11-16577 #16-X

16-X
No. 11-16577
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _________________________ KRISTIN M. PERRY, et al., Plaintiffs-Appellees, v. EDMUND G. BROWN, JR., et al., Defendants, and DENNIS HOLLINGSWORTH, et al., Defendants-Intervenors-Appellants. _________________________ On Appeal From The United States District Court For The Northern District Of California No. CV-09-02292 JW (Honorable James Ware) ____________________________________________________ SUPPLEMENTAL EXCERPTS OF RECORD ____________________________________________________ DAVID BOIES JEREMY M. GOLDMAN THEODORE H. UNO BOIES, SCHILLER & FLEXNER LLP 333 Main Street Armonk, New York 10504 (914) 749-8200 Attorneys for Plaintiffs-Appellees Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo DENNIS J. HERRERA THERESE M. STEWART CHRISTINE VAN AKEN CITY AND COUNTY OF SAN FRANCISCO One Dr. Carlton B. Goodlett Place San Francisco, CA 94102 (415) 554-4708 Attorneys for Plaintiff-Intervenor-Appellee City and County of San Francisco THEODORE B. OLSON Counsel of Record MATTHEW D. MCGILL AMIR C. TAYRANI GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 (202) 955-8500 THEODORE J. BOUTROUS, JR. CHRISTOPHER D. DUSSEAULT THEANE EVANGELIS KAPUR ENRIQUE A. MONAGAS JOSHUA S. LIPSHUTZ GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071 (213) 229-7804 Attorneys for Plaintiffs-Appellees Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo
INDEX TO SUPPLEMENTAL EXCERPTS OF RECORD
NAME OF DOCUMENT Reply Brief in Support of Proponents Motion to Vacate, May 23, 2011
RECORD LOCATION Doc. No. 787
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Declaration of Enrique A. Monagas in Support Doc. No. 780 of Plaintiffs Opposition to Proponents Motion to Vacate Judgment, May 13, 2011 Exhibit B to Monagas Declaration Exhibit D to Monagas Declaration Exhibit E to Monagas Declaration Exhibit F to Monagas Declaration Exhibit G to Monagas Declaration Exhibit H to Monagas Declaration Brief for Appellees, Oct. 18, 2010 Doc. No. 780-2 Doc. No. 780-4 Doc. No. 780-5 Doc. No. 780-6 Doc. No. 780-7 Doc. No. 780-8
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Dkt. Entry 145-1 SER 47 (9th Cir., Case No. 10-16696) Doc. No. 295 SER 172
Defendant-Intervenors Trial Memorandum, Dec. 7, 2009
Case3:09-cv-02292-JW Document787
Filed05/23/11 Page1 of 21
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COOPER AND KIRK, PLLC Charles J. Cooper (DC Bar No. 248070)* ccooper@cooperkirk.com David H. Thompson (DC Bar No. 450503)* dthompson@cooperkirk.com Howard C. Nielson, Jr. (DC Bar No. 473018)* hnielson@cooperkirk.com Peter A. Patterson (OH Bar No. 0080840)* ppatterson@cooperkirk.com 1523 New Hampshire Ave. N.W., Washington, D.C. 20036 Telephone: (202) 220-9600, Facsimile: (202) 220-9601 LAW OFFICES OF ANDREW P. PUGNO Andrew P. Pugno (CA Bar No. 206587) andrew@pugnolaw.com 101 Parkshore Drive, Suite 100, Folsom, California 95630 Telephone: (916) 608-3065, Facsimile: (916) 608-3066 ALLIANCE DEFENSE FUND Brian W. Raum (NY Bar No. 2856102)* braum@telladf.org James A. Campbell (OH Bar No. 0081501)* jcampbell@telladf.org 15100 North 90th Street, Scottsdale, Arizona 85260 Telephone: (480) 444-0020, Facsimile: (480) 444-0028 ATTORNEYS FOR DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ, MARK A. JANSSON, and PROTECTMARRIAGE.COM YES ON 8, A PROJECT OF CALIFORNIA RENEWAL * Admitted pro hac vice UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and JEFFREY J. ZARRILLO, Plaintiffs, CITY AND COUNTY OF SAN FRANCISCO, Plaintiff-Intervenor, v. EDMUND G. BROWN, JR., in his official capacity as Governor of California; KAMALA D. HARRIS, in her official capacity as Attorney General of California; MARK B. HORTON, in
CASE NO. 09-CV-2292 JW REPLY BRIEF IN SUPPORT OF MOTION TO VACATE OF DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ, MARK A. JANSSON, AND PROTECTMARRIAGE.COM Chief Judge James Ware Date: June 13, 2011 Time: 9:00 a.m. Location: Courtroom 5, 17th Floor
REPLY BRIEF IN SUPPORT OF MOTION TO VACATE OF DEFENDANT-INTERVENORS CASE NO. 09-CV-2292 JW
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his official capacity as Director of the California Department of Public Health and State Registrar of Vital Statistics; LINETTE SCOTT, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health; PATRICK OCONNELL, in his official capacity as Clerk-Recorder for the County of Alameda; and DEAN C. LOGAN, in his official capacity as Registrar-Recorder/County Clerk for the County of Los Angeles, Defendants, and PROPOSITION 8 OFFICIAL PROPONENTS DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ, HAKSHING WILLIAM TAM, and MARK A. JANSSON; and PROTECTMARRIAGE.COM YES ON 8, A PROJECT OF CALIFORNIA RENEWAL, Defendant-Intervenors.
Additional Counsel for Defendant-Intervenors ALLIANCE DEFENSE FUND Jordan W. Lorence (DC Bar No. 385022)* jlorence@telladf.org Austin R. Nimocks (TX Bar No. 24002695)* animocks@telladf.org 801 G Street NW, Suite 509, Washington, D.C. 20001 Telephone: (202) 393-8690, Facsimile: (202) 347-3622 * Admitted pro hac vice
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TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................................................................... ii INTRODUCTION ............................................................................................................................... 1 ARGUMENT ....................................................................................................................................... 3 I. JUDGE WALKER WAS DISQUALIFIED FROM HEARING THIS CASE. ........................... 3
II. THIS MOTION IS TIMELY. ..................................................................................................... 11 III. THE JUDGMENT MUST BE VACATED. .............................................................................. 14 CONCLUSION.................................................................................................................................. 15
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TABLE OF AUTHORITIES Page
American Textiles Mfrs. Inst., Inc. v. The Limited, Inc., 190 F.3d 729 (6th Cir. 1999) ......................................................................................................... 12 Baker v. City of Detroit, 458 F. Supp. 374 (E.D. Mich. 1978) ............................................................................................... 9 Blank v. Sullivan & Cromwell, 418 F. Supp. 1 (S.D.N.Y. 1975) ...................................................................................................... 9 Brown v. Board of Education, 347 U.S. 483 (1954)....................................................................................................................... 10 Bryce v. Episcopal Church in the Diocese of Colorado, 289 F.3d 648 (10th Cir. 2002) ......................................................................................................... 9 Clemens v. United States District Court, 428 F.3d 1175 (9th Cir. 2005) ....................................................................................................... 12 Day v. Apoliona, 451 F.Supp.2d 1133 (D. Haw. 2006), revd in part on other grounds, 496 F.3d 1027 (9th Cir. 2008) ......................................................................................................... 7 District of Columbia v. Heller, 554 U.S. 570 (2008)....................................................................................................................... 10 E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280 (9th Cir. 1992) ....................................................................................................... 13 Feminist Womens Health Ctr. v. Codispoti, 69 F.3d 399 (9th Cir. 1995) (Noonan, J.) ........................................................................................ 9 First Interstate Bank of Arizona v. Murphy, Weir & Butler, 210 F.3d 983 (9th Cir. 2000) ......................................................................................................... 12 Grutter v. Bollinger, 539 U.S. 306 (2003)....................................................................................................................... 10 Idaho v. Freeman, ii
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507 F. Supp. 706 (D. Idaho 1981) ................................................................................................... 9 In re City of Houston, 745 F.2d 925 (5th Cir. 1984) ....................................................................................................... 7, 8 Leroy v. City of Houston, 592 F. Supp. 415 (S.D. Tex. 1984) .............................................................................................. 7, 8 Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988)............................................................................................................. 3, 13, 14 Loving v. Virginia, 388 U.S. 1 (1967)........................................................................................................................... 10 Menora v. Illinios High Sch. Assn, 527 F. Supp. 632 (N.D. Ill. 1981) .................................................................................................... 9 Ortega Melendres v. Arpaio, 2009 WL 2132693 (D. Ariz. 2009) ................................................................................................. 9 Parrish v. Board of Commrs of Ala. St. Bar, 524 F.2d 98 (5th Cir. 1975) ............................................................................................................. 9 Pennsylvania v. Local Union 542, International Union of Operating Engineers, 388 F. Supp. 155 (E.D. Pa. 1974) .................................................................................................... 9 Poplar Lane Farm LLC v. The Fathers of Our Lady of Mercy, 2010 WL 3303852 (W.D.N.Y. 2010) .............................................................................................. 9 Porter v. Singletary, 49 F.3fd 1483 (11th Cir. 1995) ................................................................................................ 12, 13 Preston v. United States, 923 F.2d 731 (9th Cir. 1991) ......................................................................................................... 13 Sao Paulo State of Federative Republic of Brazil v. American Tobacco Co., Inc., 535 U.S. 229 (2002)....................................................................................................................... 12 United States v. Alabama, 828 F.2d 1532 (11th Cir. 1987) ................................................................................................... 1, 6 United States v. Amico, iii
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486 F.3d 764 (2d Cir. 2007) .......................................................................................................... 13 United States v. El-Gabrowny, 844 F. Supp. 955 (S.D.N.Y. 1994) .................................................................................................. 9 United States v. Kelly, 888 F.2d 732 (1989) ...................................................................................................................... 14 United States v. Nelson, 2010 WL 2629742 (E.D.N.Y. 2010) ............................................................................................... 9 United States v. Rogers, 119 F.3d 1377 (9th Cir. 1997) ....................................................................................................... 13 United States v. State of Alabama, 571 F. Supp. 958 (N.D. Ala. 1983) .................................................................................................. 7 United States v. State of Alabama, 574 F. Supp. 762 (N.D. Ala. 1983) .................................................................................................. 7 United States v. Virginia, 518 U.S. 515 (1996)....................................................................................................................... 10 Vietnamese Fishermans Assn v. Knights of the Ku Klux Klan, 518 F. Supp. 1017 (S.D. Tex. 1981) ................................................................................................ 9 Willner v. University of Kansas, 848 F.2d 1023 (10th Cir. 1988) ..................................................................................................... 12 Wood v. McEwen, 644 F.2d 797 (9th Cir. 1981) ......................................................................................................... 13 Constitutional Statutes and Rules 28 U.S.C. 455(a) ............................................................................................................................... 7 28 U.S.C. 455(b)(4) ...................................................................................................................... 5, 6 28 U.S.C. 455(b)(5) .......................................................................................................................... 6 28 U.S.C. 455(e) ............................................................................................................................... 3 Rules FED. R. CIV. P. 62.1(a)(3) .................................................................................................................. 15 iv
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INTRODUCTION In our opening motion papers, we posited that [s]urely no one would suggest that Chief Judge Walker could issue an injunction directing a state official to issue a marriage license to him. Doc. # 768 at 13. We stand corrected. For Plaintiffs argue in response that even iron-clad proof of Judge Walkers desire to marry his partner would [provide] absolutely no basis for questioning his impartiality in this case. Doc. # 779 at 8. It follows, then, that even if Judge Walker and his long-time partner planned to marry if and when his injunction in this case became final and enforceable in California, he had no duty to recuse himself or even to disclose this fact to the parties. This startling proposition is based on Plaintiffs equally startling claim that the longstanding statutory (and constitutional) prohibition against a judge hearing his or her own case does not apply when the judge is a member of a minority group that seeks access to a fundamental constitutional right denied to them by a discriminatory state law. Id. at 9. The cases cited by Plaintiffs do not support their proposed member of a minority group exception. In every one of these cases, the information disclosed by the judge or otherwise on the record provided no basis for concluding that the judge had a direct and substantial personal interest in the outcome of the case. These cases stand for the unremarkable proposition that merely belonging to the same minority group as one of the parties does not itself give rise to an interest in the outcome of the case requiring disqualification. As a leading case put it: To disqualify minority judges from major civil rights litigation solely because of their minority status is intolerable. . . . The recusal statutes do not contemplate such a double standard for minority judges. United States v. Alabama, 828 F.2d 1532, 1542 (11th Cir. 1987). Nor do the recusal statutes, of course, contemplate the double standard urged here by Plaintiffs, one that would permit a minority judge to preside over a case despite having a direct and substantial personal interest in the outcome. To the contrary, the same rules apply to all judges black and white, male and female, straight and gay. Thus, black judges have routinely sat on school desegregation cases that did not directly and substantially affect them (or their children) personally, female judges have regularly heard gender discrimination cases that did not directly and substantially affect the judges personal interests, and we have no doubt that it will become equally commonplace for gay and lesbian judges to decide 1
REPLY BRIEF IN SUPPOR OF MOTION TO VACATE OF DEFENDANT-INTERVENORS CASE NO. 09-CV-2292 JW
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cases involving claims of sexual orientation discrimination where a reasonable person would not have any cause to believe that the outcome of the case could directly and substantially affect the judges own personal interests. Apart from Plaintiffs' proposed "minority judge" exception, Plaintiffs and their allies repeatedly caricature our motion as resting ultimately on the assertion that gay and lesbian judges may not sit in cases involving allegations of discrimination on the basis of sexual orientation. Again, this is plainly not so. As with minority judges in the mine run of racial or gender
discrimination cases, there will rarely be any reason to believe that the outcome of a sexual orientation case might have any effect -- much less a direct and substantial effect -- on the personal interests of a gay or lesbian judge assigned to the case. We know of no reason to believe, for example, that Judge Walker would have any personal interest in the outcome of litigation over, say, the constitutionality of the military's "Don't Ask, Don't Tell" policy. Nor would there be any issue with a gay or lesbian judge hearing this case so long as a reasonable person, knowing all of the relevant facts and circumstances, would not have reason to believe that the judge has a current personal interest in marrying if Plaintiffs prevailed. The particular facts and circumstances that give rise to such a reasonable concern in this case -- Judge Walker's ten-year same-sex relationship, his refusal to disclose both his relationship and whether he and his partner have any interest in marriage, his findings concerning the manifold benefits of marriage for "committed, long-term same-sex relationships," and the extraordinary rulings and course of proceedings in this case -plainly do not necessarily exist for all or even most gay and lesbian citizens or judges. To be sure, not all committed same-sex couples have an interest in marrying. But according to Plaintiffs themselves, almost two-thirds of such couples in California would get married if permitted to do so. Tr. 1397-98, 1407-08. And while we are not aware of ironclad proof that Judge Walker and his long-time partner have an interest in marrying, the lack of complete information concerning this relevant fact is attributable to Judge Walkers failure to carry out his duty to disclose on the record all of the relevant facts concerning his possible direct and substantial personal interest in the outcome of the case while he presided over it. Plaintiffs argue that the statutory disclosure duty would require federal judges to publicly disclose intimate details of their 2
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private lives, Doc. # 779 at 23, but of course any judge who does not wish to make a full disclosure on the record, 28 U.S.C. 455(e), of personal facts that bear on his ability to sit in a case always has the option of simply asking the clerk to reassign it to another judge. Finally, Plaintiffs argument that Proponents motion is untimely fails for two independent reasons. First, Plaintiffs claim rests entirely upon media reports concerning Judge Walkers sexual orientation that the Judge declined to confirm or deny. But it is settled that litigants are entitled to presume that the judge will disclose any and all information bearing on his fitness to sit in a case, and litigants therefore do not have any duty to investigate rumors and speculation concerning the judges personal life to unearth evidence of possible bias. Second, even if the media reports cited by Plaintiffs had been confirmed, the information they provided did not put Proponents on notice that Judge Walker may have a direct and substantial personal interest in the outcome of the case. The first merely reported the "open secret" that Judge Walker is gay, and we stated publicly at the time, and have unequivocally reaffirmed in this motion, that Judge Walker's sexual orientation, whether gay or heterosexual, does not itself raise a reasonable concern about his fitness to sit in this case. The second added a report that, according to unidentified colleagues, Judge Walker attends bar functions with a companion, a physician. Doc. # 780-4 at 3. Standing alone, this information did not give rise to a reasonable belief that Judge Walker was in a long-term, committed relationship and thus may have a current personal interest in marrying. Only when Judge Walker belatedly disclosed that he is in a 10-year same-sex relationship did Proponents have a reasonable basis for concern that Judge Walker has a direct and substantial personal interest in the outcome of the case and that his impartiality could reasonably be questioned. As in Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 869 (1988), where the motion to vacate judgment was filed 10 months after the affirmance by the Court of Appeals, Proponents motion is timely because the entire delay [was] attributable to the trial judges failure to disqualify himself and to disclose[] [his] interest to the parties. ARGUMENT I. JUDGE WALKER WAS DISQUALIFIED FROM HEARING THIS CASE. 1. In support of their repeated claim that this motion seeks to disqualify "Judge Walker 3
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based on nothing more than his sexual orientation," Doc. # 779 at 15, Plaintiffs insist that there is no meaningful distinction for purposes of marriage between a gay person in a "long-term committed relationship" and any other gay person, and that any effort to draw such a distinction would present an "intractable line-drawing problem," id. at 16. But Plaintiffs have consistently drawn precisely this common-sense line throughout this case, repeatedly emphasizing that the marital right they seek to vindicate is that of "two individuals of the same sex who have spent years together in a loving and committed relationship." Doc. # 7 at 15. Plaintiffs allege in their complaint that they "are gay and lesbian residents of California who are involved in long-term, serious relationships with individuals of the same sex . . . ." Doc. # 1-1 at 8. They argue that Proposition 8 is unconstitutional because it prohibits them "from marrying the person with whom they are in a loving, committed, and long-term relationship . . . ." Doc. # 52 at 6. Indeed, Plaintiffs insist that they "are similarly situated to heterosexual individuals for purposes of marriage because, like individuals in a relationship with a person of the opposite sex, they are in loving, committed relationships." Id. at 12.1 Judge Walker, for his part, has likewise consistently equated marriage with "committed
In almost all of their filings in this Court, Plaintiffs have equated responsible marital unions with couples in long-term, committed relationships. See, e.g., Doc. # 1-1 at 3 ("Plaintiffs Perry and Stier are lesbian individuals in a committed relationship. Plaintiffs Katami and Zarrillo are gay individuals in a committed relationship."); Doc. # 7 at 10 ("Plaintiffs are gay and lesbian residents of California who are involved in long-term, serious relationships with individuals of the same sex. . . . Plaintiffs Perry and Stier are lesbian individuals who have been in a committed relationship for ten years. . . . Plaintiffs Katami and Zarrillo are gay individuals who have been in a committed relationship for eight years.); Doc. # 202 at 30 ("Plaintiffs are seeking to secure the same freedom of personal choice to marry the person with whom they are in a loving, long-term relationship that the State has long afforded to heterosexual individuals.) (quotation marks omitted); id. at 28 ("If either Plaintiff Katami or Zarrillo were female, and if either Plaintiff Perry or Stier were male, then California law would permit each of them to marry the person with whom they are in a long-term, committed relationship.); Doc. # 282 at 39-40 ("Prop. 8 communicates the official view that samesex couples committed relationships are of a lesser stature than the comparable relationships of opposite-sex couples."); Doc. # 607 at 7 ("[P]ermitting Plaintiffs and other same-sex couples in loving, committed relationships to marry will strengthen the institution and the relationships of both same-sex and opposite-sex couples."); Doc. # 686 at 8 ("[E]xisting constitutional protections for personal decisions relating to marriage extend to individuals in a loving, committed relationship with a person of the opposite sex or the same sex.") (quotation marks and brackets omitted); Tr. 21 ("The plaintiffs. . . are in deeply-committed, intimate and long-standing relationships."). 4
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long-term relationships." Doc. # 708 at 96. Indeed, he has emphasized that "deep emotional bonds and strong commitments" are the key "characteristics relevant to the ability to form successful marital unions." Id. at 79. Judge Walker has even gone so far as to say that the committed long-term relationships of Plaintiffs in this case are marriages. Id. at 116 ("[P]laintiffs ask California to recognize their relationships for what they are: marriages."). Thus, far from indistinguishable, a gay person who is in a committed long-term relationship, and a gay person who is not in such a relationship are in no way even comparable for purposes of marriage, as both Plaintiffs and Judge Walker have repeatedly recognized throughout this case. True, it is possible to "speculate," as Plaintiffs note, that a gay person who is not in a committed relationship nonetheless "might benefit from the right to marry in the future," Doc. # 779 at 9, but Section 455(b)(4) disqualifies a judge only if he has a direct and substantial personal interest in the outcome of the case -- that is, a current personal interest, not a remote and speculative possibility of a future personal interest in the case. In short, the instant motion rests not on Judge Walker's sexual orientation, but on the fact that he, in Plaintiffs' own words, is "similarly situated to [Plaintiffs] for purposes of marriage because, like individuals in a relationship with a person of the opposite sex, [both Plaintiffs and Judge Walker] are in loving, committed relationships." Doc. # 52 at 12.2 Indeed, had Plaintiffs alleged only that they are gay and lesbian, and as such, had merely "speculate[d]" that they "might benefit from the right to marry in the future," Doc. # 779 at 9, their suit would have been dismissed for lack of standing. 2. Plaintiffs attempt to cast doubt on the likelihood of Judge Walker's interest in marriage by noting that "he apparently made no effort to do so" when same-sex marriage was briefly Plaintiffs make the remarkable claim that acceptance of our position would "require the recusal of all married heterosexual judges," given our "argu[ment] that permitting marriage between persons of the same sex would weaken opposite-sex marriage." Doc. # 779 at 20. But our argument is that adoption of same-sex marriage will likely harm the institution of marriage over time, not that any individual's existing marriage will be affected. See, e.g., Doc. # 172-1 at 97-98; Opening Brief of Defendant-Intervenors-Appellants at 114, Perry v. Brown, No. 10-16696 (9th Cir. argued Dec. 6, 2010); Reply Brief of Defendant-Intervenors-Appellants at 77, Perry v. Brown, No. 10-16696 (9th Cir. argued Dec. 6, 2010). The notion that all married heterosexual judges have a direct and substantial personal interest in the outcome of this case is, of course, patently absurd. 5
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permitted in California in 2008. Id. at 8. Plaintiffs fail to mention that they, too, did not marry during that period, although they, like Judge Walker, had been in their committed relationships for many years by then. Doc. # 7-1 at 3; Doc. # 7-2 at 2. Nor do Plaintiffs mention the evidence they presented at trial projecting that nearly two-thirds of committed same-sex couples in California 64 percent will get married if permitted to do so. Tr. 1397-98, 1407-08. 3. None of the cases cited by Plaintiffs and their allies stands for the proposition that a judge may sit when a reasonable person would have cause to believe that the judge might have a direct and substantial personal interest in the outcome of the case, and the judge failed to disclose his interest in the matter. Plaintiffs place their greatest reliance upon United States v. Alabama, 828 F.2d 1532, 1541-42 (11th Cir. 1987), but that case strongly supports disqualification here. Alabama involved a class action to desegregate the States institutions of higher learning, and the certified class include[d] all [black] children who are eligible to attend or who will become eligible to attend the public institutions of higher education in the Montgomery, Alabama area. Id. at 1541. The trial judge had two children who, like all young black Alabamians, were technically members of this class and possess an interest in the outcome of this litigation. Id. The State defendants sought to disqualify the trial judge under both Section 455(b)(4) and (b)(5), which requires disqualification if the judge or a member of his immediate family is a party to the proceeding. The Eleventh Circuit held that the judge was not disqualified under either Section 455(b)(4) or (b)(5) because [a]ny beneficial effects of this suit upon these children were remote, contingent and speculative. Id.3 Critical to the result in Alabama was the fact that there was no reason to believe that the trial judges children had any desire or inclination to attend a Montgomery area institution. Id. Indeed, the judge squarely acknowledged that he would have to recuse under Section 455 if I know that any minor child residing in my household has an interest that could be substantially affected by The Eleventh Circuit did not consider whether the interests of the trial judges children might support disqualification under Section 455(a), presumably because no one advanced that argument. The Court ultimately held that the trial judge was required to recuse based upon his direct participation in the events giving rise to the lawsuit prior to taking the bench, and accordingly the Court reversed the judgment and remanded for a new trial. See Alabama, 828 F.2d at 1544-46. 6
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the outcome of this proceeding. United States v. State of Alabama, 571 F. Supp. 958, 962 (N.D. Ala. 1983). Accordingly, unlike in this case, the trial judge in Alabama took pains to disclose the relevant facts: Neither my sixteen-year old son nor my nine-year old daughter has indicated to me any interest in attending either of the colleges or universities involved in this action. United States v. State of Alabama, 574 F. Supp. 762, 764 n.1 (N.D. Ala. 1983).4 Obviously, if the judges 16year-old child had expressed an interest in attending one of the universities at issue, disqualification would have been required because the childs interest in the case would not be remote, contingent and speculative, but rather direct and substantial. Plaintiffs also rely heavily on In re City of Houston, 745 F.2d 925, 931 (5th Cir. 1984), but as in Alabama, the information in the record and the trial judges disclosures demonstrated that any interest she had in the outcome of the case was remote, contingent, and speculative. Houston initially involved a claim that the Citys at-large election system diluted the votes of blacks and Hispanics. By the time the action was reassigned to the trial judge at issue, however, the City had changed its method of election, thus mooting the voting rights issue, and the only remaining question to be decided concerned the the availability of attorneys fees to any of the parties to the action. Id. at 926. The case was reassigned to a black trial judge for consideration of the fee petition, and the City sought her recusal because she was a member of the class of registered black and Hispanic voters in Houston. The trial judge, noting that the standard for determining the appearance of partiality under Section 455(a) requires disclosure of all the facts of a situation, deemed it incumbent upon [herself] to acknowledge and deal with the facts of [her] particular situation. Leroy v. City of Houston, 592 F. Supp. 415, 418 n.5 (S.D. Tex. 1984). Accordingly, she disclosed on the record all relevant personal facts, including her past and current street addresses
Day v. Apoliona, 451 F. Supp. 2d 1133 (D. Haw. 2006), revd in part on other grounds, 496 F.3d 1027 (9th Cir. 2008), is similarly distinguishable. The case involved access to benefits available to Native Hawaiians, and one of the judges law clerks was a Native Hawaiian. The court explained that, [i]f a clerk has a possible conflict of interest, the clerk must be disqualified. Id. at 1137. However, the court denied a motion seeking recusal because [n]either the law clerk nor any of her family members mentioned above is currently receiving funds or other benefits available to Native Hawaiians, and [n]one of them is presently applying for or presently intends to seek funds or other benefits in the future. Id. at 1138 (emphasis added). 7
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and her and her husbands voter registration status. Id. at 418. The trial judge rejected the recusal motion, explaining that no appearance of impropriety exists because (i) during the period when the case was tried, she resided in a non-black and non-Mexican-American precinct where because of [her] minority status [her] vote was not being diluted, and (ii) the only question before [her] is whether an award of attorneys fees would be appropriate, and she therefore had no personal interest in the outcome of the case. Id. at 419-20. The Fifth Circuit agreed, and denied the Citys mandamus petition. The court explained that any interest the trial judge might have had was remote, contingent, and speculative because she has resided in a voting precinct that is predominantly non-black and non-Hispanic, and thus it was doubtful whether the change sought to be effected by plaintiffs in the creation of voting districts would have benefited Judge McDonald at all. Houston, 745 F.2d at 931. The court rejected the argument that recusal was required because the judge was technically a member of the class, explaining that, in delimiting the class the attorneys cast the definitional net wider than was arguably necessary, so that Judge McDonald falls within the overbroad category of plaintiffs. Id. Moreover, the court explained, in a vote dilution case the interest of the class member is equal to that of persons not members of the class because increasing the voting power of the class necessarily entails a corresponding decrease in the voting power of the counter-class. Id.
Accordingly, [v]irtually every citizen of Houston who is a voter has an equal stake in this litigation, infinitesimal though any individuals interest may be. Id. The case thus fell within the established rule that disqualification is not required in all cases in which the judge might benefit as a member of the general public. Id. (quoting In re New Mexico Natural Gas Antitrust Litig., 620 F.2d 794, 796-797 (10th Cir. 1980)). Such an interest is plainly insubstantial. Id. at 930. In sum, in both Alabama and Houston, the trial judge had disclosed all of the relevant personal facts, and those facts made clear that any interest the judge (or his family) may have had in the outcome of the case was remote, contingent, speculative, and attenuated. The trial judges children in Alabama had no intention of attending the colleges at issue, so however the case came out, it would not affect them. And the trial judge in Houston lived in a precinct unaffected by the elimination of the at-large system, her interest in the case was no greater than that of any other voter 8
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in Houston, and in any event, the only issue remaining to be decided when the case was reassigned to her was whether attorneys fees would be awarded, so the outcome would not affect her at all. Nor do any of the other cases cited by Plaintiffs and their allies remotely support their position. They cite numerous cases in which the judge belonged to the same racial, ethnic,
religious, or gender group as one of the parties.5 These cases are all completely inapposite because, unlike in this case, the judges had no current personal interest whatsoever in the outcome. The same is true with respect to the cases cited by Plaintiffs in which the judge was a member of a racial, ethnic, or religious group that had a general interest in an issue presented in the case.6 These cases too are all completely inapposite because, unlike in this case, the judges had no current personal interest whatsoever in the outcome.
See Pennsylvania v. Local Union 542, Intl Union of Operating Engrs, 388 F. Supp. 155 (E.D. Pa. 1974) (black judge could hear employment discrimination suit brought by black plaintiffs against construction industry); Blank v. Sullivan & Cromwell, 418 F. Supp. 1 (S.D.N.Y. 1975) (female judge could hear gender discrimination suit against law firm by former female employee); Baker v. City of Detroit, 458 F. Supp. 374 (E.D. Mich. 1978) (black judge could hear Title VII challenge against Detroit police department affirmative action policies); Ortega Melendres v. Arpaio, No. 07-2513, 2009 WL 2132693 (D. Ariz. July 15, 2009) (Hispanic judge could hear Title VI suit by Hispanic plaintiffs against sheriffs Office for racial profiling and unlawful detention); Parrish v. Board of Commrs of Ala. State Bar, 524 F.2d 98 (5th Cir. 1975) (en banc) (white judge who was formerly president of a local bar association that did not admit blacks could hear suit by black lawyers against state bar association challenging discriminatory administration of bar exam); Bryce v. Episcopal Church in the Diocese of Colorado, 289 F.3d 648 (10th Cir. 2002) (Episcopal judge could hear sexual harassment claim by former employee against an Episcopal church in a different state); Menora v. Illinois High Sch. Assn, 527 F. Supp. 632 (N.D. Ill. 1981) (Jewish judge could hear Free Exercise challenge to public school policy forbidding religious headgear during basketball games brought by Orthodox Jewish high school students); Poplar Lane Farm LLC v. The Fathers of Our Lady of Mercy, No. 08-509S, 2010 WL 3303852 (W.D.N.Y. Aug. 19, 2010) (Catholic judge could hear breach of contract suit brought against Catholic organization); United States v. Nelson, No. 94-823, 2010 WL 2629742 (E.D.N.Y. June 28, 2010) (Orthodox Jewish judge could hear criminal prosecution against alleged killer of an Orthodox Jew). 6 See Feminist Womens Health Ctr. v. Codispoti, 69 F.3d 399 (9th Cir. 1995) (Noonan, J.) (Catholic judge could hear RICO action by abortion clinic against abortion protesters); Idaho v. Freeman, 507 F. Supp. 706 (D. Idaho 1981) (Mormon judge, whose Church opposed ratification of Equal Rights Amendment, could hear action seeking to rescind ratification of Equal Rights Amendment); United States v. El-Gabrowny, 844 F. Supp. 955 (S.D.N.Y. 1994) (Jewish judge could hear criminal prosecution of Muslim terrorist for conspiracy related to 1993 World Trade Center bombing); Vietnamese Fishermans Assn v. Knights of the Ku Klux Klan, 518 F. Supp. 1017 (S.D. Tex. 1981) (black judge could hear suit by Vietnamese fisherman seeking an injunction against Klan violence and intimidation against them). 9
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Unable to cite any actual case where a judge was permitted to sit even though a reasonable observer, knowing all the relevant facts and circumstances, could reasonably believe that the judge had a direct and substantial personal interest in the outcome, Plaintiffs turn to hypotheticals based on landmark cases: District of Columbia v. Heller, 554 U.S. 570 (2008); Loving v. Virginia, 388 U.S. 1 (1967); Brown v. Board of Educ., 347 U.S. 483 (1954); Grutter v. Bollinger, 539 U.S. 306 (2003), as well as a more generic hypothetical involving a female judge of childbearing age hearing an abortion case. See Doc. # 779 at 19, 23. None of Plaintiffs hypotheticals advance their cause. Heller. Any judge who lived in the District of Columbia and who wished to keep a firearm in his or her home that was prohibited by the statutes under review would indeed have to recuse because he or she would have a direct and substantial personal interest in the outcome. Loving. Any judge, black or white, who lived in Virginia when it prohibited interracial marriage, and who was married to, or wished to marry, a person of a different race in violation of the statute, would be disqualified because he or she would have a direct and substantial personal interest in the outcome. Brown. Any judge, black or white, who had a child attending the racially segregated public school would be disqualified because he or she would have a direct and substantial personal interest in the outcome. Grutter. Any judge, black or white, who had a child applying to the University of Michigan when it employed affirmative action admission criteria could not sit because the child would have a direct and substantial personal interest in the outcome. Abortion case. A female judge of childbearing age could almost certainly hear a challenge to an abortion regulation because any interest she might have in the outcome would be remote, contingent, and speculative. Only if the female judge (i) was pregnant, (ii) wished to have an abortion that was (iii) prohibited by the regulation being challenged would she be directly and substantially affected by the outcome and thus have to recuse.
Plaintiffs make passing reference to one other landmark case, see Doc. No. 779 at 9, 22, but they completely miss its significance to the issue before the Court. In United States v. Virginia, 518 U.S. 515 (1996), the question before the Court was whether the Virginia Military Institute (VMI) could continue to accept only male cadets. Both of the Courts female justices and six of the Courts seven male justices sat on the case as a matter of course because, even though the dispute concerned a claim of gender discrimination, none of the sitting Justices had any personal interest in 10
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the outcome. Justice Thomas, however, recused not because he was a male, but rather because his son attended VMI, and as a result, had a direct and substantial personal interest in the outcome of the case. The same is true here. II. THIS MOTION IS TIMELY. Proponents brought this motion promptly after former Chief Judge Walker publicly acknowledged, for the first time, that he is in a 10-year, same-sex relationship. Plaintiffs
nevertheless argue that this motion is untimely, pointing to a handful of unconfirmed media reports that Judge Walker is gay, Proponents statements that they did not intend to make an issue out of his sexual orientation, and a single, unconfirmed news article reporting statements from unnamed sources that Judge Walker attends bar functions with a companion, a physician, as evidence that Proponents should have filed this motion earlier. Doc. # 779 at 24-25. But none of this
demonstrates that Proponents were on notice that Judge Walker was in a long-term, committed same-sex relationship, and thus would likely directly and substantially benefit from his own ruling in this case. 1. Proponents do not contend, and indeed have consistently disavowed, that Judge Walker was disqualified from this case simply because of his sexual orientation. Accordingly, media reports that he is gayreports that he refused to confirm or deny prior to last month, see Doc. # 780-4plainly did not put Proponents on notice of Judge Walkers long-term same-sex relationship, let alone provide a basis for the present motion. For the same reason, Proponents statements that they did not intend to make an issue of Judge Walkers sexual orientation in no way indicate that they knew of his long-term relationship or somehow waived the right to object to the actual or at least apparent conflict of interest it creates. 2. Nor did the single news article reporting that Judge Walker attends bar functions with a companion, a physician, Doc. # 780-4 at 3, inform Proponents of this conflict. This assertion was attributed only to unnamed colleagues of Judge Walker, id., and, as the article made clear, had not been confirmed by the Judge himself, who declined to be interviewed with the marriage case pending, id. at 2. Even were it clearly reliable, moreover, this cryptic assertion could not
reasonably be understood to have put Proponents on notice that Judge Walker was in a 10-year 11
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same-sex relationship. Although the article indicated that Judge Walker attended at least some professional functions with another individual, the article did not otherwise discuss the nature (let alone duration) of the relationship between the Judge and his companion. Plainly Proponents could not responsibly have taken the serious step of seeking Judge Walkers recusal based on such uncorroborated, ambiguous reports from unnamed sources. To the contrary, it is well settled that a motion for recusal may not be based on [r]umor, speculation, beliefs, conclusions, innuendo, suspicion, Clemens v. United States District Court, 428 F.3d 1175, 1178 (9th Cir. 2005), an uncorroborated news report or rumor, Porter v. Singletary, 49 F.3d 1483, 1489 (11th Cir. 1995), or a hearsay statement from an undisclosed informer of unknown reliability, Willner v. University of Kansas, 848 F.2d 1023, 1027 (10th Cir. 1988). Nor did this uncorroborated rumor create a duty (or even provide an appropriate basis) for Proponents to investigate or inquire into Judge Walkers personal life. Section 455(a) [and] the Code of Judicial Conduct . . . place the burden of maintaining impartiality and the appearance of impartiality on the judge, First Interstate Bank of Arizona v. Murphy, Weir & Butler, 210 F.3d 983, 987 (9th Cir. 2000), and judges have an ethical duty to disclose on the record information which the judge believes the parties or their lawyers might consider relevant to the question of disqualification, American Textiles Manufacturers Institute, Inc. v. The Limited, Inc., 190 F.3d 729, 742 (6th Cir. 1999). Lawyers are entitled to assume that judges . . . will perform their duty. First Interstate Bank, 210 F.3d at 988. Accordingly, litigants (and, of course, their attorneys) should assume the impartiality of the presiding judge, rather than pore through the judges private affairs and financial matters. American Textiles, 190 F.3d at 742; see also id. (a litigants duty to investigate the facts of his case does not include a mandate for investigations into a judges impartiality); Porter, 49 F.3d at 1489 (In light of the Canons governing judicial conduct, we do not believe that an attorney conducting a reasonable investigation would consider it appropriate to question a judge . . . about the judges lack of impartiality.).7 As Plaintiffs lead counsel aptly put the matter in another case: Contrary to San Franciscos suggestion, see Doc. # 775, at 13-14, nothing in Sao Paulo State of Federative Republic of Brazil v. American Tobacco Co., Inc., 535 U.S. 229 (2002), (Continued) 12
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In short, the unconfirmed and anonymous reports identified by Plaintiffs are not comparable at all to the evidence now proffered in support of this motion. Porter, 49 F.3d at 1488. And, [u]nlike the newly proffered evidence, [they] fell far short of overcoming the presumption of regularity and supporting a claim of judicial bias. Id. 3. All of the cases cited by Plaintiffs that find a motion to disqualify untimely are based on information plainlyoften concededlyknown to the moving party, and indeed often as a matter of public record, long before the motion was filed. See United States v. Rogers, 119 F.3d 1377, 1381-83 (9th Cir. 1997); E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1295-96 (9th Cir. 1992); Wood v. McEwen, 644 F.2d 797, 802 (9th Cir. 1981).8 Certainly none of these cases hold a motion to disqualify untimely on the ground that the movant should have acted on cryptic, unsubstantiated rumors and media reports based on anonymous sources. To the contrary, it is well settled that a motion to disqualify is timely, regardless of the stage of the proceedings at which it is made, so long as it is made by a party with reasonable promptness after that party becomes aware of the facts on which it is based. See Liljeberg, 486 U.S. at 850, 867, 869; Preston v. United States, 923 F.2d 731, 733 (9th Cir. 1991) (recusal motion was timely when filed shortly after party learned of Judges previous association with law firm representing company that could benefit from ruling, even though that association had long been a matter of public record); United States v. Amico, 486 F.3d 764, 773-75 (2d Cir. 2007) (recusal motion was timely when filed promptly after parties (Contd) suggests that it is necessary, or even appropriate, for a party to question a judge about actual or apparent partiality. Rather, that case holds only that, in reviewing a trial courts ruling on a recusal motion, an appellate court should consider extenuating circumstances identified by the trial court in the order being reviewed. See 535 U.S. at 231-33. 8 The cases cited by San Francisco in support of reviewing Proponents motion only for plain error, see Doc. # 775, at 12-13, are to the same effect. 13
Surely [Plaintiffs] cannot be urging a rule whereby, in order to preserve a possible . . . challenge, litigants must probe into the private lives of the jurists before whom they appear to discover interests which may cause a judge to be biased or which may create the strong appearance of bias. Nor do [Plaintiffs] explain what justification there might have been for [Chief Judge Walker] not making this obvious conflict known to the parties . . . . Reply Brief of Appellant at 2, Aetna Life Insurance Co., v. Lavoie, No. 84-1601 (1984)
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learned that witness would testify that the judge knowingly falsified loan application, even though parties long knew that witness would testify that he had assisted the judge in filing a false loan application); United States v. Kelly, 888 F.2d 732, 747 (1989) (recusal motion was timely when filed shortly after the judge revealed the intensity of his personal reaction to the dilemma he faced when a close friend was called as a witness, even though party was aware for some time before trial that [the witness] and the judge had an indirect social relationship). III. THE JUDGMENT MUST BE VACATED. As we demonstrated in our opening brief, vacatur of the judgment in this case follows inexorably from Judge Walkers disqualification, under the Supreme Courts analysis in Liljeberg, see Doc. # 768 at 20-26, and Plaintiffs have no meaningful response. Instead, they argue
principally that no harm would result from allowing the judgment to stand notwithstanding Judge Walkers violation of Section 455 because none of the Defendants have joined Proponents vacatur motion . Doc. # 779 at 26. But of course, the Defendants all support (or at a minimum, do not oppose) Plaintiffs case, so it is hardly surprising that they are indifferent to the fact that the case was decided favorably to them by a judge who likely had a direct and substantial personal interest in the outcome and whose impartiality could reasonably be questioned. Plaintiffs also claim that vacatur would establish a dangerous precedent by encouraging recusal motions, id. at 27, but there is nothing dangerous about a precedent that enforces the fundamental rule that no judge may hear his own case. To the contrary, as the Supreme Court emphasized in Liljeberg, vacating the judgment here may prevent a substantive injustice in some future case by encouraging a judge to more carefully examine possible grounds for disqualification and to promptly disclose them when discovered. 486 U.S. at 868. Finally, because this case has been closely followed by the public, Doc. # 779 at 27, Plaintiffs somehow conclude that [v]acatur is therefore wholly unnecessary to bolster public confidence in the resulting judgment. Id. at 28. With all due respect, Plaintiffs have it precisely backwards. The great public importance of this case and the highly controversial nature of the dispute make it all the more vital that it be decided at every stage by judges whose impartiality cannot be reasonably questioned.
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CONCLUSION For the foregoing reasons, and those stated in our opening motion papers, Proponents respectfully request that this Court enter an order stat[ing] either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue. FED. R. CIV. P. 62.1(a)(3). DATED: May 23, 2011 Respectfully Submitted, ATTORNEYS FOR DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ, MARK A. JANSSON, AND PROTECTMARRIAGE.COM YES ON 8, A PROJECT OF CALIFORNIA RENEWAL By: /s/ Charles J. Cooper Charles J. Cooper
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Gibson, Dunn & Crutcher LLP
GIBSON, DUNN & CRUTCHER LLP Theodore B. Olson, SBN 38137 TOLSON@GIBSONDUNN.COM Matthew D. McGill, pro hac vice Amir C. Tayrani, SBN 229609 1050 Connecticut Ave., N.W., Washington, D.C. 20036 T: (202) 955-8668 | F: (202) 467-0539 Theodore J. Boutrous, Jr., SBN 132009 TBOUTROUS@GIBSONDUNN.COM Christopher D. Dusseault, SBN 177557 Ethan D. Dettmer, SBN 196046 Sarah E. Piepmeier, SBN 227094 Theane Evangelis Kapur, SBN 243570 Enrique A. Monagas, SBN 239087 333 S. Grand Ave., Los Angeles, CA 90071 T: (213) 229-7804 | F: (213) 229-7520 BOIES, SCHILLER & FLEXNER LLP David Boies, pro hac vice DBOIES@BSFLLP.COM 333 Main St., Armonk, NY 10504 T: (914) 749-8200 | F: (914) 749-8300 Jeremy M. Goldman, SBN 218888 JGOLDMAN@BSFLLP.COM 1999 Harrison St., Ste. 900, Oakland, CA 94612 T: (510) 874-1000 | F: (510) 874-1460 Attorneys for Plaintiffs Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA KRISTIN M. PERRY, et al., Plaintiffs, and CITY AND COUNTY OF SAN FRANCISCO, Plaintiff-Intervenor, v. EDMUND G. BROWN, JR., et al., Defendants, and PROPOSITION 8 OFFICIAL PROPONENTS DENNIS HOLLINGSWORTH, et al., Defendant-Intervenors. CASE NO. 09-CV-2292 JW DECLARATION OF ENRIQUE A. MONAGAS IN SUPPORT OF PLAINTIFFS OPPOSITION TO PROPONENTS MOTION TO VACATE JUDGMENT
09-CV-2292 JW DECLARATION OF ENRIQUE A. MONAGAS
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I, Enrique A. Monagas, declare as follows: 1. I am an attorney licensed to practice law in the State of California and in the United
States District Court for the Northern District of California. I am an associate at the law firm of Gibson, Dunn & Crutcher LLP, counsel of record for Plaintiffs Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo (Plaintiffs). I make this declaration in support of Plaintiffs Opposition to Proponents Motion to Vacate Judgment. I have personal knowledge of the facts set forth herein, and if called as a witness, I could and would competently testify hereto. 2. Attached hereto as Exhibit A is a true and correct copy of Chris Geidner, Edward
DuMont, Praised by Colleagues as Brilliant, Would Be the First Openly Gay Federal Appellate Judge in the Country, Metro Weekly, Apr. 16, 2010, available at http://www.metroweekly.com/news/?ak=5094. 3. Attached hereto as Exhibit B is a true and correct copy of Phillip Matier & Andrew
Ross, Judge Being Gay a Nonissue During Prop. 8 Trial, S.F. Chron., Feb. 7, 2010, at C-1, available at http://articles.sfgate.com/2010-02-07/bay-area/17848482_1_same-sex-marriage-sexualorientation-judge-walker. 4. Attached hereto as Exhibit C is a true and correct copy of Margaret Russell, Sexual
Orientation Singled Out for Scrutiny, Daily Journal, Mar. 10, 2010. 5. Attached hereto as Exhibit D is a true and correct copy of Maura Dolan, Distilling the
Same-Sex Marriage Case, L.A. Times, June 21, 2010, available at http://articles.latimes.com/print/2010/jun/21/local/la-me-prop8-judge-20100621. 6. Attached hereto as Exhibit E is a true and correct copy of Dan Levine, Gay Judge
Never Thought to Drop Marriage Case, Reuters, Apr. 6, 2011, available at http://www.reuters.com/article/2011/04/06/us-gaymarriage-judge-idUSTRE7356TA20110406.
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7.
Attached hereto as Exhibit F is a true and correct copy of Gerard V. Bradley,
Why Has Media Ignored Judges Possible Bias In Californias Gay Marriage Case?, FoxNews.com, Aug. 4, 2010, available at http://www.foxnews.com/opinion/2010/08/04/gerard-bradley-propositionmarriage-sex-california-judge/. 8. Attached hereto as Exhibit G is a true and correct copy of Daniel Carty,
Gay Marriage Judges Personal Life Debated, Associated Press, Aug. 6, 2010, available at http://www.cbsnews.com/stories/2010/08/06/national/main6749127.shtml. 9. Attached hereto as Exhibit H is a true and correct copy of Lisa Leff, Experts: Judges
Sexual Orientation Is Non-Issue, Associated Press, Apr. 26, 2011, available at http://hosted2.ap.org/APDEFAULT/386c25518f464186bf7a2ac026580ce7/Article_2011-04-26-USGay-Marriage-Trial/id-fca28159484744cca73efbadede72f97. 10. Attached hereto as Exhibit I is a true and correct copy of Ashby Jones, Prop. 8 Judge
Is Reportedly Gay: What to Make of That?, Wall St. J., Feb. 8, 2010, available at http://blogs.wsj.com/law/2010/02/08/prop-8-judge-is-reportedly-gay-what-to-make-of-that/. I declare, under penalty of perjury under the laws of the United States, that these facts are true and correct and that this Declaration is executed this 13th day of May, 2011, at Palm Springs, California. /s/ Enrique A. Monagas Enrique A. Monagas
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ATTESTATION PURSUANT TO GENERAL ORDER NO. 45 Pursuant to General Order No. 45 of the Northern District of California, I attest that concurrence in the filing of the document has been obtained from each of the other signatories to this document.
By:
/s/ Theodore B. Olson Theodore B. Olson
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Case3:09-cv-02292-JW Document780-2
Exhibit B
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Judge being gay a nonissue during Prop. 8 trial

Phillip Matier,Andrew Ross Sunday, February 7, 2010
The biggest open secret in the landmark trial over same-sex marriage being heard in San Francisco is that the federal judge who will decide the case, Chief U.S. District Judge Vaughn Walker, is himself gay. Many gay politicians in San Francisco and lawyers who have had dealings with Walker say the 65year-old jurist, appointed to the bench by President George H.W. Bush in 1989, has never taken pains to disguise - or advertise - his orientation. They also don't believe it will influence how he rules on the case he's now hearing - whether Proposition 8, the 2008 ballot measure approved by state voters to ban same-sex marriage, unconstitutionally discriminates against gays and lesbians. "There is nothing about Walker as a judge to indicate that his sexual orientation, other than being an interesting factor, will in any way bias his view," said Kate Kendell, head of the National Center for Lesbian Rights, which is supporting the lawsuit to overturn Prop. 8. As evidence, she cites the judge's conservative - albeit libertarian - reputation, and says, "There wasn't anyone who thought (overturning Prop. 8) was a cakewalk given his sexual orientation." State Sen. Mark Leno, D-San Francisco, who has sponsored two bills to authorize same-sex marriage that were vetoed by Gov. Arnold Schwarzenegger, said that as far as he's concerned, Walker's background is a nonissue. "It seems curious to me," he said, that when the state Supreme Court heard a challenge to Prop. 8, the justices' sexual orientation "was never discussed." Leno added, "I have great respect for Judge Walker, professionally and personally." Walker has declined to talk about anything involving the Prop. 8 case outside court, and he wouldn't comment to us when we asked about his orientation and whether it was relevant to the lawsuit. Many San Francisco gays still hold Walker in contempt for a case he took when he was a private attorney, when he represented the U.S. Olympic Committee in a successful bid to keep San Francisco's Gay Olympics from infringing on its name. "Life is full of irony," the judge replied when we reminded him about that episode. And did he have any concerns about being characterized as gay?
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"No comment."
Shortly after our conversation, we heard from a federal judge who counts himself as a friend and confidant of Walker's. He said he had spoken with Walker and was concerned that "people will come to the conclusion that (Walker) wants to conceal his sexuality." "He has a private life and he doesn't conceal it, but doesn't think it is relevant to his decisions in any case, and he doesn't bring it to bear in any decisions," said the judge, who asked not to be identified because of the sensitive nature of the Prop. 8 trial. "Is it newsworthy?" he said of Walker's orientation, and laughed. "Yes." He said it was hard to ignore the irony that "in the beginning, when (Walker) sought to be a judge, a major obstacle he had to overcome was the perception that he was anti-gay." In short, the friend said, Walker's background is relevant in the same way people would want to know that a judge hearing a discrimination case involving Latinos was Latino or a Jewish judge was ruling in a case involving the Anti-Defamation League. Walker, by the way, didn't seek out the Prop. 8 case - it was assigned to him at random. If the judge decides that Prop. 8 is unconstitutional, supporters of the measure are sure to take it to the federal appeals court and the U.S. Supreme Court, if necessary. Kendell expects that if that happens, the measure's proponents will make an issue of the judge's sexual orientation - at least in the public arena. Not so, said Andy Pugno, general counsel for the group that sponsored the Prop. 8 campaign. "We are not going to say anything about that," Pugno said. He was quick to assert, however, that Prop. 8 backers haven't gotten a fair shake from Walker in court. He cited both the judge's order for the campaign to turn over thousands of pages of internal memos to the other side and Walker's decision to allow the trial to be broadcast - both of which were overturned by higher courts. "In many ways, the sponsors of Prop. 8 have been put at significant disadvantage throughout the case," Pugno said. "Regardless of the reason for it." EXTRA! Catch our blog at www.sfgate.com/matierandross. Chronicle columnists Phillip Matier and Andrew Ross appear Sundays, Mondays and Wednesdays. Matier can be seen on the KPIX morning and evening news. He can also be heard on KCBS radio Monday through Friday at 7:50 a.m. and 5:50 p.m. Got a tip? Call (415) 777-8815, or e-mail
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matierandross@sfchronicle.com.
http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/02/07/BACF1BT7ON.DTL This article appeared on page C - 1 of the San Francisco Chronicle
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Exhibit D
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Back to Original Article
Distilling the same-sex marriage case

Because he opted for a detailed trial of related issues, Chief Judge Vaughn R. Walker's decision will be the foundation for higher courts' verdicts.
June 21, 2010 | By Maura Dolan, Los Angeles Times Chief Judge Vaughn R. Walker was supposed to be a bit player in Perry vs. Schwarzenegger, a federal constitutional challenge of the Proposition 8 ban on same-sex marriage. Lawyers on both sides of the case viewed his federal courtroom in San Francisco as little more than a launching pad where they would argue fine points of constitutional law before the case moved to the appeals bench and eventually to the Supreme Court. But the iconoclastic U.S. District Court judge had something else in mind: a full-blown nonjury trial to test assumptions about whether gays were inferior parents, whether same-sex marriage hurt straight marriage and whether sexual orientation was changeable. Walker's intentions took lawyers on both sides by surprise, but those who know the lanky, silver-haired jurist said it was fitting that he would want to gather facts on an issue that tends to be viewed with considerable emotion. "The one characteristic of Judge Walker that separates him from some other judges is that he loves to come up with a twist or a new idea that the parties haven't thought of," said Rory Little, a professor at UC Hastings Law School. "He is a very creative thinker." The Republican appointee will soon fire the first volley in the federal legal battle over same-sex marriage. Walker's written decision, based on testimony he has heard, will become the foundation on which higher courts build. Initially dubious about a trial, gay rights lawyers quickly saw advantages to Walker's plan. Indeed, the 2 1/2 weeks of often moving testimony in January substantially bolstered opponents of Proposition 8. The confidence that gay rights lawyers expressed at testimony's end closing arguments were held Wednesday belied the anxiety some activists expressed when Walker was randomly chosen last year to oversee the case. "People were saying that this assignment should leave no one resting easily," said Kate Kendell, who heads the National Center for Lesbian Rights. Although openly gay, Walker, 66, was considered a traitor by some gay activists for having represented the U.S. Olympic Committee in a trademark lawsuit against the Gay Olympics, Kendell said. The case, brought more than two decades ago when Walker was still a lawyer in private practice, went to the U.S. Supreme Court and ended up a historic setback in the struggle for gay rights. Gay rights lawyers viewed the case as being more about gay equality than about an athletic competition. There had been dog Olympics, diaper Olympics and police Olympics, Kendell said, and gays felt targeted by the fact that the Gay Olympics had been challenged. "Vaughn Walker was in the center of it," Kendell said, "and from the gay community's perspective, on the wrong side." Gay rights groups and liberals opposed Walker's nomination by President Reagan and later by President George H.W. Bush. But after his confirmation, Walker surprised critics. He has been an independent judge, skeptical of government and protective of individual freedom more libertarian than conservative. He favors the decriminalization of drugs, and he recently ruled against Bush administration policies in a major wiretap lawsuit. That he vigorously represented the USOC over a gay athletic competition says nothing about his personal views, nor will his decision in the Proposition 8 case, said Boris Feldman, a corporate litigator who has appeared before Walker several times. "It was a client he was hired to represent and represented very well," Feldman said. "He is a classic conservative legal scholar in that he actually believes in rules.... You don't hear a lot about fairness from him. You hear a lot about the law." Walker, who declined to be interviewed with the marriage case pending, said at the time of his nomination that he believed good lawyers should not permit personal views to affect a client's representation. Judge Maxine M. Chesney, who serves on the federal court with Walker, described him as "very smart, very thoughtful and not result-oriented." Being gay "is not a political part of his life," she said. Earlier this year, Walker was overturned by the U.S. 9th Circuit Court of Appeals in a case involving a gay man who sued a federal agency for emotional distress after it revealed his HIV status to another federal department.
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Walker threw out the lawsuit on the grounds that a federal privacy act did not permit damages for emotional distress. The 9th Circuit resurrected the suit, ruling for the gay plaintiff. Lawyers defending Proposition 8 have refused to discuss Walker's sexual orientation and have not made an issue of it. They have complained, however, that his pretrial rulings hurt their side and that the trial was irrelevant. Although there has never been a federal trial over same-sex marriage, a state trial was held in Hawaii in 1996 and was broadcast on Court TV. The judge ruled in favor of the gay plaintiffs, and Hawaii's highest court concurred. Voters later reinstated the marriage ban at the polls. Walker wanted to broadcast the Proposition 8 trial on the Internet, but the U.S. Supreme Court slapped him down. Gay rights activists said public dissemination of the testimony would educate the public. Backers of Proposition 8 countered that cameras would intimidate their witnesses and possibly spark reprisals. Walker was born in Watseka, Ill., the youngest of three children. He was an economics major at the University of Michigan and earned his law degree at Stanford University. He spent 18 years at the blue-chip law firm of Pillsbury Madison & Sutro in San Francisco, where he represented the National Rifle Assn. in an attempt to overturn a San Francisco gun law. When he is not working, he travels the globe, attends the San Francisco Symphony, listens to traditional jazz, collects German Expressionist graphics and watches old movies (his favorites are "Sunset Boulevard" and "Double Indemnity"). He swims regularly and attends bar functions with a companion, a physician, colleagues say. Walker is a commanding force in the courtroom, exuding energy and humor as he questions lawyers and witnesses in a baritone voice and tries to keep the proceedings on a brisk pace. His creativity extends to sentencing. He once required a mail thief to stand in a post office with a sign that read: "I stole mail. This is my punishment." Lawyers say Walker is always well-prepared and organized and demands strong performances. During the marriage trial, he twice chided San Francisco City Atty. Dennis Herrera for the legal work of one of his deputies and praised the performance of a lawyer defending Proposition 8. A decision in the marriage trial is expected within weeks. UC Hastings' Little said Walker faces a "very delicate and historic" task in crafting his Proposition 8 ruling and buttressing it with evidence from the trial. Although higher courts could disregard his findings, "he also could lead a path to success at the Supreme Court," Little said. maura.dolan@latimes.com
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Exhibit E
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Gay judge never thought to drop marriage case

Wed, Apr 6 2011
By Dan Levine SAN FRANCISCO (Reuters) - The U.S. judge who struck down California's gay marriage ban never considered his own homosexuality as a reason to recuse himself from the case, he said on Wednesday. Former U.S. District Judge Vaughn Walker's comments were his first on what legal observers have been been intensely -- but quietly -- discussing since the blockbuster case was filed. Some wondered whether his sexual orientation would affect his decision and how it would be received. However the group defending California's gay marriage ban, Proposition 8, refrained from raising the issue in court. Walker eventually struck down Prop 8 as unconstitutional, and the case is currently on appeal. The Republican-nominated judge, who had a stormy history with the local gay community, calmly controlled his courtroom during the trial, adding dollops of humor as well. The case could set national policy if it reaches the U.S. Supreme Court and is being watched throughout the nation, where same-sex marriage is legal in only five of 50 states. Gay rights advocates won a major victory late last year when a ban on gays serving in the U.S. military was overturned in Congress and signed into law by President Barack Obama. Walker retired at the end of February, and he talked with a handful of reporters about issues like the Prop 8 case, cameras in the court, and his once-strained relationship with San Francisco's gay community. It would not be appropriate for any judge's sexual orientation, ethnicity, national origin or gender to stop them from presiding over a case, he said. "That's a very slippery slope," Walker said. Walker had never previously discussed his sexual orientation in the press, but on Wednesday said he was in a 10-year relationship with a physician. A Midwesterner, Walker was born in 1944 in Watseka, Illinois, about 90 miles south of Chicago. He worked for years at one of San Francisco's top law firms before being nominated to the federal bench in 1989 by George H.W. Bush. Seated at a table in a charcoal suit with a white handkerchief, Walker remembered how the gay community had once vilified his nomination to the federal bench. As a lawyer, Walker represented the U.S. Olympic Committee in a bid to prevent a local gay group from calling itself the 'Gay Olympics.' Walker put a lien on the house of the founder of the group who was dying of AIDS. On Wednesday he said he had just tried to be a successful advocate for his client. "I was the ogre of the gay community when I was nominated, and a hero when I leave," he said. Walker made for an unpredictable jurist, ruling against the government in a widely watched state secrets case. In another matter that has become lore at the San Francisco federal courthouse, Walker sentenced a mail thief to stand outside a post office, carrying a sign with the words: "I stole mail. This is my punishment." During the Prop 8 trial, one witness said an anti-gay marriage ad -- featuring a man, woman and child -- depicted a "heterosexual" couple. "How do you know they're heterosexual?" Walker deadpanned, prompting laughter in the courtroom. Walker also tried to push the boundaries of courtroom protocol by permitting cameras, but the U.S. Supreme Court disallowed it. "A pretty extraordinary decision," Walker said of the ruling, adding that cases like Prop 8 -- and the recent criminal perjury trial involving baseball home run king Barry Bonds -- should be available on video. Walker served as chief judge in the Northern District of California for six years before retiring. He said he would open a law practice focusing on alternative dispute resolution and counseling clients on litigation risk. As for the Prop 8 case, Walker said he had little regret. "I'm glad that we had the trial," he said. "I think that was the way to air these issues and get them on the table." (Reporting by Dan Levine; Editing by Peter Henderson, Sandra Maler and Eric Walsh) Thomson Reuters 2011. All rights reserved. Users may download and print extracts of content from this website for their own personal and non-commercial use only. Republication or redistribution of Thomson Reuters content, including by framing or similar means, is expressly prohibited without the prior written consent of Thomson Reuters. Thomson Reuters and its logo are registered trademarks or trademarks of the Thomson Reuters group of companies around the world. Thomson Reuters journalists are subject to an Editorial Handbook which requires fair presentation and disclosure of relevant interests. This copy is for your personal, non-commercial use only. To order presentation-ready copies for distribution to colleagues, clients or customers, use the Reprints tool at the top of any article or visit: www.reutersreprints.com.
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Exhibit F
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Print
Close
Why Has Media Ignored Judge's Possible Bias In California's Gay Marriage Case?
By Gerard V. Bradley Published August 04, 2010 | FoxNews.com
Any minute now we will hear the result of another lawsuit about same-sex marriage. This month a federal judge in Massachusetts threw out a Congressional law which defined marriage as the union of man and woman. Soon a federal judge in California is going to rule in a lawsuit challenging Proposition 8," the referendum by which Californias voters kept the traditional meaning of marriage in their law. If the pending ruling throws out Prop. 8 as it very likely will it would be the biggest victory so far for those promoting same-sex marriage in the United States. These high stakes have attracted a lot of attention to the California case of Perry v. Schwarzenegger. But not enough attention in fact, almost none has been paid to one very troubling aspect of the case. This is the question of the judges bias due to his possible interest in which side wins the case. Judge Vaughan Walker has surprised just about everyone with his unorthodox handling of the Prop. 8 trial. Supporters describe him as iconoclastic and creative. Those less enamored have charged him with turning the proceedings into a sensationalized showtrial. Both sets of observers could probably agree with the explanation offered by conservative commentator Ed Whelan who has observed that Walker has been determined from the outset to use the case to advance the cause of same-sex marriage. I do not doubt that Judge Walker made up his mind about Prop 8 before the trial began. But that is not the bias that has received too little attention.
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Battalions of commentators have wondered about his bizarre handling of the case, and many have attributed it to Walkers belief that it is unjust for the law to limit marriage to opposite-sex couples. Nor is the neglected bias related to the fact that (as several newspapers have reported) the judge is openly gay. Of course, Walkers opinions about marriage and sexual preference could be related to his own homosexuality. But even if they are, it does not follow that he would be incapable of being impartial and of rendering a judgment in accord with the law in the Prop. 8 case any more than a happily married heterosexual would necessarily be. In fact, all judges have beliefs and personal habits which intersect from time to time with the matters in dispute before them. We do not require judges to be blank slates without a personal life. Judges are not automatons. All we ask and what we rightly expect is that judges put aside those things insofar as they might interfere with deciding a case fairly and in accord with the law. But no one is immune to all conflicts of interest or of belief.
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So our law rightly requires that public officials judges included stay out of matters in which they have a financial stake. It is not that everyone would be corrupted by the prospect of financial gain. Not at all. But some people would be corrupted. And everyone can have greater confidence in the outcome of public deliberations when they know that at least one temptation towards corruption has been removed. The neglected bias in the Prop. 8 trial has instead to do with the fact that as reported in The Los Angeles Times last month Judge Walker attends bar functions with a companion, a physician. If (as The Times suggests) Judge Walker is in a stable same-sex relationship, then he might wish or even expect to wed should same-sex marriage become legally available in California. This raises an important and serious question about his fitness to preside over the case. Yet it is a question that received almost no attention. When a judge is obliged to withdraw from a case due to a conflicting interest we call it recusal. Federal law requires that, whenever a judge knows that he has any other interest [ that is, besides a financial interest] that could be substantially affected by the outcome of the proceeding at hand, or when his impartiality might reasonably be questioned, he must recuse himself. I am not saying that Judge Walker should have refused himself in Perry v. Schwarzenegger. I am not saying so because nowhere (as far as I know) has Judge Walker volunteered or been made to answer questions about how the outcome of that case would affect his interest (whatever it is) in marrying, and thus his interest in the manifold tangible and intangible benefits of doing so. That is a conversation worth having. And, sadly, it is quite too late to have it. Gerard V. Bradley is a Professor of Law at the University of Notre Dame. Fox Forum is on Twitter. Follow us @fxnopinion.
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Exhibit G
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August 6, 2010 10:17 AM
Gay Marriage Judge's Personal Life Debated

By Daniel Carty (AP) The federal judge who overturned California's same-sex marriage ban this week is a Republican who once came under fire for his membership to a powerful all-male club that had only recently allowed blacks to join. But after Chief U.S. Judge Vaughn Walker struck down the voter-approved ban known as Proposition 8, he became something else in the minds of some: a gay activist. Rumors have circulated for months that Walker is gay, fueled by the blogosphere and a San Francisco Chronicle column that stated his sexual orientation was an "open secret" in legal and gay activism circles. Walker himself hasn't addressed the speculation, and he did not respond to a request for comment by The Associated Press on Thursday. Lawyers in the case, including those defending the ban, say the judge's sexuality - gay or straight - was not an issue at trial and will not be a factor on appeal. But that hasn't stopped a public debate that exploded in the wake of the 66-year-old jurist's ruling. Most of the criticism has come from opponents of same-sex marriage. "Here we have an openly gay federal judge, according to the San Francisco Chronicle, substituting his views for those of the American people and of our Founding Fathers who, I promise you, would be shocked by courts that imagine they have the right to put gay marriage in our Constitution," said Maggie Gallagher, chairwoman of The National Organization for Marriage, a group that helped fund Proposition 8. In response, the Gay and Lesbian Victory Fund, a political action committee for gay candidates, launched an online petition accusing Gallagher's group of "gay-baiting." But the debate raises the question: Why is sexuality different from other personal characteristics judges posses? Can a female judge rule on abortion issues? A black judge on civil rights? "The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal," Walker wrote in his exacting, 136-page opinion. Gerard Bradley, a law professor at the University of Notre Dame, published a Fox News column in the hours before Walker filed his opinion faulting the media for not forcing Walker to address his sexual orientation.
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And Byran Fischer, issues director for the American Family Association, urged the group's members to contact their congressional representatives about launching impeachment proceedings because Walker had not recused himself from a case in which "his own personal sexual proclivities utterly compromised his ability to make an impartial ruling." William G. Ross, an expert on judicial ethics and law professor at Samford University in Alabama, said that a judge's sexual orientation has no more relevance to his or her ability to rule fairly on a case involving gay marriage than it would for a deeply religious judge or a judge who had been divorced multiple times. "Under the logic of the people challenging the judge's fitness to rule on a case involving gay rights because he or she was gay, one would have to find a eunuch to serve on the case, because one could just as easily argue that a heterosexual judge couldn't rule on it either," Ross said. Months before Walker struck down Proposition 8 as an unconstitutional violation of gay Americans' civil rights, members of the team defending the ban in court had complained about what they perceived as judicial bias. Over their vigorous objections, Walker pushed to have the proceedings televised live, a plan the U.S. Supreme Court quashed at the last minute. Then, he refused to excuse as a witness a Proposition 8 supporter who had compared gays to child molesters during the 2008 campaign. Lawyers for the two same-sex couples who sued to invalidate the ban had called him as a witness to try to prove the measure was fueled by anti-gay prejudice. Nevertheless, the defense does not plan to raise the specter of the judge's sexual orientation as they appeal his ruling to the 9th U.S. Circuit Court of Appeals, said Jim Campbell, a lawyer with the defense team. "The bottom line is this case, from our perspective, is and always will be about the law and not about the judge who decides it," Campbell said. "It's just something that collectively as a legal team we have decided and going up, that's what this case is. The appellate courts are going to focus on the law." Walker has ruled in at least two other cases involving gay rights issues during his two decades as a judge. In 1999, he rejected arguments from the parents of a San Leandro boy who claimed their religious rights were violated by pro-gay comments their son's teacher had made in the classroom. In the other case, he dismissed a free speech claim by two Oakland city employees whose managers had confiscated a bulletin board flier for a religious group that promoted "natural family, marriage and family values." The city had "significant interests in restricting discriminatory speech about homosexuals," Walker wrote in his 2005 ruling. Until this week, though, Walker had come under more criticism for representing the U.S. Olympic Committee in a lawsuit against a gay ex-Olympian who had created the so-called Gay Olympics. Walker won, forcing the Gay Olympics to become the Gay Games. He also
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aggressively pursued legal fees by attaching a $97,000 lien to the home of the organization's founder while he was dying of AIDS. Gay activists cried foul, and his appointment to a federal judgeship was delayed for two years in the waning days of Ronald Reagan's presidency. Civil rights groups also opposed Walker's nomination because of his 15-year membership in the Olympic Club, an all-male athletic club that had only recently admitted its first black members. California's senior senator at the time, Democrat Alan Cranston, used the club issue to question Walker's fitness for the bench. Observers usually describe him as a maverick who delights in keeping people guessing. They still are. On the day of closing arguments in the gay marriage ban case, Walker said it was appropriate that the case was wrapping up in June. "June, after all, is the month for ... " He let his deep voice trail off, and smiled at the predominantly gay courtroom. Many froze, wondering if he would refer to the month in which San Francisco celebrates gay pride like Mardi Gras. Would that be a nod to rumors he was gay? Walker waited a beat longer, savoring the pregnant pause. "... weddings."
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Exhibit H
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About AP
Essential News from The Associated Press

Apr. 26, 2011 9:02 PM ET AAA
Experts: Judge's sexual orientation is non-issue

LISA LEFF, Associated Press
AIM Share SAN FRANCISCO (AP) The sponsors of California's same-sex marriage ban insist they are not trying to disqualify the federal judge who struck down Proposition 8 because he is gay. Instead, they argue the judge's decadelong relationship with another man poses a potential conflict because they might want to get hitched themselves. Experts in judicial ethics said Tuesday that carefully parsed line of reasoning is unlikely to prevail. They pointed out that while courts have not yet had to wrestle with sexual orientation as grounds for judicial recusal, judges typically have rejected efforts to remove jurists based on personal characteristics such as race, gender, religion or even the contents of their investment portfolios. "I don't think this judge had any more duty to disclose his sexual orientation than a Christian or Jewish or Muslim More News Video
Deportation of partner in same-sex couple halted May. 6, 2011 7:45 PM ET Economy on GOP mind in socially conservative Iowa May. 6, 2011 3:41 AM ET May. 3, 2011 10:35 PM ET
In this photo taken Nov. 19, 2010, Chief District Judge Vaughn R. Walker, of the Northern District of California, speaks at a legal conference in Seattle. The sponsors of California's same-sex marriage ban say the recent disclosure by Walker that he is in a long-term relationship with another man has given them new grounds to appeal the ruling that struck down Proposition 8 last summer. Walker retired from the bench at the end of February. (AP Photo/Elaine Thompson) 1 of 2
judge has a duty to discuss their religion RI gay marriage advocates not giving up or a heterosexual judge has his duty to
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discuss their sexual orientation," retired Illinois state Judge Raymond McKoski said. At the center of the dispute is Chief U.S. District Judge Vaughn Walker, who issued the ruling last August declaring Proposition 8 to be an unconstitutional violation of gay Californians' civil rights. "We are not suggesting that a gay or lesbian judge could not sit on this case," attorneys for the backers of Proposition 8 wrote in their motion filed Monday to overturn the landmark ruling. "Simply stated, under governing California law, Chief Judge Walker currently cannot marry his partner, but his decision in this case ... would give him a right to do so." They claim Walker should have disclosed the relationship while presiding over the case and said if he had any interest in marrying his partner. DePaul University College of Law professor Jeffrey Shaman, co-author of a widely used textbook on judicial conduct, said the fact that Walker was rumored to be gay from the moment he randomly drew the Proposition 8 case "somewhat undercuts the argument that he should have disclosed he was in a long-term relationship." Lawyers for backers of the ban seem to be grasping at straws in making their argument against the now-retired Walker, Shaman said. "But it's their prerogative to do this as lawyers," Shaman said. "It might indicate they are worried about the judge's opinion, which was such a strong opinion, and they are trying to make an end run around it." The Gay and Lesbian Victory Fund, a political action committee and recruitment organization for gay politicians, said there are now 102 openly gay, lesbian, bisexual and transgender judges in the U.S. Only one, U.S. District Judge Deborah Batts in New York, serves at the federal level, although President Barack Obama has nominated two gay men for federal judgeships but they have not been confirmed. Rumors that Walker was gay and had a long-term partner who accompanied him to social functions circulated during the 13-day trial that preceded his decision and after he handed it
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down. The judge declined to comment at the time. Members of the Proposition 8 team openly complained about Walker's handling of the case and accused him of favoring the same-sex couples who had sued in his court for the right to marry. But they refrained from raising the specter of the judge's sexual orientation, saying media reports and gossip were an unsound basis for legal strategy. "The bottom line is this case, from our perspective, is and always will be about the law and not about the judge who decides it," Jim Campbell, a lawyer with the Christian legal defense group Alliance Defense Fund, told The Associated Press in August. That might have remained their position if Walker, who retired in late February after two decades on the federal bench, had not decided to end the speculation himself. Earlier this month, Walker had a farewell meeting with a select group of courthouse reporters. When the topic came up, Walker said he never thought about recusing himself because he was gay and noted that no one had asked him to, according to the San Francisco Chronicle, which had a reporter at the gathering. The judge also revealed that he'd been in a relationship with a man he identified only as a physician for a decade. "If you thought a judge's sexuality, ethnicity, national origin (or) gender would prevent the judge from handling a case, that's a very slippery slope," Walker said. "I don't think it's relevant." The lawyers who filed the motion to wipe out the judge's ruling declined to elaborate outside their written arguments about why they concluded that Walker's comment about his partner caused them to change course. In their filing, they stated in a lengthy footnote that the burden for "maintaining impartiality and the appearance of impartiality" lies with judges, and that it was not the place of the lawyers to investigate Walker's private affairs. Retired California state Judge Jeffrey Rothman said bias claims have arisen in the past surrounding judges with strong religious views. But he noted that the bar for disqualification is purposefully set high. Lawyers representing a clinic that performed abortions, for example, would not be able to challenge a devoutly Catholic judge, he said. "They would get absolutely nowhere with such a challenge unless that judge had gone out and made statements or speeches saying he believed that Roe v. Wade ought to be overturned if that case ever came before them," Rothman said. "The question is, can the beliefs be set aside and the judge decide the case on its merits and be fair." Associated Press Copyright 2011 The Associated Press. All rights reserved. This material may not be published,
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broadcast, rewritten or redistributed. AIM Share
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Case: 10-16696
10/18/2010
ID: 7513128
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No. 10-16696 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _________________________ KRISTIN M. PERRY, et al., Plaintiffs-Appellees, v. ARNOLD SCHWARZENEGGER, et al., Defendants, and PROPOSITION 8 OFFICIAL PROPONENTS DENNIS HOLLINGSWORTH, et al., Defendants-Intervenors-Appellants. _________________________ On Appeal From The United States District Court For The Northern District Of California No. CV-09-02292 VRW The Honorable Vaughn R. Walker ____________________________________________________ BRIEF FOR APPELLEES ____________________________________________________ THEODORE J. BOUTROUS, JR. CHRISTOPHER D. DUSSEAULT THEANE EVANGELIS KAPUR SARAH E. PIEPMEIER ENRIQUE A. MONAGAS GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071 (213) 229-7804 THEODORE B. OLSON Counsel of Record MATTHEW D. MCGILL AMIR C. TAYRANI GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 (202) 955-8500
Attorneys for Plaintiffs-Appellees Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo [Additional Counsel Listed on Inside Cover]
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DAVID BOIES JEREMY M. GOLDMAN THEODORE H. UNO BOIES, SCHILLER & FLEXNER LLP 333 Main Street Armonk, New York 10504 (914) 749-8200 Attorneys for Plaintiffs-Appellees Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo
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TABLE OF CONTENTS Page INTRODUCTION......................................................................................................1 STATEMENT OF JURISDICTION..........................................................................6 STATEMENT OF FACTS ........................................................................................7 SUMMARY OF ARGUMENT ...............................................................................20 STANDARD OF REVIEW .....................................................................................25 ARGUMENT ...........................................................................................................29 I. II. III. PROPONENTS LACK STANDING TO APPEAL ...........................29 THE DISTRICT COURTS RULING IS NOT FORECLOSED BY PRECEDENT ...............................................................................34 PROPOSITION 8 VIOLATES DUE PROCESS ...............................39 A. B. C. D. IV. The Supreme Court Has Recognized That The Right To Marry Is A Fundamental Right For All People ........................41 The Trial Record Demonstrates That Plaintiffs Do Not Seek Recognition Of A New Right...........................................46 Allowing Same-Sex Couples To Marry Would Promote Responsible Procreation........................................................50 Domestic Partnerships Do Not Satisfy Californias Due Process Obligations...................................................................52
PROPOSITION 8 VIOLATES EQUAL PROTECTION...................55 A. Heightened Scrutiny Applies And Proposition 8 Cannot Survive It...................................................................................58 1. Proposition 8 Is Subject To Heightened Scrutiny Because It Discriminates On The Basis Of Sexual Orientation ......................................................................59 i
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2. B.
Proposition 8 Is Subject To Heightened Scrutiny Because It Discriminates On The Basis Of Sex .............71
Proposition 8 Fails Rational Basis Review...............................73 1. Proposition 8 Cannot Be Justified By Proponents Concern With Responsible Procreation ......................76 a. California Could Not Rationally Adopt Proponents View That Same-Sex Couples Provide Childrearing Environments Inferior To Those Provided By Opposite-Sex Couples When They Raise Their Genetic Offspring ..............................................................79 Proposition 8 Is Not Rationally Related To Any Effort To Channel Unintentional Procreation Into Marriage ....................................87
b.
2. 3.
Proposition 8 Cannot Be Justified By An Abstract Fear Of Change...............................................................91 Overwhelming Evidence Supports The District Courts Finding That Proposition 8 Was Motivated By A Bare Desire To Make Gay Men And Lesbians Unequal To Everyone Else..............................97 a. The Equal Protection Clause Prohibits Voters From Using The Initiative Process To Single Out A Disfavored Group For Unequal Treatment ...............................................97 The Purpose Of Proposition 8 Was To Brand Gay Men And Lesbians And Their Relationships As Different And Inferior..............99
b.
V.
THE DISTRICT COURT DID NOT EXCEED ITS JURISDICTION............................................................................... 105
CONCLUSION ..................................................................................................... 106
ii
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TABLE OF AUTHORITIES Page(s) Cases 20th Century Ins. Co. v. Garamendi, 878 P.2d 566 (Cal. 1994)......................................................................................32 Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982) ................................................................. 21, 34, 38 Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) .............................................................................................60 Amwest Sur. Ins. Co. v. Wilson, 906 P.2d 1112 (Cal. 1995)....................................................................................32 Anderson v. City of Bessemer City, 470 U.S. 564 (1985) .............................................................................................27 Anti-Monopoly, Inc. v. Gen. Mills Fun Group, Inc., 684 F.2d 1316 (9th Cir. 1982) ..............................................................................25 Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) ............................................................................ 21, 29, 31, 33 Baker v. Baker, 13 Cal. 87 (1859) ..................................................................................................45 Baker v. Nelson, 409 U.S. 810 (1972) .................................................................... 10, 21, 34, 36, 37 Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) .............................................................................35 Baker v. Wade, 769 F.2d 289 (5th Cir. 1985) ................................................................................71 Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) .................................................................................... 90, 104 Boddie v. Connecticut, 401 U.S. 371 (1971) ...................................................................................... 39, 43 Bowen v. Gilliard, 483 U.S. 587 (1987) .............................................................................................60
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Bowers v. Hardwick, 478 U.S. 186 (1986) ................................................................................ 10, 68, 70 Bresgal v. Brock 843 F.2d 1163 (9th Cir.1988) ........................................................................... 106 Brown v. Bd. of Educ., 349 U.S. 294 (1955) .............................................................................................95 Brown v. Bd. of Educ., 347 U.S. 483 (1954) ................................................................................ 11, 23, 54 Buchanan v. Warley, 245 U.S. 60 (1917) ...............................................................................................96 Butler v. Wilson, 415 U.S. 953 (1974) .............................................................................................44 Carey v. Population Servs. Intl, 431 U.S. 678 (1977) ................................................................................ 39, 43, 54 Christian Legal Socy v. Martinez, 130 S. Ct. 2971 (2010) ...................................................................... 36, 63, 69, 70 Christian Sci. Reading Room Jointly Maintained v. City & Cnty. of San Francisco, 784 F.2d 1010 (9th Cir. 1986) ...........................60 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) .............................................................................................98 Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006) ................................................................................71 City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985) ..................................................................................... passim City of Mesquite v. Aladdins Castle, Inc., 455 U.S. 283 (1982) .............................................................................................34 Cleburne Living Ctr. v. City of Cleburne, 726 F.2d 191 (5th Cir. 1984) ................................................................................11 Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974) ...................................................................................... 21, 39 Cooper v. Aaron, 358 U.S. 1 (1958) .......................................................................................... 95, 96
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Craig v. Boren, 429 U.S. 190 (1976) .............................................................................................37 De Burgh v. De Burgh, 250 P.2d 598 (Cal. 1952)......................................................................................43 Diamond v. Charles, 476 U.S. 54 (1986) .................................................................................. 30, 33, 34 Didrickson v. U.S. Dept of the Interior, 982 F.2d 1332 (9th Cir. 1992) ..............................................................................30 Doe v. Gallinot, 657 F.2d 1017 (9th Cir. 1981) ................................................................... 105, 106 Dont Bankrupt Wash. Comm. v. Contl Ill. Natl Bank & Trust Co. of Chi., 460 U.S. 1077 (1983) ..............................................................30 Dunagin v. City of Oxford, 718 F.2d 738 (5th Cir. 1983) ................................................................................27 Eisenstadt v. Baird, 405 U.S. 438 (1972) .............................................................................................43 Elisa B. v. Superior Court, 117 P.3d 660 (Cal. 2005)............................................................................... 51, 52 Energy Fuels Nuclear, Inc. v. Coconino Cnty., 766 P.2d 83 (Ariz. 1988) ......................................................................................32 Equal. Found. v. City of Cincinnati, 128 F.3d 289 (6th Cir. 1997) ................................................................................71 FCC v. Beach Commcns, 508 U.S. 307 (1993) ...................................................................................... 73, 76 Fields v. Palmdale Sch. Dist., 427 F.3d 1197 (9th Cir. 2005) ........................................................................... 101 In re Forsythe, 450 A.2d 499 (N.J. 1982) .....................................................................................31 Free v. Peters, 12 F.3d 700 (7th Cir. 1993) ..................................................................................27 Frontiero v. Richardson, 411 U.S. 677 (1973) ...................................................................................... 37, 60
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Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374 (D. Mass. 2010)...................................................................79 Goldberg v. Kelly, 397 U.S. 254 (1970) .............................................................................................55 Griswold v. Connecticut, 381 U.S. 479 (1965) .......................................................................... 22, 39, 41, 42 GTE Sylvania, Inc. v. Consumers Union of U.S., Inc., 445 U.S. 375 (1980) .............................................................................................34 H.B.R.R. Co. v. Am. Cyanamid Co., 916 F.2d 1174 (7th Cir. 1990) ..............................................................................28 Heller v. Doe, 509 U.S. 312 (1993) .......................................................................... 74, 76, 81, 89 Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000) ..............................................................................63 Hicks v. Miranda, 422 U.S. 332 (1975) .............................................................................................35 High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) ............................................................. 10, 63, 68, 69 Hunter v. Regents of Univ. of Cal., 190 F.3d 1061 (9th Cir. 1999) ..............................................................................26 Intl Olympic Comm. v. San Francisco Arts & Athletics, 781 F.2d 733 (9th Cir. 1986) ................................................................................55 Jinro Am., Inc. v. Secure Invs., Inc., 266 F.3d 993 (9th Cir. 2001) ................................................................................55 Johnson v. Robison, 415 U.S. 361 (1974) .............................................................................................73 Johnson v. Rockefeller, 365 F. Supp. 377 (S.D.N.Y. 1973) .......................................................................44 Karcher v. May, 484 U.S. 72 (1987) ...............................................................................................31 Kerrigan v. Commr of Pub. Health, 957 A.2d 407 (Conn. 2008)..................................................................... 61, 65, 66
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Lawrence v. Texas, 539 U.S. 558 (2003) ..................................................................................... passim Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580 (9th Cir. 2008) ............................................................. 55, 74, 75, 76 Legislature of Cal. v. Eu, 816 P.2d 1309 (Cal. 1991)....................................................................................33 Lockary v. Kayfetz, 917 F.2d 1150 (9th Cir. 1990) ....................................................................... 75, 79 Lockhart v. McCree, 476 U.S. 162 (1986) .............................................................................................27 Lofton v. Dept of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004) ..............................................................................81 Log Cabin Republicans v. United States, _ F. Supp. 2d _, 2010 WL 3960791 (C.D. Cal. Oct. 12, 2010)...........................67 Loving v. Virginia, 388 U.S. 1 (1967) ......................................................................................... passim Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .............................................................................................29 Lyng v. Castillo, 477 U.S. 635 (1986) .............................................................................................60 M.L.B. v. S.L.J., 519 U.S. 102 (1996) .............................................................................................39 Malabed v. N. Slope Borough, 335 F.3d 864 (9th Cir. 2003) ................................................................................25 Mandel v. Bradley, 432 U.S. 173 (1977) .............................................................................................35 In re Marriage Cases, 183 P.3d 384 (Cal. 2008).............................................................................. passim Mass. Bd. of Ret. v. Murgia, 427 U.S. 307 (1976) (per curiam) ..................................................... 15, 23, 59, 60 Mathews v. Diaz, 426 U.S. 67 (1976) ...............................................................................................88
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Maynard v. Hill, 125 U.S. 190 (1888) .............................................................................................39 McCreary Cnty. v. ACLU of Ky., 545 U.S. 844 (2005) ...................................................................................... 97, 98 Meyer v. Nebraska, 262 U.S. 390 (1923) .............................................................................................39 Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc)......................................................... 39, 69 Moore v. City of East Cleveland, 431 U.S. 494 (1977) ...................................................................................... 39, 43 Nyquist v. Mauclet, 432 U.S. 1 (1977) .................................................................................................60 Palmore v. Sidoti, 466 U.S. 429 (1984) .......................................................................................... 104 Parham v. J.R., 442 U.S. 584 (1979) ...................................................................................... 83, 84 Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010) ..................................................................... 98, 102 Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997) ..............................................................................69 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) .............................................................................................39 Plessy v. Ferguson, 163 U.S. 537 (1896) ...............................................................................................2 Plyler v. Doe, 457 U.S. 202 (1982) ................................................................................ 11, 28, 56 Pullman-Standard v. Swint, 456 U.S. 273 (1982) ...................................................................................... 25, 26 Reitman v. Mulkey, 387 U.S. 369 (1967) ................................................................................ 57, 98, 99 Reno v. ACLU, 521 U.S. 844 (1997) .............................................................................................28
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Republican Party of Minn. v. White, 536 U.S. 765 (2002) .............................................................................................89 Reynolds v. United States, 98 U.S. 145 (1878) ...............................................................................................50 Roe v. Wade, 410 U.S. 113 (1973) .............................................................................................39 Romer v. Evans, 517 U.S. 620 (1996) ..................................................................................... passim S. Alameda Spanish Speaking Org. v. Union City, 424 F.2d 291 (9th Cir. 1970) ......................................................................... 98, 99 Sandpiper Vill. Condo. Assn, Inc. v. La.-Pac. Corp., 428 F.3d 831 (9th Cir. 2005) ................................................................................25 Serv. Empls. Intl Union v. Fair Political Practice Commn, 955 F.2d 1312 (9th Cir. 1992) ................................................................. 25, 26, 27 Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976) ...............................................................................................33 Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) .............................................................................................39 Slayton v. Shumway, 800 P.2d 590 (Ariz. 1990) ................................................................................. 322 Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994)................................................................................71 Strauss v. Horton, 207 P.3d 48 (Cal. 2009)................................................................................ passim Transamerica Title Ins. Co. Trust Nos. 8295, 8297, 8298, 8299, 8300 & 8301 v. City of Tucson, 757 P.2d 1055 (Ariz. 1988) ..................................................................................32 Turner v. Safley, 482 U.S. 78 (1987) ....................................................................................... passim U.S. Dept of Agric. v. Moreno, 413 U.S. 528 (1973) ..................................................................................... passim U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166 (1980) ...................................................................................... 88, 89 ix
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United States v. Virginia, 518 U.S. 515 (1996) .................................................................... 11, 54, 55, 59, 72 Utah v. Green, 99 P.3d 820 (Utah 2004) ......................................................................................50 Valdivia v. Schwarzenegger, 599 F.3d 984 (9th Cir. 2010) ................................................................................25 Vance v. Bradley, 440 U.S. 93 (1979) ....................................................................................... passim Vill. of Willowbrook v. Olech, 528 U.S. 562 (2000) .............................................................................................96 W. Watersheds Project v. Kraayenbrink, _ F.3d _, 2010 WL 3420012 (9th Cir. Sept. 1, 2010) ................................... 30, 31 Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) .............................................................................................98 Witt v. Dept of the Air Force, 527 F.3d 806 (9th Cir. 2008) ................................................................................69 Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989) ............................................................................71 Zablocki v. Redhail, 434 U.S. 374 (1978) ..................................................................................... passim Zepeda v. INS, 753 F.2d 719 (9th Cir. 1983) ............................................................................. 106 Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080 (9th Cir. 2002) ..............................................................................25 Zobel v. Williams, 457 U.S. 55 (1982) ...............................................................................................95 Constitutional Provisions Cal. Const. art. II, 8(a) ..........................................................................................33 Cal. Const. art. V, 1...............................................................................................34 Statutes 28 U.S.C. 1331........................................................................................................6 28 U.S.C. 2202................................................................................................... 105 x
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Cal. Civ. Code 51 ..................................................................................................80 Cal. Fam. Code 297.......................................................................................... 8, 52 Cal. Fam. Code 308.5..............................................................................................7 Cal. Educ. Code 51890 ...................................................................................... 101 Cal. Educ. Code 201(b)...................................................................................... 101 Cal. Gov. Code 12920...........................................................................................68 Cal. Gov. Code 12921...........................................................................................68 Cal. Gov. Code 12940...........................................................................................68 Cal. Gov. Code 12955...........................................................................................68 Cal. Welf. & Inst. Code 16013(a) .........................................................................80 N.J. Stat. Ann. 1:7-4..............................................................................................31 N.J. Stat. Ann. 1:7-5..............................................................................................31 Rules Fed. R. Civ. P. 52(a).................................................................................................25 Fed. R. Civ. P. 52(a)(6)............................................................................................26 Other Authorities Timothy J. Bilbarz & Judith Stacey, How Does the Gender of Parents Matter?, J. of Marriage & Fam., Feb. 2010, at 3 ............................ 86, 87 Congressional Research Serv., Membership of the 111th Congress: A Profile (2010) ....................................................................................................66 Kenneth Culp Davis, A System of Judicial Notice Based on Fairness and Convenience, in Perspectives of Law 69 (Roscoe Pound et al. eds., 1964) ..........................................................................28 Amy Doherty, Constitutional Methodology and Same-Sex Marriage, 11 J. Contemp. Legal Issues 110 (2000)...................................... 44, 45 David Popenoe, Life Without Father (1996) ...........................................................85 Witherspoon Inst., Marriage and the Public Good: Ten Principles (2008) ...........................................................................................86
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INTRODUCTION This case is about marriage, the most important relation in life, Zablocki v. Redhail, 434 U.S. 374, 384 (1978), and equality, the most essential principle of the American dream, from the Declaration of Independence, to the Gettysburg Address, to the Fourteenth Amendment. Fourteen times the Supreme Court has stated that marriage is a fundamental right of all individuals. This case tests the proposition whether the gay and lesbian Americans among us should be counted as persons under the Fourteenth Amendment, or whether they constitute a permanent underclass ineligible for protection under that cornerstone of our Constitution. The unmistakable, undeniable purpose and effect of Proposition 8 is to select gay men and lesbiansand them aloneand enshrine in Californias Constitution that they are different, that their loving and committed relationships are ineligible for the designation marriage, and that they are unworthy of that most important relation in life. After an expensive, demeaning campaign in which voters were constantly warned to vote Yes on 8 to protect our childrenprincipally from the notion that gay men and lesbians were persons entitled to equal dignity and respect Proposition 8 passed with a 52% majority, stripping away the state constitutional right to marry from gay men and lesbians. Proponents stigmatization of gay and lesbian
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relationships as distinctly second-class thus became the official constitutional position of the State of California. Class-based balkanization and stigmatization of our citizens is flatly incompatible with our constitutional ideals. [T]he Constitution neither knows nor tolerates classes among citizens. Romer v. Evans, 517 U.S. 620, 623 (1996) (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting)). The tragic time has long passed when our government could target our gay and lesbian citizens for discriminatory, disfavored treatmenteven imprisonmentbecause those in power deemed gay relationships deviant, immoral, or distasteful. Proponents own expert acknowledged that the principle of equal human dignity must apply to gay and lesbian persons. SER 287. In respect of civil rights, all citizens are equal before the law. Plessy, 163 U.S. at 559 (Harlan, J., dissenting). Thus, the Constitution now fully embraces the truth that, no less than heterosexual persons, [p]ersons in a homosexual relationship enjoy constitutional protection [for] personal decisions relating to marriage. Lawrence v. Texas, 539 U.S. 558, 574 (2003). The district court correctly recognized that Proposition 8 and its demeaning of the personal autonomy of gay men and lesbians with respect to marriage was of a piece with the anti-miscegenation statutes struck down years ago in Loving v. Virginia, 388 U.S. 1 (1967). And just as the Supreme Court properly vindicated those foundational principles of freedom and equality in Loving, so, too, does the decision 2
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of the district court invalidating Proposition 8 make this Nation, in the words of Proponents expert, more American . . . than we were on the day before. SER 287. From the very first sentence of their opening brief, Proponents make clear that their case hinges upon application of a version of rational basis review that a court might apply to everyday economic legislation. Under this type of rational basis review, Proponents contend, a State may draw a line around its gay and lesbian citizens and exclude them from the entire panoply of state benefits, services, and privileges so long as one can imagine a conceivable set of facts that would justify providing those benefits only to heterosexual persons. Application of Proponents version of rational basis review to Proposition 8 would be profoundly unjust and absolutely incompatible with our Nations tradition of equality as articulated in numerous decisions of the Supreme Court. Categorical exclusions from the most important relation in life cannot possibly be equated with zoning or economic regulations that adjust in nice gradations the economic benefits and burdens of life in American society. And a persons sexual orientation is not a species of conduct that may readily be adjusted to conform to the governments changing priorities; the court below, based on ample expert analysis, found that a gay man or lesbian cannot simply choose to be attracted to the opposite sex and thereby avoid the sting of Proposition 8, to say nothing of the other acts of discrimination and violence frequently directed at gay and lesbian persons. Heightened scrutiny thus 3
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properly applies to laws targeting persons based on their sexual orientation, just as it does to laws classifying persons on the basis of race, ancestry, sex, illegitimacy, alienage, and religion. Even under Proponents preferred standard of review, however, Proposition 8 fails. There is no legitimate interest that is even remotely furthered by Proposition 8s arbitrary exclusion of gay men and lesbians from the institution of marriage. Indeed, Proponents can offer nothing to support it but unproven assertions and tautologies. Proponents argue that stripping gay men and lesbians of their right to marry advances governmental interests in responsible procreation and preventing the deinstitutionalization of marriagetwo phrases that, tellingly, the Yes on 8 campaign never saw fit to urge upon California voters. To determine whether these rationales and others proffered from time to time by Proponents legitimately could justify Proposition 8, the district courtlike courts in many other civil rights casesheld a trial at which it considered evidence and expert testimony. Plaintiffs presented 17 witnesses, including nine leading experts in history, political science, psychology, and economics, and hundreds of trial exhibits, including more than 100 exhibits related to messages transmitted to voters as part of the Proposition 8 campaign. Proponents, on the other hand, denounced from the start the notion that their assertions might be subjected to adversarial testing, resisting the very idea of a trial, and ultimately insisted their assertions did not need to be supported by any evidence what4
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soever. In the end, they presented just two witnesses, including a supposed expert on marriage who derived the substance of his opinions concerning the harms same-sex marriage might cause to traditional marriage from a thought experiment in which he essentially did little more than chronicle the responses provided by an unscientifically selected audience. ER 81. When asked by the district court to identify what harms would befall opposite-sex married couples if gay and lesbian couples could marry, Proponents counsel candidly acknowledged, I dont know. ER 44. Based on that factual recordundoubtedly the most detailed ever assembled in a case challenging legislation targeting gay and lesbian personsthe district court issued a 136-page opinion that meticulously examined each of the parties factual assertions and the evidence supporting those assertions. The district court found that Proponents evidentiary presentation was dwarfed by that of plaintiffs, and concluded that Proponents failed to build a credible factual record to support their claim that Proposition 8 served a legitimate government interest. ER 46. In light of Proponents inability to identify a single legitimate interest furthered by Proposition 8, the court concluded that, under any standard, Proposition 8 violated both the Due Process and Equal Protection Clauses. Proponents and their amici now attempt to fill the evidentiary void they left in the district court with an avalanche of non-record citations, distortions and misstatements regarding the proceedings below, and baseless attacks on the good faith of the 5
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district court. The tactic is unfortunate, unbecoming, and unavailing. The governmental interests Proponents assert have been affirmatively disavowed by California, or have no basis in reality, or both. The fact is, as the testimony of 19 witnesses and 900 trial exhibits introduced into evidence amply demonstrate, there is no good reason indeed, not even a rational basisfor California to exclude gay men and lesbians from the institution of civil marriage, the most important relation in life. The district courts judgment is predicated squarely on the fundamental principles established by the Supreme Court in Loving and its other decisions explaining the constitutional meaning of marriage, as well as the Courts decisions in Lawrence and Romer concerning the constitutional rights of gay and lesbian individuals, which together make clear that Proposition 8 flatly violates the constitutional commands of due process and equal protection. That judgmentand the injunction against the enforcement of Proposition 8 that necessarily must followshould be affirmed. STATEMENT OF JURISDICTION The district court possessed jurisdiction under 28 U.S.C. 1331 because Plaintiffs claims arose under the Constitution and laws of the United States. This Court lacks jurisdiction over this appeal because Proponents do not have Article III standing to appeal the district courts decision. See infra Part I.
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STATEMENT OF FACTS I. THE ENACTMENT OF PROPOSITION 8 In 2000, California voters adopted Proposition 22, which amended the Family Code to provide that [o]nly marriage between a man and a woman is valid or recognized in California. Cal. Fam. Code 308.5. In May 2008, the California Supreme Court struck down Proposition 22, holding that it violated the due process and equal protection guarantees of the California Constitution, and ordered the State to issue marriage licenses without regard to the sex of the prospective spouses. In re Marriage Cases, 183 P.3d 384 (Cal. 2008). After the California Supreme Courts decision in the Marriage Cases, Proponents financed and orchestrated a $40 million campaign to amend the California Constitution to strip gay men and lesbians of their fundamental right to marry recognized by the state supreme court. The measureProposition 8was placed on the ballot for the November 2008 election, and proposed to add a new Article I, 7.5 to the California Constitution stating that [o]nly marriage between a man and a woman is valid or recognized in California. The Official Voter Information Guide informed voters that Proposition 8 would [c]hange[ ] the California Constitution to eliminate the right of same-sex couples to marry in California. ER 1030. The Voter Guides Argument in Favor of
Proposition 8an official statement of the Yes on 8 campaignurged voters to sup7
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port the measure because [w]e should not accept a court decision that may result in public schools teaching our kids that gay marriage is okay. ER 1032. The Argument asserted that while gays have the right to their private lives, they do not have the right to redefine marriage for everyone else, and told Californians that [v]oting YES protects our children. ER 1032. Proposition 8 passed by a narrow margin, and went into effect on November 5, 2008, the day after the election. See Strauss v. Horton, 207 P.3d 48, 68 (Cal. 2009). During the period between the California Supreme Courts decision in the Marriage Cases on May 15, 2008, and the effective date of Proposition 8, more than 18,000 same-sex couples were married in California. ER 37. On May 26, 2009, the California Supreme Court upheld Proposition 8 against a state constitutional challenge, but held that the new amendment to the California Constitution did not invalidate the marriages of same-sex couples that had been performed before its enactment. See Strauss, 207 P.3d 48; see also ER 38. By eliminating the right of individuals of the same sex to marry, Proposition 8 relegated same-sex couples seeking government recognition of their relationships to so-called domestic partnerships. Under California law, domestic partners are granted nearly all the substantive rights and obligations of a married couple, but are denied the highly venerated label of marriage. See Cal. Fam. Code 297; see also Marriage Cases, 183 P.3d at 402, 434-35, 444-45. 8
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II.
PLAINTIFFS SUIT CHALLENGING PROPOSITION 8 Plaintiffs are gay and lesbian Californians who are in committed, long-term re-
lationships and who wish to marry. ER 89-90. As a direct result of Proposition 8, Plaintiffs were denied the right to marry solely because their prospective spouses are of the same sex. ER 89-90. On May 22, 2009, Plaintiffs filed suit to secure the right to marry. They challenged the constitutionality of Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and named as defendants Californias Governor, Attorney General, Director of Public Health, and Deputy Director of Health Information and Strategic Planning; the Alameda County Clerk-Recorder; and the Los Angeles County Registrar-Recorder/County Clerk. ER 60-62, 148-49; see also SER 74-84. In response, the Attorney General admitted that Proposition 8 is unconstitutional, SER 44-46, 49-51, and the remaining government defendants declined to defend Proposition 8. SER 22, 26-30. Proponents moved to intervene in the case to defend Proposition 8, SER 53, and the district court granted their motion on June 30, 2009. ER 204-06. In August 2009, the City and County of San Francisco was also granted leave to intervene in the case. SER 19. On July 2, 2009, the district court denied Plaintiffs motion for a preliminary injunction, finding that the case presented a number of important factual questions 9
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that the court ought to address . . . in the traditional way in which courts have dealt with factual questions, allowing plaintiffs, the defendants, and the intervenors the opportunity to make a fully developed record upon which to evaluate the serious constitutional questions raised by Plaintiffs claims. ER 197, 199-200, 214. On October 14, 2009, the district court denied Proponents motion for summary judgment. SER 17. In so doing, the court held that the Supreme Courts nearly fortyyear-old summary order in Baker v. Nelson, 409 U.S. 810 (1972), did not resolve the issues presented in this case because there have been significant doctrinal developments on both Equal Protection and Due Process grounds since Baker was summarily dismissed in 1972. ER 183. Moreover, unlike Proposition 8, the Minnesota marriage law at issue in Baker did not strip unmarried gay and lesbian individuals of an existing state constitutional right to marry. ER 183. The court therefore concluded that Plaintiffs claims resemble those in Romer v. Evans, 517 U.S. 620 (1996)which struck down a voter-enacted state constitutional amendment that stripped gay men and lesbians of antidiscrimination protectionsfar more than those in Baker. ER 184. The court also rejected Proponents argument that High Tech Gays v. Defense Industry Security Clearance Office, 895 F.2d 563 (9th Cir. 1990), requires the application of rational basis review to Plaintiffs equal protection claim because High Tech Gays was explicitly premised on the since-overruled decision in Bowers v. Hardwick, 478 U.S. 186 (1986). ER 188-89. 10
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The district court then conducted a twelve-day bench trial, during which the parties were given a full opportunity to present evidence in support of their positions. ER 46. At trial, the parties called 19 witnesses17 of them by Plaintiffs and played the video depositions of other witnesses as well. ER 46. The court admitted into evidence more than 700 exhibits and took judicial notice of more than 200 other exhibits. The district courts decision to resolve disputed factual issues through the trial process was consistent with a long line of constitutional cases. See, e.g., United States v. Virginia, 518 U.S. 515, 523 (1996) (discussing a trial that consumed six days and involved an array of expert witnesses on each side); Cleburne Living Ctr. v. City of Cleburne, 726 F.2d 191, 193 (5th Cir. 1984) (discussing trial testimony in an equal protection challenge), affd in part, 473 U.S. 432 (1985); Plyler v. Doe, 457 U.S. 202, 207 (1982) (citing the district courts extensive findings of fact in support of a decision holding that a state law violated equal protection under rational basis review); Brown v. Bd. of Educ., 347 U.S. 483, 494 n.10 (1954) (discussing lower courts factual findings, based on witness testimony, that State-imposed segregation in educa-
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tion itself results in the Negro children, as a class, receiving educational opportunities which are substantially inferior to those available to white children).1 III. THE DISTRICT COURTS DECISION STRIKING DOWN PROPOSITION 8 On August 4, 2010after hearing more than six hours of closing arguments and considering hundreds of pages of proposed findings of fact and conclusions of law submitted by the parties (Doc #606, SER 1)the district court found in favor of Plaintiffs. The court declared Proposition 8 unconstitutional under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and permanently enjoined its enforcement. ER 171.
Proponents elected not to call the majority of their designated witnesses to testify at trial and called not a single official proponent of Proposition 8, claiming that their withdrawn witnesses were unwilling to testify because the district court planned to record the trial proceedings for dissemination on the Internet. ER 70. [P]roponents failed to make any effort, however, to call their witnesses after the potential for public broadcast in the case had been eliminated by the Supreme Courts issuance of a permanent stay of the district courts broadcasting order on the third day of trial. ER 71. Proponents assert that these expert witnesses remained unwilling to testify because the district court was videotaping the proceedings for in-court use. Prop. Br. 13. But there was no trace of this supposed fear of videotaping (peculiar among persons of such public profile) during the videotaped depositions of those witnesses depositions that were so favorable to Plaintiffs, that Plaintiffs used them affirmatively at trial. See SER 222-26 (Paul Nathanson); SER 678 (same); SER 188, 194-95 (Loren Marks); SER 226-28 (Katherine Young); SER 677 (same); SER 269-74 (Daniel Robinson). That factand not the purported fear of videotapingis what explains the experts absence from trial. 12
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A.
The district court concluded that Proposition 8 violates the Due Process
Clause because it unconstitutionally burdens the exercise of the fundamental right to marry and cannot withstand rational basis reviewlet alone the strict scrutiny required when a measure infringes on a fundamental right. ER 144, 151-52. The district court found that the right to marry is fundamental for both heterosexuals and for gay men and lesbians, and that unions between individuals of the same sex encompass the historical purpose and form of marriage. ER 149. Accordingly, Plaintiffs were not seek[ing] recognition of a new right, but access to the fundamental right to marry constitutionally guaranteed to all persons. ER 149. In so ruling, the district court credited the testimony of Plaintiffs expert Dr. Nancy Cott, Professor of History at Harvard University, who testified that marriage is a basic civil right. ER 49, 95. Cott explained that marriage is a couples choice to live with each other, to remain committed to one another, and to form a household based on their own feelings about one another, and their agreement to join in an economic partnership and support one another in terms of the material needs of life. SER 102. Similarly, Plaintiffs expert Dr. Letitia Peplau, Professor of Psychology at the University of California, Los Angeles, testified that [m]ost Americans view marriage as one of the most important relationships in their life, and [m]any people view getting married as a very important life goal. SER 148-49; see also SER 103-
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04 (Cott: newly emancipated slaves saw the right to marry as one of their most important new rights and flocked to get married). The district court concluded that the availability of domestic partnerships does not satisfy Californias due process obligation to gay and lesbian individuals because the evidence showed that domestic partnerships are distinct from marriage and do not provide the same social meaning as marriage; exist solely to differentiate same-sex unions from marriages; and are an inferior substitute for marriage. ER 150-51; see also ER 115-16 (citing Cott). That evidence included testimony from the four plaintiffs about their desire to marry and the meaning of marriage. ER 47. Sandra Stier testified, for example, that marriage would tell our friends, our family, our society, our community, our parents . . . and each other that this is a lifetime commitment. ER 48. She explained that there is certainly nothing about domestic partnership . . . that indicates the love and commitment that are inherent in marriage. ER 54. Similarly, Jeffrey Zarrillo explained that [d]omestic partnership would relegate [him] to a level of second class citizenship, and it doesnt give due respect to the relationship that [he has] had for almost nine years. ER 118. B. The district court also held that Proposition 8 violates the Equal Protec-
tion Clause because it creates an irrational classification on the basis of sexual orientation. ER 144.
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As an initial matter, the district court found that the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect. ER 156 (citing Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313 (1976) (per curiam)). That evidence included the testimony of Plaintiffs expert Dr. George Chauncey, Professor of History at Yale University, who explained that gay and lesbian individuals have experienced widespread and acute discrimination from both public and private authorities over the course of the twentieth century, and that significant discrimination continues through the present. ER 131-32. Proponents themselves conceded this history of discrimination and the fact that it was not based on a trait that impaired the ability of gay men and lesbians to make a full and meaningful contribution to society. ER 131; SER 20; see also ER 111. On the issue of the relative political power of gay men and lesbians, the district court looked to the testimony of Dr. Gary Segura, Professor of Political Science at Stanford University. Taking into account legislative defeat[s], the presence of ballot initiatives, the absence of statutory or constitutional protection, the presence of statutory or constitutional disadvantage, as well as small numbers, public hostility, hostility of elected officials, and a clearly well-integrated, nationally prominent, organized opposition, Dr. Segura conclude[d] that gays and lesbians lack the sufficient power necessary to protect themselves in the political system. SER 242. Similarly, Proponents expert on political power, Dr. Kenneth Miller, admitted that at least 15
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some people voted for Proposition 8 on the basis of anti-gay stereotypes and prejudice, ER 139, and that there has been severe prejudice and discrimination against gays and lesbians. ER 133.2 The district court also determined that sexual orientation satisfies the immutability prong of the standard for heightened scrutiny. See ER 109-11; see also ER 156-57. That finding was supported by the testimony of Dr. Gregory Herek, Professor of Psychology at the University of California, Davis, who testified that same-sex attraction is a normal expression of human sexuality, and that the vast majority of gay men and lesbians have little or no choice about their sexual orientation. ER 106-07, 109-10. In addition, Dr. Peplau testified that a large and well-respected body of research shows that same-sex relationships have great similarity to opposite-sex relationships. SER 150-51.
The district court found that all of Plaintiffs witnesses were credible and that their testimony was entitled to weight. ER 60, 63. In contrast, the court found that Dr. Millers opinions were entitled to little weight and only to the extent they are amply supported by reliable evidence. ER 89. The court emphasized that Dr. Miller had previously writtencontrary to his trial testimonythat gay men and lesbians, like other minorities, are vulnerable and powerless in the initiative process, and that his experience with politics generally did not qualify him to offer an opinion on gay and lesbian political power because his research has not focused on gay and lesbian issues and he was unfamiliar with the literature on the subject. ER 85-86, 88.
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Based on this evidence, the district court concluded that [a]ll classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation. ER 157. The court found it unnecessary, however, to evaluate Proposition 8 under strict scrutiny because the measure failed even rational basis review. ER 157. In reaching that conclusion, the district court carefully evaluated each of Proponents proffered justifications for Proposition 8. The court rejected Proponents argument that tradition prefers opposite-sex couples to same-sex couples because it equates to the notion that opposite-sex relationships are simply better than same-sex relationships. ER 159-60. [T]he state cannot have an interest in disadvantaging an unpopular minority group simply because the group is unpopular. ER 160 (citing U.S. Dept of Agric. v. Moreno, 413 U.S. 528, 534 (1973)). The district court also dismissed Proponents purported interest in proceeding with caution when implementing social change because the evidence shows samesex marriage has and will have no adverse effects on society or the institution of marriage. ER 161. In that regard, Plaintiffs expert Dr. M.V. Lee Badgett, Professor of Economics at the University of Massachusetts, testified that there have not been any adverse effects from same-sex marriage in those States and countries where it has been permitted, and that there is no credible basis to believe that there will be any adverse effects in California. SER 206; see also SER 208-09, 213-14. In addition, Dr. 17
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Cott testified that permitting same-sex couples to marry in Massachusetts has not generated any adverse effects on the institution of marriage. SER 125-26; see also ER 118-19 (Peplau: same). And Proponents expert, Mr. David Blankenhorn, admitted that, to the extent marriage was becoming deinstitutionaliz[ed], that phenomenon was attributable to heterosexuals, not gay men and lesbians. SER 281-82.3 Similarly, the district court concluded that Proposition 8 does not advance the States purported interest in promoting opposite-sex parenting over same-sex parenting. As an initial matter, the court found that this interest was not even a legitimate one for the State to pursue because the evidence shows beyond any doubt that parents genders are irrelevant to childrens developmental outcomes. ER 162. To support that finding, the court relied on the testimony of Plaintiffs expert Dr. Michael Lamb, Professor of Social and Developmental Psychology at Cambridge University, who explained that children who are raised by gay and lesbian parents are just as likely to be well-adjusted as children raised by heterosexual parents. ER 130. The court also found this purported interest to be insufficient for the additional reason that Proposition 8 has nothing to do with children, as [it] simply prevents same-sex cou-
Mr. Blankenhorn was called by Proponents to testify about the definition and purpose of marriage, ER 72-73, but the district court found that his analysis lacked intellectual rigor and that his opinions accordingly were unreliable and entitled to essentially no weight. ER 84. 18
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ples from marrying and does not disturb existing California law permitting same-sex couples to adopt. ER 162. Ultimately, the district court concluded that, despite ample opportunity and a full trial, Proponents have failed to identify any rational basis Proposition 8 could conceivably advance. ER 166. And, [i]n the absence of a rational basis, the court continued, what remains of proponents case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. ER 167. That evidence included testimony from Dr. Chauncey, who explained that the public messages disseminated by the Yes on 8 campaign evoked fears of gay people as child molesters and recruiters of children (ER 140-42), and from Hak-Shing William Tam, an official proponent of Proposition 8 called by Plaintiffs as an adverse witness, who testified that the campaign messages were designed to convince people that gay marriage will encourage more children to experiment with the gay lifestyle, and that that lifestyle comes with all kinds of disease. SER 255-56. According to Dr. Tam, there is a gay agenda that includes legalizing prostitution and sex with children, and permitting gays and lesbians to marry in California would mean that one by one other states would fall into Satans hand. SER 251-52, 254, 348-49.
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The district court concluded that Plaintiffs were entitled to a permanent injunction against the enforcement of Proposition 8 because they will continue to suffer irreparable harm as long as Proposition 8 remains in force. ER 171. SUMMARY OF ARGUMENT The district court correctly held that Proposition 8 is an arbitrary, irrational, and discriminatory measure that denies gay men and lesbians their fundamental right to marry in violation of the Due Process and Equal Protection Clauses. The judgment below should be affirmed. I. As an initial matter, Proponents lack standing to pursue this appeal. Pro-
ponents do not contend that they would personally suffer an injury if gay men and lesbians were permitted to marry in California. They instead rely on their status as official sponsors of Proposition 8 to satisfy the requirements of Article III. But there is no provision of California law that authorizes the proponents of a ballot initiative to represent the States interest in defending the constitutionality of an initiative. Indeed, the California Supreme Court has authoritatively determined that initiative proponents lack standing to represent the States interests and are in a position no different from that of any other member of the public. In re Marriage Cases, 183 P.3d 384, 406 (Cal. 2008). Proponents value interest[ ] in defending Proposition 8which is shared by every Californian who voted in favor of the measureis insufficient to sat-
20
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isfy the requirements of Article III. Arizonans for Official English v. Arizona, 520 U.S. 43, 65 (1997). II. Proponents are also wrong when they contend that the district courts de-
cision invalidating Proposition 8 is foreclosed by binding precedent. The Supreme Courts nearly forty-year-old summary order in Baker v. Nelson, 409 U.S. 810 (1972), has been undermined by numerous jurisprudential developmentsmost notably, the Supreme Courts decisions protecting gay men and lesbians from discrimination in Lawrence v. Texas, 539 U.S. 558 (2003), and Romer v. Evans, 517 U.S. 620 (1996). Moreover, Baker did not even present an equal protection challenge based on sexual orientation, and it did not consider the constitutionality of a ballot initiative that stripped gay men and lesbians of their previously recognized right to marry. This Courts decision in Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), has also been undermined by Lawrence and Romer, and has no force outside the specialized immigration context. III. Proposition 8 violates the Due Process Clause because it denies gay men
and lesbians their fundamental right to marry and does not further a legitimatelet alone a compellingstate interest. The Supreme Court has recognized on more than a dozen occasions that the right to marry is one of the liberties protected by the Due Process Clause. Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639 (1974). The Court has never limited 21
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that right to persons willing or able to procreate, see, e.g., Turner v. Safley, 482 U.S. 78, 96 (1987), but has instead recognized that the right to marry is of fundamental importance for all individuals. Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (emphasis added). Indeed, the Supreme Court has emphasized that the Constitution afford[s] . . . protection to personal decisions relating to marriage and that [p]ersons in a homosexual relationship may seek autonomy for th[i]s purpose[ ], just as heterosexual persons do. Lawrence, 539 U.S. at 574. Over time, marriage has shed its attributes of inequality, including race-based restrictions and gender-based distinctions, SER 128 (Cott), but its essential charactera coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred (Griswold v. Connecticut, 381 U.S. 479, 486 (1965))has not changed. Eliminating the final discriminatory feature of Californias marriage lawits prohibition on marriage by individuals of the same sexthus would not require the recognition of a new right, but would instead afford gay men and lesbians access to the fundamental right to marry guaranteed to all persons. Domestic partnerships are not a constitutionally sufficient substitute for marriage. The uncontradicted evidence at trial established that domestic partnerships lack the symbolic significance and social meaning of marriage, and that relegating gay men and lesbians (and their families) to these inferior, second-class unions has a profoundly stigmatizing effect. The Supreme Court long ago recognized that the Consti22
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tution does not permit a State to afford separate-and-inherently-unequal rights to disfavored minority groups. See Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954). IV. Proposition 8 also violates the Equal Protection Clause because it extin-
guishes the preexisting right of gay men and lesbians to marry for no reason other than to make them unequal to everyone else. Romer, 517 U.S. at 635. Proposition 8 is subject to heightened equal protection scrutiny because gay men and lesbians are a suspect (or at the very least) a quasi-suspect class. It is undisputed that gay and lesbian individuals have been the victims of a long and reprehensible history of discrimination based on a characteristic that has absolutely no bearing on their ability to contribute to society. That fact alone is sufficient to afford gay men and lesbians heightened equal protection scrutiny. See Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313 (1976) (per curiam). This conclusion is confirmed by the immutability of sexual orientation and the relative political powerlessness of gay and lesbian individuals in comparison with other groups that receive heightened scrutiny. Proposition 8 cannot satisfy the requirements of strict scrutinyor any other standard of constitutional review. While Proponents proffer several state interests that are furthered by opposite-sex marriage, they fail to identify a single legitimate state interest that is advanced by stripping gay men and lesbians of their preexisting right to marry. For example, Proponents contend that Proposition 8 is rationally related to the States interest in responsible procreation. To the extent that Proponents are argu23
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ing that the ideal is for children to be raised by their married, biological parents, the State of California itself disagrees. The State permits individuals in same-sex relationships to adopt children, see Marriage Cases, 183 P.3d at 428, and its decision to do so is consistent with the overwhelming weight of the evidence at trial, which established that children raised by same-sex parents fare just as well as children raised by their biological parents. ER 130. Proponents argument that Proposition 8 is rationally related to the States interest in channeling children into these purportedly ideal family environments is equally flawed because denying gay and lesbian individuals the right to marry does not increase the likelihood that opposite-sex couples capable of producing children will decide to get married. Nor can Proposition 8 be justified based on voters fears about the repercussions of allowing individuals of the same sex to marry. The evidence at trial exposed those fears as wholly unsubstantiated. In any event, permitting uncertainty about the consequences of eliminating discrimination to justify that discrimination would make inequality self-perpetuating. The absence of any rational basis for Proposition 8together with the evidence of anti-gay rhetoric in the Yes on 8 campaignleads inexorably to the conclusion that Proposition 8 was enacted solely for the purpose of making gay men and lesbians unequal to everyone else. Because a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest, Romer, 517 U.S. at 634 (internal quotation marks omitted), Proposition 8 is unconstitutional. 24
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STANDARD OF REVIEW This Court reviews de novo the legal conclusions underlying a district courts grant of a permanent injunction. Malabed v. N. Slope Borough, 335 F.3d 864, 867 (9th Cir. 2003). Factual findings underlying an injunction are reviewed for clear error. Sandpiper Vill. Condo. Assn, Inc. v. La.-Pac. Corp., 428 F.3d 831, 840 (9th Cir. 2005); see also Fed. R. Civ. P. 52(a). The clear error standard applies equally to ultimate facts and to subsidiary facts, Anti-Monopoly, Inc. v. Gen. Mills Fun Group, Inc., 684 F.2d 1316, 1318 (9th Cir. 1982) (citing Pullman-Standard v. Swint, 456 U.S. 273, 286 (1982)), and to the results of essentially factual inquiries applying the law to the facts. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002). Proponents attempt to evade this well-established standard of review by characterizing nearly every factual finding made by the district court as a legislative fact. But many of the district courts findings plainly involve adjudicative facts, which are simply the facts of the particular case. Valdivia v. Schwarzenegger, 599 F.3d 984, 994 (9th Cir. 2010) (citation omitted). Those findings include facts about the parties, ER 89-94, the themes and messages employed by the Proposition 8 campaign and their meaning, ER 108, 140, 143, and the specific effects of Proposition 8. ER 12029. Moreover, neither the Supreme Court nor the Ninth Circuit has established a different standard of review for legislative facts. In Service Employees International 25
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Union v. Fair Political Practice Commission, 955 F.2d 1312 (9th Cir. 1992), for example, this Court reviewed for clear error the district courts findings on the discriminatory impact of Proposition 73, a campaign-finance law, and expressly rejected the contention that those findings should be reviewed de novo. Id. at 1317 n.7. The Court held that the findings regarding the laws discriminatory effectswhich are similar to those that Proponents here characterize as legislativewere not clearly erroneous because they were derived from the testimony of two expert witnesses and [e]xperts may make reasonable projections of future harm based on reliable data. Id. at 131718; see also Hunter v. Regents of Univ. of Cal., 190 F.3d 1061, 1063-64 (9th Cir. 1999) (reviewing for clear error the district courts findings that school admissions requirements satisfied strict scrutiny). This approach to the review of district court fact-finding gives effect to the plain language of Rule 52(a). See Fed. R. Civ. P. 52(a)(6) (Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial courts opportunity to judge the witnesses credibility.); Pullman-Standard, 456 U.S. at 287 (Rule 52(a) does not make exceptions or purport to exclude certain categories of factual findings from the obliga-
26
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tion of a court of appeals to accept a district courts findings unless clearly erroneous.); Serv. Emps. Intl, 955 F.2d at 1317 n.7 (same).4 Furthermore, in this case, there is an extensive and detailed factual record, to which all parties had the opportunity to contribute. ER 46. The district court engaged in a lengthy, careful, and thorough analysis of the evidence presented, which included the testimony of 19 witnesses and more than 900 exhibits. In that context, the application of de novo review is likely to be inefficient and without clear countervailing benefits. See Anderson v. City of Bessemer City, 470 U.S. 564, 574-75 (1985) (Duplication of the trial judges efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources.); Serv. Emps. Intl, 955 F.2d at 1317 n.7. Indeed, without discussing the level of review, the Supreme Court regularly adopts findings of fact where district courts have developed thorough records through extensive testimony and rigorous
Proponents rely on decisions from other circuits suggesting that appellate courts may have the option of reviewing legislative facts less deferentially. See Prop. Br. 37. That view has never been embraced by this Court or by the Supreme Court, and has occasioned strong dissents. See Free v. Peters, 12 F.3d 700, 708 (7th Cir. 1993) (Cudahy, J., dissenting) (The trial courts are our window on reality, and I would be exceedingly cautious in arrogating their functions to ourselves.); Dunagin v. City of Oxford, 718 F.2d 738, 755 (5th Cir. 1983) (Higginbotham, J., dissenting). Proponents suggest that Lockhart v. McCree, 476 U.S. 162, 168 n.3 (1986), expressed doubts about whether legislative fact-finding is reviewed for clear error. But the Court expressly declined to decide the standard of review issue in that case. Id. 27
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analysis. See, e.g., Reno v. ACLU, 521 U.S. 844, 849-58 (1997) (citing 22 of the district courts findings in a 10-page discussion of the record); Plyler v. Doe, 457 U.S. 202, 207 (1982) (relying on the district courts extensive findings of fact to uphold an equal protection challenge).5 In any event, this is not a case in which the standard of review will determine the outcome of the litigation. Plaintiffs called as experts the leading scholars from around the country (and the world) in their respective fields, who testified based on years of research. As the district court observed, the evidence put forward by Plaintiffs was overwhelming; in contrast, Proponents arguments were completely unsupported. ER 46. Whatever standard of review is applied, the evidence admits of only one conclusion: that Proposition 8 is unconstitutional.
Proponents suggestion that trials are not well suited to determine legislative facts is insupportable. Kenneth Culp Davis, who coined the term legislative fact, explained that [o]ften the best way to resolve hotly disputed issues of legislative fact is by taking evidence subject to rebuttal and cross-examination, and this is common practice. Kenneth Culp Davis, A System of Judicial Notice Based on Fairness and Convenience, in Perspectives of Law 69, 88 (Roscoe Pound et al. eds., 1964); see also H.B.R.R. Co. v. Am. Cyanamid Co., 916 F.2d 1174, 1182 (7th Cir. 1990) (Posner, J.) (noting that the line between adjudicative and legislative facts is not hard and fast and that [i]f facts critical to a decision on whether [a particular legal standard should apply] cannot be determined with reasonable accuracy without an evidentiary hearing, such a hearing can and should be held).
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ARGUMENT I. PROPONENTS LACK STANDING TO APPEAL. Proponents are the only parties to the case below who have filed a notice of appeal from the district courts judgment. ER 1421. But to invoke the jurisdiction of this Court, an appellant must meet the requirements of Article III standing. See Arizonans for Official English v. Arizona, 520 U.S. 43, 64-65 (1997). Because Proponents cannot satisfy this threshold requirement for appellate jurisdiction, their appeal should be dismissed. An irreducible constitutional minimum requirement of Article III standing is that the party invoking the jurisdiction of a federal court demonstrate an actual stake in the litigation that is concrete and particularized. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). An interest shared generally with the public at large in the proper application of the Constitution and laws will not do to confer standing. Arizonans, 520 U.S. at 64. It is for precisely this reason that the Supreme Court expressed (unanimously) grave doubts that ones status as a sponsor of a ballot proposition could confer Article III standing. Id. at 66. It is not merely that the Supreme
6 6
Putative intervenor Imperial County has also filed a notice of appeal from the district courts order denying its motion to intervene. See Case No. 10-16751. For the reasons discussed in Plaintiffs separately filed response to Imperial Countys opening brief, Imperial County also lacks standing to appeal and the district court properly denied its motion to intervene. 29
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Court previously has declined to identif[y] initiative proponents as Article-IIIqualified defenders of the measures they advocated, id. at 65; the Court has rejected the notion outright. See Dont Bankrupt Wash. Comm. v. Contl Ill. Natl Bank & Trust Co. of Chi., 460 U.S. 1077 (1983) (summarily dismissing, for lack of standing, an appeal by an initiative proponent from a decision holding the initiative unconstitutional). As the district court correctly observedand Proponents pointedly do not disputeProponents have failed to articulate even one specific harm they may suffer as a consequence of the injunction against Proposition 8. ER 7. Proponents status as intervenor-defendants in the district court cannot itself confer standing to appeal, see Diamond v. Charles, 476 U.S. 54, 68-71 (1986), and throughout this litigation Proponents have never once suggested that permitting same-sex couples to marry could harm them personally. See W. Watersheds Project v. Kraayenbrink, _ F.3d _, 2010 WL 3420012, at *6 (9th Cir. Sept. 1, 2010) (An interest strong enough to permit intervention is not necessarily a sufficient basis to pursue an appeal abandoned by the other parties.) (quoting Didrickson v. U.S. Dept of the Interior, 982 F.2d 1332, 1338 (9th Cir. 1992)). Proponents claim of standing thus rises or falls on the strength of their assertions that (1) California law authorizes ballot measure proponents to directly assert the States interest in defending the constitutionality of the ballot measure once en30
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acted, Prop. Br. 19; or (2) California law creates a particularized interest in initiative proponents, id. at 22. Both assertions are incorrect. Proponents first claim that initiative proponents may speak for the State in defending initiatives they sponsored. This, Proponents contend, puts them on the same footing as the state legislators who initiated the litigation in Karcher v. May, 484 U.S. 72 (1987), whom the Arizonans Court recognized had the requisite standing because state law authorize[d] legislators to represent the States interests. 520 U.S. at 65 (citing Karcher, 484 U.S. at 82).7 Arizonans itself distinguished Karcher on the ground that ballot measure sponsors are not elected representatives. 520 U.S. at 65. But, even if Proponents were elected representatives, Proponents can point to no provision of California law that even remotely resembles the provisions referenced in Karcher. See supra note 7. While California courts have permitted initiative proponents to intervene in state-court litigation in defense of their initiatives, see, e.g., Strauss v. Horton, 207 P.3d 48, 69
Karcher cited In re Forsythe, 450 A.2d 499 (N.J. 1982), a case brought under New Jersey statutory provisions governing challenges to a law on the ground that it was not validly enacted. Those provisions permitted [a]ny two or more citizens of the State to initiate the litigation and prosecute the application, N.J. Stat. Ann. 1:7-4 (cited in Forsythe, 450 A.2d at 500), and further provided that [a]ny citizen of the State may . . . appear before the court, in defense, N.J. Stat. Ann. 1:7-5.
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(Cal. 2009), those decisions have allowed proponents to pursue their own interests in the ballot initiative, not to represent the interests of the State.8 Where ballot proposition proponents have sought not merely a right to intervene, but standing to maintain a suit in their own right, the California Supreme Court has determined that they have none. In the Marriage Cases, The Proposition 22 Legal Defense and Education Fund (the Fund), representing the proponent of Proposition 22, asked the California Supreme Court to grant review to determine whether initiative proponents, or an organization they establish to represent their interests, have standing to defend attacks on the validity or scope of the initiative. Petition for Review of Proposition 22 Legal Defense and Education Fund at 13, In re Marriage Cases, 183 P.3d 384 (Cal. 2008) (No. S147999), 2006 WL 3618498. In support of its petition, the Fund argued that initiative proponents should be allowed to defend the constitutionality of their enactments because elected officials were not uniformly vigorous in defending initiativesand particularly so in the Marriage Cases. Id. at 15-
In this respect, the California intervention decisions cited by Proponents resemble those of Arizona at the time Arizonans was decided. Compare Amwest Sur. Ins. Co. v. Wilson, 906 P.2d 1112, 1116 (Cal. 1995), 20th Century Ins. Co. v. Garamendi, 878 P.2d 566, 581 (Cal. 1994), and Legislature of Cal. v. Eu, 816 P.2d 1309, 1312 (Cal. 1991), with Slayton v. Shumway, 800 P.2d 590, 591 (Ariz. 1990), Energy Fuels Nuclear, Inc. v. Coconino Cnty., 766 P.2d 83, 84 (Ariz. 1988), and Transamerica Title Ins. Co. Trust Nos. 8295, 8297, 8298, 8299, 8300 & 8301 v. City of Tucson, 757 P.2d 1055, 1056 (Ariz. 1988). 32
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16. The California Supreme Court granted review and held that the Funds strong interest in Proposition 22 is not sufficient to afford standing to the Fund to maintain a lawsuit concerning the constitutionality of Proposition 22. In re Marriage Cases, 183 P.3d 384, 406 (Cal. 2008) (emphasis added). The Court explained that the Fund is in a position no different from that of any other member of the public having a strong ideological or philosophical disagreement with a legal position advanced by a public entity that, through judicial compulsion or otherwise, continues to comply with a contested measure. Id. Second, Proponents contend that Californias constitutional right to propose initiatives creates a new interest[ ], the invasion of which . . . confer[s] standing on them here. Prop. Br. 22 (quoting Diamond, 476 U.S. at 65 n.17). This contention is foreclosed by the Marriage Cases holding that initiative sponsors lack standing to defend their initiatives. 183 P.3d at 406. Even if it were not, California law confers no express cause of action to defend the constitutionality of initiatives enacted into law, see Cal. Const. art. II, 8(a), as it must to create a particularized injury. See Diamond, 476 U.S. at 65 n.17; Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41 n.22 (1976). Thus, the status of ballot initiative sponsor is insufficient to elevate the sponsors interest in defending the constitutionality of the initiative above the value interest[ ] shared by every Californian who voted in favor of the measure. Arizonans, 520 U.S. at 65 (quoting Diamond, 476 U.S. at 62). And, because Proponents themselves will 33
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suffer no judicially cognizable injury if gay men and lesbians are permitted to marry, Proponents, though intervenors below, have no standing to carry an appeal. See Diamond, 476 U.S. at 68-69.9 II. THE DISTRICT COURTS RULING IS NOT FORECLOSED BY PRECEDENT. Proponents contend that the district courts decision is foreclosed by the Supreme Courts summary order in Baker v. Nelson, 409 U.S. 810 (1972), and by this Courts decision in Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982). Proponents fundamentally misconstrue the limited precedential force of the Supreme Courts nearly forty-year-old summary order in Baker and this Courts immigration-law decision in Adams.
Proponents also argue that the district court likely lacked jurisdiction altogether because the Attorney General agreed that Proposition 8 was unconstitutional. Prop. Br. 30 n.10. It is not the law, however, that the governments confession of error deprives a federal court of jurisdiction to redress constitutional injuries. See City of Mesquite v. Aladdins Castle, Inc., 455 U.S. 283, 289 (1982). In any event, it is simply not the case that all the parties before the district court agreed that Proposition 8 was unconstitutional or sought precisely the same result from that court. GTE Sylvania, Inc. v. Consumers Union of U.S., Inc., 445 U.S. 375, 383 (1980). Proponents themselves were parties to the proceedings below and vigorously argued in defense of Proposition 8s constitutionality. Moreover, the Governor of California, who is charged with executing state law (Cal. Const. art. V, 1), filed an answer stating that he intends to enforce Proposition 8 until he is enjoined by a court from doing so. SER 37. And, in fact, he has continued to enforce Proposition 8 throughout this litigation. 34
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In Baker, the Supreme Court dismissed for want of a substantial federal question an appeal from a Minnesota Supreme Court decision rejecting federal due process and equal protection challenges to the States refusal to issue a marriage license to a same-sex couple. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971). The Supreme Courts summary dismissals are binding on lower courts only on the precise issues presented and necessarily decided by the Court, Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam) (emphasis added), and only to the extent that they have not been undermined by subsequent doctrinal developments in the Supreme Courts jurisprudence. Hicks v. Miranda, 422 U.S. 332, 344-45 (1975) (internal quotation marks omitted); see also Turner v. Safley, 482 U.S. 78, 96 (1987). Contrary to Proponents suggestion that the district court somehow ignored Baker (Prop. Br. 40), the court explicitly recognized when it denied Proponents summary judgment motion that neither requirement is met here. ER 182-85. The Supreme Courts summary disposition of the due process question in Baker is not controlling in this case because it cannot be reconciled with the Courts subsequent decision in Lawrence v. Texas, 539 U.S. 558 (2003), which invalidated a state criminal prohibition on same-sex intimate conduct under the Due Process Clause. See also Turner, 482 U.S. at 95 (holding that the fundamental right to marry extends to incarcerated inmates because inmate marriages, like others, are expressions of emotional support and public commitment); Zablocki v. Redhail, 434 U.S. 374, 384 35
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(1978) (the right to marry is of fundamental importance for all individuals). Lawrence explicitly recognized that the Constitution afford[s] . . . protection to personal decisions relating to marriage, procreation, contraception, family relationships, [and] child rearing and that [p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. 539 U.S. at 574 (emphasis added). Nor is the jurisprudential force of Lawrence limited to laws that target the conduct of gay and lesbian individuals, rather than those, like Proposition 8, that single them out as a class for disfavored and discriminatory treatment. See Christian Legal Socy v. Martinez, 130 S. Ct. 2971, 2990 (2010) (Our decisions have declined to distinguish between status and conduct in [the context of sexual orientation].). Bakers equal protection ruling has equally little precedential force in this case. As an initial matter, Baker presented an equal protection challenge based solely on sex discrimination and therefore cannot conceivably foreclose Plaintiffs claim that Proposition 8 discriminates against gay and lesbian individuals on the basis of their sexual orientation. See Jurisdictional Statement at 16, Baker (No. 71-1027) (The discrimination in this case is one of gender.); ER 1613. Moreover, Bakers equal protection ruling has been undermined by subsequent doctrinal developments. In Romer v. Evans, 517 U.S. 620 (1996), the Supreme Court struck down on equal protection grounds a Colorado constitutional amendment prohibiting governmental action to protect gay and lesbian individuals against discrimina36
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tion because the measure withdr[ew] from homosexuals, but no others, specific legal protection and impose[d] a special disability upon those persons alone. Id. at 627, 631. Proposition 8 shares all the salientand constitutionally unacceptablefeatures of Colorados Amendment 2 because, in the absence of any conceivably legitimate government interest, it imposes a special disability on gay and lesbian individuals, who, alone among Californias citizens, have been deprived of their preexisting state constitutional right to marry. Id. at 631. Nor can Bakers summary treatment of the sex-based equal protection challenge to Minnesotas marriage law survive later doctrinal developments. Baker was decided before the Supreme Court recognized that sex is a quasi-suspect classification. See Craig v. Boren, 429 U.S. 190, 197 (1976); Frontiero v. Richardson, 411 U.S. 677, 688 (1973) (plurality). Finally, the Supreme Courts summary dismissal in Baker addressed equal protection and due process challenges to a marriage framework that is far different from the one that Plaintiffs are challenging here, and therefore cannot be controlling on any component of Plaintiffs claims. See ER 182-83. Whereas Baker concerned the constitutionality of an outright refusal by a State to afford any recognition to same-sex relationships, Plaintiffs suit challenges California voters use of the ballot initiative process to strip unmarried gay and lesbian individuals of their preexisting state constitutional right to marry and relegate them to the inherently unequal institution of do37
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mestic partnership. Whatever the constitutional flaws in Minnesotas blanket denial of recognition to same-sex relationships, Proposition 8 is uniquely irrational and discriminatory: California voters used the initiative process to single out unmarried gay and lesbian individuals for a special disability (Romer, 517 U.S. at 631) by extinguishing their state constitutional right to marry, while at the same time preserving the 18,000 existing marriages of gay and lesbian couples (but not allowing those individuals to remarry if divorced or widowed) and affording unmarried gay and lesbian individuals the right to enter into domestic partnerships that carry virtually all the same rights and obligationsbut not the highly venerated labelassociated with opposite-sex marriages (and existing same-sex marriages). Proponents reliance on this Courts decision in Adams is equally misplaced. That decision upheld a federal immigration law that granted an admissions preference to opposite-sexbut not same-sexspouses of American citizens. The court explained that Congress has almost plenary power to admit or exclude aliens and the decisions of Congress in the area of immigration are therefore subject only to limited judicial review. Adams, 673 F.2d at 1041. No such plenary power is implicated in this case, and the limited judicial review undertaken in Adams is therefore inapplicable to Plaintiffs constitutional challenge to Proposition 8. In any event, the district court was free to depart from Adamss reasoning in light of the subsequent
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jurisprudential developments in Romer and Lawrence. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). III. PROPOSITION 8 VIOLATES DUE PROCESS. The freedom of personal choice in matters of marriage is a well-established fundamental right. Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639 (1974). In more than a dozen cases over the last century, the Supreme Court has reaffirmed that the right to marry is one of the liberties protected by the Due Process Clause, id.; essential to the orderly pursuit of happiness by free men, Loving v. Virginia, 388 U.S. 1, 12 (1967); and sheltered by the Fourteenth Amendment against the States unwarranted usurpation, disregard, or disrespect. M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996).10 Because Proposition 8 burdens that fundamental right, it is unconstitutional unless Proponents can demonstrate that it is narrowly drawn to further a compelling state interest[ ]. Carey v. Population Servs. Intl, 431 U.S. 678, 686 (1977).
See also Lawrence, 539 U.S. at 574; Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992); Turner, 482 U.S. at 95-96; Zablocki, 434 U.S. at 384; Carey v. Population Servs. Intl, 431 U.S. 678, 685 (1977); Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977) (plurality); Roe v. Wade, 410 U.S. 113, 152 (1973); Boddie v. Connecticut, 401 U.S. 371, 376, 383 (1971); Griswold v. Connecticut, 381 U.S. 479, 486 (1965); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942); Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Maynard v. Hill, 125 U.S. 190, 205 (1888). 39
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Proponents claim that marriageand thus the fundamental right to marry excludes same-sex couples as a definitional matter. They contend that marriage categorically excludes same-sex couples because the existential purpose of marriage in every society is, and has always been, to regulate sexual relationships between men and women and to increase the likelihood that children will be born and raised in stable and enduring family units by the mothers and fathers who brought them into this world. Prop. Br. 54. According to Proponents, only those couples who can produce children have a due process right to marry (id.); everyone else enjoys access to marriage only for as long as the government (or a voting majority) permits. Similarly, under Proponents responsible procreation theory of marriage, if the State determined that children raised outside of marriage fared as well as children raised inside marriage, the State could eliminate civil marriage altogether. Citing a slew of dictionaries and articles never presented to the district court, written by authors who never testified at trial, Proponents claim that this alleged interest in responsible procreation is the defining purpose of marriage. Proponents narrow understanding of marriage conflicts with controlling precedent and the overwhelming record evidence.
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A.
The Supreme Court Has Recognized That The Right To Marry Is A Fundamental Right For All People.
The Supreme Court has characterized the right to marry as one of the most fundamental rightsif not the most fundamental rightof an individual. Loving, 388 U.S. at 12. The Court has defined marriage as a right of liberty (Zablocki, 434 U.S. at 384), privacy (Griswold, 381 U.S. at 486), intimate choice (Lawrence, 539 U.S. at 574), and association (M.L.B., 519 U.S. at 116). Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. Griswold, 381 U.S. at 486 (emphasis added). The right is of fundamental importance for all individuals. Zablocki, 434 U.S. at 384 (emphasis added). The right to marry has always been based on, and defined by, the constitutional liberty to select the partner of ones choicenot on the partner chosen. As the district court observed, The Supreme Court cases discussing the right to marry do not define the right at stake . . . as a subset of the right to marry depending on the factual context in which the issue presented itself. ER 185-86; see generally Loving, 388 U.S. 1; Turner, 482 U.S. 78. Thus, just as striking down Virginias prohibition on marriage between persons of different races did not require the Supreme Court to recognize a new constitutional right to interracial marriage in Loving, invalidating Proposition 8 would not require recognition of a new right to same-sex marriage. Instead, it would vindicate the longstanding right of all persons to exercise freedom of personal 41
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choice in deciding whether and whom to marry. See Lawrence, 539 U.S. at 566, 574 (invalidating Texass criminal prohibition on same-sex intimate conduct because it violated the right to personal sexual autonomy guaranteed by the Due Process Clause, not because it violated a fundamental right of homosexuals to engage in sodomy) (internal quotation marks omitted). Contrary to Proponents suggestion, the Supreme Court has never conditioned the right to marry on the ability to procreate. See Lawrence, 539 U.S. at 567 (it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse). The Supreme Court has never suggested that the constitutional right to marry is possessed only by individuals who are at risk of producing children accidentally, or implied that this constitutional right is not equally important for and guaranteed to responsible individuals who can be counted upon to take appropriate precautions in planning for parenthood. Marriage Cases, 183 P.3d at 432. Rather, the Supreme Court has expressly recognized that the right to marry extends to individuals unable to procreate with their spouse, see Turner, 482 U.S. at 95, and that married couples have a fundamental right not to procreate. See Griswold, 381 U.S. at 485. In Griswold, the Supreme Court rejected a States attempt to link marriage and procreation by striking down a state law forbidding the use of contraceptives by married couples. 381 U.S. at 485-86. And the Court has held that the liberty interest in an 42
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individuals choice of marriage is so fundamental that it prohibits filing fee barriers to divorcebarriers that would seem unobjectionable if the right to marry were tied to the States interest in marital procreation. Boddie, 401 U.S. at 380; see also Moore, 431 U.S. at 502 (liberty in matters of marriage and family life cannot be circumscribed by the arbitrary boundary . . . of the nuclear family). Indeed, the Supreme Court has clearly distinguished between the right to marry and the right to procreate. In Zablocki, the Court struck down a Wisconsin statute that barred residents with child support obligations from marrying. 434 U.S. at 376-77. The Court distinguished between the right to marry and the separate rights of procreation, childbirth, child rearing, and family relationships. Id. at 386; see also Carey, 431 U.S. at 685 (distinguishing between separate rights of marriage and procreation); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (If the right of privacy means anything, it is the right of the individual, married or single, to . . . [decide] whether to bear or beget a child.) (emphasis altered). Although Proponents suggest that Zablocki treated marriage only as a means to prevent illegitimate children, Prop. Br. 69-70, Zablocki in fact held that a parents financial responsibility to his child was irrelevant to marriage. 434 U.S. at 389-90. Similarly, in Turner, the Supreme Court held that incarcerated prisonerseven those with no right to conjugal visitshave a fundamental right to marry because [m]any important attributes of marriage remain . . . after taking into account the limi43
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tations imposed by prison life . . . [including the] expressions of emotional support and public commitment, the exercise of religious faith, and the expression of personal dedication, which are an important and significant aspect of the marital relationship. 482 U.S. at 95-96. These attributes of the right to marry extend far beyond the limited procreational purpose Proponents advocate. Indeed, Turner acknowledged procreation as only one among many goals of marriage. Id. at 96. And it recognized that, while many inmate marriages are formed in the expectation that they ultimately will be fully consummated, some are not. Id.11 Proponents nonetheless contend that their procreative understanding of marriage is universal. Prop. Br. 57, 59. But [n]o State marriage statute mentions procreation or even the desire to procreate among its conditions for legal marriage, and [n]o State requires that heterosexual couples who wish to marry be capable or even desirous of procreation. Amy Doherty, Constitutional Methodology and Same-Sex Proponents thus mischaracterize Turner when they suggest that it would have come out differently but for inmates expectation that their marriages would be fully consummated, for the Court distinguished an earlier case that upheld a marriage ban for inmates sentenced to life imprisonment. Prop. Br. 70 n.33 (internal quotation marks omitted). As the Supreme Court observed, in that earlier caseButler v. Wilson, 415 U.S. 953 (1974), summarily affirming Johnson v. Rockefeller, 365 F. Supp. 377 (S.D.N.Y. 1973)it was not simply that the prisoner was under a life sentence (marriage while on parole was a possibility, see Johnson, 365 F. Supp. at 378 n.1), but also, importantly, that denial of the right [to marry] was part of the punishment for crime and the governmental interest of punishing crime [was] sufficiently important to justify deprivation of [the] right [to marry]. Turner, 482 U.S. at 96. 44
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Marriage, 11 J. Contemp. Legal Issues 110, 113 (2000); cf. Lawrence, 539 U.S. at 604-05 (Scalia, J., dissenting) (If moral disapprobation of homosexual conduct is no legitimate state interest for purposes of proscribing that conduct . . . what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising the liberty protected by the Constitution? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.). Proponents claim that California shares their procreative understanding of marriage. Prop. Br. 57. But, in California, the constitutional right to marry never has been viewed as the sole preserve of individuals who are physically capable of having children. Marriage Cases, 183 P.3d at 431. Indeed, the California Supreme Court has held that an equally important purpose of marriage is the promotion of the happiness of the parties by the society of each other, Baker v. Baker, 13 Cal. 87, 103 (1859), and that the right to marry is the right to enter into a relationship that is the center of the personal affections that ennoble and enrich human life. Marriage Cases, 183 P.3d at 432 (quoting De Burgh v. De Burgh, 250 P.2d 598, 601 (Cal. 1952)). Proponents attempt to explain away the absence of laws conditioning marriage on procreative ability by arguing that [a]ny policy mandating that all married couples bear and raise children would presumably require enforcement measures . . . that would surely violate constitutionally protected privacy rights. Prop. Br. 61-62 (em45
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phasis omitted). But if this were an accurate and adequate explanation for the absence of such a limitation it would follow that in instances in which the state is able to make a determination of an individuals fertility without such an inquiry, it would be constitutionally permissible for the state to preclude an individual who is incapable of bearing children from entering into marriage. Marriage Cases, 183 P.3d at 431. And there is no authority whatsoever to support the proposition that an individual who is physically incapable of bearing children does not possess a fundamental constitutional right to marry. Id. Indeed, many persons become parents through adoption or assisted reproduction and exercise their constitutional rights to marry and raise those children in a recognized family unit. Id.12 B. The Trial Record Demonstrates That Plaintiffs Do Not Seek Recognition Of A New Right.
The trial record amply supports the district courts finding that [t]he right to marry has been historically and remains the right to choose a spouse and, with mutual
In an attempt to demonstrate that infertile opposite-sex couples also serve the alleged procreative purpose of marriage, Proponents claim that, even where infertility is clear, usually only one spouse is infertile, and in those cases, marriage still furthers societys interest in responsible procreation by decreasing the likelihood that the fertile spouse will engage in sexual activity with a third party. Prop. Br. 62. But marriage by same-sex couples serves this societal interest just as well because it decreases the likelihood that either spouse will engage in sexual activity with a third party of the opposite sexwhich, on Proponents view that sexual orientation is an amorphous and mutable phenomenon, must be regarded as a substantial risk. Id. at 71. 46
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consent, join together and form a household. ER 148 (citing FF 19-20, 34-35). Although [r]ace and gender restrictions shaped marriage during eras of race and gender inequality, . . . such restrictions were never part of the historical core of the institution of marriage. ER 148 (citing FF 33). And spouses have never been required to have an ability or willingness to procreate in order to marry. ER 148 (citing FF 21). Thus, the evidence clearly establishes that liberty and mutual consentnot simply responsible procreationare defining purposes of marriage. As Professor Cott explained, marriage is a couples choice to live with each other, to remain committed to one another, and to form a household based on their own feelings about one another, and their agreement to join in an economic partnership and support one another in terms of the material needs of life. SER 102. Marriage creates stable households, which in turn form the basis of a stable, governable populace. ER 146 (citing FF 35-37); see also ER 48 (citing SER 108 (Cott)). The trial evidence also demonstrates that, over time, marriage has shed its attributes of inequalityincluding race-based restrictions and gender-based distinctions such as covertureand has been altered to adjust to changing circumstances so that it remains a very alive and vigorous institution today. SER 128 (Cott). In [a]s many as 41 states and territories, including California, laws placed restrictions on marriage between a white person and a person of color. SER 114-15 (Cott). Racially restrictive marriage laws prevented individuals from having complete choice 47
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on whom they married, in a way that designated some groups as less worthy than other groups. SER 123 (Cott). Like defenders of bans on marriage by individuals of the same sex, defenders of race-based restrictions on the right to marry argued that these laws were naturally-based and Gods plan; people who supported [racially restrictive marriage laws] saw these as very important definitional features of who could and should marry, and who could not and should not. SER 122-24 (Cott). When the Supreme Court invalidated race restrictions in Loving, the definition of the right to marry did not change. ER 147 (citing Loving, 388 U.S. at 12). Rather, the Court recognized that race restrictions, despite their historical prevalence, stood in stark contrast to the concepts of liberty and choice inherent in the right to marry. ER 147 (citation omitted). The district court also found that California, like every other state, has never required that individuals entering a marriage be willing or able to procreate. ER 95. Indeed, as Professor Cott testified, [t]here has never been a requirement that a couple produce children in order to have a valid marriage, people beyond procreative age have always been allowed to marry, and procreative ability has never been a qualification for marriage. SER 109. The only trial testimony presented by Proponents on the history and purpose of marriage was that of think-tank founder David Blankenhorn, who conceded that the
48
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willingness or ability to procreate or consummate a relationship is not a precondition to marriage. See SER 296-97. The evidence therefore provides overwhelming support for the district courts finding that the purposes of marriage are not limited to procreation, but also include the state recognition and approval of a couples choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents. ER 102 (citing SER 98-100, 102 (Cott)). This is precisely the venerated, officially sanctioned relationship that Plaintiffs seek to enter. For Plaintiffs as for the rest of societymarriage is the most important relation in life. Zablocki, 434 U.S. at 384 (internal quotation marks omitted); see, e.g., ER 47 (Plaintiff Zarrillo wishes to marry Katami because marriage has a special meaning that would alter their relationships with family and others.) (citing SER 91-92); SER 97 (Plaintiff
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Stier: marriage would be a way to tell our friends, our family, our society, our community, our parents . . . and each other that this is a lifetime commitment).13 C. Allowing Same-Sex Couples To Marry Would Promote Responsible Procreation.
Even if responsible procreation were the defining purpose of marriage which it is notmarriage by individuals of the same sex would nonetheless further that purpose. Proponents own definition of so-called responsible procreation centers on the welfare of children and the need for them to be raised in stable family units. Prop. Br. 58. Indeed, Proponents attempt to distinguish Proposition 8 from antimiscegenation laws on the ground that, by prohibiting interracial marriages, [those
Proponents amici argue that recognizing Plaintiffs right to marry will lead to a parade of horribles, including polygamy and incest. Br. of State of Indiana et al. at 30-31. But States have a strong and adequate justification for refusing to officially sanction polygamous or incestuous relationships because of their potentially detrimental effect on a sound family environment. Marriage Cases, 183 P.3d at 434 n.52; see also Utah v. Green, 99 P.3d 820, 830 (Utah 2004) (upholding ban on polygamy based on the States interest in protecting vulnerable individuals, especially underage women and children, from exploitation and abuse, and preventing the perpetration of marriage fraud and the misuse of government benefits associated with marital status); see also Reynolds v. United States, 98 U.S. 145, 166 (1878) (rejecting challenge to polygamy prohibition). Ironically, if, as Proponents contend, access to marriage were determined principally by reference to a couples ability to procreate, then both polygamous and incestuous relationships would qualify. It is thus Proponents vision of marriagenot Plaintiffsthat opens the door to the bogeymen conjured by Proponents amici. 50
13
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laws] substantially decreased the likelihood that children of mixed-race couples would be born to and raised by their parents in stable and enduring family units. Id. at 66. Therefore, Proponents contend, such laws were affirmatively at war with marriages central procreative purposes. Id. But by prohibiting same-sex couples from marrying and creating stable and enduring family units, Proposition 8 is equally at war with these purposes and affirmatively harmful to the children of same-sex couples. See Zablocki, 434 U.S. at 390 (the net result of preventing . . . marriage is simply more illegitimate children). As the district court found, The tangible and intangible benefits of marriage flow to a married couples children. ER 106; see also SER 180-81 (Lamb: explaining that when a cohabiting couple marries, that marriage can improve the adjustment outcomes of the couples child because of the advantages that accrue to marriage); SER 440-42 (American Psychiatric Association: marriage benefits the couples children). Even Proponents expert David Blankenhorn agreed that children raised by same-sex couples would benefit if their parents were permitted to marry. ER 83 (citing SER 285); see also SER 291 (same). Moreover, California law treats gay men and lesbians equally to heterosexuals with respect to the rights and obligations of parenthood, including the right to produce and raise children, the right to adopt children, the right to become foster parents, and the obligation to provide for children after separation. See Elisa B. v. Superior Court, 51
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117 P.3d 660, 666 (Cal. 2005); Cal. Fam. Code 297.5. More than 37,000 children in California are currently being raised by same-sex couples. SER 558-63. Allowing these couples to marry would plainly serve the purpose of increasing the likelihood that children will be born to and raised in stable family units. Prop. Br. 58; see also Marriage Cases, 183 P.3d at 433 (a stable two-parent family relationship, supported by the states official recognition and protection, is equally as important for the numerous children in California who are being raised by same-sex couples as for those children being raised by opposite-sex couples (whether they are biological parents or adoptive parents)). D. Domestic Partnerships Do Not Satisfy Californias Due Process Obligations.
As the district court found, the evidence shows that domestic partnerships do not fulfill Californias due process obligation to plaintiffs. ER 150. [D]omestic partnerships are distinct from marriage and do not provide the same social meaning as marriage. ER 150. The evidence at trial shows that domestic partnerships exist solely to differentiate same-sex unions from marriages, marriage is a culturally superior status compared to a domestic partnership, and the withholding of the designation marriage significantly disadvantages plaintiffs. ER 151. Indeed, Proponents did not dispute the significant symbolic disparity between domestic partnership and marriage. ER 150. 52
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Plaintiffs and their witnesses testified that denying gay men and lesbians, and their families, access to marriage is stigmatizing and harmful because it denies their family relationships the same dignity and respect afforded to opposite-sex couples and their families. ER 117-18; see also SER 157, 159 (Meyer: domestic partnerships reduce the value of and stigmatize same-sex relationships); ER 1050-51 (Attorney General admitting that establishing a separate legal institution for state recognition and support of gay and lesbian relationships, even if well-intentioned, marginalizes and stigmatizes their families). Even Proponents expert David Blankenhorn agreed that [s]ame-sex marriage would signify greater social acceptance of homosexual love and the worth and validity of same-sex intimate relationships. SER 294; see also ER 780. Indeed, ensuring that gay and lesbian relationships were not officially accorded the same dignity, respect, and status as heterosexual marriages was one of the core underlying purposes of Proposition 8. See SER 156 (Meyer: Proposition 8, in its social meaning, sends a message that gay relationships are not to be respected; that they are of secondary value, if of any value at all; that they are certainly not equal to those of heterosexuals.); see also Strauss, 207 P.3d at 77. As the Supreme Court has recognized, a State cannot meet its constitutional obligations by conferring separate-and-inherently-unequal rights on a socially disfavored group because doing so impermissibly brands the disfavored group with a mark of in53
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feriority. See United States v. Virginia, 518 U.S. 515, 554 (1996); Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954). The district court therefore properly concluded that California does not meet its due process obligation to allow plaintiffs to marry by offering them a substitute and inferior institution that denies marriage to same-sex couples. ER 151. * * *
The Supreme Court has held that the Constitution afford[s] . . . protection to personal decisions relating to marriage and that [p]ersons in a homosexual relationship may seek autonomy for th[i]s purpose[ ], just as heterosexual persons do. Lawrence, 539 U.S. at 574. By prohibiting same-sex couples from marrying, Proposition 8 materially and substantially burdens gay and lesbian individuals fundamental right to marry. Accordingly, it can withstand constitutional scrutiny only if it is narrowly drawn to serve a compelling state interest[ ]. Carey, 431 U.S. at 686; see also ER 152. Proponents did notand do notmake a serious attempt to establish that Proposition 8 satisfies this onerous standard. See Prop. Br. 47-70. Indeed, as discussed below and as the district court concluded, Proposition 8 cannot satisfy even rational basis review. ER 158; see infra Part IV.B.14
In a one-sentence footnote, Proponents assert that, in light of the compelling interests served by marriage and the supposed connection between those interests
14
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Because Proposition 8 denies Plaintiffs a fundamental right without a compellingor even legitimatereason, it is unconstitutional under the Due Process Clause of the Fourteenth Amendment. ER 151-52. IV. PROPOSITION 8 VIOLATES EQUAL PROTECTION. From its founding the Nations basic commitment has been to foster the dignity and well-being of all persons within its borders. Goldberg v. Kelly, 397 U.S. 254, 264-65 (1970) (emphasis added). Indeed, [f]ormal equality before the law is the bedrock of our legal system. Jinro Am., Inc. v. Secure Invs., Inc., 266 F.3d 993, 1009 (9th Cir. 2001). The Equal Protection Clause safeguards that equality by secur[ing] every person within the States jurisdiction against intentional and arbitrary discrimination. Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008) (internal quotation marks omitted). [Footnote continued from previous page] and the biological differences between same-sex couples and opposite-sex couples, Proposition 8 readily satisfies heightened scrutiny. Prop. Br. 83 n.43. This lone footnote is likely insufficient even to preserve an argument that Proposition 8 could survive heightened scrutiny. See Intl Olympic Comm. v. San Francisco Arts & Athletics, 781 F.2d 733, 738 n.2 (9th Cir. 1986). But even if considered, Proponents footnote does not come close to the showing required to defend a discriminatory law under strict or intermediate scrutiny. Indeed, nowhere in their brief do Proponents even identify the States actual justification for excluding gay men and lesbians from marriage, as opposed to post hoc, hypothetical justifications that bear solely on the States decisions to recognize opposite-sex marriages but that provide absolutely no basis for stripping gay men and lesbians of their preexisting right to marry. See Virginia, 518 U.S. at 533 (under heightened scrutiny, the proffered justification must be genuine, not hypothesized or invented post hoc in response to litigation). 55
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Proposition 8 is antithetical to the principles of equality on which this Nation . . . prides itself. Plyler, 457 U.S. at 219. 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, or religiously unacceptable. 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. Proponents themselves do not dispute that this discriminatory message does profound and enduring stigmatic harm to gay men and lesbiansand their families. [I]f Prop. 8 were undone, and gay and lesbian kids . . . could never know what this felt like, then, as Plaintiff Kris Perry explained, their entire lives would be on a higher arc. They would live with a higher sense of themselves that would improve the quality of their entire life. SER 95; see also ER 120 (Meyer: Proposition 8 sends a message that gay relationships are not to be respected and places the States imprimatur on private discrimination); SER 294 (Blankenhorn). Despite the indisputably invidious effects of Proposition 8, Proponents contend that the measure is consistent with the Fourteenth Amendments commitment to dignity and equality because laws targeting gay men and lesbians are not subject to heightened equal protection scrutiny and because Proposition 8 is rationally related to legitimate state interests. They are wrong on both counts. 56
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As Professor Segura explained, There is simply no other person in society who endures the [same] likelihood of being harmed as a consequence of their identity [as] a gay man or lesbian. ER 132. Gay and lesbian individuals are precisely the type of physically and politically vulnerable minority group for whom heightened scrutiny is warranted. In any event, Proposition 8 cannot survive even rational basis review because there is simply no legitimate reason for stripping gay men and lesbians of their fundamental right to marry and singling them out for the separate-and-inherently unequal status of domestic partnership. Such targeted nullification of a disfavored groups rights has long been constitutionally proscribed. See Reitman v. Mulkey, 387 U.S. 369, 381 (1967) (invalidating a voter-enacted California constitutional provision that extinguished state-law protections that minorities had previously possessed against housing discrimination). Romer leaves no doubt that placing gay men and lesbians in a solitary class in the eyes of the law not to further a proper legislative end but to make them unequal to everyone else is flatly unconstitutional. 517 U.S. at 627, 635. And, while traditional opposite-sex marriage itself serves legitimate state interests (Prop. Br. 3), the constitutionally relevant question in this case is whether Proposition 8which eliminate[d] the ability of same-sex couples to enter into an official relationship designated marriage (Strauss, 207 P.3d at 77)furthers any legitimate objective. See Romer, 517 U.S. at 635 (inquiring whether Colorado had a 57
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rational basis for stripping gay men and lesbians of antidiscrimination protections, not whether Colorados antidiscrimination laws protecting other minority groups had a rational basis). The answer to that question is plainly no. In fact, Proposition 8 is not only blatantly discriminatory, but also wholly irrational. It creates at least five categories of couples in California: (1) Unmarried opposite-sex couples, who retain their right to marry; (2) married opposite-sex couples, whose marriages remain lawful and who can remarry upon being divorced or widowed; (3) unmarried same-sex couples, who are denied the right to marry, but who can enter into a domestic partnership that grants them all the rights and obligations of marriage; (4) the 18,000 same-sex couples married in California before the enactment of Proposition 8, whose marriages remain valid, but who cannot remarry if divorced or widowed; and (5) out-of-state same-sex couples who were lawfully married outside the State before the enactment of Proposition 8, whose marriages are recognized by the State if they later move to California. Such an arbitrary and contradictory patchwork of marriage regulations cannot conceivably advance a legitimate government interest. Id. at 632. A. Heightened Scrutiny Applies And Proposition 8 Cannot Survive It.
The district court found that the evidence presented at trial shows that gay men and lesbians are the type of minority strict scrutiny was designed to protect. ER 156. That finding follows inexorably from the Supreme Courts equal protection jurispru58
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dence, the extensive trial record, and Proponents concession that gay men and lesbians have faced a history of discrimination based on a trait that has no bearing on their ability to contribute to society. See SER 384, 386; SER 20. And, as Proponents effectively further concede, Proposition 8 cannot survive the exacting requirements of heightened scrutiny. 1. Proposition 8 Is Subject To Heightened Scrutiny Because It Discriminates On The Basis Of Sexual Orientation.
Strict and intermediate equal protection scrutiny apply to classifications based on factors so seldom relevant to achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985). The Supreme Court has consistently applied heightened scrutiny where a group has experienced a history of purposeful unequal treatment or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities. Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313 (1976) (per curiam) (internal quotation marks omitted); see also Virginia, 518 U.S. at 531-32 (noting long and unfortunate history of sex discrimination) (internal quotation marks omitted). In addition to a history of discrimination based on a characteristic that frequently bears no relation to ability to perform or contribute to society, Cleburne, 473 U.S. at 440-41 (internal quotation marks omitted), the Supreme Court has also identi59
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fied two additional factors that may be relevant to whether a classification triggers heightened scrutiny: (1) whether the distinguishing characteristic is immutable or beyond the group members control, see Lyng v. Castillo, 477 U.S. 635, 638 (1986), and (2) whether the group is a minority or politically powerless, Bowen v. Gilliard, 483 U.S. 587, 602 (1987) (internal quotation marks omitted). The Supreme Court has not considered these additional factors in every case (see, e.g., Murgia, 427 U.S. at 313), and both the Supreme Court and this Court have applied heightened scrutiny in cases where those factors were not present. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 235 (1995) (holding that all racial classifications are inherently suspect, even though many racial groups exercise substantial political power).15 The undisputed fact that gay men and lesbians have been subjected to a history of discrimination based on a trait that bears no relationship to their ability to contribute to society is sufficient, in and of itself, to render classifications based on sexual orientation suspect (or, at the very least, quasi-suspect) and to give rise to heightened scrutiny. As explained below, however, all four of the factors relevant to the apSee also Nyquist v. Mauclet, 432 U.S. 1, 9 n.11 (1977) (treating resident aliens as a suspect class despite their ability to opt out of that class voluntarily); Frontiero, 411 U.S. at 686 n.17 (applying intermediate scrutiny to women even though they do not constitute a small and powerless minority); Christian Sci. Reading Room Jointly Maintained v. City & Cnty. of San Francisco, 784 F.2d 1010, 1012 (9th Cir. 1986) (holding that an individual religion meets the requirements for treatment as a suspect class, even though religion is not immutable).
15
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propriate level of equal protection scrutiny weigh in favor of heightened scrutiny for classifications based on sexual orientation. History of Discrimination. Proponents do notand cannotdispute that gay men and lesbians have been subjected to a history of pervasive and intolerable discrimination. See SER 302 (Proponents lead counsel: We have never disputed and have offered to stipulate that gays and lesbians have been the victims of a long and shameful history of discrimination.). This undisputed history of public and private discrimination has been recognized by numerous courts. See, e.g., Lawrence, 539 U.S. at 571 (for centuries there have been powerful voices to condemn homosexual conduct as immoral); Kerrigan v. Commr of Pub. Health, 957 A.2d 407, 434 (Conn. 2008) (gay persons historically have been, and continue to be, the target of purposeful and pernicious discrimination due solely to their sexual orientation). And the evidence at trial confirms, beyond question, that gay men and lesbians have faced and continue to face severe discrimination based on naked prejudice and unfounded stereotypes. See ER 131-40.16
See also SER 130 (Chauncey: Gay men and lesbians have experienced widespread and acute discrimination from both public and private authorities over the course of the twentieth century. And that has continuing legacies and effects.); SER 639-46 (gay men and lesbians have been banned from federal employment); SER 65051 (letter from IRS denying tax exempt status to Pride Foundation because organizations goal of advancing the welfare of the gay community was perverted and deviate 61
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Ability to Contribute to Society. It is equally clear and uncontroverted that an individuals sexual orientation bears no relation to his or her ability to perform or contribute to society. Once again, Proponents admit as much. See SER 386 (Proponents admit that same-sex sexual orientation does not result in any impairment in judgment or general social and vocational capabilities). And their admission is consistent with extensive, unrefuted evidence that gay men and lesbians make meaningful contributions to all aspects of society without the slightest impairment attributable to their sexual orientation. See, e.g., SER 264 (Herek: There is no inherent relationship between a persons sexual orientation and his or her ability to be a productive and contributing member of society). Immutability. Proponents argue that the classification of citizens based on their sexual orientation cannot be deemed suspect for equal protection purposes because sexual orientation is not immutable and constitutes a complex and amorphous phenomenon that defies consistent and uniform definition. Prop. Br. 71-74. Proponents argument is both factually and legally flawed.
[Footnote continued from previous page] behavior and contrary to public policy); SER 368, 370, 372, 374, 376 (from 20042008, between 246 and 283 hate crimes motivated by sexual orientation bias each year). 62
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Ten years ago, this Court recognized that [s]exual orientation and sexual identity are immutable, and that [h]omosexuality is as deeply ingrained as heterosexuality. Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000) (internal quotation marks omitted). Sexual orientation is fundamental to ones identity, and gay and lesbian individuals should not be required to abandon it to gain access to fundamental rights guaranteed to all people. Id. Proponents do not even mention Hernandez-Montiel in their brief.17 Consistent with Hernandez-Montiel, the district court here found that [i]ndividuals do not generally choose their sexual orientation and that [n]o credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation. ER 109; see also ER 51 (Herek explained that . . . the vast majority of gays and lesbians have little or no choice in their sexual orientation; and therapeutic efforts to change an individuals sexual orientation have not been shown to be effective and instead pose a risk of harm to the individual.); SER 268 (Herek: Research shows that the vast maProponents instead rely on this Courts conclusion in High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563 (9th Cir. 1990), that sexual orientation is behavioral and a conduct-based classification. Id. at 573. But that reasoning has been authoritatively rejected by the Supreme Court. See Christian Legal Socy, 130 S. Ct. at 2990 (Our decisions have declined to distinguish between status and conduct in [the context of sexual orientation].).
17
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jority of gay men and lesbians report having no choice or very little choice about their sexual orientation.). Proponents nevertheless argue that sexual orientation cannot be deemed immutable because it can shift over time for a minority of individuals and because, according to one study, many people have had both a same-sex and opposite-sex partner since reaching the age of 18. Prop. Br. 74. Neither point overcomes the immutability of sexual orientation. First, the fact that a minority of gay men and lesbians may report that their orientation changed over their lifetime does not establish that they chose to make such a change or that they could change their sexual orientation today, either voluntarily or through therapy, in order to avoid discrimination. Nor do Proponents even try to explain why evidence of change in the sexual orientation of a minority of gay men and lesbians justifies denying the protection of heightened scrutiny to the majority of gay men and lesbians who report having little or no choice concerning their sexual orientation. Second, the fact that some gay men and lesbians may have experimented with heterosexual intimacy is hardly surprising given the undisputed discrimination and stigma that attach to being gay or lesbian, nor does an isolated instance of sexual conduct show that ones sexual orientation, as properly defined, is a choice or can be changed. See SER 261 (Herek: Sexual orientation is a term that we use to describe an enduring sexual, romantic, or intensely affectional attraction.) (emphasis added). 64
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Proponents argument that sexual orientation is too complex and amorphous to warrant heightened scrutiny fares no better. Prop. Br. 71. The district court properly rejected this argument as refuted by the evidence. See ER 107-08; SER 262 (Herek: When people are asked in research studies whether they are heterosexual, straight, gay, lesbian or bisexual, they are generally able to answer.). As Professor Herek testified, if two women wish to marry each other, it is reasonable to assume that they are lesbian, and if two men wish to marry each other, it is reasonable to assume that they are gay. SER 278. The district court also emphasized that the Proposition 8 campaign itself, and its many references to homosexuals, assumed voters understood the existence of homosexuals as individuals distinct from heterosexuals. ER 108-09. Moreover, because Proponents concede that gay men and lesbians have faced a history of discrimination, see SER 302, they find themselves in the untenable position of arguing that sexual orientation is sufficiently definable to serve as a basis for discrimination, but insufficiently definable to protect gay men and lesbians from that same discrimination. Relative Political Powerlessness. Proponents devote three sentences of their opening brief to arguing that gay men and lesbians are so politically powerful that they cannot possibly qualify for heightened scrutiny. Once again, Proponents are wrong.
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Plaintiffs presented extensive evidence at trial that gay and lesbian individuals possess less political power than other groups that are afforded the protection of suspect or quasi-suspect status under the Equal Protection Clause, including AfricanAmericans and women. See SER 2-16. Indeed, of the more than half million people who hold political office at the local, state, and national levels in this country, less than 300 are openly gay. Kerrigan, 957 A.2d at 446; see also SER 240-41 (Segura). No openly gay person has ever served in the United States Cabinet, on any federal court of appeals, or in the United States Senate, and there are only three openly gay members of the House of Representatives. SER 388; see also Kerrigan, 957 A.2d at 447. In contrast, African-Americans have served as President of the United States, Attorney General, and Secretary of State, as well as in the United States Senate and on the U.S. Supreme Court, and there are currently 41 African-American members of the House of Representatives. SER 247-48 (Segura); see also Congressional Research Serv., Membership of the 111th Congress: A Profile 5 (2010). Similarly, women currently head the Departments of State, Homeland Security, and Labor, and the 111th Congress includes seventeen female Senators and 76 female representatives, including the current Speaker of the House. See SER 243 (Segura); see also Congressional Research Serv., supra, at 5. Moreover, gay and lesbian individuals have been unable to secure federal legislation to protect themselves from discrimination in housing, employment, or public 66
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accommodations; they lack similar protections in 29 States, including seven of the ten largest; and they are banned from serving openly in the military. SER 230-31 (Segura). But see Log Cabin Republicans v. United States, _ F. Supp. 2d _, 2010 WL 3960791 (C.D. Cal. Oct. 12, 2010) (declaring Dont Ask, Dont Tell unconstitutional). And, there is no group in American society who has been targeted by ballot initiatives more than gays and lesbians. SER 236 (Segura). Nationwide, voters have used initiatives or referenda to repeal or prohibit marriage rights for gay and lesbian individuals 33 times; in contrast, such measures have been defeated just onceand even that victory for gay men and lesbians was undone by voters in the next election cycle. SER 238. This evidence leaves no doubt that gay and lesbian individuals have been unable to make the political strides necessary to protect themselves against the invidious discrimination that Proponents admit exists against them. See ER 88 (noting Millers concession that gays and lesbians currently face discrimination and that current discrimination is relevant to a groups political power). As much as (if not more than) any other minority group, gay men and lesbians require the protections of heightened scrutiny to shield them from the often-discriminatory whims of the political process.18
Proponents argument to the contrary relies on the assertion that, in California, the gay and lesbian community has achieved its major policy goals other than marriage 67
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Despite the overwhelming evidence that gay men and lesbians meet the criteria for heightened equal protection scrutiny, Proponents argue that a long line of binding precedent precludes this Court from deeming sexual orientation a suspect classification. Prop. Br. 70. They are wrong. Proponents rely principally on High Tech Gays v. Defense Industry Security Clearance Office, 895 F.2d 563, 571 (9th Cir. 1990), which held that sexual orientation is not a suspect or quasi-suspect classification. Prop. Br. 73. But, as the district court recognized when it denied Proponents summary judgment motion, High Tech Gays does not foreclose heightened scrutiny because it explicitly premised its equal protection analysis on Bowers v. Hardwick, 478 U.S. 186 (1986). See High Tech Gays, 895 F.2d at 571 (by the [Bowers] majority holding that the Constitution con[Footnote continued from previous page] equality. Prop. Br. 73 n.37. As an initial matter, Proponents are wrong to limit their focus to California because the relative political power of a group must be determined on a nationwide basis. The Fourteenth Amendment applies with equal force in all States, and restricting the political power inquiry to those States in which gay men and lesbians have achieved a modicum of political success ignores those individuals who live in jurisdictions where they may be discriminated against without consequence. In any event, Proponents argument overlooks the fact that the California Legislature prohibited discrimination on the basis of sexual orientation only after the state courts found such discrimination impermissible under the state constitution. SER 133-34 (Segura); see, e.g., Cal. Gov. Code 12920, 12921, 12940, 12955 (noting the Legislatures intent to codify court decisions prohibiting discrimination based on sexual orientation). These enactments thus provide no indication that gay and lesbian individuals in California are able to protect themselves through the political process without judicial intervention.
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fers no fundamental right upon homosexuals to engage in sodomy, and because homosexual conduct can thus be criminalized, homosexuals cannot constitute a suspect or quasi-suspect class); ER 188-89. Because Lawrence overruled Bowers, this Court is free to revisit whether sexual orientation is a suspect or quasi-suspect classification. See Miller, 335 F.3d at 900.19 Moreover, High Tech Gays finding that gay men and lesbians are not politically powerless was a factual determination decided on a vastly different record from the one before this Court. 895 F.2d at 574. In finding at the summary-judgment stage that gay men and lesbians are not politically powerless, High Tech Gays cited nothing more than the existence of various antidiscrimination measures in certain States. Id.
Nor do Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997), or Witt v. Department of the Air Force, 527 F.3d 806 (9th Cir. 2008), prevent this Court from applying heightened equal protection scrutiny. Philipsa challenge to the Dont Ask, Dont Tell policyexpressly relied on High Tech Gays to hold that sexual orientation is not a suspect or quasi-suspect classification. 106 F.3d at 1425. Like the case on which it relied, however, Philips was decided before Lawrence. And in Wittanother challenge to Dont Ask, Dont Tellthe plaintiff did not dispute that Philips was controlling as to the standard of equal protection scrutiny and simply preserved the issue for potential consideration by the en banc court. See Witt, 527 F.3d at 823-24 & n.4 (Canby, J., concurring in part and dissenting in part); see also Br. of Appellant at 52, Witt (No. 06-35644). Moreover, Witt was decided before the Supreme Courts recent decision in Christian Legal Society, 130 S. Ct. at 2990, which held that the Constitutions protections for gay men and lesbians do not rest on a distinction between status and conduct and thus rejected this Courts earlier rulings that regulations . . . directed to homosexual acts rather than merely to status or orientation[ ] are constitutional. Philips, 106 F.3d at 1427. 69
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Here, the extensive evidence regarding the comparative political power of gay men and lesbians and other minority groups, the absence of antidiscrimination protections for gay men and lesbians in the majority of jurisdictions, and the pervasive targeting of gay men and lesbians through the initiative processwhich has become significantly more prevalent since High Tech Gays was decided in 1990conclusively establishes that gay men and lesbians in fact lack sufficient political power to protect themselves from discrimination. Lastly, Proponents point to ten out-of-circuit decisions decided over the last three decades that have declined to apply heightened scrutiny to gay men and lesbians. Prop. Br. 70-71 n.35. Proponents forgo any discussion of the reasoning of these decisions or the state of the law at the time each case was decided. And for good reason. Seven of the ten cases were decided before the Supreme Court overturned Bowers in 2003. Moreover, all ten cases were decided before the Supreme Courts recent decision in Christian Legal Society, 130 S. Ct. at 2990, which rejected the distinction between status and behavior in the context of sexual orientation. In any event, most engage in little or no discussion of the four factors the Supreme Court has deemed rele-
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vant to the applicability of heightened scrutiny, and all are of limited persuasive force today.20 2. Proposition 8 Is Subject To Heightened Scrutiny Because It Discriminates On The Basis Of Sex.
Heightened scrutiny is also warranted for the additional reason that Proposition 8 discriminates on the basis of sex. Proposition 8 prohibits a man from marrying a person whom a woman would be free to marry, and vice-versa. As the district court explained: Perry is prohibited from marrying Stier, a woman, because Perry is a woman. If Perry were a man, Proposition 8 would not prohibit the marriage. Thus,
See, e.g., Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866-67 (8th Cir. 2006) (applying rational basis review with no discussion of the four relevant factors); Equal. Found. v. City of Cincinnati, 128 F.3d 289, 293 (6th Cir. 1997) (restating previous holding that gay men and lesbians were not a suspect class because the conduct which defined them as homosexuals was constitutionally proscribable); Steffan v. Perry, 41 F.3d 677, 684 n.3 (D.C. Cir. 1994) (en banc) ([I]f the government can criminalize homosexual conduct, a group that is defined by reference to that conduct cannot constitute a suspect class.); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989) (finding that homosexuality is primarily behavioral in nature and that, in light of Bowers, it cannot logically be asserted that discrimination against homosexuals is constitutionally infirm); Baker v. Wade, 769 F.2d 289, 292 (5th Cir. 1985) (en banc) (basing its holding on the premise that engaging in homosexual conduct is not a constitutionally protected liberty interest, and asserting that implementing morality is a permissible state goal). Proponents also cite the fact that Romer invalidated Colorados Amendment 2 under rational basis review. Prop. Br. 71 n.35. But Romer did not even discuss, let alone reject, the contention that gay men and lesbians meet the requirements for heightened scrutiny. Nor did the Court need to do so in light of its conclusion that Amendment 2 lacked even a rational basis.
20
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Proposition 8 operates to restrict Perrys choice of marital partner because of her sex. ER 154. The fact that Proposition 8s discriminatory restrictions apply with equal force to both sexes does not cure its constitutional deficiencies. As the Supreme Court held in Loving, the mere fact that Virginias anti-miscegenation law had equal application [to both the white and African-American member of the couple] d[id] not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race. 388 U.S. at 9. [E]qual application is thus a plainly insufficient basis for defending discriminatory restrictions on the right to marry. The district court also found that the sex-based restriction embodied in Proposition 8 is based on, and inextricably intertwined with, outdated and unfounded stereotypes about the roles that men and women should play in society and in the family. As the district court explained, [T]he evidence shows that the tradition of gender restrictions arose when spouses were legally required to adhere to specific gender roles. ER 159. Today, California has eliminated all legally mandated gender roles except the requirement that a marriage consist of one man and one woman. ER 159. Classifications based on sex are unconstitutional unless the State proves that they are substantially related to an important governmental objective[ ]. Virginia, 518 U.S. at 533 (internal quotation marks omitted). As discussed above, Proponents 72
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make no serious attempt to satisfy such heightened scrutiny. Proposition 8 is therefore unconstitutional for the additional, independent reason that it impermissibly discriminates on the basis of sex. B. Proposition 8 Fails Rational Basis Review.
Even though sexual orientation is a fundamental aspect of every persons identity and Proposition 8 targets gay men and lesbians for disfavored treatment because of their sexual orientation, Proponents nevertheless insist that rational basis review must apply to any challenge to Proposition 8s enshrinement of inequality. They contend that Proposition 8indeed, any law that targets gay men and lesbians for disfavored treatmentmust be examined as a court would scrutinize a law that provides educational benefits to combat veterans, but not conscientious objectors, Johnson v. Robison, 415 U.S. 361, 362-64 (1974); or establishes a mandatory retirement age for employees in the Foreign Service, but not the Civil Service, Vance v. Bradley, 440 U.S. 93, 95-96 (1979); or exempts from regulation certain satellite systems serving multiple buildings under common ownership, but not systems serving multiple buildings when owned or managed by multiple parties, FCC v. Beach Commcns, 508 U.S. 307, 310 (1993). This argument trivializes both the nature of sexual orientation and the horrifying acts of discrimination that gay men and lesbians have endured and continue to en-
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dure today. But Proposition 8 fails even this most relaxed level of constitutional scrutiny. Rational basis review does not mean no review at all. Government action that discriminates against a discrete class of citizens must bear[ ] a rational relation to some legitimate end. Romer, 517 U.S. at 631. While a plaintiff, to prevail under rational basis review, generally must negative every conceivable basis for the enactment, Heller v. Doe, 509 U.S. 312, 320 (1993) (internal quotation marks omitted), the States supposed rationales must find some footing in the realities of the subject addressed by the legislation, id. at 321, and must be ones that could reasonably be conceived to be true by the governmental decisionmaker. Vance, 440 U.S. at 111. And, of course, a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. Romer, 517 U.S. at 634 (quoting U.S. Dept of Agric. v. Moreno, 413 U.S. 528, 535 (1973)). Where one can identify a legitimate purpose that the government conceivably might have adopted, the Equal Protection Clause further requires that the States disparate treatment bear at least a rational relationship to the governmental objective. Cleburne, 473 U.S. at 446. While rational basis review does not require a particularly precise fit between the governments means and ends, a State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational. Lazy Y Ranch, 546 F.3d at 589 (quoting Cleburne, 74
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473 U.S. at 447). By insist[ing] on knowing the relation between the classification adopted and the object to be attained, courts ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law. Romer, 517 U.S at 632, 633. Proponents complain that the district court compiled a factual record as part of this analysis, charging that it simply could not have violated the[ ] well-established principles [of rational basis review] more pervasively. Prop. Br. 34; see also id. (complaining of the district courts 144 references to the evidence and testimony in the record). But this Court has rejected similar complaints and allowed plaintiffs to rebut the facts underlying defendants asserted rationale for a classification to show that the challenged classification could not reasonably be viewed to further the asserted purpose. Lazy Y Ranch, 546 F.3d at 590-91 (emphasis added); see also Lockary v. Kayfetz, 917 F.2d 1150, 1155 (9th Cir. 1990) (reversing grant of summary judgment to defendants in equal protection challenge to water moratorium, which State justified as rationally related to a legitimate state interest in controlling a water shortage, where the plaintiffs raised a triable issue of fact regarding the very existence of a water shortage). Thus, far from a pervasive[ ] violation of the law, the district courts decision to permit Plaintiffs to build a factual record of Proposition 8s
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irrationality was not only authorized by this Courts decisions, it was compelled by them.21 Measured against that factual record, Proponents two hypothesized rationales for Proposition 8 disintegrate. And, in the absence of any rational justifications for its decision to strip gay men and lesbians of their right to marry and thereby mark their relationships as inferior to those of heterosexual couples, the district court was right to conclude that the only available inference is that Proposition 8s principal purpose was to advance the majoritys moral disapproval of gay relationships. Just as moral disapproval could not justify Amendment 2 in Romer, it cannot justify Proposition 8. 1. Proposition 8 Cannot Be Justified By Proponents Concern With Responsible Procreation.
To understand Proponents argument that stripping gay men and lesbians of their right to marry furthers Californias vital interest in responsible procreation and childrearing, Prop. Br. 77, one first must understand what Proponents mean when
The statement in Beach Communications, frequently invoked by Proponents, that a legislative choice is not subject to courtroom factfinding is not to the contrary. 508 U.S. at 315. Beach itself explains that its statement was just other words for the uncontroversial proposition that, to sustain its classification under rational basis review, the government is not required to adduce legislative facts explaining the distinction on the record. Id. (internal quotation marks and alteration omitted). And as this Court observed in Lazy Y, the Supreme Courts subsequent decision in Heller v. Doe (which itself quotes Beachs statement on courtroom factfinding, 509 U.S. at 320) makes clear that a States classification must find some footing in the realties of the subject. 546 F.3d at 590 (quoting Heller, 509 U.S. at 321). 76
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they speak of the States interest in responsible procreation and childrearing. It encompasses two distinct, but related, concepts: First, it addresses the States desire to channel those heterosexual couples who might beget children by accident (id. at 86) into marital family units. But it also entails a purported interest in raising children in what Proponents have deemed to be the optimal social structure for child developmenta man and a woman, bound together in marriage, raising children genetically related to both parents. Id. at 78; see also id. at 84 n.44 (being born to and raised by both of their natural parents in stable, enduring family units is the optimal environment for children and the ideal). Indeed, this latter notion that the best situation for a child is to be raised by a married mother and father was a central theme of the Yes on 8 campaign. See ER 1032 (official ballot argument), 1039-40; SER 317-28, 653-55. Proponents argue that, by providing special recognition and encouragement to committed opposite-sex relationships, civil marriage channel[s] potentially procreative conduct of heterosexual couples into marital family structures that, at least when the parents each are genetically related to the child, are the optimal childrearing environment. Prop. Br. 78. The special recognition and encouragement of marriage may be withheld from same-sex couples, Proponents argue, because they present no risk of accidental procreation and cannot, in any circumstance, create an optimal childrearing environment. Id. at 86. 77
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Even applying a standard of mere rationality, this argument cannot sustain Proposition 8. To the extent Proponents rely on their conception of what constitutes the ideal childrearing environmentand their specific contention that it is superior to any environment that could be provided by a same-sex couplethat is not a rationale that the State of California could believe to be true. California has emphatically rejected the notion that gay men and lesbians are inferior parents. And, particularly after Proponents own experts demolished the factual underpinnings of Proponents theory, there is simply no room to debate the district courts sound and factuallysupported conclusion that [c]hildren raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted. ER 130. Moreover, to the extent Proponents rely on the States interest in directing sexually active heterosexual couples who could unintentionally procreate into stable marriages, Proposition 8 is a completely irrational means of achieving that end. Prohibiting gay men and lesbians from marrying simply does nothing to increase the likelihood that heterosexual couples with the capacity to procreate by accident will marry. Ironically, although Proponents argue that Proposition 8 is justified by an interest in children, Proposition 8s most direct impact on children is to deny to the tens of thousands of children being raised by same-sex couples the stability and protective benefits that marriage indisputably would provide them. 78
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a.
California Could Not Rationally Adopt Proponents View That Same-Sex Couples Provide Childrearing Environments Inferior To Those Provided By Opposite-Sex Couples When They Raise Their Genetic Offspring.
To sustain a law against an equal protection challenge, the proffered rationale must be one that could reasonably be conceived to be true by the governmental decisionmaker. Vance, 440 U.S. at 111. A suggested rationale that is objectively false will not suffice, see Lockary, 917 F.2d at 1155, nor will a rationale that the State has disavowed. See, e.g., Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 388 (D. Mass. 2010) (This court can readily dispose of the notion that denying federal recognition to same-sex marriages might encourage responsible procreation, because the government concedes that this objective bears no rational relationship to the operation of DOMA.). Proponents optimal childrearing environment interest fails these tests. i. Proponents stake their claim to appellate jurisdiction on the theory that
they are agents of the State and that they may directly assert the States interest in this appeal. Prop. Br. 19. If that is so, then Proponents cannot seek to justify Proposition 8 on grounds inimical to the States own interests. But they do just that, in ascribing to the State of California an interest in preferring Proponents optimal family structure to households headed by same-sex couples. California years ago disavowed
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the view that gay and lesbian couples cannot provide as suitable an environment for children as heterosexual couples. As the California Supreme Court has explained, the States current policies and conduct . . . recognize that gay individuals are fully capable of . . . responsibly caring for and raising children. Marriage Cases, 183 P.3d at 428. California law not only permits gay men and lesbians to raise children, but the California Supreme Court has also recognized that, under the state constitution, it is their basic civil right of personal autonomy and liberty to do soa right that they enjoy on the same terms and to the same extent as heterosexual persons. See id. at 429. In accordance with that constitutional command, the California Legislature has, in Proponents words (at 105), enacted some of the Nations most progressive and sweeping gay-rights protections, broadly prohibiting any discrimination in any businesss provision of services on the basis of sexual orientation, see Cal. Civ. Code 51, and specifically prohibiting discrimination against foster parents or adoptive parents on the basis of sexual orientation, see Cal. Welf. & Inst. Code 16013(a). Proposition 8 diminished none of these protections. See Strauss, 207 P.3d at 61 (authoritatively construing Proposition 8 as leaving undisturbed . . . a same sex couples state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws). Against this background, the Attorney General had no choice but to admit that California law recognizes both that an 80
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individuals capacity to raise children does not depend on the individuals sexual orientation, and that lesbian and gay parents are as likely as heterosexual parents to provide supportive and healthy environments for children. ER 1056-57. In suggesting that Proposition 8 could be predicated on a belief that heterosexual couples can create an ideal environment for childrearing that gay and lesbian couples cannot, Proponents ask this Court to foist upon the State a rationale that its robust antidiscrimination laws and, indeed, its Constitution, reject. For this reason alone, Proponents responsible procreation rationale is not one the State possibly could conceive[ ] to be true, Vance, 440 U.S. at 111, and thus cannot support Proposition 8.22 ii. Moreover, Proponents view has no footing in the realities of parent-
ing, as the evidence before the district court overwhelmingly demonstrated. Heller, 509 U.S. at 321. The district court had before it the unrebutted testimony of Dr. Michael Lamb, who has studied developmental psychology of children for nearly 40 years, publishThat California so emphatically rejects discrimination on the basis of sexual orientation distinguishes this case from Lofton v. Department of Children & Family Services, 358 F.3d 804 (11th Cir. 2004). There, Floridaquite unlike Californiahad a policy of creat[ing] adoptive homes that resemble the nuclear family as closely as possible with married mothers and fathers. Id. at 818. Florida, like Proponents, considered this to be the optimal family structure, id. at 819, but California law and policy plainly do not incorporate that view. 81
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ing in that time maybe 500 articles. SER 161, 164. Dr. Lamb explained that there is a large[ ] body of researchmaybe over 100 separate peer-reviewed professional articlesusing a wide variety of methodologies that document[s] very conclusively that children who are raised by gay and lesbian parents are just as likely to be well-adjusted as children raised by heterosexual parents. SER 162, 165, 168, 176; see also ER 130. But that is not just the informed opinion of Dr. Lamb. It is a view shared by the American Psychological Association and numerous other national professional organizations concerned with child development. See SER 414 (results of research suggest that lesbian and gay parents are as likely as heterosexual parents to provide supportive and healthy environments for their children); SER 440 (American Psychiatric Association); ER 1060 (American Academy of Pediatrics); SER 443 (American Academy of Child and Adolescent Psychiatry); SER 399 (American Psychoanalytic Association). Indeed, even Proponents expert Paul Nathanson testified in his deposition that peer-reviewed studies of the effect of permitting gay men and lesbians to marry on the rearing of children dont detect problems and they dont predict problems. SER 630. Proponents accuse the district court of uncritically accepting Dr. Lambs testimony instead of their instinctive, commonsense belief of what constitutes the ideal family unit. Prop. Br. 89. But Proponents suggested no sound reason for the 82
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district court to reject Dr. Lambs testimony, which was based not merely on commonsense belief but 40 years of experience and study of more than 100 peerreviewed reports investigating the effect of same-sex parenting on child development. They offered no witness to testify to the soundness of their commonsense belief, and identified no basis in social science for believing that children raised by same-sex couples achieve worse outcomes than those raised in Proponents ideal family unit, or, indeed, any family unit.23 To fill the void left by their presentation at trial, Proponents reference a handful of studies concluding that children raised from infancy by married parents (an intact family) do better on average than those raised by a parent and a step-parent, and infer that the benefits of the intact family appear to flow in substantial part from the biological connection shared by a child with both mother and father. Prop. Br. 80. Parents act in the best interests of their children, Proponents suggest, because of these natural bonds of affection. Id. at 88 (quoting Parham v. J.R., 442 U.S. 584, 602 (1979)). But as Dr. Lamb explained, there is no reason to believe these natural bonds of affection are the exclusive reserve of genetic parents. A tide of scholarship con-
Proponents did manage to unearth a study of Australian children in the early 1990s to support their view. SER 308. But as Dr. Lamb explained, that single study has obtained some notoriety because it is a complete outlier, the findings of which have never been corroborated or duplicated. SER 184, 199. 83
23
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firms that children adopted in infancy or conceived with a donated egg or sperm do just as well as children raised by their genetic parents. See SER 179; see also SER 432, 489, 507. Even Proponents expert David Blankenhorn testified that adoptive parents actually on some outcomes outstrip the biological parents in terms of providing protective care for their children. SER 284. And, indeed, in Parham, the parents whose natural bonds of affection the Supreme Court validated were seven-year-old J.R.s seventh set of foster parents. See 442 U.S. at 590. Moreover, as Dr. Lamb explained, in the social science literature, the term biological parent often refers not just to genetic parents, but also to any parent who has raised a child from infancy, including adoptive parents. SER 191-92; see also ER 1229 n.3 (Most studies do not distinguish biological parents from adoptive parents). When Proponents expert Dr. Loren Marks was confronted with the fact that the studies on which he relied used the term biological in precisely this encompassing manner, he offered to revise his opinion that married biological parents were the ideal family structure for the rearing of children by deleting the word biological. SER 638 (Dep. of Dr. Loren Marks); see also SER 194. Proponents thus ask this Court to accept as fact an assertion that Proponents own expert explicitly withdrew. To explain why their preferred family structure is, in fact, ideal, Proponents eventually fall back on gender stereotypes, asserting that there is little doubt that children benefit from having a parent of each gender. Prop. Br. 81; see also SER 676 84
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at 16:58-17:20 (campaign video decrying the confusion with two moms or two dads. I mean who do you go to when you need to learn how to change the oil if youre a guy?). But here again, Proponents ask this Court to accept as fact a rationale that their own expert Dr. Marks, when under oath at his deposition, refused to endorse. And, as Dr. Lamb (who himself subscribed to the theory of gender-differentiated parenting when it had its most currency in the 1970s) explained to the district court, since the 1970s there have been hundreds, thousands of articles that have explored the implications of that belief and found it to be wanting. SER 186; see also SER 177 (Lamb). The sources cited by Proponents suggest no reason to question the district courts findings that [t]he gender of a childs parent is not a factor in a childs adjustment, and that having both a male and a female parent does not increase the likelihood that a child will be well adjusted. ER 130. The thought piece of Norval Glenn invoked by Proponents (at 81) cites no sources whatsoever. See ER 446-49. And even David Popenoelong a proponent of the importance of genderdifferentiated parentingdid not believe it supplied an effective argument against same-sex parenting because, in his observations, in childrearing by homosexual couples, either gay or lesbian, one partner commonly fills the male-instrumental role while the other fills the female-expressive role. David Popenoe, Life Without Father 147 (1996). 85
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With nothing but their rendition of commonsense to support their view that only heterosexual parents can create an ideal family structure, Proponents attempt to portray the contrary social science evidence as methodologically flawed. For instance, Proponents note that Dr. Lamb identified no study comparing children raised by samesex couples to children raised by their married, biological parents. Prop. Br. 89. But this is just sound social science: If one is studying the impact of parenting by same-sex couples, one should use a comparison group that is similar in all respects except the factor to be studied. Since the vast majority of gay and lesbian couples cannot marry, the appropriate comparison group is unmarried heterosexual parents. See SER 190 (Lamb). Even Norval Glenn, whose views Proponents apparently believe warrant deference, acknowledges that this explanation is quite valid. ER 448. The fact is, as Glenn again acknowledges, [t]here have been dozens of studies of same-sex parenting. ER 447. And while this body of researchlike all bodies of researchleaves some questions still to be answered, those questions are today far fewer than in 2001 when Professor Nock signed the litigation affidavit on which Proponents and their academic authorities place so much reliance. See Prop. Br. 90 n.47; Witherspoon Inst., Marriage and the Public Good: Ten Principles 18 & n.94 (2008) (citing Nock affidavit). As a more recent analysis of research on same-sex parenting explained, Since 2001, the quality of the samples and data has advanced notably. New waves from longitudinal studies on children approaching early adolescence have 86
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appeared and several studies attained larger, more representative samples. Timothy J. Bilbarz & Judith Stacey, How Does the Gender of Parents Matter?, J. of Marriage & Fam., Feb. 2010, at 3, 9-10 (citations omitted). Whereas earlier opponents of samesex parenting perhaps could point to the absence of research with representative samples, now there is a study based upon the most representative sample imaginablethe United States Census. See SER 169-70, 182, 564. And whereas earlier opponents of same-sex parenting complained of the absence of long-term, longitudinal studies, Prop. Br. 90 (quoting Witherspoon Institute, supra), now there are studies that have followed children from infancy into early adulthood. SER 460. Against that background of more than 100 peer-reviewed studies, the State of California could not reasonably accept as a trueor even debatablestatement of fact Proponents view that only heterosexual couples can create an ideal childrearing environment. It is not an end that the State rationally could adopt as its own and therefore cannot sustain Proposition 8. b. Proposition 8 Is Not Rationally Related To Any Effort To Channel Unintentional Procreation Into Marriage.
To the extent Proponents seek to rest Proposition 8 on a more limited interest in channeling unintentional procreative conduct into marriage, Proposition 8 still fails rational basis review because it does not even indirectly increas[e] the likelihood
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that heterosexual couples with the capacity to procreate accidentally will marry. Prop. Br. 77. As authoritatively construed by the California Supreme Court, Proposition 8 does one thing and one thing only: It eliminates the ability of same-sex couples to enter into an official relationship designated marriage. Strauss, 207 P.3d at 77. Proponents suggest no reason to believeindeed, they make no argument at allthat prohibiting same-sex couples from entering relationships designated marriage will make it more likely that heterosexual couples in California will marry. Proponents instead argue that, under rational basis review, they need not show that Proposition 8 possibly could further their proffered interest in seeing heterosexual couples of childbearing capacity marry. Rational basis review, Proponents contend, permits a State to draw a line around those groups not pertinent to its objective and exclude them from a state-conferred benefit programhere, the special recognition and encouragement of a state-recognized marriage. Prop. Br. 78, 91 (quoting Vance, 440 U.S. at 109). As an initial matter, the Supreme Courts cases upholding line-drawing exercises under rational basis review all have been premised on the fundamental truth that where resources of the State are scarce, some line is essential, [and] any line must produce some harsh and apparently arbitrary consequences. Mathews v. Diaz, 426 U.S. 67, 83 (1976) (Medicare benefits); see also U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 88
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166, 179 (1980) (railroad retirement benefits); Vance, 440 U.S. at 109 (mandatory retirement from government employment); Johnson, 415 U.S. at 383 (veterans educational benefits). Marriage licenses, however, are not remotely a scarce commodity. Because limitations on marriage licenses are not essential or inevitable, they must advance some legitimate objective. But Proponents argument fails even on its own terms because the line Proposition 8 draws bears no relationship whatsoever to Proponents stated objective. There are many classes of heterosexual persons who cannot procreate unintentionally, including the old, the infertile, and the incarcerated. And there are still other classes of heterosexual persons who might have the capacity to procreate, but who have no desire to do so. All of these classes of heterosexual persons are as unlikely to procreate by accident as a same-sex couple, yet Proposition 8 is concerned with none of them. Proposition 8 targets gay men and lesbians for exclusion and them alone. Sometimes, a means of pursuing [an] objective can be so woefully underinclusive as to render belief in that purpose a challenge to the credulous. Republican Party of Minn. v. White, 536 U.S. 765, 780 (2002); see also Romer, 517 U.S. at 633 (holding that Amendment 2 confounds the normal process of judicial review under rational basis scrutiny because it is at once too narrow and too broad). This is not a question of an enactment having merely an imperfect fit between means and ends or drawing a line that lacks mathematical nicety. Heller, 509 U.S. at 321 (in89
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ternal quotation marks omitted). If Proposition 8 is intended to reserve special recognition of marriage for couples that can procreate by accident, it ma[k]e[s] no sense in light of how [it] treat[s] other groups similarly situated in relevant respects. Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 366 n.4 (2001) (discussing Cleburne, 473 U.S. at 447-50). It is true that same-sex couples are different from infertile or incarcerated heterosexual couples, but this difference is irrelevant unless [samesex couples] would threaten [Proponents interest] in a way that other [infertile heterosexual couples] would not. Cleburne, 473 U.S. at 448. Same-sex couples pose no such unique threat to Proponents effort to channel instances of accidental procreation into marriage, and thus the same-sex nature of the union is not a rational[ ] justif[ication] for singling them out for disfavored treatment. Id. at 450. Ironically, the surest and most direct impact of Proposition 8 on children is not to increase the likelihood that they will be raised in stable and enduring family units, Prop. Br. 77, but, instead, as the district court observed, to make it less likely that California children will be raised in stable households. ER 164 (emphasis added). In the name of promoting the likelihood that children would be raised in stable marital households, Proposition 8 reduced the number of families who could be married and thus the number of children who will be raised in such households. Proponents argue that there is no empirical evidence that children would obtain any incremental benefits through marriage, Prop. Br. 85 n.45, but again Proponents reject the views of 90
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their own expert, who testified that adopting same-sex marriage would be likely to improve the well-being of gay and lesbian households and their children. SER 285 (Blankenhorn). Indeed, nearly 40,000 children in California are being raised by gay and lesbian couples. SER 560. Proposition 8 categorically denies to all those children and their parents the protective benefits of marriage, including, critically, social acceptance. The fact that Proponents chosen meansjustified as improving the welfare of childrenin practical operation only harm children marks it as not merely imprecise, but wholly without any rational basis. Moreno, 413 U.S. at 538. 2. Proposition 8 Cannot Be Justified By An Abstract Fear Of Change.
Proponents second proffered justification for stripping gay men and lesbians of their right to marry is to forestall the possibility of long-term adverse societal consequences from allowing gay men and lesbians equal access to marriage. Prop. Br. 102. More specifically, Proponents worry that marriage equality would sever[ ] civil marriage from its traditional procreative purposes, resulting in a corrosion of marital norms, including that fathers should take responsibility for the children they beget and sexual fidelity (because, supposedly, gay couples tend to downplay the importance of sexual fidelity in their definition of marriage) and ultimately social devaluation of marriage as an institution. Id. at 96-97, 100.
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It bears noting at the outset that Proponents are not proffering as a justification a factually supported belief that permitting gay men and lesbians to marry is likely to cause the parade of horribles their brief conjures. While that was their argument during the campaign and perhaps even at the outset of this case, that changed dramatically as this litigation progressed. Indeed, when the district court asked their counsel point blank what harm would come to opposite-sex married couples if gay and lesbian couples could marry, Proponents counsel mustered only I dont know. I dont know. ER 44; see also Tr. 3093. And Proponents presented no witness who discussed data or studies tending to show that permitting gay men and lesbians to marry harms the institution of marriage. Proponents deinstitutionalization expert, David Blankenhorn, had not seen a seminal 2009 study that empirically tested his theory of deinstitutionalization and that concluded that laws permitting same-sex marriage or civil unions have no adverse effect on marriage, divorce, and abortion rates, the percent of children born out of wedlock, or the percent of households with children under 18 headed by women. SER 670-71. Mr. Blankenhorn dismissed that study, SER 300, but offered absolutely no explanation why manifestations of the deinstitutionalization of marriage would be exacerbated (and not, for example, ameliorated) by the presence of marriage for same-sex couples. ER 83.24
24
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In the absence of any factually supported belief that marriage equality would have negative effects on society, the question is whether the existence of a theory unsupported by empirical evidence or other factsthat marriage equality might have negative effects constitutes a basis for perpetuating that inequality. For at least two reasons, it does not. First, Proponents unsubstantiated fear that negative externalities might flow from marriage equality fails to come to grips with the fact that, before Proposition 8 was enacted, some 18,000 same-sex couples were married in California, and those marriages remain valid and recognized today. Strauss, 207 P.3d at 121-22. And each day, California recognizes as valid marriages of same-sex couples who were married outside California before Proposition 8s enactment under that States Marriage Recognition and Family Protection Act. Cal. Fam. Code 308. Even beyond that, California has among the most robust legal protections for same-sex couples in the Nation, [Footnote continued from previous page] exhibits used in cross-examination of Plaintiffs experts. See Prop. Br. 101-02. But the evidence they cite hardly helps their cause. First, Proponents assert that the divorce rates in Massachusetts changed for the worse after 2004, when same-sex couples were permitted to marry. Id. at 101. But the data show that the Massachusetts divorce rate was actually lower for every measured year starting in 2004 than it was from 1999-2003. See ER 118-19; ER 1362. Second, Proponents cite various marriage statistics in the Netherlands and assert that certain adverse trends were exacerbated after same-sex couples were permitted to marry. Prop. Br. 102. As Dr. Badgett testified, however, the data reflect preexisting trends that remained unchanged after samesex couples were permitted to marry. SER 217. 93
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providing them with all the rights, incidents, and benefits of marriage under state law, save the designation of their relationships as marriages. Marriage Cases, 183 P.3d at 434-35. Yet despite the thousands of instances in which California has severed marriage (and its incidents) from its traditional procreative purposes, Proponents do not even suggest that the purported deinstitutionalization of marriage is occurring more rapidly in California than in other States. They submitted not one affidavitnot even an unverified allegationthat a single resident of California either was less likely to get married or viewed his or her marriage as less valuable or less stable because California had extended some measure of marriage equality to same-sex couples. That complete failure of proof by Proponents is accurately reflected in the district courts factual finding that [p]ermitting same-sex couples to marry will not affect the number of opposite sex-couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages. ER 118-19. And against the background of Californias short, but entirely uneventful, experience with providing marriage rights to same-sex couples, the district courts finding is unassailable. Second, and perhaps more importantly, if Proponents are correct that an unsubstantiated fear of negative externalities of equality is sufficient to justify inequality, then discrimination can become self-justifying. See Cleburne, 473 U.S. at 448 (mere 94
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negative attitudes, or fear, unsubstantiated by factors which are properly cognizable . . . are not permissible bases for differential treatment). And the more valued the institution from which a class is excludedwhich is to say, the more injurious the inequalitythen the stronger the self-justification for the inequality becomes. On this view, in Moreno, the mere articulation of a fear that unrelated persons living in a single household might be fraudsters would have been sufficient to dispose of the equal protection attack on the statute excluding them from Food Stamps benefits. But see 413 U.S. at 535-37. In Zobel v. Williams, 457 U.S. 55 (1982), a fear that wellincented benefit-seekers might pour into Alaska would have been sufficient to sustain Alaskas durational residency scheme for distributing oil royalties. But see id. at 6163. And in Romer, the actually-stated fear that gay men and lesbians might flood legislatures and city councils with demands for antidiscrimination laws would have been sufficient to sustain Colorados Amendment 2. But see 517 U.S. at 635. It cannot be the law that public resistance to equal treatment itself can justify a denial of equal treatment. See Brown v. Bd. of Educ., 349 U.S. 294, 300 (1955) (it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them). If it were, then in Little Rock in 1958, the drastic opposing action on the part of the Governor of Arkansas who dispatched units of the Arkansas National Guard to the Central High School grounds and placed the school off limits to colored students itself could have been 95
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enough to justify the continuation of segregation. Cooper v. Aaron, 358 U.S. 1, 9 (1958). Of course, it was not. See id. at 16 (The constitutional rights of respondents are not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the Governor and Legislature.). Nor could it be, given the promise of the Equal Protection Clause to secure every person within the States jurisdiction against intentional and arbitrary discrimination. Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam); see also Buchanan v. Warley, 245 U.S. 60, 81 (1917) (It is urged that this proposed segregation will promote the public peace by preventing race conflicts. Desirable as this is, and important as is the preservation of the public peace, this aim cannot be accomplished by laws or ordinances which deny rights created or protected by the Federal Constitution.).25
Proponents amici are equally unsuccessful in their efforts to identify a rational basis for Proposition 8s arbitrary and discriminatory restrictions on the right to marry. Amicus Becket Fund for Religious Liberty, for example, contends that Proposition 8 is rationally related to the States interest in protecting the religious liberties of persons who are opposed to marriage by individuals of the same sex. According to the Becket Fund, religious groups will face liability under California antidiscrimination laws if they distinguish between married couples of the opposite sex and married couples of the same sex. Becket Br. 5-9. Those fears are unfounded. The California Supreme Court has already authoritatively determined as a matter of state law that, if gay men and lesbians are permitted to marry, no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs. Marriage Cases, 183 P.3d at 451-52. 96
25
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3.
Overwhelming Evidence Supports The District Courts Finding That Proposition 8 Was Motivated By A Bare Desire To Make Gay Men And Lesbians Unequal To Everyone Else.
The district court found that, [i]n the absence of a rational basis, what remains of proponents case is an inference . . . that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. ER 167. The district courts finding is supported both by Proponents failure to identify any legitimate state interest furthered by Proposition 8 and by extensive record evidence that Proposition 8 was enacted not to further a proper legislative end but for the illicit purpose of mak[ing] [gay men and lesbians] unequal to everyone else. Romer, 517 U.S. at 635. a. The Equal Protection Clause Prohibits Voters From Using The Initiative Process To Single Out A Disfavored Group For Unequal Treatment.
[A] bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. Romer, 517 U.S. at 634 (internal quotation marks omitted). In determining whether such improper motives animate a law targeting a disfavored group, courts not only scrutinize the post hoc justifications offered in defense of the law but also examine the explanations offered by legislators at the time of the laws enactment. See id. at 626-31. To discern the purposes underlying an enactment, courts pursue an objective inquiry that takes account of the traditional external signs that show up in the text, legislative history, and implementation of the statute, or 97
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comparable official act. McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 862 (2005) (internal quotation marks omitted); see also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 540 (1993) (plurality). Even on rational basis review, courts routinely examine legislative history and other available evidence to shed light on the purpose of an enactment. See Cleburne, 473 U.S. at 448; Moreno, 413 U.S. at 534. A voter-approved initiative is equally susceptible to such an examination. See Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 463 (1982); Reitman, 387 U.S. at 373. Indeed, this Court has already held that evidence concerning the campaign messages disseminated in support of Proposition 8 is relevant to Plaintiffs claims and might reasonably lead to the discovery of evidence undermining or impeaching Proponents claims that Proposition 8 serves legitimate state interests or showing that Proponents campaign messages were designed to appeal to the biases of the voters. Perry v. Schwarzenegger, 591 F.3d 1147, 1164 (9th Cir. 2010) (internal quotation marks and alterations omitted). Proponents nevertheless insist that this Court should simply ignore the extensive record evidence regarding the factors that motivated the enactment of Proposition 8. Prop. Br. 104-05. According to Proponents, Southern Alameda Spanish Speaking Organization v. Union City, 424 F.2d 291, 295 (9th Cir. 1970), establishes that voter motivation is not a proper subject of judicial inquiry. Prop. Br. 107. But Plaintiffs did 98
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not offerand the district court did not rely onevidence of the subjective state of mind of individual voters. Plaintiffs instead introduced publicly disseminated campaign messages from Proponents themselveswhich are part of the historical context for the initiatives enactment and an appropriate subject of judicial inquiry. S. Alameda, 424 F.2d at 295 (citing Reitman, 387 U.S. 369). While Proponents attempt to minimize this evidence on the ground that it represents merely a handful of the cacophony of messages before the electorate during the campaign, Proponents in fact produced in discovery more than 20,000 pages of documents from the Yes on 8 campaign. See SER 203. Plaintiffs introduced many of those documents during trial, including the voter pamphlet distributed to all voters; television advertisements broadcast across the State; campaign signs; presentations at events sponsored by Proponents and simulcast at locations across the State; and articles and website materials disseminated by Proponents. As discussed below, that array of campaign materials leaves no doubt that Proposition 8 was motivated by a desire to single out gay men and lesbians for disfavored treatment. b. The Purpose Of Proposition 8 Was To Brand Gay Men And Lesbians And Their Relationships As Different And Inferior.
Proposition 8 has a single purpose and single effect: It reserv[es] the official designation of the term marriage for the union of opposite-sex couples as a matter of 99
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state constitutional law. Strauss, 207 P.3d at 62. The Yes on 8 campaign materials introduced at trial make clear that this amendment was motivated by a desire to relegate gay men and lesbians to second-class status by denying them a fundamental right available to all other Californians. The Yes on 8 campaign repeatedly made this motivation explicit. For example, the campaign publicly argued that, if we have same-sex marriage legalized, its really giving implicitly our political blessing to this thing. . . . Its an affirmation that its just as good. And then were going to have this society that eventually is going to come to believe it. SER 552-53; see also SER 258-59 (Proponent Tam: it is important that parents be able to tell their children that domestic partnership is not marriage). Other campaign messaging focused on the theme that Proposition 8 was necessary to protect children from learning about gay relationships. For example, the official ballot argument in support of Proposition 8 stated that [w]e should not accept a court decision that may result in public schools teaching our kids that gay marriage is okay. ER 1032; see also id. (If the gay marriage ruling is not overturned, TEACHERS COULD BE REQUIRED to teach young children there is no difference between gay marriage and traditional marriage); id. (Proposition 8 protects our children from being taught that same-sex marriage is the same as traditional marriage). The Yes on 8 campaign translated this argument into a series of advertisements and 100
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simulcast presentations that warned, in the words of the campaigns architect, that this new fundamental right would be inculcated in young children through the public schools. SER 352; see also SER 548 (campaign poster with text Restoring Marriage and Protecting California Children); SER 550 (campaign poster stating Yes on 8 . . . You Have The Power To Protect Your Children).26 Even more ominously, other campaign materials suggested that Proposition 8 was necessary to protect children from gay men and lesbians themselves, and even to prevent children from becoming gay. Official proponent William Tam, for example, posted a letter on his website warning voters that, after gay men and lesbians secured the right to marry, they would continue to pursue their agenda, including legaliz[ing] having sex with children, and that, without Proposition 8, [m]ore children would be-
This education-based argument was highly misleading. California Education Code 51890 requires marriage to be discussed in schools only where age-appropriate health education is taught, but does not mandate any specific curriculum. Id. 51890(a). Moreover, another provision of the Education Code already makes clear that California public schools are affirmatively obligated to combat bias. Id. 201(b). Proposition 8 did not amend either of these provisions. In any event, contrary to the argument of amicus Hausvater Project, Proposition 8 is not rationally related to parents fundamental right to direct their childrens education because that right does not encompass the authority to control a public schools curriculum about marriage (or any other topic). As this Court has held, The constitution does not vest parents with the authority to interfere with a public schools decision as to how it will provide information to its students or what information it will provide, in its classrooms or otherwise. Fields v. Palmdale Sch. Dist., 427 F.3d 1197, 1206 (9th Cir. 2005). 101
26
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come homosexuals. SER 349; see also Perry, 591 F.3d at 1166 (reproducing letter); SER 674. Other Yes on 8 advertisements disseminated the Protect Our Children message by highlighting the purported developmental dangers posed by same-sex parents. In a simulcast to Yes on 8 supporters, for example, a Focus on the Family official claimed that it would be radically anti-human to say that male and female, mother and father, husband and wife are just really optional for the family. SER 556; see also SER 676 at 16:25-32 (American Family Association video claiming that the specter of children being raised in same-sex homes also turns nature on its head). Historian George Chauncey testified about the similarities between this Protect Our Children theme and earlier anti-gay political efforts, including a series of aggressive anti-gay campaigns led by Anita Bryant in the 1970s, which depicted gay men and lesbians as child molesters and homosexual predators. SER 132, 135. Professor Chauncey explained that, while the Yes on 8 advertisements were certainly more polite than the ads that Anita Bryant used 30 years ago, SER 145, the campaigns messaging gives a pretty strong echo of [Bryants] idea that simple exposure to gay people and their relationships is going to somehow lead a generation of young kids to become gay. SER 146. More broadly, voters were told that gay men and lesbians were trying to change society for the worse and interfere with the rights of heterosexuals. Thus, the official 102
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Yes on 8 ballot argument stated that, while gays have the right to their private lives, they do not have the right to redefine marriage for everyone else. ER 1032. The Yes on 8 campaign further warned that, [i]f Prop. 8 fails, it opens up the door for all the other laws that the homosexual agenda wants to enforce on other people. SER 675. Voters were told that homosexual activists wont stop at recognition, their aim is domination. SER 622. The inevitable result of same-sex marriage, the Yes on 8 campaign asserted, would be the destruction of marriage and the family itself. SER 612. To illustrate the gravity of the threat, one speaker at a statewide simulcast event likened same-sex marriage to September 11. SER 339. Another suggested that if gay men and lesbians could marry, then a man could marry a horse and a pedophile could marry a seven-year old. SER 341. Like Colorados Amendment 2, the purpose of Proposition 8 is clear: to place gay men and lesbians in a solitary class, disfavored in the eyes of the law, and withdraw[ ] from [them], but no others, specific legal protection[s]. Romer, 517 U.S. at 627. But [i]t is not within our constitutional tradition to enact laws of this sort (id. at 633)which exclude a disfavored group from a right enjoyed by all others simply to make them unequal to everyone else. Id. at 635. A purpose to discriminate against [a disfavored group] cannot, in and of itself and without reference to [some independent] considerations in the public interest, justify the classification. Moreno, 413 U.S. at 534-35 (second alteration in original; internal quotation marks 103
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omitted). Such unvarnished discrimination is unconstitutional even when based on sincerely held and widely shared moral beliefs. See Lawrence, 539 U.S. at 577 ([T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.) (internal quotation marks omitted); Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.). Of course, this does not mean that the voters who supported Proposition 8 were motivated by malice or hostility toward gay men and lesbiansalthough, to be sure, some of the campaign messages reflected these feelings. As Justice Kennedy has explained, Prejudice . . . rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves. Garrett, 531 U.S. at 375 (Kennedy, J., concurring); see also SER 205 (San Diego Mayor Jerry Sanders: Opposition to same-sex marriage didnt mean I hated gay people. . . . It simply meant that I hadnt understood the issue clearly enough.). There are many reasons why someone might be opposed to marriage between individuals of the same sex. But, whatever the reason that voters supported Proposition 8, the fact remains that it embodies an irrational and discriminatory classification 104
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that denies gay men and lesbians the fundamental right to marry enjoyed by all other citizens. That reason, standing alone, is sufficient to condemn Proposition 8 as unconstitutional. V. THE DISTRICT COURT DID NOT EXCEED ITS JURISDICTION. Proponents claim that the district courts order enjoining the enforcement of Proposition 8 must be limited to Plaintiffs, and can have no wider application. They are incorrect. The district courts injunction prohibiting Defendants, and all persons under their supervision, from enforcing Proposition 8 against any person is appropriate because it is necessary and proper to effectuate the district courts conclusion that Proposition 8 is facially unconstitutional. See 28 U.S.C. 2202 (authorizing courts to grant [f]urther necessary or proper relief based on a declaratory judgment). Indeed, in Doe v. Gallinot, 657 F.2d 1017 (9th Cir. 1981), this Court rejected an argument that is virtually identical to the one Proponents advance here. There, the district court invalidated a California involuntary-confinement statute in a suit brought by an individual plaintiff, and issued an injunction requiring the State to hold a probable cause hearing before certifying any person for confinement. Id. at 1021 & n.5. This Court upheld the injunction, concluding that, having declared the statutory scheme unconstitutional on its face, the district court was empowered under 28 U.S.C. 2202 to grant [f]urther necessary or proper relief to effectuate the judgment. Id. at 1025 105
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(emphasis added). The challenged provisions were not unconstitutional as to [plaintiff] alone, the Court explained, but as to any to whom they might be applied. Id. Appellants nevertheless cite Zepeda v. INS, 753 F.2d 719 (9th Cir. 1983), for the proposition that [an] injunction must be limited to apply only to the individual plaintiffs unless the district judge certifies a class of plaintiffs. Prop. Br. 29-30 (quoting Zepeda, 753 F.2d at 727). But in Bresgal v. Brock, 843 F.2d 1163 (9th Cir. 1988), this Court limited Zepeda to its facts, holding that it concerned a preliminary injunction, and is limited to that situation because [t]here is no general requirement that an injunction affect only the parties in the suit. Id. at 1169 (emphases added); see also id. (upholding an injunction that constrained the governments actions toward non-parties). Because Proposition 8 is unconstitutional . . . as to any to whom [it] might be applied (Doe, 657 F.2d at 1025), the district courts injunction is appropriate. CONCLUSION Last month, in a widely publicized tragedy, a young Rutgers student jumped to his death from the George Washington Bridge after being outed on the Internet as gay. A few days later, across the Hudson River in the Bronx, two 17-year-old young men were beaten and tortured to the brink of death by a gang of nine because they were suspected of being gay. Incidents such as these are all too familiar to our society. And it is too plain for argument that discrimination written into our constitutional 106
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charters inexorably leads to shame, humiliation, ostracism, fear, and hostility. The consequences are all too often very, very tragic. Proposition 8 was promoted as necessary to protect marriage and children, but its unmistakable purpose and effect is to isolate gay men and lesbians and their relationships as separate, unusual, dangerous, and unworthy of the marital relationship. By definition, such a law stigmatizes gay men and lesbians, and that kind of stigmatization leads, often indirectly, but certainly inevitably, to isolation and estrangement. What can the Supreme Court mean when it says that our Constitution neither knows nor tolerates classes among citizens, if a majority can so stigmatize a small, visible, and vulnerable minority and in the process cause such wrenching anguish? The American promiseand dreamof equality surely means at a minimum that the government, before drawing a line around some segment of its citizenry and designating them unworthy of something as important and socially meaningful as the institution of marriage, must have a legitimate and factually tenable rationale for doing so. Proposition 8 fails even this most basic level of scrutiny. It advances no legitimate purpose. The judgment of the district court should be affirmed. Respectfully submitted, /s/ Theodore B. Olson
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THEODORE J. BOUTROUS, JR. CHRISTOPHER D. DUSSEAULT THEANE EVANGELIS KAPUR SARAH E. PIEPMEIER ENRIQUE A. MONAGAS GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071 Telephone: (213) 229-7804 Facsimile: (213) 229-7520
THEODORE B. OLSON Counsel of Record MATTHEW D. MCGILL AMIR C. TAYRANI GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 Telephone: (202) 955-8500 Facsimile: (202) 467-0539 DAVID BOIES JEREMY M. GOLDMAN THEODORE H. UNO BOIES, SCHILLER & FLEXNER LLP 333 Main Street Armonk, New York 10504 Telephone: (914) 749-8200 Facsimile: (914) 749-8300
Attorneys for Plaintiffs-Appellees Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo Dated: October 18, 2010
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STATEMENT OF RELATED CASES Other than the related appeal by Imperial County (No. 10-16751) identified in Proponents Statement, Plaintiffs are aware of no related cases pending before this Court. /s/ Theodore B. Olson Dated: October 18, 2010
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Form 8.
Certificate of Compliance Pursuant to 9th Circuit Rules 28-4, 29-2(c)(2) and (3), 32-2 or 32-41 for Case Number 10-16696
Note: This form must be signed by the attorney or unrepresented litigant and attached to the end of the brief. I certify that (check appropriate option): This brief complies with the enlargement of brief size permitted by Ninth Circuit Rule 28-4. The briefs type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). This brief is words, lines of text or pages, excluding the portions exempted by Fed. R. App. P. 32(a)(7)(B)(iii), if applicable. This brief complies with the enlargement of brief size granted by court order dated . The briefs type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). This brief is words, lines of text or pages, excluding the portions exempted by Fed. R. App. P. 32(a)(7)(B)(iii), if applicable.
This brief is accompanied by a motion for leave to file an oversize brief pursuant to Circuit Rule 32-2 and is 26,532 words, lines of text or pages, excluding the portions exempted by Fed. R. App. P. 32(a)(7)(B)(iii), if applicable. This brief is accompanied by a motion for leave to file an oversize brief pursuant to Circuit Rule 29-2(c)(2) or (3) and is words, lines of text or pages, excluding the portions exempted by Fed. R. App. P. 32(a)(7)(B)(iii), if applicable. This brief complies with the length limits set forth at Ninth Circuit Rule 32-4. The briefs type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).
Signature of Attorney or Unrepresented Litigant
/s/ Theodore B. Olson

("s/" plus typed name is acceptable for electronically-filed documents)
Date
1
October 18, 2010
If filing a brief that falls within the length limitations set forth at Fed. R. App. P. 32(a)(7)(B), use Form 6, Federal Rules of Appellate Procedure.
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9th Circuit Case Number(s) 10-16696

NOTE: To secure your input, you should print the filled-in form to PDF (File > Print > PDF Printer/Creator).
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CERTIFICATE OF SERVICE When All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on (date) . I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. Signature (use "s/" format) *********************************************************************************
CERTIFICATE OF SERVICE When Not All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on (date) . October 18, 2010 Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within 3 calendar days to the following non-CM/ECF participants: Please see attached service list.
Signature (use "s/" format)
/s/ Theodore B. Olson
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SERVICE LIST
Thomas Brejcha THOMAS MORE SOCIETY 29 S. La Salle Street, Suite 440 Chicago, IL 60603 Von G. Keetch KIRTON & McCONKIE, PC Eagle Gate Tower 60 E. South Temple Salt Lake City, UT 84111 Jeffrey Mateer LIBERTY INSTITUTE 2001 W Plano Parkway, Suite 1600 Plano, TX 75075 Jeffrey Hunter Moon Anthony R. Picarello, Jr. Michael F. Moses UNITED STATES CATHOLIC CONFERENCE 3211 Fourth Street, N.E. Washington, DC 20017 Lincoln C. Oliphant COLUMBUS SCHOOL OF LAW The Catholic University of America 3600 John McCormack Road, NE Washington, DC 20064
Stuart J. Roth AMERICAN CENTER FOR LAW AND JUSTICE 201 Maryland Avenue, N.E. Washington, DC 20002 Anita L. Staver LIBERTY COUNSEL P.O. Box 540774 Orlando, FL 32854 Mathew D. Staver LIBERTY COUNSEL 1055 Maitland Center Commons 2nd Floor Maitland, FL 32751 James F. Sweeney SWEENEY & GREENE LLP 8001 Folsom Boulevard, Suite 101 Sacramento, CA 95826 M. Edward Whelan, III ETHICS AND PUBLIC POLICY CENTER 1730 M Street N.W., Suite 910 Washington, DC 20036
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COOPER AND KIRK, PLLC Charles J. Cooper (DC Bar No. 248070)* ccooper@cooperkirk.com David H. Thompson (DC Bar No. 450503)* dthompson@cooperkirk.com Howard C. Nielson, Jr. (DC Bar No. 473018)* hnielson@cooperkirk.com Nicole J. Moss (DC Bar No. 472424)* nmoss@cooperkirk.com Peter A. Patterson (OH Bar No. 0080840)* ppatterson@cooperkirk.com 1523 New Hampshire Ave. N.W., Washington, D.C. 20036 Telephone: (202) 220-9600, Facsimile: (202) 220-9601 LAW OFFICES OF ANDREW P. PUGNO Andrew P. Pugno (CA Bar No. 206587) andrew@pugnolaw.com 101 Parkshore Drive, Suite 100, Folsom, California 95630 Telephone: (916) 608-3065, Facsimile: (916) 608-3066 ALLIANCE DEFENSE FUND Brian W. Raum (NY Bar No. 2856102)* braum@telladf.org James A. Campbell (OH Bar No. 0081501)* jcampbell@telladf.org 15100 North 90th Street, Scottsdale, Arizona 85260 Telephone: (480) 444-0020, Facsimile: (480) 444-0028 ATTORNEYS FOR DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ, HAK-SHING WILLIAM TAM, MARK A. JANSSON, and PROTECTMARRIAGE.COM YES ON 8, A PROJECT OF CALIFORNIA RENEWAL * Admitted pro hac vice UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA KRISTIN M. PERRY, SANDRA B. STIER, PAUL CASE NO. 09-CV-2292 VRW T. KATAMI, and JEFFREY J. ZARRILLO, Plaintiffs, CITY AND COUNTY OF SAN FRANCISCO, Plaintiff-Intervenor, v. ARNOLD SCHWARZENEGGER, in his official capacity as Governor of California; EDMUND G. BROWN, JR., in his official capacity as Attorney General of California; MARK B. HORTON, in his DEFENDANT-INTERVENORS TRIAL MEMORANDUM Pretrial Conference Date: December 16, 2009 Time: 10:00 a.m. Judge: Chief Judge Vaughn R. Walker Location: Courtroom 6, 17th Floor Trial Date: January 11, 2010
DEFENDANT-INTERVENORS TRIAL MEMORANDUM CASE NO. 09-CV-2292 VRW
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official capacity as Director of the California Department of Public Health and State Registrar of Vital Statistics; LINETTE SCOTT, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health; PATRICK OCONNELL, in his official capacity as Clerk-Recorder for the County of Alameda; and DEAN C. LOGAN, in his official capacity as Registrar-Recorder/County Clerk for the County of Los Angeles, Defendants, and PROPOSITION 8 OFFICIAL PROPONENTS DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ, HAKSHING WILLIAM TAM, and MARK A. JANSSON; and PROTECTMARRIAGE.COM YES ON 8, A PROJECT OF CALIFORNIA RENEWAL, Defendant-Intervenors.
Additional Counsel for Defendant-Intervenors ALLIANCE DEFENSE FUND Timothy Chandler (CA Bar No. 234325) tchandler@telladf.org 101 Parkshore Drive, Suite 100, Folsom, California 95630 Telephone: (916) 932-2850, Facsimile: (916) 932-2851 Jordan W. Lorence (DC Bar No. 385022)* jlorence@telladf.org Austin R. Nimocks (TX Bar No. 24002695)* animocks@telladf.org 801 G Street NW, Suite 509, Washington, D.C. 20001 Telephone: (202) 393-8690, Facsimile: (202) 347-3622 * Admitted pro hac vice
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TABLE OF CONTENTS Page INTRODUCTION ............................................................................................................................... 1 ARGUMENT ....................................................................................................................................... 2 I. II. III. IV. V. VI. The Supreme Courts Decision in Baker Requires Rejection of Plaintiffs Claims. ............... 2 Proposition 8 Is Not Subject to Heightened Scrutiny under the Due Process Clause ............. 2 Proposition 8 Is Not Subject To Heightened Scrutiny Under The Equal Protection Clause. .. 4 Proposition 8 Satisfies Rational Basis Review. ...................................................................... 6 Proposition 8 Satisfies Heightened Scrutiny ......................................................................... 12 Proposition 8 Is Not Tainted By Animus Or Any Improper Motivation. .............................. 12 A. B. C. This Court Should Evaluate the Constitutionality of Proposition 8 Solely by Considering Its Language and Legal Operation. ....................................................... 12 The Language and Operation of Proposition 8 Refute Plaintiffs Claim of Animus.13 An Examination of the Actual Purposes of Proposition 8 Would Refute Plaintiffs Claims of Animus. ..................................................................................................... 13
CONCLUSION.................................................................................................................................. 15
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TABLE OF AUTHORITIES Cases Page
Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982)............................................................................ 7 Baker v. Nelson, 409 U.S. 810 (1972) ............................................................................................. 2, 4 Board of Trustees v. Garrett, 531 U.S. 356 (2001) ........................................................................... 15 Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006) ..................................................... 7 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) .......................................................... 6 Crawford v. Board of Educ., 458 U.S. 527 (1982) ............................................................................ 13 FCC v. Beach Communications, 508 U.S. 307 (1993) .................................................................. 6, 12 Frontiero v. Richardson, 411 U.S. 677 (1973) ................................................................................... 5 Heckler v. Mathews, 465 U.S. 728 (1984) ......................................................................................... 12 Heller v. Doe, 509 U.S. 312 (1993) ............................................................................................... 6, 11 High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) ................... 4 In re Marriage Cases, 1183 P.3d 384 (Cal. 2008) ........................................................................ 1, 13 Johnson v. Robison, 415 U.S. 361 (1974) ........................................................................................... 8 Katzenbach v. Morgan, 384 U.S. 641 (1966) ................................................................................... 11 Lawrence v. Texas, 539 U.S. 558 (2003) ....................................................................................... 4, 14 Las Vegas v Foley, 747 F.2d 1294 (9th Cir. 1984) ............................................................................ 12 Maher v. Roe, 432 U.S. 464 (1977) ................................................................................................... 14 McGowan v. Maryland, 366 U.S. 420 (1961) ................................................................................... 14 Nguyen v. INS, 533 U.S. 53 (2001).................................................................................................... 12 Nordlinger v. Hahn, 505 U.S. 1 (1992) ............................................................................................... 4 SASSO v. Union City, 424 F.2d 291 (9th Cir. 1970) ......................................................................... 12 Strauss v. Horton, 207 P.3d 48 (Cal. 2009) ....................................................................................... 13 United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166 (1980) ...................................................... 12 Vance v. Bradley, 440 U.S. 93 (1979) ........................................................................................... 6, 11 ii
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Washington v. Glucksberg, 521 U.S. 702 (1997) ...................................................................... 2, 6, 14
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Save for a few brief months between the California Supreme Courts decision in In re Marriage Cases, 183 P.3d 384 (Cal. 2008), and the adoption of Proposition 8, California has from its inception always limited marriage to the union of a man and a woman. Indeed, until this decade, every State, nation, and civilized society in every period of history had always limited marriage to opposite-sex relationships. And although a handful of States and foreign nations have very recently begun to experiment with extending marriage to same-sex relationships, the overwhelming majority of States and nations continue to limit marriage in this manner. Contrary to Plaintiffs contentions, the traditional definition of marriage does not reflect animus against gays and lesbiansin California or anywhere else. Nor is it in anyway arbitrary or irrational. Rather, it simply reflects the fact that the institution of marriage is, and always has been, uniquely concerned with promoting and regulating naturally procreative relationships between men and women to provide for the nurture and upbringing of the next generation. Although sharply disputed by Plaintiffs, this understanding of the central purposes of marriage has been repeatedly and persuasively articulated by leading lawyers, linguists, philosophers, and social scientists throughout history up to and including the present day. Indeed, until the recent advent of the movement to extend marriage to same-sex couples, this understanding of the central purposes of marriage was essentially undisputed. Because same-sex marriage is a very recent and still extremely limited phenomenon, it is impossible to determine with certainty how redefining marriage to include same-sex relationships would affect the institution and the vital interests it has always served. But there is every reason to believeas do many supporters as well as opponents of same-sex marriagethat redefining marriage in this manner will fundamentally change the public meaning of marriage in ways that will weaken this institution and harm the interests it has traditionally served. For this reason, Proposition 8which simply preserves the traditional definition of marriage and allows the people of California to proceed incrementally, and with caution, in addressing novel, controversial, and far-reaching changes to this venerable and bedrock social institutionis plainly constitutional. Neither the Due Process Clause nor the Equal Protection Clause requires this Court to invalidate the traditional definition of marriage and effectively sweep aside not only Proposition 1
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8 but the marriage laws of 44 other states and the federal government as well. ARGUMENT Proponents will demonstrate, through evidence presented at trial and post-trial briefing, if ordered by the Court, that Plaintiffs claims should be rejected and judgment entered for the Defendants for the reasons set forth below. I. The Supreme Courts Decision in Baker Requires Rejection of Plaintiffs Claims. As demonstrated in our summary judgment papers, the United States Supreme Courts decision in Baker v. Nelson, 409 U.S. 810 (1972), conclusively establishes that the traditional definition of marriage as the union of a man and a woman does not violate the Fourteenth Amendment.1 II. Proposition 8 Is Not Subject to Heightened Scrutiny under the Due Process Clause. Under controlling Supreme Court precedent, substantive due process specifically protects those fundamental rights and liberties which are, (1) objectively, deeply rooted in this Nations history and tradition, and (2) implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed. Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (quotation marks omitted). The identification of such rights requires a careful description of the asserted fundamental liberty interest. Id. The inquiry mandated by this controlling precedent makes clear that Proposition 8 does not infringe upon a fundamental right. Accordingly, it is subject only to rational-basis review under the Due Process Clause. See id. at 728. 1. Under Glucksberg, any claim that there is a fundamental right to have a same-sex relationship recognized as a marriage plainly lacks merit. Proponents will demonstrate, through documentary evidence, expert testimony, and/or legal materials that until this decade marriage has always been limited to opposite-sex unions, both in California and throughout the United States. The same limitation has existed in every civilized society throughout every period of history. While a handful of States and foreign countries have very recently begun to experiment with same1
Although this Court remains free to revisit this issue, see Local Rules 56-2, we recognize that this Court rejected this and other arguments in its summary judgment ruling. Thus, although we wish to preserve the issue, we will not belabor it here. More generally, we hereby explicitly incorporate and preserve all of the arguments made in our summary judgment papers, including our contention that the disputed issues in this case are legal in nature and/or involve legislative facts and thus need not be established through trial. See Doc # 172-1; Doc # 213. 2
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sex marriages, the overwhelming majority of States and nations continue to limit marriage to opposite-sex unions. Indeed, more than half of the States, like California, have enshrined this limitation in their Constitutions during the past five years alone. Proponents will also demonstrate that throughout history, marriage has always been understoodindeed definedboth in law and language, as the union of a man and a woman. Nor is this definition in anyway arbitrary or accidental. On the contrary, leading linguists, lawyers, philosophers, and social scientists have always understood marriage to be uniquely concerned with regulating naturally procreative relationships between men and women and providing for the nurture and care of the children who result from those relationships. Californias laws continue to reflect this understanding. 2. Nor can a right to have a same-sex relationship recognized as a marriage be shoehorned into the fundamental right to marry that has been recognized by the Supreme Court. Any attempt to define the latter right in so highly generalized and ahistorical a manner as would be necessary for it to encompass same-sex relationships is plainly contrary to the careful inquiry mandated by Glucksberg.2 Not surprisingly, the Supreme Court has never so much as hinted that the fundamental right to marry extends beyond opposite-sex unions. On the contrary, all of its cases upholding this right have addressed opposite-sex unions, and the reasoning and language of these cases are demonstrably rooted in the traditional understanding of marriage as the union of a man and a woman. Citing the abolishment of anti-miscegenation laws and coverture, as well as the advent of nofault divorce, Plaintiffs contend that the institution of marriage is capacious and fluid enough to encompass same-sex relationships. Even if Plaintiffs historical account were correct, the changes they identify simply do not bear on whether the fundamental right to marry protected by the Due Process Clause extends to same-sex relationships. In all events, Proponents will demonstrate that the changes cited by Plaintiffs are different in kind from the radical redefinition of marriage that
2
Furthermore, if the fundamental right to marry were conceived of in so abstract and ahistorical a manner, it is difficult to see why it would not also encompass other types of relationships, such as polygamous, polyamorous, and even some incestuous or underage relationships, that the state has traditionally refused to recognize as marriages. 3
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would be required under Plaintiffs legal theory. Among other things, these changes all involved features of marriage that were never universal, much less definitionaleven in the United States, let alone throughout history and across civilizations. Furthermore, all of these changes had already taken place, or were at least underway, at the time the Supreme Court determined that the fundamental right to marry does not extend to same-sex relationships in Baker, 409 U.S. at 810. 3. Finally, Lawrence v. Texas, which held that the Due Process Clause bars the criminalization of the most private human conduct, sexual behavior, in the most private of places, the home, 539 U.S. 558, 567 (2003), does not support a right to have a same-sex relationship recognized as a marriage. Indeed the Court explicitly stated that it was not addressing the question whether or not same-sex relationships are entitled to formal recognition in the law. Id. at 567; see also id. at 585 (OConnor, J., concurring in judgment). III. Proposition 8 Is Not Subject to Heightened Scrutiny Under the Equal Protection Clause. The distinction drawn by Proposition 8 between opposite-sex couples, on the one hand, and any other kind of relationship, including same-sex relationships, on the other hand, is subject only to rational basis review under the Equal Protection Clause. 1. It is an undeniable biological fact that same-sex couples are inherently incapable of natural procreation. Because the institution of marriage has always been uniquely concerned with regulating naturally procreative relationships, same-sex couples are not similarly situated to opposite-sex couples for purposes of marriage. Accordingly, Plaintiffs Equal Protection claim should be rejected. See, e.g., Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). 2. To the extent Proposition 8 draws a distinction based on sexual orientation, it is subject only to rational basis review under the Equal Protection Clause. Like every other federal court of appeals to address the issue, the Ninth Circuit has squarely held that homosexuals do not constitute a suspect or quasi-suspect class entitled to greater than rational basis scrutiny. E.g., High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990). Specifically, it has held that suspect or quasi-suspect classification requires a showing that a group (1) has suffered a history of discrimination, (2) is defined by an immutable characteristic, and (3) is politically 4
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powerless, and that gays and lesbians do not satisfy the second and third requirements. Id. at 57374. These holdings are binding, but Proponents will nonetheless demonstrate that they are plainly correct. First, Proponents will demonstrate that, far from being immutable, sexual orientation is a complex and amorphous phenomenon that defies consistent and uniform definition. Proponents will further demonstrate that however it is defined, sexual orientation can shift over time and does so for a significant number of people. And while its nature and determinants are not fully understood, it is plain that sexual orientation is not determined solely by accident of birth. Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality). The evidence at trial will show that many people freely choose their sexual orientation. Second, Proponents will demonstrate that, far from being politically powerless, gays and lesbians have substantial political power. This political power manifests itself in numerous ways, including the ability to force lawmakers to take positions and actions against their preferences, the ability to achieve legislative and regulatory victories, the existence of powerful and reliable political allies of the LGBT community (including leading professional organizations, labor unions, the Democratic party, the elite media, traditional civil rights organizations, Hollywood, and numerous politicians), and the ability to attract the attention of lawmakers. Indeed, with the exception of extending the denomination of marriage to same-sex relationships, virtually every policy supported by the gay and lesbian lobby in California has been enacted into California law. The positions taken by the Government defendants in this litigation likewise reflect the political reality that gays and lesbians are far from powerless. To the extent the LGBT community sometimes exercises less political power than some might desire, the tactics and statements of members of this community play a contributing role. Third, Plaintiffs vastly overstate the significance of prior discrimination against gays and lesbians. To be sure, in the past there was governmental discrimination against gay and lesbian individuals. But in 2009 in California, the government of California does not discriminate against gays and lesbians. In fact, gays and lesbians enjoy more social acceptance than ever before in this country. To be sure, there are segments of the citizenry that adhere to traditional moral and/or 5
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religious views that disapprove of homosexual conduct. But sincerely held moral or religious views that require acceptance and love of gay people, while disapproving certain aspects of their conduct, are not tantamount to discrimination. Finally, to the extent the relationship between sexual orientation and an individuals ability to contribute to society bears on the proper level of scrutiny under the Equal Protection Clause, this factor cuts sharply against heightened scrutiny here. For while sexual orientation may not affect individuals ability to contribute to society as a general matter, there is one critical exception: because they lack the natural procreative capacity of opposite-sex relations, same-sex relationships do not pose the unique benefits and challenges to society that follow from the natural procreative capacity of heterosexual relationships. Because it is precisely these benefits and challenges that the institution of marriage is primarily designed to address, it follows that Proposition 8 should be subject only to rational-basis review under the Equal Protection Clause. See, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 442 (1985). 3. Because the traditional definition of marriage as the union of a man and a woman does not treat men and women differently, every federal court, and nearly every state court to address the issue has determined that this definition does not discriminate on the basis of sex. Nor is there any credible evidence that the traditional opposite-sex definition of marriage functions to maintain male (or female) supremacy or improper stereotypes. Further, Plaintiffs sex-discrimination claim improperly conflates discrimination on the basis of sex with discrimination on the basis of sexual orientation. For all of these reasons, Proposition 8 is not subject to heightened scrutiny on this ground. IV. Proposition 8 Satisfies Rational Basis Review. Under rational basis review, Proposition 8 must be sustained if it is rationally related to any legitimate governmental interest. See, e.g., Glucksberg, 521 U.S. at 728; Heller v. Doe, 509 U.S. 312, 319-20 (1993). Under this highly deferential standard, Proposition 8 comes to [the Court] bearing a strong presumption of validity, and Plaintiffs bear the burden to negative every conceivable basis which might support it. FCC v. Beach Commcns, 508 U.S. 307, 313-15 (1993). Indeed, Plaintiffs must convince the court that the legislative facts on which the classification 6
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[drawn by Proposition 8] is apparently based could not reasonably be conceived to be true. Vance v. Bradley, 440 U.S. 93, 111 (1979).3 Proponents summary judgment papers elaborate upon these familiar standards, and we will not further belabor them here. Proponents will demonstrate Plaintiffs failure to carry their burden under this standard. 1. Controlling Ninth Circuit precedent, precedent from every other federal court save one (whose decision was unanimously reversed on appeal), and the large majority of state court judges to address the issue have concluded that the traditional definition of marriage as the union of a man and a woman satisfies rational basis review. See, e.g., Adams v. Howerton, 673 F.2d 1036, 1042-43 (9th Cir. 1982). This Court should follow suit. 2. Proponents will demonstrate that the traditional definition of marriage, as preserved by Proposition 8, furthers numerous vital governmental interests that would not be furthered, or would not be furthered to the same degree, by recognizing same-sex relationships as marriages. These interests include the following: Preserving the traditional institution of marriage as the union of a man and a woman. Preserving the traditional public, social, and legal meaning and symbolism of marriage. Preserving the traditional social and legal purposes, functions, and structure of marriage. Preserving the traditional meaning of marriage as it has always been defined in the English language. Expressing support for the traditional institution of marriage. Acting incrementally and with caution when considering a radical transformation to the fundamental nature of a bedrock social institution. Decreasing the probability of weakening the institution of marriage. Decreasing the probability of adverse consequences that could result from weakening the institution of marriage. Promoting the formation of naturally procreative unions.
Because the institution of marriage has always been, in our federal system, the predominant concern of state government . . . rational-basis review must be particularly deferential. Citizens for Equal Protection v. Bruning, 455 F.3d 859, 867 (8th Cir. 1995). 7
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Promoting stability and responsibility in naturally procreative relationships. Promoting enduring and stable family structures for the responsible raising and care of children by their biological parents.
Increasing the probability that natural procreation will occur within stable, enduring, and supporting family structures.
Promoting the natural and mutually beneficial bond between parents and their biological children.
Increasing the probability that each child will be raised by both of his or her biological parents.
Increasing the probability that each child will be raised by both a father and a mother. Increasing the probability that each child will have a legally recognized father and mother. Decreasing the probability of the potential adverse consequences of same-sex marriage identified below.
Preserving the prerogative and responsibility of parents to provide for the ethical and moral development and education of their own children.
Accommodating the First Amendment rights of individuals and institutions that oppose same-sex marriage on religious or moral grounds.
Using different names for different things. Maintaining the flexibility to separately address the needs of different types of relationships. Ensuring that California marriages are recognized in other jurisdictions. Conforming Californias definition of marriage to federal law. Any other conceivable legitimate interests identified by the parties, amici, or the court at any stage of the proceedings.
It follows that Proposition 8 is constitutional, for [w]hen, as in this case, the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not, we cannot say that a statutes classification of beneficiaries and nonbeneficiaries is invidiously discriminatory. Johnson v. Robison, 415 U.S. 361, 383 (1974). 3. Although they are not required to do so, Proponents will further demonstrate that redefining 8
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marriage to encompass same-sex relationships would very likely harm these and other interests. Among other things, allowing same-sex marriage would or could: Entail the further, and in some respects full, deinstitutionalization of marriage. Change the legal and public meaning of marriage from an institution with defined legal and social structure and purposes to a right of personal expression. Contribute over time to the further erosion of the institution of marriage, as reflected primarily in lower marriage rates, higher rates of divorce and non-marital cohabitation, and more children raised outside of marriage and separated from at least one of their natural parents. Require explicit public endorsement of the idea that a child does not really need both a mother and a father, likely resulting in fewer children growing up with fathers. Eradicate in law, and weaken further in culture the idea that what society favorsthat what is typically best for the child, the parents, and the communityis the natural mother married to the natural father, together raising their children, likely resulting over time in smaller proportions of children being raised by their own, married mothers and fathers. Publicly replace the idea that parenting is largely gendered, ideally involving both a mother and a father, with the idea that parenting is largely unisex, likely resulting in fewer men believing it is important for them to be active, hands-on parents of their children. Contribute to replacing the norm of the natural parent with the norm of the legal parent, likely resulting in a growing disjuncture between the biological and legal-social dimensions of parenthood and a significant expansion of the power of the state to determine who is entitled to parental rights. Increase the social acceptability of other alternative forms of intimate relationships, such as polyamory and polygamy. Increase the likelihood that the recognition as marriages of other alternative forms of intimate relationships, such as polyamory and polygamy, will become a judicially enforceable legal entitlement.
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Legally enshrine the principle that sexual orientation, as opposed to sexual embodiment, is a valid determinant of marriages structure and meaning.
Increase the likelihood that bisexual orientation could become a legitimate grounding for a legal entitlement to group marriage.
Require all relevant branches and agencies of government formally to replace the idea that marriage centers on opposite-sex bonding and male-female procreation with the idea that marriage is a private relationship between consenting adults.
Either end altogether, or significantly dilute, the public socialization of heterosexual young people into a marriage culture.
Cause many Americans opposed to same-sex marriage to abandon some or all of those public institutions that promote the new definition of marriage, probably resulting in the weakening of those institutions and a further rending of our common culture.
Render the traditional definition of marriage embraced by millions of Christian, Jewish, and Muslim Americans no longer legally or socially acceptable, thereby probably forcing many of these Americans to choose between being a believer and being a good citizen.
Lead to new state-imposed restrictions of First Amendment freedoms. Force some religious organizations now receiving public support to cease providing charitable services to the poor and to others.
Contribute to the public belief that marriage in our society is now politicized. Result in unmarried people increasingly, and logically, complaining that the legal and practical benefits currently attached to marriage properly belong to everyone.
Seriously threaten the functions and symbolism of marriage, thereby posing a risk to children and the demographic continuity of society.
Send a message to men that they have no significant place in family life, weakening the connection of fathers to their children.
Move marriage further away from its grounding in reproduction and the intergenerational cycle.
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Lead to changes in the laws governing marriage and parallel institutions in a manner that undercuts the effectiveness of marriage in achieving its traditional purposes.
4. Contrary to Plaintiffs contentions, California has not undermined the vital interests served by Proposition 8 by allowing opposite-sex couples who do not intend to, or cannot have children to marry; by allowing same-sex couples to adopt children and enter into domestic partnerships with essentially all the rights of marriage; or by recognizing a limited number of same-sex marriages that took place before Proposition 8 was enacted. First, for purposes of rational-basis review, it does not matter whether the lines drawn by Proposition 8 could have been drawn differently, whether Proposition 8 could have been more closely tailored to the interests we have identified, or whether the State might have gone further than it did in advancing those interests. See Vance, 440 U.S. at 102 n.20; Heller, 509 U.S. at 321; Katzenbach v. Morgan, 384 U.S. 641, 658 (1966). Second, the features of California law identified by Plaintiffs are not inconsistent with the interests we have identified. For example, allowing all opposite-sex couples to marry furthers the interests we have identified by, inter alia, (1) promoting a stable framework for raising any children that may result if a couple who did not intend to have children has an accidental or intentional change of plans, (2) discouraging the fertile partner of a sterile spouse from engaging in irresponsible, potentially procreative activity with other individuals, and (3) reinforcing cultural norms that heterosexual relationshipswhich at least as a general matter are potentially procreativeshould take place within the framework of marriage. Similarly, whatever other benefits California may provide to other types of relationships, by reserving the venerable designation of marriage to traditional opposite-sex unions alone, California uniquely promotes those relationships most likely to further the interests we have identified. Third, it would be ironic indeed if Californias solicitude for the relationships of gays and lesbians, as well as for the vested interests of the limited number of individuals who entered into lawful same-sex unions prior to Proposition 8, somehow placed that provision on weaker constitutional footing than the comparable provisions of nearly all of Californias sister states. Finally, if the juxtaposition of Proposition 8 with any other feature of California law results in 11
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constitutional infirmity, it does not follow that Proposition 8 must fall. Rather, any other inconsistent features of California law should yield to the constitutional expression of the people of Californias will. See Heckler v. Mathews, 465 U.S. 728, 739 n.5 (1984). V. Proposition 8 Satisfies Heightened Scrutiny. If necessary, Proponents will demonstrate that many of the interests listed above are sufficiently compelling, and that Proposition 8 bears a sufficiently close relationship to those interests, that Proposition 8 can survive whatever level of scrutiny is applied. VI. Proposition 8 Is Not Tainted by Animus or Any Improper Motivation. A. This Court Should Evaluate the Constitutionality of Proposition 8 Solely by Considering Its Language and Legal Operation. 1. Because Proposition 8 is subject only to rational-basis review, its constitutionality turns solely on whether it bears a rational relationship to any conceivable legitimate governmental
12 purpose. Whether the conceived purpose actually motivated the electorate is entirely irrelevant 13 for constitutional purposes. Beach Commcns, 508 U.S. at 313. And so long as Proposition 8 14 satisfies this inquiry, judicial scrutiny is at an end. United States R.R. Retirement Bd. v. Fritz, 15 449 U.S. 166, 179 (1980). No separate inquiry into voter motivations or intent is required, or even 16 permitted. 17
2. Even if heightened scrutiny applies, the purposes of Proposition 8 can and should be
18 determined by drawing logical conclusions from its text, structure, and operation. Nguyen v. INS, 19 533 US 53, 67-68 (2001). Any attempt to divine the actual motives of the voters who enacted it 20 would be impracticable, futile, Las Vegas v. Foley, 747 F.2d 1294, 1296-98 (9th Cir. 1984), 21 and beyond the scope of legitimate judicial inquiry, SASSO v. Union City, 424 F.2d 291, 295 (9th 22 Cir. 1970). In particular, given the cacophony of voices raised for and against Proposition 8, it 23 would be impossible to isolate and evaluate the effect of particular advertisements or messages on 24 the motivations of the electorate as a whole. For these reasons, campaign messages, advertisements, 25 and other communications relating to the adoption of Proposition 8 are simply irrelevant to its 26 constitutionality. 27 28 12
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B.
The Language and Operation of Proposition 8 Refute Plaintiffs Claims of Animus. As the California Supreme Court has recognized, the purpose of [Proposition 8] was simply to
restore the traditional definition of marriage as referring to a union between a man and a woman. Strauss v. Horton, 207 P.3d 48, 76 (Cal. 2009). And in enacting Proposition 8, the voters acted in the narrowest possible way to achieve this purpose, without unnecessarily disturbing any of the numerous legal benefits and protections afforded gays and lesbians under California law.4 As discussed above, Proponents will demonstrate that this traditional definition furthers vital governmental interests. Notably, in invalidating Proposition 8s identically worded statutory predecessor, the California Supreme Court expressly disclaimed any suggestion that the current marriage provisions were enacted with an invidious intent or purpose. In re Marriage Cases, 183 P.3d 384, 452 n.73 (Cal. 2008). It is simply implausible that Proposition 8 somehow transformed the venerable definition and institution of marriage into an instrument of bigotry against gays and lesbians. C. An Examination of the Actual Purposes of Proposition 8 Would Refute Plaintiffs Claims of Animus. Even if the Court attempts to ascertain the actual motivations of the California electorate in enacting Proposition 8, Proponents will refute Plaintiffs claims that the motives of the electorate render Proposition 8 constitutionally infirm. 1. Proponents will demonstrate that the vital interests furthered by the traditional definition of marriage were articulated to the California voters. 2. Proponents will demonstrate that numerous individuals, including prominent supporters of gay and lesbian rights, and even many gay and lesbian individuals, oppose recognizing same-sex relationships in good faith and for legitimate reasons that have nothing to with animus against gays and lesbians. Proponents will also demonstrate that, both historically and today, many societies and governmentsthroughout the United States and the worldthat embrace same-sex relationships
That Proposition 8 narrowly withdrew a right briefly recognized by the State Supreme Court does not render it unconstitutional. See Crawford v. Board of Educ., 458 U.S. 527 (1982). 13
SER 189
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
and/or strongly affirm gay and lesbian rights have nevertheless determined that same-sex relationships should not be recognized as marriages. 3. Proponents will demonstrate that recognizing same-sex relationships as domestic partnerships rather than marriages does not stigmatize gays and lesbians. Far from being an instrument of oppression, Californias domestic partnership legislation was strongly supported by gay and lesbian groups, and when offered the choice between marriage and domestic partnership many same-sex couples choose the latter. Further, it is simply not true that the government cannot afford special recognition to one class of individuals for their unique service to vital societal interests without demeaning others. 4. The fact that Proposition 8 accords with the religious beliefs of some Californians, and may have been supported by some voters for religious reasons, does not render it constitutionally infirm. See, e.g., McGowan v. Maryland, 366 U.S. 420, 442 (1961). Further, proponents will demonstrate that many Californians opposed Proposition 8 on religious grounds. 5. The fact that Proposition 8 accords with the moral beliefs of some Californians, and may have been supported by some voters on moral grounds, does not render it constitutionally infirm. While the Supreme Court has held that moral views do not justify criminalization of private samesex relationships, Lawrence, 539 U.S. at 571, it simply does not follow that a State must facilitate or promote such relationships, that it must provide those relationships equal recognition with traditional opposite-sex marriages, or that it cannot uniquely promote or otherwise express any preference for traditional marriage relationships, see, e.g., Maher v. Roe, 432 U.S. 464 (1977). Moreover, there are material differences between the moral views at issue in Lawrence and moral support for the traditional institution of marriage. In all events, there can be no doubt that many individuals opposed Proposition 8 on moral grounds. 6. It is certainly true that [t]hroughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of redefining marriage to include same-sex relationships. Glucksberg, 521 U.S. at 735. Given the central role of marriage in our society, it is hardly surprising that people on both sides of this debate have voiced their opinions forcefully, passionately, and sometimes intemperately. Indeed, many opponents of Proposition 8 14
SER 190
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voiced opinions and engaged in actions that plainly reflected animus against religious organizations and individuals as well as other supporters of Proposition 8 and may well have provoked a backlash in support of Proposition 8. Regardless of whether certain supporters or opponents of Proposition 8 acted out of animus, however, there is simply no basis for imputing the motivations of any given individual or individuals to the electorate as a whole. And in all events, while biases such as negative attitudes or fear . . . may often accompany irrational . . . discrimination, their presence alone does not a constitutional violation make. Board of Trustees v. Garrett, 531 U.S. 356, 367 (2001). * * *
For the foregoing reasons, Proponents will demonstrate that Plaintiffs claims should be rejected and judgment entered for the Defendants.
Dated:
December 7, 2009 COOPER AND KIRK, PLLC ATTORNEYS FOR DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ, HAK-SHING WILLIAM TAM, MARK A. JANSSON, AND PROTECTMARRIAGE.COM YES ON 8, A PROJECT OF CALIFORNIA RENEWAL
By: /s/Charles J. Cooper Charles J. Cooper
15
SER 191
CERTIFICATE OF SERVICE IN PAPER FORMAT I hereby certify that on November 1, 2011 a true and correct copy of the foregoing document was served on the following parties by U.S. First Class Mail: Charles J. Cooper David H. Thompson Howard C. Nielson, Jr. Peter A. Patterson COOPER AND KIRK, PLLC 1523 New Hampshire Avenue, N.W. Washington, DC 20036 Tel: (202) 220-9600 Fax: (202) 220-9601 Andrew P. Pugno LAW OFFICES OF ANDREW P. PUGNO 101 Parkshore Drive, Suite 100 Folsom, CA 95630 Tel: (916) 608-3065 Fax: (916) 608-3066 Brian W. Raum James A. Campbell ALLIANCE DEFENSE FUND 15100 North 90th Street Scottsdale, AZ 85260 Tel: (480) 444-0020 Fax: (480) 444-0028 Attorneys for Defendant-IntervenorsAppellants Hollingsworth, Knight, Gutierrez, Jansson, and ProtectMarriage.com Tamar Pachter OFFICE OF THE CALIFORNIA ATTORNEY GENERAL 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Tel: (415) 703-5970 Fax: (415) 703-1234 Attorney for Defendants Governor Edmund G. Brown, Jr., Attorney General Kamala D. Harris, Director Ron Chapman, and Deputy Director Linette Scott
Claude Franklin Kolm COUNTY OF ALAMEDA 122 Oak Street, Suite 450 Oakland, CA 94612-4296 Tel: (510) 272-6710 Fax: (510) 272-5020 Attorney for Defendant ClerkRecorder Patrick OConnell
Judy W. Whitehurst OFFICE OF COUNTY COUNSEL COUNTY OF LOS ANGELES 648 Kenneth Hahn Hall of Administration 500 West Temple Street Los Angeles, CA 90012 Tel: (213) 974-1895 Fax: (213) 617-7182 Attorney for Defendant RegistrarRecorder Dean C. Logan
Dennis J. Herrera Therese Stewart Christine Van Aken CITY AND COUNTY OF SAN FRANCISCO OFFICE OF THE CITY ATTORNEY One Dr. Carlton B. Goodlett Place, Room 234 San Francisco, CA 94102-4682 Tel: (415) 554-4708 Fax: (415) 554-4699 Attorneys for Plaintiff-Intervenor City and County of San Francisco
Terry L. Thompson LAW OFFICES OF TERRY L. THOMPSON P.O. Box 1346 Alamo, CA 94507 Tel: (925) 855-1507 Fax: (925) 820-6035 Attorney for Defendant-Intervenor Hak-Shing William Tam
Ephraim Margolin LAW OFFICES OF EPHRAIM MARGOLIN 240 Stockton Street, 4th Floor San Francisco, CA 94108 Tel: (415) 421-4347 Fax: (415) 397-9801 Attorney for Honorable Vaughn R. Walker
Thomas R. Burke Rochelle L. Wilcox DAVIS WRIGHT TREMAINE LLP 505 Montgomery Street, Suite 800 San Francisco, CA 94111-6533 Tel: (415) 276-6500 Fax: (415) 276-6599 Attorneys for Media Coalition
uzanne Maruschak

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INDEX TO SUPPLEMENTAL EXCERPTS OF RECORD

RECORD LOCATION Doc. No. 787

PAGE SER 1 SER 22

SER 26 SER 30 SER 33 SER 35 SER 38 SER 42

Defendant-Intervenors Trial Memorandum, Dec. 7, 2009

REPLY BRIEF IN SUPPORT OF MOTION TO VACATE OF DEFENDANT-INTERVENORS CASE NO. 09-CV-2292 JW

REPLY BRIEF IN SUPPORT OF MOTION TO VACATE OF DEFENDANT-INTERVENORS CASE NO. 09-CV-2292 JW

TABLE OF AUTHORITIES Page

09-CV-2292 JW DECLARATION OF ENRIQUE A. MONAGAS

Attached hereto as Exhibit F is a true and correct copy of Gerard V. Bradley,

/s/ Theodore B. Olson Theodore B. Olson

Judge being gay a nonissue during Prop. 8 trial

http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/02/07/BACF1BT7ON.DTL This article appeared on page C - 1 of the San Francisco Chronicle

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Distilling the same-sex marriage case

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THE DISTRICT COURT DID NOT EXCEED ITS JURISDICTION............................................................................... 105

CONCLUSION ..................................................................................................... 106

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Proposition 8an official statement of the Yes on 8 campaignurged voters to sup7

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