California Can't Show Prop 8 Has a Legitimate Purpose

The Supreme Court must strike down marriage discrimination

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By Evan Wolfson

, Founder and President of Freedom to Marry

March 4, 2013

About Evan Wolfson:

Evan Wolfson is founder and president of Freedom to Marry.

California's Prop 8 stripped the freedom to marry away from gay couples, thereby violating the constitutional command of equal protection under the law and the fundamental freedom to marry itself. Along with the federal so-called Defense of Marriage Act, the Supreme Court should strike it down.

The freedom to marry is a constitutional right; the Court has so ruled at least 14 times. In one marriage case following Loving v. Virginia, which in 1967 ended race restrictions on marriage, Justice Thurgood Marshall wrote, "Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals."

[See a collection of political cartoons on gay marriage.]

California has failed to show that Prop 8 serves any sufficient or even legitimate purpose; indeed, the state concedes the ban's unconstitutionality. The appellate court that struck down Prop 8 was right when it said that the discrimination served only to "lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples." When gay and lesbian couples share in the freedom to marry, families are helped and no one hurt. The record before the Court is clear: there is simply no good reason for perpetuating the exclusion of loving and committed same sex couples from marriage—in California, or anywhere else.

In his Inaugural Address, President Obama spoke of the freedom to marry for same-sex couples as a central part of the American journey to liberty and justice for all, and this week the Department of Justice filed a brief dismantling the arguments against gay people's freedom to marry. The Justice Department noted that "particularly" in the case directly before the Supreme Court, the denial of marriage violates the Constitution, and the president said if he were a justice, he'd vote to strike down marriage discrimination nationwide. In dozens of other briefs, a who's who of America—more than 100 prominent Republican leaders, nearly all the Democrats in Congress, military and faith leaders, labor unions and public health organizations, and over 100 businesses from Apple to Zynga—all urged the Court to do the right thing,

[Read the U.S. News Debate: Should Gay Marriage be Legal Nationwide?]

Proposition 8 singled out one group of couples for attack and one group of Americans for unequal treatment in the state constitution. We don't do that in America—and when we do, we have courts to defend us all. When the Supreme Court hears arguments in the Prop 8 case later this month and rules in June, it should strike down marriage discrimination and join the majority of Americans who have made the journey to the right side of history.