Prop 8 Infringes Upon an Individual's Right to Marry

Prop 8 supporters can't explain how marriage equality harms heterosexual marriages

By Adam Umhoefer

, Executive Director at the American Foundation for Equal Rights.

March 4, 2013

About Adam Umhoefer:

Adam Umhoefer is executive director at the American Foundation for Equal Rights.

Fourteen times the United States Supreme Court has stated that the freedom to marry is one of the most fundamental rights—if not the most fundamental right—of all individuals. In Hollingsworth v. Perry, the constitutional challenge brought by the American Foundation for Equal Rights against California's Proposition 8, we are seeking the courts' affirmation of that freedom for a 15th time.

At its core, the case against Proposition 8—which limits marriage to a man and a woman—is a simple one. Our Constitution requires that the government provide compelling justifications for its denial of fundamental rights and actions which invidiously discriminate. Proposition 8 infringes on an individual's right to marry and unlawfully discriminates on the basis of sexual orientation. There is no legitimate (much less compelling) justification for any state to deny gay and lesbian Americans the freedom to marry. Proposition 8 therefore must fall.

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

Proposition 8 has already been declared unconstitutional in federal district court and in the Ninth Circuit Court of Appeals. Now the Supreme Court has an opportunity to do the same, and we've provided the court with significant evidence to do so. The Perry case comes to the Supreme Court on a fully-developed factual record—indeed, the most comprehensive record ever developed in a case challenging a restriction on the right to marry. During the 12-day federal district court trial in January 2010, the American Foundation for Equal Rights's legal team presented testimony from 17 witnesses. The four plaintiffs—Kris Perry and Sandy Stier, and Paul Katami and Jeff Zarrillo—gave compelling testimony about what marriage means to them and how they feel stigmatized and hurt by their exclusion form this revered societal institution. As lead Plaintiff Kris Perry explained at trial, "if Prop. 8 were undone," and gay and lesbian "kids . . . could never know what this felt like, then . . . their entire life would be on a higher arc. They would live with a higher sense of themselves that would improve the quality of their entire life." And our legal team called the world's leading experts in the history of marriage and anti-gay discrimination, child rearing, economics, public health, sociology, and political science.

The supporters of Proposition 8 presented just two witnesses, neither of whom could answer in a court of law how marriage equality would harm heterosexual marriages, nor could they justify the denial of the right to marry for gay and lesbian Americans. The trial wasn't even close. In fact, their star witness David Blankenhorn conceded at trial that doing away with laws like Proposition 8 would actually make us all "more American." And, in June 2012, Mr. Blankenhorn, to his credit, came out in support of marriage equality.

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

Supreme Court Justice John Marshall Harlan proclaimed more than 100 years ago that our Constitution "neither knows nor tolerates classes among citizens." Yet Proposition 8 violates the constitutional rights of gay and lesbian Californians by placing them in a solitary class prevented from exercising their right to marry. A law that violates the Constitution cannot stand, and it is the judiciary's duty to enforce the Constitution's promise for each generation of Americans.

To fulfill our nation's founding principle that all people are created equal, we must fight for full federal marriage equality and the Supreme Court must overturn Proposition 8. And when that day comes, we will, truly, be more American.