One key point that David Boies and Ted Olson make is that it is the proponents of Proposition 8 who are devaluing and underestimating marriage. For example, not once in the heterosexual supremacist brief filed by Charles Cooper does it mention the word "love." And they are also called out for the fact that their argument now (that Proposition 8 is about channeling "responsible procreation" by heterosexuals) was completely different from what they said during the actual campaign over Proposition 8 way back in the Fall of 2008.
Scottie over at Equality on Trial has more commentary:
And one of my favorite parts is the strong conclusion:They resurrect the claim that Prop 8 violates the Due Process Clause of the 14th Amendment. This is the “fundamental right” argument that was advanced in Judge Walker’s opinion but discarded by the Ninth Circuit:Because Proposition 8 prevents gay men and lesbians from expressing this most basic aspect of their autonomy and personhood, and is not “narrowly drawn” to further a “compelling state interest[ ],” Carey v. Population Servs. Int’l, 431 U.S. 678, 686 (1977), it violates due process. Proponents nonetheless claim that marriage—and thus the fundamental right to marry—excludes same-sex couples as a definitional matter. They contend that “marriage” categorically excludes same-sex couples because society’s alleged interest in “responsible procreation and childrearing” is the defining purpose of marriage. Prop. Br. 34. Proponents’ newly constructed understanding of the contours, implications, and meaning of marriage conflicts with longstanding controlling precedent from this Court and the overwhelming record evidence in this case.And they take on the “procreation” argument:This Court has never conditioned the right to marry on the ability to procreate. Rather, the Court has expressly recognized that the right to marry extends to individuals not in a position to procreate with their spouse, see Turner, 482 U.S. at 95, and that married couples have a fundamental right not toprocreate. See Griswold, 381 U.S. at 485-86.
They address equal protection:Proposition 8 also violates equal protection, as it is antithetical to the “principles of equality” on which this “Nation . . . prides itself.” Plyler v. Doe, 457 U.S. 202, 219 (1982). It creates a permanent “underclass” of hundreds of thousands of gay and lesbian Californians, id., who are denied the fundamental right to marry available to all other Californians simply because a majority of voters deems gay and lesbian relationships inferior, morally reprehensible, religiously unacceptable, or simply not “okay.” With the full authority of the State behind it, Proposition 8 sends a clear and powerful message to gay men and lesbians: You are not good enough to marry. Your loving relationship is not equal to or respected enough to qualify to be called a marriage.
Because of their sexual orientation—a character-istic with which they were born and which they can-not change—Plaintiffs and hundreds of thousands of gay men and lesbians in California and across the country are being excluded from one of life’s mostprecious relationships. They may not marry the per-son they love, the person with whom they wish topartner in building a family and with whom they wish to share their future and their most intimateand private dreams. Although opening to them participation in the unique and immensely valuable in-stitution of marriage will not diminish the value or status of marriage for heterosexuals, withholding itcauses infinite and permanent stigma, pain, and isolation. It denies gay men and lesbians their identityand their dignity; it labels their families as second-rate. That outcome cannot be squared with the prin-ciple of equality and the unalienable right to libertyand the pursuit of happiness that is the bedrockpromise of America from the Declaration of Inde-pendence to the Fourteenth Amendment, and thedream of all Americans. This badge of inferiority, separateness, and inequality must be extinguished.When it is, America will be closer to fulfilling the as-pirations of all its citizens.
The judgment of the court of appeals should be affirmed.Oral arguments before the United States Supreme Court are in almost exactly 4 weeks, on Tuesday March 26.