Choosing a broad legal strategy with national implications, gay marriage advocates on Thursday urged the U.S. Supreme Court to strike down California's ban on same-sex nuptials and declare all such state laws unconstitutional.
In briefs filed with the high court, lawyers for two same-sex couples who challenged California's Proposition 8 used sweeping arguments in a bid to persuade the justices to invalidate the 2008 voter-approved ban on gay marriage. The court will hear the case on March 26 and consider the federal government's ban on same-sex marriage benefits the following day.
The brief stresses that Proposition 8 had no social justification other than to "stigmatize gay men and lesbians -- and them alone."
"Because of their sexual orientation," the couples' lawyers wrote, "plaintiffs and hundreds of thousands of gay men and lesbians in California and across the country are being excluded from one of life's most precious relationships."
The Supreme Court in December agreed to review a 2012 federal appeals court ruling finding Proposition 8 unconstitutional and whether backers of the law have a legal right to defend the law in the federal courts when the governor and attorney general refuse to do so.
In last year's ruling, the 9th U.S. Circuit Court of Appeals took a narrow approach to invalidating Proposition 8, finding it unconstitutional because it stripped gay and lesbian couples of a previous right to marry in California. In theory, the ruling gives the Supreme Court the leeway to take a similarly cautious approach for now on a state's ability to outlaw same-sex marriage, granting the option to limit the stakes to just California, where more than 18,000 same-sex couples married in 2008 in the months before Proposition 8 passed.
But lawyers for same-sex couples made it clear they are hoping for a more complete victory in the Supreme Court, devoting relatively scant attention to the 9th Circuit's limited approach. Instead, they relied heavily on former San Francisco Chief U.S. District Judge Vaughn Walker's original ruling, which found Proposition 8 violates the federal equal protection rights of same-sex couples.
The strategy was deliberate, said Theodore Olson, former U.S. Solicitor General during the Bush administration and a key lawyer for the couples.
"We felt it was extremely important to present to the Supreme Court the entire panoply of this case," Olson said Thursday.
Proposition 8 lawyers last month offered their arguments to persuade the Supreme Court to overturn the appeals court and leave the same-sex marriage ban intact, saying the state's voters had a right to restrict marriage to heterosexual couples.
Among other arguments, Proposition 8 backers maintain states have the authority to define marriage for a variety of reasons, including its importance to procreation and child-raising. A number of anti-gay marriage groups filed briefs siding with ProtectMarriage.com, as did 20 of the 41 states that now outlaw same-sex marriage.
In response to Thursday's brief, Austin Nimocks, an Alliance Defense Fund lawyer for Proposition 8, said the Supreme Court should defer to the political process and "resist demands to prematurely end the national debate over the future of marriage."
Lawyers for the couples say gay marriage foes have failed to prove allowing gay and lesbian couples to marry would harm the institution of marriage. San Francisco City Attorney Dennis Herrera on Thursday also filed the city's legal arguments against Proposition 8, saying it was aimed at "relegating gay couples to a lesser status."
Groups aligned behind the couples have until Feb. 28 to file further arguments against Proposition 8. The Obama administration is weighing whether to submit arguments with the high court by that deadline.
The Justice Department has taken the position in court that the 1996 federal Defense of Marriage Act is unconstitutional. Olson, who met with administration officials last month to urge them to side against Proposition 8, said he is hopeful the federal government will jump in against the California law.
"It would be important for us for the United States to make it clear this is a matter of importance ... to all Americans."
ProtectMarriage.com lawyers also met with administration officials to make their arguments that the government should stay out of the case.
In Thursday's brief, same-sex couples argued that Proposition 8 supporters do not have a legal right, or "standing," to defend the state law. If the Supreme Court agrees with that reasoning, it would leave the lower court rulings intact, likely opening the door for same-sex marriages in California.
However, Theodore Boutrous, a lawyer for the couples, said they would prefer for the Supreme Court to "decide the case on the merits."
Howard Mintz covers legal affairs. Contact him at 408-286-0236 or follow him at Twitter.com/hmintz