The Argument That Proposition Eight Is Constitutional

The first brief has been filed in Hollingsworth v. Perry, the Supreme Court case that will decide whether Proposition 8, which banned same sex marriage in California, is constitutional. The brief can be found here. But for those who don’t want to read all 65 pages, here is my summary of the argument made in the brief:[1]

All the Supreme Court needs to find in this case in order to uphold Proposition 8 as constitutional is that the law is a rational means of serving a legitimate end. So, the million dollar question is “what is the legitimate purpose of Proposition 8?”

The answer can be found in the history of the institution of marriage. Humanity, for as long as it has existed, has faced a basic problem: children tend to become more healthy, successful and productive members of society when they are raised by two people, rather than just one.[2] Yet fathers don’t necessarily have a strong biological incentive to help raise their children. Thus, societies around the world and throughout history have sought to encourage men to help raise their children through the institution of marriage. Societies (acting through governments and religious institutions) have used the practical, financial and social characteristics of marriage to foster the norm that fathers help raise their children.

Therefore, the institution of marriage (as it applies to heterosexual couples) promotes the likelihood of children being born into family units involving two parents, both with a long-term commitment to the well-being of the child. Because homosexual couples do not produce their own biological children, this purpose of marriage does not apply to them, at least not in the same way.

That distinction is the “legitimate purpose” of Proposition 8. The people of California want the institution of marriage to promote the likelihood that children will be born into family units involving a father and mother with a long-term commitment to the well-being of the child. The distinction between the child-rearing abilities of heterosexual couples and homosexual couples is rational enough to satisfy the Equal Protection requirement of the Constitution because part of the purpose of the institution of marriage is related to child-rearing.

Now, opponents of Proposition 8 will surely argue that many, if not most, of the purposes of the institution of marriage apply equally to homosexual and heterosexual couples. And they are absolutely right. But the Constitution allows governments to enact laws that extend benefits to one group and not to another, as long as the group that is covered by the law has an inherent characteristic that the excluded group lacks and which is related to the benefits received. As an example, imagine a drug is created that would cause anyone who took it to grow a foot taller instantly. Utah passes a law declaring that everyone above the age of 18 but below the height of 5’0” would be given the drug for free. That law would be constitutional even though it makes distinctions between groups. Nearly everyone could (arguably) benefit from the drug. But it would be rational to conclude that the people in the included group would benefit more (based on the nature of the law) than the people in the excluded group.

By the same token, since one of the purposes of the institution of marriage is to increase the likelihood that children will be born into family units with two committed parents, granting the ability to marry to heterosexuals (to the exclusion of homosexuals) is reasonable because heterosexuals benefit more (even if just slightly more) from the institution than homosexuals would. Therefore, Proposition 8 is constitutional.[3]


[1] The arguments and opinions expressed in this post are meant to best represent those expressed in the brief. They do not necessarily reflect the opinions and beliefs of this blog.

[2] This argument is made at pages 31-38 of the brief. It is supported by a variety of historical and sociological sources.

[3] For further reading on this topic, see SCOTUSblog’s coverage.

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3 Responses to The Argument That Proposition Eight Is Constitutional

  1. Pingback: The Flaw in the Republicans’ DOMA Argument | more than twenty cents

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