On February 28, 2013, Constitutional Accountability Center and the Cato Institute filed a joint amici curiae brief in Hollingsworth v. Perry, the landmark marriage equality case that challenges California’s Proposition 8. Read more here about CAC and Cato’s partnership in this brief.

At issue in this case is whether Proposition 8, which amended the California Constitution to prohibit same-sex couples in that state from marrying, violates the U.S. Constitution. In August 2010, U.S. District Judge Vaughn Walker, after a full trial on the merits, held in an historic ruling that it does, and struck down Prop 8 as a violation of the equal protection and due process rights of gay men and lesbians under the Fourteenth Amendment. The proponents of Prop 8, who had defended the ballot measure in the District Court when the state declined to do so, appealed to the Ninth Circuit.

CAC filed a brief in the Ninth Circuit in support of Judge Walker’s ruling. A three-judge panel of the Court of Appeals heard oral argument in Perry on December 6, 2010. CAC “live blogged” the argument for Huffington Post, here, and our post-argument analysis can also be found on Huffington Post, here. As we noted then, the argument went well for supporters of marriage equality, although the court was also concerned about a jurisdictional issue – whether the Prop 8 proponents have the legal right (“standing”) to pursue an appeal.

On January 4, 2011, the Ninth Circuit, concluding that resolution of the standing question turned on an open question of state law, formally certified that question to the California Supreme Court. On November 17, 2011, the California Supreme Court decided that the Prop 8 proponents do have standing to pursue an appeal.  The Ninth Circuit proceeded to hear oral argument in the case on December 8, 2011.  

On February 7, 2012, the Ninth Circuit, in a 2-1 ruling, upheld Judge Walker’s decision striking down Prop 8.   The proponents of Prop 8 filed a motion asking the court to rehear the case en banc; on June 5, 2012, the Ninth Circuit denied that motion. The proponents then sought, and were granted, review by the Supreme Court.

The brief that CAC and Cato have filed in the Supreme Court demonstrates that the text and history of the Fourteenth Amendment guarantee equality under the law and equality of rights for all persons. In addition, as we show, the Framers of the Amendment’s Equal Protection Clause recognized the right to marry the person of one’s choosing as a protected civil right inherent in liberty and freedom. By denying same-sex couples the right to marry, Prop 8 violates the original meaning and clear text of the Fourteenth Amendment.

The Supreme Court heard oral argument in the case on March 26, 2013.