marriage, stating that "judges are not free to rewrite statutes to say what they would like or what they believe to be better social policy.")

On Election Day 2008, 52% of voters in California elected to change the California State constitution to state that "only marriage between a man and a woman is valid or recognized in California." The proposition led to a number of lawsuits challenging the proposition. In one lawsuit (Strauss v. Horton), the California Supreme Court upheld Proposition 8, but allowed existing same sex marriages to stand.

On August 4, 2010, District Judge Vaughn Walker ruled that Proposition 8 violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. On August 16, 2010, the U.S. Court of Appeals for the Ninth Circuit ordered the judgment stayed pending an appeal. On February 7, 2012, the Ninth Circuit Court upheld Judge Walker's decision, but stayed the ruling preventing additional same sex marriages from taking place until the appeals process has been exhausted. (The Ninth Circuit Court also refused to invalidate Judge Walker's ruling on the grounds that he failed to disclose that he had been in a homosexual relationship for ten years prior to registering his ruling on Proposition 8 and therefore had a conflict of interest.)

"Proponents of same-sex marriage do not want the Supreme Court to rule on this lawsuit because they know that the U.S. Constitution and the rule of law are not on their side," said Judicial Watch President Tom Fitton. "The Supreme Court should not only take up this case, but should also rule that the people of California were acting within their constitutional rights when they sought to protect marriage from being redefined by activist judges."

In addition to its most recent U.S Supreme Court brief, Judicial Watch previously filed an amicus curiae brief with the Supreme Court for the State of California, supporting the right of California citizens to defend Proposition 8 in court. Former California Governor Arnold Schwarzenegger and current Governor Jerry Brown both refused to defend Proposition 8 in court, prompting proponents of the initiative to seek to intervene as defendants. Judicial Watch also filed a FOIA lawsuit against the Obama Justice Department to find out why the nation's top law enforcement agency reversed course and decided to not defend the Defense of Marriage Act in court.

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Jill Farrell