This is a really cursory overview of the arguments & key points in the brief, just FYI until a full article comes out somewhere.
Link to Brief:
http://sblog.s3.amazonaws.com/...
More below squiggle.
1. Makes the argument for intermediate scrutiny of sexual-orientation-based classifications under Equal Protection Clause (the current standard for sex-based classifications). No argument that sexual orientation merits strict scrutiny. Appeals CT decision irrelevant on scrutiny question b/c questions of law merit no deference in a higher court.
2. No direct argument for a Due Process right to same-sex marriage.
3. Argues that the issue of EP right to same-sex marriage & standard of review is a novel issue; no precedent case is directly on point.
4. Prop 8 fails intermediate scrutiny b/c asserted state interests are insufficient under the EPC.
5. Debunks argument that state interest in protecting against accidental procreation is sufficient; cites abundant precedent defining marriage as a much broader institution w/regard to both purposes and features. Also, even if the interest were real/substantial, Prop 8 fails to advance it (required under intermediate scrutiny) because SSM has no effect on straight people's decisions to marry.
6. Uses a policy argument to counter opposition briefs that argue under rational basis review the state interest can be modest and Prop 8 need only arguably advance that interest. Claims that this rationale supports bans on sterile & elderly people's marriages.
7. Against the argument that basically marriage is not a right, SCOTUS should look at the actual operation of the institution; "THE CONFERRAL BY THE GOVERNMENT OF CERTAIN RIGHTS TO SOME INDIVIDUALS PRECLUDES THE DENIAL OF THOSE SAME RIGHTS TO OTHERS— EVEN IF THERE WAS NO OBLIGATION TO CONFER ANY RIGHTS IN THE FIRST PLACE."
8. W/regard to opposing arguments that the initiative process should support a "cautious" SCOTUS approach, refutation of that argument as both a legal matter (wasn't on Voter Info language) and under scrutiny (doesn't advance any of those interests, Prop 8 not meant to be temporary).
9. A number of subsidiary, asserted state interests in prohibiting SSM are invalid; see pp. 32.
This didn't end up too short but it's a pretty full synopsis. I welcome additional comments that either clarify/add to/disagree with my summary. Thanks DOJ for the great brief.