Plaintiffs in the lawsuit against California's Proposition 8 requested the Supreme Court not consider an appeal from defendants to hear arguments on the case in a brief filed Friday.
The reply brief in Hollingsworth v. Perry comes after supporters of Proposition 8 petitioned the Supreme Court to consider the case after both a U.S. District Court and the Ninth Circuit Court of Appeals ruled Proposition 8 violates the Constitution's due process and equal protection clauses.
Describing the issue as "undeniably important" because of "the tens of thousands of Californian same-sex couples who continue to suffer the daily humiliation of having the State designate their relationships and their families as second-rate," the plaintiffs argue the Supreme Court's review is not warranted.
Proposition 8 was approved by California voters in November 2008, amending the state's Constitution to ban same-sex marriage after the state had already permitted gay couples the right to marry.
Although plaintiffs, including lead attorneys Ted Olson and David Boies, admit the case is an "attractive vehicle" for resolving constitutional questions surrounding marriage equality, they argue the decision by the Ninth Circuit Court of Appeals to strike down Proposition 8 does not warrant review because it does not conflict with any Supreme Court decision or any other court of appeals.
Moreover, they argue the Ninth Circuit properly interpreted legal precedent and that the Supreme Court would also strike down Proposition 8 because of the court's interpretation of the due process and equal protection clauses of the Constitution.
The Proposition 8 case is one of several related to marriage equality petitioned to the Supreme Court. On Tuesday, a fourth case challenging the constitutionality of the Defense of Marriage Act was petitioned to the high court for review.
Noting those multiple challenges to DOMA, the brief argues that this case should not be resolved in conjunction with those cases because of the "substantial and irreparable harm the period of additional review would impose on Plaintiffs and those situated similarly to them."
"Each day Plaintiffs' rights to marry are denied is a day that can never be returned to them — a wrong that can never be remedied," the brief concludes.
If the Supreme Court decides not to hear arguments on the Proposition 8 case, the Ninth Circuit's previous ruling to strike down the discriminatory amendment will still stand and same-sex couples will once again be permitted to marry in California.
According to Prop 8 Trial Tracker, the Supreme Court could take up the petition as soon as September 24.
READ the full brief here.
[Photo: Ted Olson]