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NO. 10-16696
ORAL ARGUMENT SCHEDULED FOR DECEMBER 6, 2010
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISTIN PERRY, et al.,
Plaintiffs-Appellees,
v.
ARNOLD SCHWARZENEGGER, et al.
Defendants,
and
DENNIS HOLLINGSWORTH, et al., Defendant-Intervenors-Appellants.
Appeal from United States District Court for the Northern District of California
Civil Case No. 09-CV-2292 VRW (Honorable Vaughn R. Walker)
DEFENDANT-INTERVENORS-APPELLANTS’
REPLY BRIEF
Andrew P. Pugno
LAW OFFICES OF ANDREW P. PUGNO
101 Parkshore Drive, Suite 100
Folsom, California 95630
(916) 608-3065; (916) 608-3066 Fax
Brian W. Raum
James A. Campbell
ALLIANCE DEFENSE FUND
15100 North 90th Street
Scottsdale, Arizona 85260
(480) 444-0020; (480) 444-0028 Fax
Charles J. Cooper
David H. Thompson
Howard C. Nielson, Jr.
Peter A. Patterson
COOPER AND KIRK, PLLC
1523 New Hampshire Ave., N.W.
Washington, D.C. 20036
(202) 220-9600; (202) 220-9601 Fax
Attorneys for Defendant-Intervenors-Appellants Hollingsworth, Knight, Gutierrez,
Jansson, and ProtectMarriage.com
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TABLE OF CONTENTS
Page
INTRODUCTION .....................................................................................................1
ARGUMENT.............................................................................................................5
I. PROPONENTS HAVE STANDING. ........................................................................5
II. THE DISTRICT COURT LACKED JURISDICTION TO GRANT INJUNCTIVE
RELIEF TO PERSONS NOT BEFORE THE COURT.................................................9
III. BINDING PRECEDENT FORECLOSES PLAINTIFFS’ CLAIMS. ..............................15
IV. THIS COURT OWES NO DEFERENCE TO THE DISTRICT COURT’S RULING........20
V. THE TRADITIONAL DEFINITION OF MARRIAGE DOES NOT VIOLATE
PLAINTIFFS’ FUNDAMENTAL RIGHT TO MARRY..............................................26
VI. PROPOSITION 8 IS SUBJECT TO RATIONAL BASIS SCRUTINY UNDER
THE EQUAL PROTECTION CLAUSE...................................................................35
A. Binding precedent establishes that gays and lesbians do not
constitute a suspect or quasi-suspect class. .........................................35
B. Homosexuality is a complex and amorphous phenomenon,
distinguishing gays and lesbians from other classes the Supreme
Court has recognized as suspect or quasi-suspect...............................38
C. Plaintiffs misapprehend the requirements for heightened protection
under the Equal Protection Clause. .....................................................40
D. Gays and lesbians do not meet the requirements for suspect orquasi-suspect classification. ................................................................42
History of Discrimination....................................................................42
Immutability.........................................................................................43
Political Power ....................................................................................44
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E. Proposition 8 does not discriminate on the basis of sex. ................... 49
VII. PROPOSITION 8 ADVANCES VITAL STATE INTERESTS, AND THUS PLAINLY
SATISFIES RATIONAL BASIS REVIEW. .............................................................50
A. Rational basis review is not limited to economic legislation. .............52
B. Proposition 8 is closely related to California’s vital interest in
responsible procreation and childrearing. ...........................................52
C. Proposition 8 advances California’s interest in proceeding with
caution when considering a fundamental change to a vital social
institution.............................................................................................67
D. Proposition 8’s rationality is not undermined by its alleged effectson gays and lesbians and their children...............................................70
VIII. NOTHING IN CALIFORNIA LAW NOR THE CIRCUMSTANCES SURROUNDING
ITS ENACTMENT RENDERS PROPOSITION 8 UNCONSTITUTIONAL....................75
A. The circumstances that led to Proposition 8’s enactment do not
distinguish it from the laws of other states that protect the
traditional definition of marriage. .......................................................75
B. Proposition 8 is not irrational in light of other California laws. .........80
C. The campaign to pass Proposition 8 does not undermine its
constitutionality. ..................................................................................85
CONCLUSION........................................................................................................92
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TABLE OF AUTHORITIES
Cases Page
Adams v. Howerton, 486 F. Supp. 2d 1119 (1980), aff’d on other grounds,
673 F.2d 1036 (9th Cir. 1982) ............................................................................59
Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982)..........................................15, 19
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995)......................................40
Agostini v. Felton, 521 U.S. 203 (1997) ..................................................................16
Arizonans for Official English v. Arizona, 520 U.S. 43 (1997).............................6, 9
Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977) ............9
Arthur v. Toledo, 782 F.2d 565 (6th Cir. 1986).......................................................86
Baker v. Baker , 13 Cal. 87 (1859) .............................................................................2
Baker v. Nelson, 409 U.S. 810 (1972) ...............................................................15, 73
Baker v. State, 744 A.2d 864 (Vt. 1999)..................................................................49
Board of Trustees of the Univ. of Ala. v. Garrett ,531 U.S. 356 (2001)......................................................................3, 52, 55, 74, 89
Boddie v. Connecticut , 401 U.S. 371 (1971) ...........................................................32
Bowers v. Hardwick , 478 U.S. 186 (1986) ..............................................................36
Bresgal v. Brock , 843 F.2d 1163 (9th Cir. 1988) ....................................................11
Brown v. Board of Educ., 347 U.S. 483 (1954).................................................22, 82
Brown v. Trustees of Boston Univ., 891 F.2d 337 (1st Cir. 1989)...........................12
Carpenters Pension Trust v. Kronschnabel, 632 F.2d 745 (9th Cir. 1980) ............15
Christian Legal Soc’y v. Martinez, 130 S. Ct. 2971 (2010) ....................................37
Christian Science Reading Room Jointly Maintained v. San Francisco,
784 F.2d 1010 (9th Cir. 1986) ............................................................................42
Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006) .............36, 53, 54
City and County of San Francisco v. Proposition 22 Legal Defense and Educ.Fund , 128 Cal. App. 4th 1030 (2005)...................................................................7
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)......39, 45, 52, 54, 56
City of Richmond v. J. A. Croson Co., 488 U.S. 469 (1989)...................................46
Cleveland Bd. of Educ. v. La Fleur , 414 U.S. 632 (1974).......................................31
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Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949).................................10
Cook v. Gates, 528 F.3d 42 (1st Cir. 2008) .............................................................36
Coyote Publ’g, Inc. v. Miller , 598 F.3d 592 (9th Cir. 2010).............................78, 84
Crawford v. Board of Educ., 458 U.S. 527 (1982) ......................................76, 79, 86 District of Columbia v. Heller , 128 S. Ct. 2783 (2008)...........................................28
Doe v. Gallinot , 657 F.2d 1017 (9th Cir. 1981) ......................................................12
Don’t Bankrupt Washington Comm. v. Continental Ill. Nat’l Bank of Chicago, 460 U.S. 1077 (1983)..............................................................6
Dunagin v. City of Oxford , 718 F.2d 738 (5th Cir. 1983) .................................21, 24
Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486 (9th Cir. 1996)..........12
Eisenstadt v. Baird , 405 U.S. 438 (1972) ................................................................32
Equality Found. of Greater Cincinnati v. Cincinnati, 128 F.3d 289
(6th Cir. 1997)...............................................................................................38, 86
Equality Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 54 F.3d 261
(6th Cir. 1995), vacated on other grounds, 518 U.S. 1001 (1996) ....................24
Everhart v. Bowen, 853 F.2d 1532 (10th Cir. 1988),
rev’d on other grounds sub nom, Sullivan v. Everhart , 494 U.S. 83 (1990)......12
FCC v. Beach Commc’ns, Inc., 508 U.S. 307 (1993)..................................51, 52, 84
Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130 (9th Cir. 2003) ..............38Frontiero v. Richardson, 411 U.S. 677 (1973)............................................18, 41, 48
Griswold v. Connecticut , 381 U.S. 479 (1965)........................................................32
Grutter v. Bollinger , 539 U.S. 306 (2003)...............................................................22
Grutter v. Bollinger , 137 F. Supp. 2d 821 (E.D. Mich. 2001) ................................22
Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001)..................................................17
Heller v. Doe, 509 U.S. 312 (1993).......................................... 25, 51, 52, 53, 56, 57
Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000) .....................................38 Hicks v. Miranda, 422 U.S. 332 (1975) ...................................................................16
High Tech Gays v. Defense Indus. Serv. Clearing Office,
895 F.2d 563 (9th Cir. 1990) ........................................ 35, 37, 38, 40, 42, Passim
Holloway v. Arthur Andersen & Co., 566 F.2d 659 (9th Cir. 1977) .......................39
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Horne v. Flores, 129 S. Ct. 2579 (2009) .................................................................14
Hunter v. Erickson, 393 U.S. 385 (1969) ................................................................86
Hunter v. Regents of the Univ. of Cal., 190 F.3d 1061
(9th Cir. 1999).....................................................................................................24
In re Marriage Cases, 183 P.3d 384 (Cal. 2008) ............................................7, 8, 49
In re Marriage Cases, No. S147999,
2008 Cal. LEXIS 6807 (Cal. June 4, 2008) ........................................................78
In re Marriage Cases, 143 Cal. App. 4th 873 (Cal. Ct. App. 2006),
rev’d , 183 P.3d 384 (Cal. 2008) .........................................................................74
James v. Valtierra, 402 U.S. 137 (1971) ...........................................................23, 86
Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004)..................................................36
Johnson v. Robison, 415 U.S. 361 (1974) .............................................40, 43, 54, 71
Karcher v. May, 484 U.S. 72 (1987) .........................................................................5
Larson v. Volente, 456 U.S. 228 (1982) ..................................................................13
Lawrence v. Texas, 539 U.S. 558 (2003).....................................................17, 30, 31
Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580 (9th Cir. 2008) ..................................25
Lewis v. Casey, 518 U.S. 343 (1996).......................................................................13
Lockary v Kayfetz, 917 F.2d 1150 (9th Cir. 1990) ..................................................26
Locke v. Davey, 540 U.S. 712 (2004) ......................................................................42
Lockhart v. McCree, 476 U.S. 162 (1986).........................................................21, 23
Lofton v. Secretary of the Dep’t of Children & Family, 358 F.3d 804
(11th Cir. 2004)...................................................................................................36
Loving v. Virginia, 388 U.S. 1 (1967) .....................................................2, 17, 47, 49
Maher v. Roe, 432 U.S. 464 (1977) .........................................................................52
Marshall v. Sawyer , 365 F.2d 105 (9th Cir. 1966) ..................................................21
Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) ...................52, 58 McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005) ..............................85
McDonald v. City of Chicago, 130 S. Ct. 3020 (2010) ...........................................29
McKinnon v. Patterson, 568 F.2d 930 (2d Cir. 1977) .............................................13
Meinhold v. U.S. Dep’t of Defense, 34 F.3d 1469 (9th Cir. 1994)..........................11
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Michael M. v. Superior Court , 450 U.S. 464 (1981) ...................................57, 60, 89
Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) .....................................................20
Miller v. Johnson, 515 U.S. 900 (1995)...................................................................47
Moore v. City of East Cleveland , 431 U.S. 494 (1977) ...........................................32 Nguyen v. INS, 533 U.S. 53 (2001)....................................................................51, 59
Nyquist v. Mauclet , 432 U.S. 1 (1977).....................................................................41
Parham v. Hughes, 441 U.S. 347 (1979).................................................................42
Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008).........................................................87
Plyler v. Doe, 457 U.S. 202 (1982)....................................................................23, 75
Price-Cornelison v. Brooks, 524 F.3d 1103 (10th Cir. 2008) .................................36
Railroad Retirement Bd. v. Fritz, 449 U.S. 166 (1980)...........................................92 Reed v. Reed , 404 U.S. 71 (1971)............................................................................18
Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978)..........................................41
Reitman v. Mulkey, 387 U.S. 369 (1967).................................................................77
Reno v. ACLU , 521 U.S. 844 (1997)........................................................................23
Rodriguez de Quijas v. Shearson/American Express, Inc.,490 U.S. 477 (1989)............................................................................................16
Romer v. Evans, 517 U.S. 620 (1996) ...................................... 18, 51, 32, 57, 76, 86
San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) ..............................40
Scarbrough v. Morgan County Bd. of Educ., 470 F.3d 250 (6th Cir. 2006) ...........36
Seattle School Dist. No. 1 v. Washington, 633 F.2d 1338 (9th Cir. 1980) ..............86
Service Employees Int’l Union v. Fair Political Practice Comm’n,
955 F.2d 1312 (9th Cir. 1992) ............................................................................23
Sharpe v. Cureton, 319 F.3d 259 (6th Cir. 2003) ....................................................12
Southern Alameda Spanish Speaking Organization v. Union City, 424 F.2d 291
(9th Cir. 1970).....................................................................................................85
Sprint Commc’ns Co., L.P. v. APCC Servs., 128 S. Ct. 2531 (2010)......................10
State Oil Co. v. Khan, 522 U.S. 3 (1997) ................................................................16
Strauss v. Horton, 207 P.3d 48 (Cal. 2009) .................................6, 75, 77, 78, 79, 83
Tully v. Griffin, Inc., 429 U.S. 68 (1976).................................................................15
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Turner v. Safley, 482 U.S. 78 (1987) .................................................................17, 31
United States v. $124,570 U.S. Currency, 873 F.2d 1240 (9th Cir. 1989)..............21
United States v. Virginia, 518 U.S. 515 (1996) .......................................................22
Vacco v. Quill, 521 U.S. 793 (1997)........................................................................56Valdivia v. Schwarzenegger , 599 F.3d 984 (9th Cir. 2010) ....................................21
Valtierra v. Housing Auth. of San Jose, 313 F. Supp. 1 (N.D. Cal. 1970)..............23
Vance v. Bradley, 440 U.S. 93 (1979) ...................................................34, 55, 57, 58
Warth v. Seldin, 422 U.S. 490 (1975)......................................................................10
Washington v. Glucksberg, 521 U.S. 702 (1997) ..............................................27, 52
Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982)..................................86
Williamson v. Lee Optical, 348 U.S. 483 (1955)...............................................58, 74Witt v. Department of the Air Force, 527 F.3d 806 (9th Cir. 2008)..................36, 38
Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989) .................................37
Yocum v. Greenbriar Nursing Home, 130 P.3d 213 (Okla. 2005) ..........................24
Zablocki v. Redhail, 434 U.S. 374 (1978) .........................................................17, 31
Zepeda v. INS, 753 F.2d 719 (9th Cir. 1983)...............................................10, 11, 12
Statutes and Rules
18 U.S.C. § 249........................................................................................................4718 U.S.C. § 249(a)(2)...............................................................................................46
CAL. EDUC. CODE § 51933(b)(7)..............................................................................87
CAL. FAM. CODE § 297.5..........................................................................................80
CAL. FAM. CODE § 308(b) ........................................................................................87
FED. R. CIV. P. 23 .....................................................................................................10
FED. R. EVID. 201(a).................................................................................................20
Other
DAVID BLANKENHORN, THE FUTURE OF MARRIAGE 127-69 (2007).........................68
David Boies, Gay Marriage and the Constitution, WSJ, July 20, 2009 ...................4
Equality California, 2009 Legislative Scorecard at 5-7, at http://www.eqca.org/atf/cf/%7B34f258b3-8482-4943-91cb-
08c4b0246a88%7D/EQCA_LEG_SCORECARD_2009.PDF..........................45
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FIONA TASKER, GROWING UP IN A LESBIAN FAMILY: EFFECTS ON CHILD
DEVELOPMENT 127-33 (1997) .............................................................................62
HRC, Statewide Employment Laws & Policies, available at http://www.hrc.org/documents/Employment_Laws_and_Policies.pdf
(August 4, 2010) .................................................................................................47HRC, The State of the Workplace at 4 (2009), available at
http://www.hrc.org/documents/HRC_Foundation_State_of_the_Workplace_
2007-2008.pdf (last visited August 4, 2010) ......................................................47
http://www.foxnews.com/politics/2010/10/26/obama-appoints-
record-number-gay-officials/?test=latestnews....................................................46
http://www.hrc.org/scorecard/ ................................................................................45
Jonathan Capehart, Obama Begins Shift on Gay Marriage,
THE WASHINGTON POST, Oct. 28, 2010................................................................5Judith Stacey & Timothy J. Biblarz, (How) Does the Sexual Orientation
of Parents Matter?, 66 AM. SOC. REV. 159 (2001) ............................................62
Judith Stacey & Timothy J. Biblarz, How Does the Gender of Parents Matter? JOURNAL OF MARRIAGE AND FAMILY 3 (2010) .................62, 63
MCCORMICK ON EVIDENCE § 334 (6th ed., Kenneth Brown, ed. 2006) ..................21
Paul R. Amato, The Impact of Family Formation Change on the Cognitive,Social, and Emotional Well-Being of the Next Generation,
15 FUTURE CHILD 75 (2005) ...............................................................................60ROBERT L. STERN ET AL., SUPREME COURT PRACTICE 281 (8th ed. 2002)...............16
State Hate Crimes Laws, available at http://www.hrc.org/documents/hate_crime_laws.pdf
(last visited August 4, 2010)...............................................................................47
Wainright, J., Delinquency, Victimization, and Substance Use Among Adolescents With Fame Same-Sex Parents, 20 JOURNAL OF FAMILY
PSYCHOLOGY 526, 528 (2006) ............................................................................62
William Meezan & Jonathan Rauch, Gay Marriage, Same-Sex Parenting,and America’s Children, 15 FUTURE CHILDREN 97 (2005) ................................68
WITHERSPOON INSTITUTE, MARRIAGE AND THE PUBLIC GOOD 18-19 (2006) ..........68
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INTRODUCTION
At the heart of this case are two competing definitions of marriage. The
traditional definition of marriage—the one that has prevailed throughout recorded
history in virtually all known societies and that was preserved in California by
Proposition 8—holds that marriage is by its nature a gendered institution, for it is
designed to serve society’s vital interest in channeling potentially procreative
sexual relationships into enduring, stable unions for the sake of responsibly
producing and raising the next generation. As demonstrated in our opening brief,
Prop. Br. 47-70, this understanding of the social meaning and purpose of marriage
has been confirmed throughout history by all of the esteemed authorities on the
subject, from the lexicographers who have defined marriage, to the eminent
scholars in every relevant academic discipline who have explained marriage, to the
legislatures and courts that have given legal recognition and effect to marriage.
Plaintiffs, arguing that “gender restrictions … were never part of the
historical core of the institution of marriage,” Pl. Br. 47 (quoting ER148), offer a
competing definition of marriage that is carefully framed to be genderless:
“marriage is ‘a couple’s 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.’ ” Pl. Br. 47 (quoting SER102 (Cott)). The
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central purposes served by marriage, Plaintiffs say, are the “ ‘promotion of the
happiness of the parties’ ” to the marriage, Pl. Br. 45 (quoting Baker v. Baker , 13
Cal. 87, 103 (1859)), and providing “state recognition and approval of a couple’s
choice” to marry. Pl. Br. 49 (quoting ER102). Plaintiffs’ genderless, adult-
centered understanding of the social meaning and purposes of marriage is a recent
academic invention; it can trace its pedigree no farther back than the modern
movement to redefine marriage to include same-sex couples. And because it
deliberately severs the abiding connection between marriage and the uniquely
procreative potential of male-female unions, Plaintiffs’ definition of marriage can
offer no explanation for why the institution is a ubiquitous, cross-cultural feature of
the human experience, nor why it is, as the Supreme Court has consistently
emphasized, “fundamental to our very existence and survival.” Loving v. Virginia,
388 U.S. 1, 12 (1967).
The issue here, however, is not which of these competing definitions of
marriage is the wiser, more prudent choice for the State of California and her
communities and people. That issue was before the voters of California in
November 2008, and they decided to preserve the traditional definition, at least for
now. The issue here is whether people of good will can differ in good faith over
these competing definitions of marriage. Plaintiffs, and the court below, say that
the answer is no, and that those who disagree with them are not rational.
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Plaintiffs, it appears, have moderated on appeal the views they expressed
below about supporters of Proposition 8. They now disavow, to their credit, the
claim that all “voters who supported Proposition 8 were motivated by malice or
hostility toward gay men and lesbians ….” Pl. Br. 104. Nonetheless, Plaintiffs
assert that a belief that the traditional opposite-sex definition of marriage
meaningfully serves society’s interests is wholly irrational, and that professing
such a belief must therefore either be a pretext to mask “[a] bare … desire to harm”
gays and lesbians, Pl. Br. 97, or be the result of “simple want of careful, rational
reflection ….” Pl. Br. 104 (quoting Board of Trustees of the Univ. of Ala. v.
Garrett , 531 U.S. 356, 375 (2001) (Kennedy, J. concurring)). In other words,
opponents of same-sex marriage, Plaintiffs claim, are either bigoted or benighted.
Under rational-basis review, this claim can admit of no exceptions—the
traditional definition of marriage either has a conceivable rational justification or it
does not. And so the falsity of Plaintiffs’ claim is patent as soon as it is uttered.
For it cannot stand up to the fact that every appellate court, both state and federal,
to address the validity of traditional opposite-sex marriage laws under the United
States Constitution has upheld them as rationally related to the state’s interest in
responsible procreation and child-rearing. These rulings certainly are not
attributable to a bare desire to harm gays and lesbians or a lack of rational
reflection by the judges who rendered them. Nor can Plaintiffs’ claim stand up to
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the fact that President Obama and a host of other well-known champions of equal
rights for gays and lesbians nonetheless support the traditional definition of
marriage. Nor, finally, can Plaintiffs’ claim stand up to this simple truth: Every
one of us, including the Members of this Court, is close to someone who opposes
redefining marriage to include same-sex couples—they are our family members,
our friends, our colleagues, our co-workers, and for some of us, ourselves. Are
they (we) all either bigoted or benighted?
To be sure, at the extreme edges on both sides of the public debate over
same-sex marriage are those who are animated by hostility or irrational fears and
prejudice. But this is true in virtually all hotly contested debates over divisive,
controversial social issues. Such debates inflame passions and arouse deeply held
values and beliefs, and all too often can devolve into partisan efforts to marginalize
or, worse, to demonize the other side. See David Boies, Gay Marriage and the
Constitution, WSJ, July 20, 2009 (traditional definition of marriage reflects
nothing more than “the residue of centuries of figurative and literal gay-bashing”).
But the overwhelming majority of people on both sides of the same-sex
marriage debate, in California and throughout the country, are good and decent
Americans, coming from all walks of life, all political parties, all races and creeds.
Their opinions on this issue are motivated by nothing more than “a sincere desire
to do what’s best for their marriages, their children, their society,” ER517 (Rauch),
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and are entitled to consideration and respect. And their opinions on this issue are
not static, but rather are constantly evolving and changing as the debate and
experience matures. See Jonathan Capehart, Obama Begins Shift on Gay
Marriage, THE WASHINGTON POST, Oct. 28, 2010 (President Obama quoted as
saying that attitudes on same-sex marriage evolve, “including mine.”).
People of good will can and do differ in good faith on the issue of same-sex
marriage, and their differences should be resolved through the political process, not
here.
ARGUMENT
I. PROPONENTS HAVE STANDING.
Plaintiffs cannot deny that the Supreme Court has held that a party has
standing to defend the constitutionality of a state enactment where that party has
“authority under state law” to represent the people’s interest in defending their
laws when state officials refuse to do so. Karcher v. May, 484 U.S. 72, 82 (1987).
In Karcher , the Supreme Court determined that intervening legislative officers had
authority “as a matter of New Jersey law” to appear in lieu of the State’s executive
officers because the State’s “Supreme Court has [previously] granted [legislative
officers’] applications … to intervene as parties-respondent … in defense of a
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legislative enactment.” Id.1
Here, Plaintiffs admit that the California Supreme Court has likewise
granted official initiative proponents leave to intervene to defend the validity of the
measures they have sponsored when state officials refuse to do so. Pl. Br. 31
(citing Strauss v. Horton, 207 P.3d 48, 69 (Cal. 2009)). Indeed, in Strauss the
California Supreme Court permitted these very Proponents to defend the very
Proposition at issue in this case when the Attorney General would not do so. That
should be the end of the matter, for Karcher is controlling where the state supreme
court has permitted intervening parties to defend the State’s enactment “as agents
of the people” when public officials refuse to do so.2 Arizonans for Official
English v. Arizona, 520 U.S. 43, 65 (1997).3
1
Karcher did not reference, let alone rely upon, the New Jersey statutescited by Plaintiffs. See Pl. Br. 31 n.7.
2For this reason, Plaintiffs’ reliance on Don’t Bankrupt Washington
Committee v. Continental Illinois National Bank of Chicago, 460 U.S. 1077
(1983), is misplaced, for that case did not involve California law, and neither the
Supreme Court’s summary ruling nor the papers submitted by the initiative
sponsors suggested that Washington law permits sponsors to intervene to defend
their initiatives, as California law does. See Jurisdictional Statement in Don’t Bankrupt Washington Committee, No. 82-1445, at 3 (filed Feb. 25, 1983).
3Plaintiffs claim that Arizonans “distinguished Karcher on the ground that
ballot measure sponsors ‘are not elected representatives.’ ” Pl. Br. 31 (quoting Arizonans, 520 U.S. at 65). Here is what the Court said in full: “AOE and its
members, however, are not elected representatives, and we are aware of no
Arizona law appointing initiative sponsors as agents of the people of Arizona to
defend, in lieu of public officials, the constitutionality of initiatives made law of
the State.” 520 U.S. at 65. Clearly, the salient distinction was the absence of
Arizona law authorizing sponsors to defend initiatives on behalf of the State; the
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Plaintiffs nevertheless assert that “the California Supreme Court has
authoritatively determined that initiative proponents lack standing to represent the
State’s interests and are ‘in a position no different from that of any other member
of the public.’ ” Pl. Br. 20 (quoting In re Marriage Cases, 183 P.3d 384, 406 (Cal.
2008)); see also Pl. Br. 32-33. But the party seeking leave to appear in In re
Marriage Cases—the Proposition 22 Legal Defense & Education Fund (the
“Fund”)—was not the official proponent of the challenged initiative. As the Court
of Appeal explained, “the Fund itself played no role in sponsoring Proposition 22
because the organization was not even created until one year after voters passed
the initiative.” City and County of San Francisco v. Proposition 22 Legal Defense
and Educ. Fund , 128 Cal. App. 4th 1030, 1038 (2005). Accordingly, that court
squarely held that “this case does not present the question of whether an official
proponent of an initiative ( Elec. Code, § 342) has a sufficiently direct and
immediate interest to permit intervention in litigation challenging the validity of
the law enacted.” Id .
In concluding that this Fund lacked standing to defend Proposition 22, the
California Supreme Court relied on the Court of Appeal’s holding in City and
Court certainly did not advance the extraordinary suggestion that Article III
somehow forbids States from authorizing unelected individuals to defend the State
against federal constitutional challenges to its ballot initiatives. Further, unlike
Strauss, none of the Arizona cases cited by Plaintiffs, see Pl. Br. 32 n.8, allowed a
proponent to intervene to defend a law when State officials would not. In all
events, none of these decisions were brought to the Court’s attention in Arizonans.
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County of San Francisco. See In re Marriage Cases, 183 P.3d at 406 & n.8. At no
point in its opinion did the California Supreme Court even hint that the Fund
“represent[ed] the proponent of Proposition 22,” Pl. Br. 32, much less that it was
an “initiative proponent[],” Pl. Br. 20. In contrast, the California Supreme Court’s
subsequent holding in Strauss makes clear that the official proponents of an
initiative, unlike advocacy groups or members of the general public, do have
standing to defend their initiative in lieu of state officials who refuse to do so.4
In short, as Plaintiffs concede, Proponents’ standing to assert the State’s
interest in the validity of the initiative they have sponsored “rises or falls” on
whether California law has authorized them to do so. Pl. Br. 30-31. Strauss
dispositively resolves that issue in Proponents’ favor, and Plaintiffs’ claim that In
re Marriage Cases holds to the contrary is demonstrably mistaken.5
4Plaintiffs’ erroneous description of In re Marriage Cases likewise fatally
undermines their reliance on this precedent, see Pl. Br. 33, in response to
Proponents’ alternative submission that they have standing to vindicate “their own
particularized interest in defending an initiative they have successfully sponsored,
an interest that is created and secured by California law.” See Prop. Br. 22-24.
Plaintiffs also argue that, in order to create a particularized interest to defend an
initiative, California must confer a cause of action on Proponents. Id . But the
cases they cite for this proposition say only that this is one way in which a Statemay create an interest, and that method makes little sense in the context of standing
to defend . 5
In all events, for the reasons set forth in our opening brief, see Prop. Br.
24-29, as well as in the opening and reply briefs of Imperial County, Imperial
County also has standing to appeal and should have been allowed to intervene in
this case.
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II. THE DISTRICT COURT LACKED JURISDICTION TO GRANT INJUNCTIVE
RELIEF TO PERSONS NOT BEFORE THE COURT.
Even if this Court concludes that both Proponents and Imperial County lack
standing to appeal the judgment below, the Court is obliged to consider whether
the district court exceeded its jurisdiction. In Arizonans, the Supreme Court
squarely held that “[e]ven if we were to rule definitively that [appellants] lack
standing, we would have an obligation essentially to search the pleadings on core
matters of federal-court adjudicatory authority – to inquire not only into this
Court’s authority to decide the questions petitioners present, but to consider, also,
the authority of the lower courts to proceed.” 520 U.S. at 73.
1. As we have demonstrated, Prop. Br. 29-31, the district court clearly
exceeded its jurisdiction by awarding relief that Plaintiffs lacked standing to seek.
Plaintiffs cannot deny that an injunction permitting them, and only them, to marry
would have provided them with complete relief for the injuries they have alleged.6
Nor can they assert that they have standing to seek relief for the injuries of others
not before the court. To the contrary, the Supreme Court has repeatedly held that,
“[i]n the ordinary case, a party is denied standing to assert the rights of third
persons.” Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 263
6 See Smelt v. United States, No. 8:09-cv-0286-DOC-MLG, Doc. 36 at 4
(July 15, 2009) (attached as Exhibit A) (“As Plaintiffs’ marriage is valid within
California, they cannot present an injury with respect to the recognition of their
marriage by the State of California . . . and, therefore, they do not have standing to
pursue their claims against the State of California.”).
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(1977); see also, e.g., Warth v. Seldin, 422 U.S. 490, 499 (1975) (plaintiff
“generally must assert his own legal rights and interests, and cannot rest his claim
to relief on the legal rights or interests of third parties”).7
In accordance with this settled rule, this Court has held that a federal court
“may not attempt to determine the rights of persons not before the court.” Zepeda
v. INS, 753 F.2d 719, 726 (9th Cir. 1983). The Court explained that this rule is
rooted in plaintiffs’ lack of standing to assert the interests of others absent
certification as a class representative:
[O]ur legal system does not automatically grant individual plaintiffs
standing to act on behalf of all citizens similarly situated. A person
who desires to be a “self-chosen representative” and “volunteer
champion,” Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541,
549, (1949), must qualify under rule 23. To be sure, failure to grant
class relief may leave a government official – temporarily – in a
position to continue treating nonparties in a manner that would be
prohibited with respect to named plaintiffs. But that is the nature of
the relief.
Id. at 728 n.1. Accordingly, the Court held that where, as here, a district court has
issued an injunction violating this limitation on its power, this Court “must vacate
and remand,” for “the injunction must be limited to apply only to the individual
7This “ordinary” rule applies “generally,” not invariably, because a district
court may “entertain suits which will result in relief for parties that are not
themselves directly bringing suit,” but only when the party bringing the suit has
been legally authorized to represent the absent party, as in the case of a trustee, a
guardian ad litem, or class representative certified pursuant to Fed. R. Civ. P. 23.
Sprint Communications Co., L.P. v. APCC Servs., 128 S. Ct. 2531, 2543 (2010).
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plaintiffs unless the district judge certifies a class of plaintiffs.” Id . at 727.
Plaintiffs argue that “this Court limited Zepeda to its facts,” restricting the
rule to preliminary injunction cases. Pl. Br. 106 (citing Bresgal v. Brock , 843 F.2d
1163, 1169 (9th Cir. 1988)). But this Court upheld the injunction in Bresgal
because in that case, unlike Zepeda or here, an injunction “extending benefit or
protection to persons other than the prevailing parties in the lawsuit … is necessary
to give prevailing parties the relief to which they are entitled .” Bresgal, 843 F.2d
at 1170-71. In contrast, the Court emphasized, “in Zepeda we noted expressly that
in that case the injunctive relief requested could ‘be granted to the individual
plaintiffs without the relief inevitably affecting the entire class.’ ” Id . at 1170
(quoting Zepeda, 753 F.2d at 729 n.1). That Zepeda was a preliminary injunction
case clearly was not dispositive, as demonstrated by the Bresgal Court’s extensive
analysis of whether a broad injunction was necessary to provide complete relief for
plaintiffs. In any event, this Court has subsequently applied the rule that injunctive
relief may not extend beyond the plaintiffs absent class certification in a permanent
injunction case. See Meinhold v. U.S. Dep’t of Defense, 34 F.3d 1469, 1480 (9th
Cir. 1994) (vacating injunction prohibiting the Defense Department from
discharging any person from the service based on sexual orientation where action
was not brought as a class action “except to the extent it enjoins DOD from
discharging Meinhold”).
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The other case on which Plaintiffs rely, Doe v. Gallinot , 657 F.2d 1017,
1025 (9th Cir. 1981), also merely upheld injunctive relief extending beyond the
plaintiffs as “ ‘further necessary or proper relief’ to effectuate the judgment” in
favor of the plaintiff. In any case, this Court’s subsequent decisions make clear
that “injunctive relief generally should be limited to apply only to named plaintiffs
where there is no class certification” except in cases where a broader injunction is
necessary to provide complete relief to plaintiffs. Easyriders Freedom F.I.G.H.T.
v. Hannigan, 92 F.3d 1486, 1501-02 (9th Cir. 1996).8
Other Circuits have applied the same rule. For example, the First Circuit, in
an opinion joined by then-Judge Breyer, invoked this Court’s decision in Zepeda to
vacate an injunction sweeping beyond the individual plaintiff because classwide
injunctive relief “is appropriate only where there is a properly certified class”
unless a broader injunction is necessary to give the plaintiffs the relief to which
they are entitled. Brown v. Trustees of Boston Univ., 891 F.2d 337, 361 (1st Cir.
1989) (citing Zepeda, 753 F.2d at 727-28 & n.1); see also Sharpe v. Cureton, 319
F.3d 259, 273 (6th Cir. 2003); Everhart v. Bowen, 853 F.2d 1532, 1539 (10th Cir.
1988) (following Zepeda), rev’d on other grounds sub nom, Sullivan v. Everhart ,
8In Easyriders, for example, the injunction against California Highway
Patrol officers’ enforcement of California’s motorcycle helmet law could not have
been practically limited to plaintiffs since officers would have no way of knowing
whether a particular motorcyclist was one of “the named plaintiffs or a member of
Easyriders, [so] the plaintiffs would not receive the complete relief to which they
were entitled without statewide application of the injunction.” Id . at 1502.
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494 U.S. 83 (1990); McKinnon v. Patterson, 568 F.2d 930, 940 (2d Cir. 1977)
(“Even as to declaratory relief, … the fact that this suit is not a class action
precludes the judgment from being applied to prisoners other than the three named
plaintiffs”).
While the Supreme Court has yet to address this precise issue, it has
considered the closely analogous question whether the actual injuries suffered by
plaintiffs can support a broader injunction addressing inadequacies different from
those that had produced plaintiffs’ injury-in-fact. Lewis v. Casey, 518 U.S. 343,
357 (1996). The Court concluded that such an injunction is improper, holding that
Article III’s “actual-injury requirement” necessarily means that a “remedy must of
course be limited to the inadequacy that produced the injury in fact that the
plaintiff has established.” Id. The same logic applies here, and limits the district
court’s jurisdiction to providing relief for “the injury in fact that the plaintiff[s in
this case have] established.” Id.
2. It is especially critical that this Court strictly enforce the limits of the
district court’s jurisdiction and Plaintiffs’ standing given the unique circumstances
of this case. “The essence of the standing inquiry is whether the [plaintiffs] …
have alleged such a personal stake in the outcome of the controversy as to assure
that concrete adverseness which sharpens the presentation of issues upon which the
court so largely depends for illumination of difficult constitutional questions.”
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Larson v. Volente, 456 U.S. 228, 238-39 (1982) (quotation marks omitted). Here
however, if Plaintiffs’ submission that Proponents lack standing is to be credited
(and as we have demonstrated, it should not be), that “concrete adverseness” was
wholly absent below, for the named defendants were either silent or actively
assisting the Plaintiffs. But rather than simply entering a narrow default judgment
awarding relief to the four individual Plaintiffs, the district court issued a sweeping
constitutional decision nullifying, across the board, a democratically enacted
amendment to California’s constitution that reaffirms and reinstates the traditional
understanding and structure of society’s oldest institution.
The Supreme Court has cautioned against permitting the federal courts to be
improperly used to achieve policy results that cannot be obtained in the political
process, observing that “public officials sometimes consent to, or refrain from
vigorously opposing, decrees that go well beyond what is required by federal law.”
Horne v. Flores, 129 S. Ct. 2579, 2594 (2009); see also id. (citing study showing
that “government officials may try to use consent decrees to ‘block ordinary
avenues of political change’ or to ‘sidestep political constraints’ ”). That is
precisely what is threatened here if this Court simultaneously accepts Plaintiffs’
claims that Proponents and Imperial County lack standing to appeal yet fails to
enforce the clear limitations on the district court’s jurisdiction.
Whatever one’s position on the highly controversial question whether the
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State of California should fundamentally redefine the age-old institution of
marriage to include same-sex couples, our constitutional system surely does not
permit a single federal district court judge, acting on the complaint of four
individual plaintiffs in concert with a handful of carefully selected official
defendants, all of whom wish to overturn the results of the election, to impose such
a revolutionary cultural change on the State as a whole without appellate review.
Any federal constitutional right that Plaintiffs may conceivably possess would be
fully vindicated by an order limited to them.
III. BINDING PRECEDENT FORECLOSES PLAINTIFFS’ CLAIMS.
Binding precedent from the Supreme Court and this Court mandate reversal
of the district court’s ruling. See Baker v. Nelson, 409 U.S. 810 (1972); Adams v.
Howerton, 673 F.2d 1036 (9th Cir. 1982). These decisions, like those of every
other state or federal appellate court to consider the question, see Prop. Br. 46-47,
hold that the traditional definition of marriage does not violate the Federal
Constitution.
1. As a summary decision on the merits, Baker constitutes “controlling
precedent, unless and until re-examined by [the Supreme] Court.” Tully v. Griffin,
Inc., 429 U.S. 68, 74 (1976). And whatever precedential force it may have in the
Supreme Court , see Pl. Br. 34, “a summary dismissal for want of a substantial
federal question fully binds the lower courts.” Carpenters Pension Trust v.
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Kronschnabel, 632 F.2d 745, 748 (9th Cir. 1980); ROBERT L. STERN ET AL.,
SUPREME COURT PRACTICE 281 (8th ed. 2002) (“lower courts are to grant [Supreme
Court summary dispositions] the same respect as other holdings of higher
tribunals”).
To undermine the controlling force of a summary disposition, subsequent
“ ‘doctrinal developments’ in the Supreme Court’s jurisprudence,” Pl. Br. 35
(quoting Hicks v. Miranda, 422 U.S. 332, 344-45 (1975)), must be necessarily
incompatible with the earlier decision and plainly demonstrate that it has been
overruled . Any more relaxed approach would be irreconcilable with the Supreme
Court’s repeated admonitions that lower courts may not on their own authority
renounce binding precedent:
We do not acknowledge, and we do not hold, that other courts should
conclude our more recent cases have, by implication, overruled an
earlier precedent. We reaffirm that if a precedent of this Court has
direct application in a case, yet appears to rest on reasons rejected in
some other line of decisions, the Court of Appeals should follow the
case which directly controls, leaving to this Court the prerogative of
overruling its own decisions.
Agostini v. Felton, 521 U.S. 203, 237-38 (1997); see also, e.g., Rodriguez de
Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989); State Oil
Co. v. Khan, 522 U.S. 3, 20 (1997) (“Despite what Chief Judge Posner aptly
described as Albrecht ’s “infirmities, [and] its increasingly wobbly, moth-eaten
foundations, … [t]he Court of Appeals was correct in applying [the] principle [of
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stare decisis] despite disagreement with Albrecht , for it is this Court’s prerogative
alone to overrule one of its precedents.”).
“[B]inding authority,” in other words, “is very powerful medicine. A
decision of the Supreme Court will control that corner of the law unless and until
the Supreme Court itself overrules or modifies it.” Hart v. Massanari, 266 F.3d
1155, 1171 (9th Cir. 2001).
The Supreme Court plainly has not repudiated Baker ’s due process or equal
protection holdings, either expressly or through “doctrinal developments.” Indeed,
in Lawrence v. Texas, 539 U.S. 558 (2003), Plaintiffs’ primary post- Baker due
process case, the Court went out of its way to emphasize that the case did “not
involve whether the government must give formal recognition to any relationship
that homosexual persons seek to enter,” id. at 578. Plaintiffs’ other due process
cases, Turner v. Safley, 482 U.S. 78 (1987), and Zablocki v. Redhail, 434 U.S. 374,
384 (1978), both addressed traditional opposite-sex marriage and recognized the
connection between marriage and its procreative purposes. See Prop. Br. 69-70 &
n.33. And both decisions expressly followed Loving v. Virginia, 388 U.S. 1
(1967), which was decided five years before Baker . See Zablocki, 434 U.S. at 383
(identifying Loving as “[t]he leading decision[ ] on the right to marry”); Turner ,
482 U.S. at 94-95 (holding that the fundamental right to marry “under Zablocki …
and Loving … appl[ies] to prison inmates”).
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The Supreme Court has likewise never indicated post- Baker that the Equal
Protection Clause protects a right to marry a person of the same sex. Romer v.
Evans had nothing to do with marriage, and neither held nor even implied that
classifications affecting gays and lesbians were subject to anything other than
“conventional” rational basis scrutiny under the Equal Protection Clause. 517 U.S.
620, 631-32 (1996). And while the Court has refined its sex discrimination
jurisprudence since Baker was decided, it had, prior to that decision, already
clearly “depart[ed] from ‘traditional’ rational-basis analysis with respect to sex-
based classifications.” Frontiero v. Richardson, 411 U.S. 677, 684 (1973)
(plurality) (discussing Reed v. Reed , 404 U.S. 71 (1971)).
2. Plaintiffs’ attempt to portray Baker as not presenting an issue of
sexual orientation discrimination is untenable. Not only did the Jurisdictional
Statement spend several pages arguing that Minnesota’s adherence to the
traditional definition of marriage was attributable solely to “the continuing impact
on our society of prejudice against non-heterosexuals,” it also plainly argued that
this adherence subjected “the class of persons who wish to engage in single sex
marriages” to “invidious discrimination.” ER 1609-10.
Plaintiffs also attempt to distinguish Baker on the grounds that (1) California
recognized same-sex relationships as marriages for a few brief months before the
voters’ swift reversal of In re Marriage Cases, and (2) California has
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accommodated the interests of gays and lesbians by continuing to recognize 18,000
same-sex marriages entered prior to the enactment of Proposition 8 and by
recognizing other same-sex relationships as domestic partnerships, which afford
essentially the same substantive rights as marriage. The first distinction is nothing
more than a historical accident of no constitutional moment. See also infra at 75-
80. And surely California’s generous efforts to accommodate same-sex couples do
not place its marriage laws on a weaker foundation than the laws upheld in Baker .
Indeed, any distinction of Baker on this ground would create a perverse incentive
for States that wish to preserve the traditional definition of marriage to maintain
“an outright refusal … to afford any recognition to same-sex relationships.” Pl. Br.
37.
3. This Court’s decision in Adams v. Howerton, 673 F.2d 1036 (9th Cir.
1982), also mandates reversal of the district court’s decision. Although the case
arose in the context of immigration law, this Court nonetheless applied traditional
rational-basis review: “We need not … delineate the exact outer boundaries of
[the] limited judicial review” that applies in the immigration context, this Court
explained, because “[w]e hold that Congress’s decision to confer spouse status …
only upon the parties to heterosexual marriages has a rational basis.… There is no
occasion to consider in this case whether some lesser standard of review should
apply.” Id. at 1042. And contrary to Plaintiffs’ contention, see Pl. Br. 38-39,
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Adams is no more undermined by Lawrence or Romer than is Baker . See Miller v.
Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).
4. As we have demonstrated, Prop. Br. 46-47, the decision below stands
in stark conflict not only with Baker and Adams, but the uniform judgment of
appellate courts across the country. Although Plaintiffs, like the district court, do
not even address these decisions, they plainly confirm that the decision below must
be reversed.
IV. THIS COURT OWES NO DEFERENCE TO THE DISTRICT COURT’S RULING.
1. Plaintiffs argue that every so-called “finding of fact” made by the
district court ought to be afforded the deference that would be given to a lower
court’s findings of fact regarding, say, a traffic accident. Constitutional law simply
does not proceed in this manner—not in the Supreme Court, not in this Court, not
in any appellate court in the country.
It is well-settled that “[l]egislative facts … are those which have relevance to
legal reasoning and the lawmaking process, whether in the formulation of a legal
principle or ruling by a judge or court or in the enactment of a legislative body.”
FED. R. EVID. 201(a), advisory comm. note to 1972 amendments. In determining
legislative facts, a “judge is unrestricted in his investigation and conclusion,” and
“may make an independent search for persuasive data.” Id. “This … view …
renders inappropriate any limitation in the form of indisputability, and formal
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requirements of notice other than those already inherent in affording opportunity to
hear and be heard and exchanging briefs, and any requirement of formal findings
at any level.” Id . This Court has repeatedly recognized this distinction. See, e.g.,
Marshall v. Sawyer , 365 F.2d 105, 111 (9th Cir. 1966); United States v. $124,570
U.S. Currency, 873 F.2d 1240, 1244-45 (9th Cir. 1989); cf. Valdivia v.
Schwarzenegger , 599 F.3d 984, 994 (9th Cir. 2010).
Given these principles, it is plain that an appellate court’s treatment of
legislative facts does not in any way turn on whether the lower court held a trial or
on the contents of the record below, however it was compiled. Simply put,
“[t]here are limits to which important constitutional questions should hinge on the
views of social scientists who testify as experts at trial.” Dunagin v. City of
Oxford , 718 F.2d 738, 748 n.8 (5th Cir. 1983) (en banc) (plurality); see also
Lockhart v. McCree, 476 U.S. 162, 168-69 & n.3 (1986). As a leading treatise on
evidence explains:
If the social science materials were not clearly inclined to sustain only
one conclusion, and the ruling were treated as a factual ruling, the
ruling, whichever way it came out, could not be reversed because it
would not be clearly erroneous. Law would come to turn on fact and
be susceptible to two right answers. This is not going to happen.
Legislative facts are not ‘evidence’ in the normal sense of the word.
MCCORMICK ON EVIDENCE § 334, at 457 (6th ed., Kenneth Brown, ed. 2006).
Not surprisingly, the contrary rule urged by Plaintiffs is flatly inconsistent
with the Supreme Court’s approach to legislative facts, even in the very cases on
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which Plaintiffs rely. In Brown v. Board of Education, 347 U.S. 483 (1954), for
example, the Court did cite a finding made in one of the four cases under review
that supported its holding. Id . at 494 n.10, 495. But the judge below did not “rest
his decision on that ground,” id. at 486 n.1, nor did the Court purport to defer to it.
Indeed, to support its holding, the Court also cited directly to “modern authority”
consisting of several works of social science. Id . at 494 n.11.
Similarly, while the Court in United States v. Virginia, 518 U.S. 515 (1996),
did discuss a trial held below, it proceeded to reject the trial court’s conclusion that
an interest in educational diversity supported the State’s maintenance of the
Virginia Military Institute as an all-male institution, relying instead on several
works of historical scholarship, among other things. See id. at 523-24, 535-40.
These cases are by no means unique. Compare, e.g., Grutter v. Bollinger , 137 F.
Supp. 2d 821, 851 (E.D. Mich. 2001) (concluding, based on findings of fact, that
affirmative action program was not narrowly tailored and was “practically
indistinguishable from a quota system”), with Grutter v. Bollinger , 539 U.S. 306,
335-36 (2003) (offering no statement of deference to district court and finding that
evidence showed the program was “not transform[ed] … into a quota” and “b[ore]
the hallmarks of a narrowly tailored plan”). These and many similar cases plainly
cannot be reconciled with any rule requiring deference to district courts’ legislative
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factfinding.9
The Court’s established practice in constitutional cases no doubt explains
why in Lockhart v. McCree, 476 U.S. 162, 169 n.3 (1986), the Supreme Court was
“far from persuaded … that the ‘clearly erroneous’ standard of Rule 52(a) applies
to … ‘legislative’ facts.” Not surprisingly, every court of appeals that has
considered the issue has found de novo review to be appropriate. Prop. Br. 37
(citing cases).10
9Plaintiffs argue that the Supreme Court sometimes adopts findings without
discussing the standard of review. Pl. Br. 27-28 (citing Reno v. ACLU , 521 U.S.
844, 849 (1997) (adopting stipulated facts); Plyler v. Doe, 457 U.S. 202, 207
(1982) (accepting trial court’s findings without discussing standard of review)).
But even applying de novo review, the Court is of course free to adopt trial court
findings if it finds them correct.10
Plaintiffs claim that Service Employees International Union v. Fair
Political Practice Commission, 955 F.2d 1312 (9th Cir. 1992), establishes thatthere is not “a different standard of review for legislative facts.” Pl. Br. 25. There,
the district court made findings regarding the dollar amounts raised by incumbents
and challengers during various election cycles, and this Court subjected “these
findings” to the clearly erroneous standard of review. Id. at 1317. But when the
SEIU Court turned to evaluating matters more like those at issue here, it conducted
an independent review. See id. at 1318, 1321 (“we now turn to the question
whether viewpoint and content neutral contribution limits that discriminate against
challengers and their supporters offend the Constitution”; finding, without citing
any district court findings on the matter, that “the state has a legitimate interest in
preventing corruption” but that “appellants have made no showing that limitingcontributions on a fiscal year basis advances this interest”). In all events, the
Supreme Court’s cases control, and it is simply not true that that Court uniformly
defers to findings of “discriminatory impact,” as Plaintiffs claim. Pl. Br. 25.
Compare Valtierra v. Housing Auth. of the City of San Jose, 313 F. Supp. 1, 5
(N.D. Cal. 1970) (finding that “impact” of a referendum “falls upon minorities”),
with James v. Valtierra, 402 U.S. 137, 141 (1971) (affording no deference to
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2. Plaintiffs also seek to characterize several of the district court’s
purported findings as “adjudicative” facts. But “the specific effects” of
Proposition 8, Pl. Br. 25—including whether it imposes “stigmas against gays and
lesbians,” ER 120, “legitimates [their] unequal treatment,” ER 128, or
“perpetuate[s] … stereotype[s]” about them, id.—are paradigmatic legislative
facts. See, e.g., Dunagin, 718 F.2d at 748 n.8 (district court’s “finding” that an
alcohol-advertisement regulation did not have the effect of preventing increased
alcohol consumption was “a legislative and not an adjudicative fact” and thus was
not subject to “a clearly erroneous standard of review”); Yocum v. Greenbriar
Nursing Home, 130 P.3d 213, 220 n.32 (Okla. 2005) (“[L]egislative facts” include
“those which are helpful to a court in determining the … effect … of
enactments.”). And determinations about the “meaning” of campaign themes and
messages, Pl. Br. 25—including purported “assum[ptions]” inherent in the
Proposition 8 campaign, ER 108, and messages “insinuated” by campaign
advertisements, ER 140—plainly encompass broad conclusions about the social
and psychological impact of political messaging. See, e.g., Equality Found. of
district court’s finding and concluding that “the record … would not support anyclaim that [the] law … is in fact aimed at a racial minority”).
Plaintiffs also claim that in Hunter v. Regents of the University of California,
190 F.3d 1061 (9th Cir. 1999), this Court deferred to a “district court’s findings
that school admissions requirements satisfied strict scrutiny.” Pls. Br. 26. But
Hunter predates Grutter , which makes clear that findings regarding compelling
interests and narrow tailoring are not subject to deferential review.
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Greater Cincinnati, Inc. v. City of Cincinnati, 54 F.3d 261, 264 n.1, 265 (6th Cir.
1995), vacated on other grounds, 518 U.S. 1001 (1996) (holding that “most, if not
all, of the lower court’s findings”—including, inter alia, that “campaign materials
were riddled with unreliable data, irrational misconceptions and insupportable
misrepresentations about homosexuals”— “constituted ultimate facts and
interrelated applications of law, sociological judgments, mixed questions of law
and fact, and/or findings designed to support ‘constitutional facts’ ” and were thus
subject to “plenary review”).
3. Plaintiffs’ effort to rehabilitate the district court’s erroneous
application of rational-basis review fares no better. The district court plainly (and
improperly) imposed a burden of production, if not the burden of proof, on
Proponents to sustain Proposition 8’s rationality. See Prop. Br. 32-35. The fact
that this Court has held that the party challenging a law may, in certain
circumstances, introduce evidence and build a factual record in an attempt to meet
its burden of disproving “any reasonably conceivable state of facts that could
provide a rational basis” for the law does not excuse the district court’s engaging in
standard “courtroom factfinding” with respect to Proposition 8’s rationality.
Heller v. Doe, 509 U.S. 312, 320 (1993). See Lazy Y Ranch Ltd. v. Behrens, 546
F.3d 580, 591-92 (9th Cir. 2008) (explaining that “our circuit has allowed plaintiffs
to rebut the facts underlying defendants’ asserted rationale for a classification, to
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show that the classification could not reasonably be viewed to further the asserted
purpose” and citing Lockary v Kayfetz, 917 F.2d 1150 (9th Cir. 1990), as an
example of such a case).
V. THE TRADITIONAL DEFINITION OF MARRIAGE DOES NOT VIOLATE
PLAINTIFFS’ FUNDAMENTAL RIGHT TO MARRY.
We have demonstrated that under controlling Supreme Court precedent, it is
simply impossible to find a free-standing fundamental right to have a same-sex
relationship recognized as a marriage. See Prop. Br. 48-50. Plaintiffs do not—and
cannot plausibly—contend otherwise. Rather, they seek to shoehorn such a right
into the right to marry that has been recognized by the Supreme Court by
redefining that right in a manner utterly inconsistent with history and precedent.
1. Plaintiffs do not dispute that prior to the last decade, marriage has
always been limited to opposite sex unions in this Country and indeed in virtually
every society throughout history. Nor do they dispute that the same rule continues
to prevail today in the overwhelming majority of jurisdictions in this Country and
throughout the world. And they cannot deny that marriage has been uniformly
defined as the union of man and woman by dictionaries, legal treatises, and other
eminent authorities throughout history. See Prop. Br. 51-60.11
Given that
11Contrary to Plaintiffs’ claim, see Pl. Br. 40, Proponents repeatedly brought
many of these sources demonstrating the deeply rooted, historical understanding to
the district court’s attention. See, e.g., ER 1453-59, 1469-75, 1514-19; ER 1737-
39, 1742-44, 1756-58, 1760-62, 1766; ER 1775-84. In all events, as demonstrated
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fundamental due process rights are defined by this Nation’s “history, legal
traditions, and practices,” Washington v. Glucksberg, 521 U.S. 702, 721 (1997),
Plaintiffs’ claim that the traditional opposite-sex definition of marriage reaffirmed
by Proposition 8 violates their fundamental right to marry is simply untenable.
The same authorities also demonstrate that an animating purpose of
marriage in every society throughout history has been to regulate sexual
relationships between men and women to increase the likelihood that the unique
procreative potential of such relationships benefits rather than harms society—
specifically, by increasing the chances that the children resulting from those
relationships will be born and raised in stable family units by both the mothers and
the fathers who brought them into the world. Indeed, Plaintiffs are forced to
concede that this societal purpose is served by marriage, see Pl. Br. 49, ER 1785,
though they labor mightily to avoid its import by dismissing it as merely one of
many marital purposes. To be sure, in various times and places marriage has
served other societal purposes in addition to responsible procreation, and no doubt
individuals marry, as they always have, for a wide variety of personal reasons. But
no purpose other than responsible procreation can explain why marriage is so
universal, so critical to society, or even why it exists at all—let alone why it has
existed in every civilized society throughout history.
above, this Court’s review of the definition and scope of the fundamental right to
marry is in nowise limited to the trial record. See supra at 20-23.
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2. Plaintiffs claim that recognizing the overriding procreative purposes
of marriage necessarily implies that the fundamental right to marry does not extend
to infertile opposite-sex couples, and perhaps even that a State could eliminate
marriage entirely if it determined that marriage no longer served those purposes.
Pl. Br. 40. In so arguing, Plaintiffs fail to grasp the point either of our position or
the Supreme Court precedents on which it is based: namely, that the scope of
fundamental due process rights is determined by this Nation’s history, traditions,
and legal practices. And these sources make clear that the right to marry extends
to opposite-sex couples as a class and does not inquire into fertility on a case-by-
case basis. The overwhelming evidence recognizing the procreative purposes of
marriage certainly makes clear why the right to marry has never included same-sex
relationships—which as a class are never fertile—as well as why marriage is both
vital and ubiquitous. But these purposes do not limit, nor would they warrant the
contraction of, the right to marry beyond its established historical contours.
Simply put, there is not, and has never been, a requirement of perfect fit between a
right and its animating purposes. Cf. District of Columbia v. Heller , 128 S. Ct.
2783, 2789 (2008) (explaining that the Second Amendment’s prefatory clause
“announces a purpose” but does not limit operative right); id . at 2817 (“the fact
that modern developments have limited the degree of fit between the prefatory
clause and the protected right cannot change our interpretation of the right”);
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McDonald v. City of Chicago, 130 S. Ct. 3020, 3042 (2010) (holding that the right
to keep and bear arms is a fundamental right incorporated by the due process
clause of the Fourteenth Amendment).12
In all events, the alternative purposes for marriage posited by Plaintiffs and
the district court not only lack the explanatory power and universal recognition of
the procreative purposes repeatedly articulated by eminent authorities throughout
the ages, they also afford no better fit with the history, traditions, and practice of
marriage in this or any other Nation. For while marriage has never been
conditioned on a couple’s ability and desire to have children, neither has it been
conditioned on a couple’s actual ability and desire to find “happiness” together, or
their actual “personal dedication” to or even “affection” for each other. Pl. Br. 44-
45.
3. Plaintiffs labor mightily to cull support for their novel interpretation
of the fundamental right to marry by selectively stringing together handpicked
quotations from Supreme Court precedents. But they simply cannot avoid the
12Plaintiffs also assert that acknowledging the procreative purposes served
by marriage risks expanding the fundamental right to marry to include prohibited
but potentially fertile relationships such as incestuous or polygamous relationships,Pl. Br. 50 n.13, but this contention fails for the same reason. To the contrary, as
the amicus States have demonstrated, it is the abstract, ahistorical right asserted by
Plaintiffs “to select the partner of one’s choice” that would subject to exacting and
perhaps fatal scrutiny the limits the States have traditionally placed on that choice
relating to consanguinity, marital status, and even age. See States of Indiana,
Virginia, et al. Br. 31-34 (“States Br.”).
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facts that (1) every Supreme Court decision that has upheld the fundamental right
to marry has involved the union of a man and a woman, (2) the only Supreme
Court decision to consider whether this right extended to same-sex couples
unanimously and summarily rejected that suggestion, and (3) the Supreme Court
cases addressing the right to marry have repeatedly emphasized the abiding
connection between marriage and the unique procreative potential of sexual
relationships between men and women. See Prop. Br. at 51, 69-70.
Contrary to Plaintiffs’ suggestions, Lawrence v. Texas, 539 U.S. 558 (2003),
did not hold or imply that the fundamental right to marry confers a right to have a
same-sex relationship recognized as a marriage. The Court did hold that a State
could not infringe an individual’s autonomy to enter an intimate relationship with a
person of the same sex by criminalizing “the most private human conduct, sexual
behavior, and in the most private of places, the home.” Id . at 567. Although
Plaintiffs attempt, through ellipses and selective quotation, to draw from Lawrence
support for a right to have such a relationship recognized as a marriage, they
simply cannot overcome that Court’s clear statement that the case did “not involve
whether the government must give formal recognition to any relationship that
homosexual persons seek to enter.” Id . at 578; see also id . at 567 (explaining that
Texas’s sodomy prohibition sought “to control a personal relationship that,
whether or not entitled to formal recognition in the law, is within the liberty of
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persons to choose without being punished as criminals”); id . at 585 (O’Connor, J.,
concurring in judgment) (expressly distinguishing marriage from the law at issue
in Lawrence). Indeed, marriage is itself official public recognition and regulation
of a couple’s union and is thus the very antithesis of the right to be let alone
vindicated in Lawrence: as Plaintiffs themselves emphasize, instead of privacy
and autonomy, they seek formal government recognition of their relationships as a
marriage “to demonstrate publicly their commitment to one another.” Pl. Stay
Opp. 3.
Plaintiffs likewise trumpet the Supreme Court’s statements regarding
“freedom of personal choice in matters of marriage,” Cleveland Bd. of Educ. v. La
Fleur , 414 U.S. 632, 639 (1974), and the importance of the right to marry “for all
individuals.” Zablocki v. Redhail, 434 U.S. at 384. But these statements do not get
Plaintiffs very far, for the question in this case is not, as Plaintiffs would have it,
who has the right to marry but rather what the right to marry is. And try as they
might, Plaintiffs cannot avoid the clear answer that history and precedent provide
to that question.
Nor do the Supreme Court cases cited by Plaintiffs support their attempt to
divorce the right to marry from its traditional procreative purposes. As we have
demonstrated, see Prop. Br. 69-70 & n.33, both Zablocki and Turner v. Safley, 482
U.S. 78 (1987), upheld the right of a woman to marry a man, and both recognized
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marriage’s abiding concern with the procreative potential of such opposite-sex
relationships. That Zablocki may have discussed other rights, as well as the right
to marry, and that Turner may have recognized purposes served by marriage in
addition to responsible procreation is in no way inconsistent with the traditional
understanding of marriage and its purposes.
Plaintiffs’ reliance on Griswold v. Connecticut , 381 U.S. 479 (1965), is
likewise unavailing. To be sure, that decision struck down a prohibition on
contraceptive devices, finding a right to privacy that protects an individual’s choice
not to procreate. As later cases confirmed, however, this privacy right is distinct
from marriage and extends to single individuals as well. See Eisenstadt v. Baird ,
405 U.S. 438, 454-55 (1972). While this privacy right certainly helps explain why
States have never closely inquired into opposite-sex couples’ childbearing ability
or intentions as a precondition to marriage, it just as certainly does not negate
marriage’s abiding concern with the procreative potential of such couples.13
13Even farther afield are Boddie v. Connecticut , which vindicated the
principle that “persons forced to settle their claims of right and duty through the
judicial process must be given a meaningful opportunity to be heard,” 401 U.S.
371, 377 (1971), and Moore v. City of East Cleveland , which struck down a law
making it a crime for a grandmother to live with her grandson in light of the
“venerable” “tradition of uncles, aunts, cousins, and especially grandparents
sharing a household along with parents and children,” 431 U.S. 494, 504 (1977).
The fact that individuals, including married individuals, have other due process
rights in addition to the fundamental right to marry simply does not bear on the
scope of that right or its purposes.
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4. Plaintiffs also seek to recycle the district court’s flawed historical
analysis of the institution of marriage, largely ignoring our thorough rebuttal of the
district court’s reasoning. But like the district court, Plaintiffs fail to refer to a
single dictionary, treatise, law, or other historical source defining marriage.
Instead, they offer a definition of marriage that cannot be found in any such
historical source, because it was invented by one of their expert witnesses for
purposes of this case: “[M]arriage is ‘a couple’s 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.’ ” Pl. Br. 47. While
this carefully formulated definition no doubt describes some of the purposes
marriage has served in some societies, it is most noteworthy for its forced,
tendentious attempt to cleanse from marriage any reference to the gender of the
spouses or the procreative purposes served by the institution—references that we
have demonstrated are ubiquitous in genuine historical definitions and descriptions
of marriage.
Plaintiffs also repeatedly invoke the tired canard that despite the testimony
of eminent authorities throughout the ages, marriage cannot be designed to channel
potentially procreative sexual relationships into stable family units for the benefit
of any resulting children because societies have throughout history chosen to rely
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on “the common-sense proposition,” Vance v. Bradley, 440 U.S. 93, 112 (1979),
that opposite-sex relationships are in general potentially procreative rather than to
undertake burdensome, intrusive, and ultimately ineffective efforts to determine
the fertility and childbearing intentions of individual couples seeking to marry on a
case-by-case basis. We have already demonstrated that this argument is badly
flawed and has been repeatedly rejected by appellate courts throughout the Nation.
See Prop. Br. at 60-64. Plaintiffs offer no meaningful response to our arguments
and do not even acknowledge the numerous cases squarely dismissing Plaintiffs’
contentions.
5. Finally, Plaintiffs embrace the district court’s efforts to liken the
traditional, opposite-sex definition of marriage to the antimiscegenation laws and
coverture restrictions on married women’s rights that once applied in some
jurisdictions. But we have already demonstrated that, unlike the traditional
opposite-sex definition of marriage, such laws were never a universal—let alone
defining—feature of marriage. See Prop. Br. at 64-68. Although Plaintiffs’ expert
may claim that antimiscegenation laws were viewed “as very important
definitional features of who could and should marry, and who could not and should
not,” Pl. Br. 48, Plaintiffs offer not one scrap of historical support for this bald
assertion, and contemporaneous dictionaries, treatises, and the legal history of
antimiscegenation laws in this country demonstrate that it is simply false. See,
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e.g., Prop. Br. 65-66 (contrasting leading 19th century treatise’s recognition of the
universal requirement that marriage partners “be of different sex” with its
discussion of racial restrictions on marriage that applied only “in particular
countries, or States”); id . at 52-53 (collecting historical dictionary definitions of
marriage, none of which define marriage with reference to race); id . at 65
(explaining that racial restrictions on marriage were never a part of the common
law and never existed in many States); High Impact Leadership Coalition et al. Br.
2-4 (same).
* * *
In short, history and precedent do not support, but squarely foreclose,
Plaintiffs’ claim that the definition of marriage that has prevailed in virtually every
society throughout every period of history somehow violates the fundamental right
to marry.
VI. PROPOSITION 8 IS SUBJECT TO RATIONAL BASIS SCRUTINY UNDER THE
EQUAL PROTECTION CLAUSE.
A. Binding precedent establishes that gays and lesbians do not
constitute a suspect or quasi-suspect class.
A long line of authority from this Court, beginning with High Tech Gays v.
Defense Industrial Services Clearing Office, 895 F.2d 563, 571 (9th Cir. 1990),
establishes that “homosexuals do not constitute a suspect or quasi-suspect class
entitled to greater than rational basis scrutiny,” id. at 573-74; see Fam. Res.
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Council Br. 19 n.20. Plaintiffs contend that because High Tech Gays “premised its
equal protection analysis on Bowers v. Hardwick , 478 U.S. 186 (1986),” this
authority has been undermined by Lawrence. Pl. Br. 68-69. But while High Tech
Gays did observe that Bowers was “incongruous” with deeming gays and lesbians
members of a suspect or quasi-suspect class, it also independently analyzed the
case for heightened scrutiny and found it wanting. 895 F.2d at 571, 573-74. After
setting forth the requirements for such treatment—a history of discrimination,
immutability, and political powerlessness—this Court held that gays and lesbians
met the first but failed the latter two. Id . at 573-74. This analysis “compel[led]”
the holding “that homosexuals do not constitute a suspect or quasi-suspect class
entitled to greater than rational basis scrutiny.” Id . at 574. That holding and
analysis are controlling here.
This Court, of course, has already determined as much in Witt v. Department
of the Air Force, 527 F.3d 806, 821 (9th Cir. 2008). See Prop. Br. 70-71 n.34.14
Contrary to Plaintiffs’ contentions, see Pl. Br. 69 n.19, the issue preserved by the
plaintiff in Witt for potential en banc consideration was not whether Lawrence
14 This Court’s sister circuits have likewise uniformly continued to applyrational-basis review in this context post- Lawrence. See Cook v. Gates, 528 F.3d
42, 61 (1st Cir. 2008); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004);
Scarbrough v. Morgan County Bd. of Educ., 470 F.3d 250, 261 (6th Cir. 2006);
Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866-67 (8th Cir. 2006); Price-Cornelison v. Brooks, 524 F.3d 1103, 1114 (10th Cir. 2008); Lofton v. Secretary of the Dep’t of Children & Family, 358 F.3d 804, 818 (11th Cir. 2004).
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upset circuit precedent rejecting heightened equal protection scrutiny for gays and
lesbians, but simply whether the line drawn by the military’s Don’t Ask Don’t Tell
policy between “gay and straight” service members failed even rational-basis
review. See Brief of Appellant at 49-50, Witt (No. 06-35644).
Nor does Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010), in any
way undermine High Tech Gays’ continuing force. While the Court in that case
stated in passing that its “decisions have declined to distinguish between
[homosexual] status and conduct,” id. at 2990, it did not even address, let alone
purport to resolve, whether gays and lesbians constitute a suspect or quasi-suspect
class under the Equal Protection Clause. At any rate, to the extent the Court’s
passing observation has any relevance here, it simply underscores the degree to
which “[h]omosexuality … is fundamentally different from traits such as race,
gender, or alienage, which define already existing suspect and quasi-suspect
classes,” because “[t]he behavior or conduct of such already recognized classes is
irrelevant to their identification,” High Tech Gays, 895 F.2d at 573-74, not integral
to it, as Christian Legal Society suggests is the case for homosexuals.15
15 Conduct, of course, is just one of the complex array of factors that, singlyor in some combination, have been posited as defining features of homosexuality.
See Prop. Br. 71-72. Some courts, like this one, have focused on this behavioral
aspect of homosexuality in distinguishing it from established suspect and quasi-
suspect classifications. See High Tech Gays, 895 F.2d at 573-74; Woodward v.United States, 871 F.2d at 1076. In reaching the same conclusion, other courts
have looked to other aspects of homosexuality, like the “subjective and unapparent
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Plaintiffs’ reliance on Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir.
2000), is likewise misplaced. There, this Court held that “gay men with female
sexual identities in Mexico” form a “particular social group” for purposes of the
asylum laws. See id. at 1087. In reaching this determination, the Court reasoned
that “[s]exual orientation and sexual identity are immutable” in the sense that “they
are so fundamental to one’s identity that a person should not be required to
abandon them.” Id. at 1093. That formulation, however, is not how immutability
is defined for purposes of equal protection law. See Prop. Br. 73-74. And in the
equal protection context, this Court has squarely held that homosexuality is not
immutable, see High Tech Gays, 895 F.2d at 573-74, and it has continued to apply
rational-basis review to classifications based on homosexuality after Hernandez-
Montiel. See Witt , 527 F.3d at 821; Flores v. Morgan Hill Unified Sch. Dist., 324
F.3d 1130, 1137 (9th Cir. 2003).
B. Homosexuality is a complex and amorphous phenomenon,
distinguishing gays and lesbians from other classes the Supreme
Court has recognized as suspect or quasi-suspect.
Further, we have demonstrated that homosexuality is a complex, amorphous
phenomenon lacking any consensus definition and that the proposed suspect class
of gays and lesbians thus differs sharply from other groups that the Supreme Court
has singled out for heightened scrutiny. See Prop. Br. 71-72 & n.36; see also Prof.
characteristics such as innate desires, drives, and thoughts,” that some identify as
its defining features. Equality Found. v. Cincinnati, 128 F.3d at 294.
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Paul McHugh, M.D. Br. 2-18 (“McHugh Br.”); City of Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 445-46 (1985) (declining to extend suspect status to an
“amorphous” class of individuals); cf. Holloway v. Arthur Andersen & Co., 566
F.2d 659, 663 (9th Cir. 1977) (rejecting suspect class status for transsexuals
because, inter alia, “the complexities involved merely in defining the term
‘transsexual’ would prohibit” such classification). Indeed even Plaintiffs’ own
experts disagree about the proper definition of the proposed suspect class. See
McHugh Br. 13-14.
Plaintiffs respond that same-sex couples who wish to marry should be
assumed to be homosexuals. Pl. Br. 65. But such a case-specific assumption
provides no clear basis for identifying the proposed suspect class that could apply
in all of the various circumstances in which members of this putative class would
undoubtedly raise equal protection challenges. Plaintiffs also respond that most
individuals can identify themselves as homosexual or straight, but self-
identification is only one of several competing definitions of sexual orientation.
Finally, Plaintiffs invoke popular “assumptions” regarding the existence of
homosexuals as a discrete class. But the fact that many people may not understand
the complexity of defining homosexuality does not eliminate that complexity. Nor
is the difficulty in identifying the proposed suspect class merely theoretical—as
prominent studies and Plaintiffs’ own experts recognize, the competing definitions
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describe very different groups that have remarkably little overlap and range in size
from 1 to 21 percent of the population. See Prop. Br. 72 & n.36.
C. Plaintiffs misapprehend the requirements for heightened
protection under the Equal Protection Clause.
To qualify for heightened scrutiny under the Equal Protection Clause, the
burdened class must have experienced a history of discrimination, be defined by an
immutable characteristic, and be politically powerless. High Tech Gays, 895 F.2d
at 573.
Plaintiffs contend that heightened scrutiny may apply absent political
powerlessness and immutability. Not only is this argument flatly inconsistent with
High Tech Gays, but it also cannot be squared with Supreme Court authority.
Indeed, political powerlessness is plainly a sine qua non of protected status: When
a group does not lack political power, it can hardly claim the “extraordinary
protection from the majoritarian political process” provided by heightened equal
protection scrutiny. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28
(1973). Furthermore, the Supreme Court has plainly recognized political
powerlessness and immutability as “traditional indicia of suspectedness,” Johnson
v. Robison, 415 U.S. 361, 375 n.14 (1974), and the groups it has singled out for
heightened protection have uniformly satisfied those requirements.
Plaintiffs’ cases are not to the contrary. Adarand Constructors, Inc. v. Pena,
515 U.S. 200 (1995), does not hold or imply that political powerlessness is not a
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prerequisite for heightened equal protection scrutiny, but only that all government
racial discrimination, including “reverse discrimination,” is subject to heightened
equal protection scrutiny. See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265,
289-90 (1978) (opinion of Powell, J.). Furthermore, if Adarand were taken to
suggest that political powerlessness is unnecessary to establish suspect class status
in the first instance, it would also entail the surprising suggestion that a history of
discrimination is unnecessary as well.
Nor does Frontiero v. Richardson, 411 U.S. 677 (1973), dispense with the
requirement of political powerlessness. There, a plurality of the Court observed
that “when viewed in the abstract , women do not constitute a small and powerless
minority,” id . at 686 n.17, but that in reality women faced “pervasive …
discrimination, … perhaps most conspicuously in the political arena,” id. at 686,
and remained “vastly under-represented in this Nation’s decisionmaking councils,”
id. at 686 n.17.
Plaintiffs claim that Nyquist v. Mauclet , 432 U.S. 1 (1977), dispensed with
immutability as a prerequisite to suspect status because it treated “resident aliens as
a suspect class despite their ability to opt out of that class voluntarily.” Pl. Br. 60
& n.15. But a key distinguishing characteristic that defines this class—birth in a
foreign country—is “determined solely by the accident of birth,” Frontiero, 411
U.S. at 686, and thus is immutable as that term is defined by the Supreme Court.
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See also Parham v. Hughes, 441 U.S. 347, 351 (1979) (identifying “alienage” as
an “immutable human attribute[]”).
Finally, Plaintiffs claim that this Court, in Christian Science Reading Room
Jointly Maintained v. San Francisco, 784 F.2d 1010 (9th Cir. 1986), held that “ ‘an
individual religion meets the requirements for treatment as a suspect class,’ even
though religion is not immutable.” See Pl. Br. 60 n.15 (quoting id. at 1012). But
Christian Science Reading Room simply applied rational-basis review to strike
down a regulation distinguishing between “religious organizations and all others,”
784 F.2d at 1016; the language Plaintiffs quote was dicta. Further, the Supreme
Court has identified the Free Exercise Clause, not the Equal Protection Clause, as
the source of heightened constitutional protection against religious discrimination.
See Locke v. Davey, 540 U.S. 712, 720 n.3 (2004).
D. Gays and lesbians do not meet the requirements for suspect or
quasi-suspect classification.
History of Discrimination. We do not dispute that gays and lesbians have
suffered a history of discrimination. But as this Court correctly held twenty years
ago in High Tech Gays, that history, standing alone, does not warrant applying
heightened equal protection scrutiny to laws that classify on the basis of
homosexuality. See 895 F.2d at 573. That decision, if anything, is on even firmer
ground now, given that, as Plaintiffs’ expert Professor Chauncey notes, “it is hard
to think of another group whose circumstances and public reputation have changed
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so decisively in so little time. For several decades now, and especially since the
1990s, Americans have become more familiar with their lesbian and gay neighbors
and more supportive of them.” ER 1903; see also ER 1902 (explaining that “most
[anti-gay discriminatory measures] were dismantled between the 1960s and
1990s”).
Immutability. As we have demonstrated, heightened scrutiny is reserved for
groups defined by “an immutable characteristic determined solely by accident of
birth.” Prop. Br. 73-74; accord Johnson v. Robison, 415 U.S. at 375 n.14. As their
own experts admit, Plaintiffs cannot prove that homosexuality is determined solely
by accident of birth. See Prop. Br. 74 & n.38; see also McHugh Br. 18-22.
Plaintiffs completely ignore this legal requirement, which alone is fatal to their
argument for heightened scrutiny under the Equal Protection Clause.
In addition, we have demonstrated, and Plaintiffs’ experts admit, that
homosexual orientation shifts over time for a substantial number of individuals.
See Prop. Br. 74 & n.39; McHugh Br. 22-29. To take just one example, the
Chicago Study—which Plaintiffs’ experts recognize as “the authoritative source of
data” on sexuality, see Prop. Br. 72—demonstrates that 90 percent of women and
80 percent of men who have had same-sex intimate partners as adults have also
had opposite-sex partners. ER 1207. Plaintiffs argue that this shows only “that
some gay men and lesbians may have experimented with heterosexual intimacy,”
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Pl. Br. 64, but the same study shows that 25 percent of individuals who have had
same-sex partners in the last year have also had opposite-sex partners, and that
approximately half of men and nearly two-thirds of women who have had same-sex
partners in the last five years have also had opposite-sex partners. ER 1207.
Plainly these numbers cannot be dismissed as evidence of nothing more than
“experimentation.”
Plaintiffs also rely on testimony from their expert Professor Herek, but his
own research reports that 13 percent of self-identified gay men and 30 percent of
self-identified lesbians say that they experience a meaningful degree of choice in
their sexual orientation. ER 1912. These statistics, even at face value, are utterly
inconsistent with any finding that gays and lesbians are a class defined by an
immutable characteristic. Indeed, statistics such as these would be unthinkable for
other classes, such as women or racial minorities, that the Supreme Court has
singled out for heightened protection under the Equal Protection Clause.16
Political Power. Plaintiffs likewise ignore the controlling legal test of
political power established by the Supreme Court and applied by this Court. See
16Further, the fact that any given individual reports that he or she
experiences little or no choice with respect to homosexual orientation does notmean that his or her orientation has not changed in the past, or that it might not
change in the future. See ER 1716-17 (Herek) (acknowledging that study does
“not really shed any light” on the question “whether people’s sexual orientation
had changed”); ER 1718 (Herek) (acknowledging that “if you are trying to predict
for any specific individual whether their identify will predict their sexual behavior
in the future, especially, that can be problematic”).
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City of Cleburne v. Cleburne Living Ctr., 473 U.S. at 445; High Tech Gays, 895
F.2d at 574 (citing Cleburne). And it is no wonder, because the evidence is
overwhelming that gays and lesbians have the “ability to attract the attention of the
lawmakers.” Cleburne, 473 U.S. at 445. In California, the Speaker of the
Assembly is openly gay, ER 1709; a majority of the members of the legislature
have received a 100% rating from the largest gay rights group in the state, Equality
California, see Equality California, 2009 Legislative Scorecard at 5-7, at
http://www.eqca.org/atf/cf/%7B34f258b3-8482-4943-91cb-
08c4b0246a88%7D/EQCA_LEG_SCORECARD_2009.PDF; and California has
passed more than 60 pieces of legislation sponsored by Equality California over
the last decade alone, see Equality Cal. Br. 1-2—virtually the entire political
agenda of California’s LGBT community during this period except redefining
marriage. At the federal level, gays and lesbians have a staunch ally in Speaker
Pelosi, among many other legislators, ER 172017
; President Obama has adopted a
raft of initiatives sought by gay interest groups, see Concerned Women of America
Br. 8-9 (“CWA Br.”); he has appointed more gays and lesbians in the first two
years of his administration to positions than President Clinton did in his entire
17 See also http://www.hrc.org/scorecard/ (rating Pelosi at 100% for three
consecutive Congresses).
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eight years in office18
; Congress has enacted hate crimes legislation sought by the
LGBT community, see 18 U.S.C. § 249(a)(2); and the House earlier this year voted
to end the military’s Don’t Ask Don’t Tell policy, see CWA Br. 8. See generally
CWA Br. (detailing gays’ and lesbians’ political power).19
Plaintiffs try to evade this Court’s holding in High Tech Gays that gays and
lesbians have the ability to attract the attention of lawmakers on the ground that
this case has a “vastly different record.” Pl. Br. 69. Indeed it does. The political
power of gays and lesbians has increased exponentially over the last two decades:
all of the achievements detailed above (and countless others) have occurred since
High Tech Gays was decided; the allies of gays and lesbians have become far more
numerous and powerful since that time, see, e.g. ER 1884 (listing scores of civil
rights organizations, unions, national organizations, elected officials, and others
endorsing the No-on-8 cause); and the vast majority of the numerous local, state,
18 http://www.foxnews.com/politics/2010/10/26/obama-appoints-
record-number-gay-officials/?test=latestnews 19
Plaintiffs ask the Court to ignore the political power of gays in California,
but where there are significant regional variations in a group’s power, it surely
makes sense to assess political power within the juridical entity that enacted the
challenged law. Thus, in City of Richmond v. J. A. Croson Co., 488 U.S. 469, 495-96 (1989), where the Supreme Court analyzed the validity of racial quotas enacted
by the City of Richmond, the Court properly focused on the fact that blacks were a
majority of the City Council and whites were a minority. In any event, while the
ability of gays and lesbians to attract the attention of lawmakers is particularly
noteworthy in California, their achievements in Washington, D.C. make clear that
they plainly do not lack this ability at the federal level.
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and federal laws now protecting gays and lesbians postdate High Tech Gays.20
Plaintiffs point out that many states since High Tech Gays have reaffirmed
the traditional definition of marriage. But in 1990, no state in the union had
redefined marriage to include gays and lesbians, and no state had a domestic
partnership regime extending the tangible benefits of marriage to gays and
lesbians. Thus, even on the metric highlighted by Plaintiffs, the political landscape
shows the increasing power of gays and lesbians.
In a last ditch effort to demonstrate political powerlessness, Plaintiffs draw
comparisons to the power of African Americans and women. As for African
Americans, any comparison is inapposite since “the clear and central purpose of
the Fourteenth Amendment was to eliminate all official state sources of invidious
racial discrimination in the States.” Loving v. Virginia, 388 U.S. 1, 10 (1967);
Miller v. Johnson, 515 U.S. 900, 904 (1995) (The Equal Protection Clause’s
20Twenty years ago, for example, laws prohibiting sexual orientation
discrimination in employment and punishing hate crimes committed on the basis of
sexual orientation were extremely rare. Today, such laws are commonplace. See,e.g., 18 U.S.C. § 249; Human Rights Campaign (“HRC”), State Hate Crimes Laws,
available at http://www.hrc.org/documents/hate_crime_laws.pdf (last visited
August 4, 2010) (As of June 1, 2009, 31 states and D.C. have laws that address
hate crimes based on sexual orientation); HRC, Statewide Employment Laws &
Policies, available at http://www.hrc.org/documents/Employment_Laws_and_Policies.pdf (August 4, 2010) (As of July 26, 2010, 21 states and D.C. prohibit
discrimination based on sexual orientation); HRC, The State of the Workplace at 4
(2009), available at http://www.hrc.org/documents/HRC_Foundation_State_of_
the_Workplace_2007-2008.pdf (last visited August 4, 2010) (As of 2008, 181
cities and counties banned employment discrimination on the basis of sexual
orientation).
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“central mandate is racial neutrality in governmental decisionmaking.”) (emphasis
added).
As for women, the plurality in Frontiero v. Richardson, 411 U.S. 677, 685
(1973), identified five ways in which the plight of women mirrored that of slaves:
There was a time when neither could hold office, neither could serve on juries,
neither could bring suit in their own names, neither had the legal capacity to hold
or convey property, and both were denied the right to vote for much of American
history. None of these special disabilities have ever been visited upon gays and
lesbians because of their sexual orientation. The plurality also noted that “women
are vastly under-represented in this Nation’s decisionmaking councils.” 411 U.S.
at 686 n.17. At that time, there were no women in the United States Senate, and
less than four percent of the members of the House of Representatives were
women even though women constituted a majority of the electorate. By contrast,
gays and lesbians today constitute over three percent of the California legislature,
including the Speaker, see ER 1797, and almost 1% of the U.S. House of
Representatives, see ER 1708—and there may well be other gays serving in
Congress. Given the percentage of gays and lesbians in the population, the degree
of their underrepresentation, if any, simply pales when compared to the facts in
Frontiero. Moreover, the majority in Cleburne did not even reference, let alone
place dispositive weight upon, the relative underrepresentation of disabled
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legislators.
E. Proposition 8 does not discriminate on the basis of sex.
As the overwhelming majority of appellate courts to consider the matter
have recognized, the traditional definition of marriage treats men and women
equally and thus does not discriminate on the basis of sex. See Prop. Br. 75 n.40;
Fam. Res. Council Br. 9-16. Plaintiffs’ reliance on Loving is foreclosed by the
Supreme Court’s decision in Baker , which summarily rejected, despite appellants’
repeated citations to Loving, the claim that limiting marriage to opposite-sex
couples constitutes unconstitutional sex discrimination. See ER 1610-14. Baker is
not only controlling, but clearly correct, for Loving involved race discrimination,
not sex discrimination. And in the sex-discrimination context, unlike the race-
discrimination context, “[a]ll of the [Supreme Court’s] seminal … decisions …
have invalidated statutes that single out men or women as a discrete class for
unequal treatment.” Baker v. State, 744 A.2d 864, 880 n.13 (Vt. 1999) (collecting
cases).
Furthermore, the Loving Court easily saw Virginia’s antimiscegenation laws
for what they were, regardless of their purported equal treatment of blacks and
whites: “measures designed to maintain White Supremacy,” with “patently no
legitimate overriding purpose independent of invidious racial discrimination.” 388
U.S. at 11. The definition of marriage as the union of a man and a woman, by
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contrast, serves vital societal interests and cannot be dismissed as a relic of
“outdated and unfounded” gender stereotypes. Pl. Br. 72; see Prop. Br. 53-59, 66-
68. Indeed, even the California Supreme Court in In re Marriage Cases rejected
the argument that California’s marriage laws—including Proposition 22, the
identically worded predecessor to Proposition 8—were “grounded in an outdated
stereotypical view of the appropriate roles of men and women in a marriage.” 183
P.3d at 440 n.58.
Finally, the premise of Plaintiffs’ sex-discrimination theory, as set forth by
Plaintiffs and the district court, is that if Plaintiff “Perry were a man,” she and
Plaintiff Stier could marry. Pl. Br. 71-72 (quoting ER 154). But this assertion is at
war with the essential theory of Plaintiffs’ case: that because of their homosexual
orientation, marriage to a member of the opposite sex is not a meaningful option.
So if she became a man but remained homosexual, marriage to a woman would no
longer be an option for Plaintiff Perry. It is plain, then, that the gravamen of
Plaintiffs’ complaint is not gender discrimination but how Proposition 8 affects
them as gays and lesbians.
VII. PROPOSITION 8 ADVANCES VITAL STATE INTERESTS, AND THUS PLAINLY
SATISFIES RATIONAL BASIS REVIEW.
Proposition 8 advances California’s vital interests in responsible procreation
and childrearing and in proceeding with caution when considering fundamental
changes to the institution of marriage, and thus easily satisfies rational-basis
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review.21
Indeed, in light of the importance of these interests, see Prop. Br. 78; SF
Br. 9 (conceding that “society has a paramount interest in ‘providing status and
stability to the environment in which children are raised’”), as well as their close
connection to the traditional definition of marriage, Proposition 8 satisfies
heightened scrutiny as well.
21Like the district court, see, ER 168, Plaintiffs attempt to dismiss these
interests as “post hoc” justifications, Pl. Br. 54-55 n.14, 97. But under rational-
basis review, of course, lawmakers “need not actually articulate at any time thepurpose or rationale supporting [a] classification.” Heller , 509 U.S. at 320.
Indeed, “it is entirely irrelevant for constitutional purposes whether the conceived
reason for [Proposition 8] actually motivated” California’s voters. FCC v. BeachCommc’ns, Inc., 508 U.S. 307, 315 (1993). This is particularly true in the context
of a ballot initiative, for it is obviously not possible to identify a single animating
purpose of seven million voters, and so the voters’ decision must be upheld if it
can be justified on any conceivable rational basis. See Romer , 517 U.S. at 631
(citing Heller , 509 U.S. at 319-20). In any event, even a cursory look at the
campaign materials demonstrates that the ProtectMarriage.com campaign clearlyarticulated these purposes, not only in the official ballot argument, but in video and
printed materials. See, e.g., ER 1032 (“Proposition 8 protects marriage as an
essential institution of society. While death, divorce, or other circumstances may
prevent the ideal, the best situation for a child is to be raised by a married mother
and father.”); id . (Proposition 8 “restores the definition of marriage to what the
vast majority of California voters already approved and human history has
understood marriage to be.”); ER 2006 (“Marriage involves a complex web of
social, legal, and spiritual commitments that bind men and women for one
overriding societal purpose: to create a loving environment for the raising up of
children.”); ER 1036-37; ER 1039. Indeed, Plaintiffs concede that the argument“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.” Pl. Br. 77. Further, because
Proposition 8 preserves the traditional definition and form of marriage and thus
provides special encouragement and support to those relationships that uniquely
further the interests that marriage has always served, its purposes are evident “from
its text, structure, and operation.” Nguyen v. INS, 533 U.S. 53, 67-68 (2001).
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A. Rational basis review is not limited to economic legislation.
Plaintiffs complain that the rational basis standard applicable here is the
same as that “a court might apply to everyday economic legislation.” Pl. Br. 3.
But the Supreme Court has made clear that rational-basis review applies in “areas
of social and economic policy” so long as the challenged law, like Proposition 8,
“neither proceeds along suspect lines nor infringes fundamental constitutional
rights.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993); accord Board
of Trustees of the Univ. of Ala. v. Garrett , 531 U.S. 356, 366 (2001); Cleburne, 473
U.S. at 440. Indeed, the Supreme Court has repeatedly applied rational-basis
review beyond the context of laws that “adjust in nice gradations the economic
benefits and burdens of life in American society.” Pl. Br. 3. See, e.g., Glucksberg,
521 U.S. at 728 (assisted suicide); Romer , 517 U.S. at 632 (Colorado’s
Amendment 2); Heller , 509 U.S. at 314, 319-21 (“involuntary civil commitments
of those alleged to be mentally retarded”); Cleburne, 473 U.S. at 446-47
(discrimination against the mentally retarded); Maher v. Roe, 432 U.S. 464, 478
(1977) (abortion funding); Massachusetts Bd. of Retirement v. Murgia, 427 U.S.
307, 312-14 (1976) (discrimination against the aged).
B. Proposition 8 is closely related to California’s vital interest in
responsible procreation and childrearing.
We have demonstrated that a central—indeed animating—purpose of
marriage, always and everywhere, has been to further society’s compelling interest
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in increasing the likelihood that children will be born to and raised in enduring and
stable family units by the couples who brought them into the world. See Prop. Br.
54-60, 78. Because only sexual relationships between men and women can
produce children, such relationships have the potential to further—or harm—this
interest in a way that other types of relationships do not. See id . 77-87. As state
and federal courts across the country have repeatedly recognized, it follows that the
“commonsense distinction,” Heller v. Doe, 509 U.S. 312, 326 (1993), that our law
has always drawn between opposite-sex couples, on the one hand, and all other
types of relationships—including same-sex couples—on the other hand, plainly
bears a rational relationship to “the government interest in ‘steering procreation
into marriage.’ ” Bruning, 455 F.3d at 867; see also Prop. Br. 82-83, 91-93; States
Br. 12-29.
Plaintiffs do not dispute that “traditional opposite-sex marriage” furthers this
interest. Pl Br. 57; accord id . 23. Indeed, in the proceedings below they expressly
conceded that “ ‘responsible procreation’ may provide a rational basis for the
State’s recognition of marriages by individuals of the opposite-sex.” ER 1785.
Plaintiffs likewise have been forced to acknowledge the biological reality that
same-sex relationships do not implicate this interest in the same way opposite-sex
relationships do. As Plaintiffs’ lead counsel conceded below, same-sex couples
“don’t present a threat of irresponsible procreation” but “heterosexual couples who
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practice sexual behavior outside their marriage are a big threat to irresponsible
procreation.” ER355. These concessions—forced grudgingly out of Plaintiffs by
undeniable biological facts—are the end of this case, for it is well settled both that
a classification will be upheld when “the inclusion of one group promotes a
legitimate governmental purpose, and the addition of other groups would not,”
Johnson, 415 U.S. at 383, and, conversely, that the government may make special
provision for a group if its activities “threaten legitimate interests … in a way that
other [groups’ activities] would not,” Cleburne, 473 U.S. at 448; see generally
Vance, 440 U.S. at 109 (law may “dr[aw] a line around those groups … thought
most generally pertinent to its objective”).
1. Without acknowledging the “host of judicial decisions” upholding the
line drawn by the traditional definition of marriage on these essential grounds,
Bruning, 455 F.3d at 867; see also Prop. Br. 91-92 (collecting cases), Plaintiffs
claim that the rule set forth in Johnson and other cases is limited to circumstances
where some line must be drawn to allocate scarce resources. See Pl. Br. 88.
Leaving aside the obvious point that some lines must be, and always have been,
drawn somewhere between those relationships that the State recognizes as
marriages and those that it does not if the institution of marriage is to have any
meaning at all, Plaintiffs are simply wrong that the rule is limited to cases
involving scarce resources.
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While Johnson upheld the Government’s decision to provide educational
benefits to active service veterans but not to conscientious objectors who provided
alternative service outside the military, neither the Government nor the Court
justified this decision on the ground of scarcity. Rather, the Court accepted the
Government’s argument that providing the benefits to veterans furthered interests
that would not be served by providing the benefits to conscientious objectors. See
415 U.S. at 381-83. Vance upheld the Government’s decision to establish a
mandatory retirement age for foreign-service but not civil-service employees.
Plainly no principle of scarcity prevented the Government from extending the
mandatory retirement age to all employees, but the Court held that the line
Congress drew between these two groups of employees was nonetheless justified
because the interests served by mandatory retirement were in general more
pertinent to foreign-service than to civil-service employees. See 440 U.S. at 106-
09. And Cleburne—which struck down a municipal zoning law requiring special
use permits for homes for mentally retarded individuals but not for other similar
uses that implicated the city’s legitimate interests in the same way—obviously did
not turn on any sort of scarcity.
More generally, these cases simply reflect the broader principle that “where
a group possesses ‘distinguishing characteristics relevant to interests the State has
the authority to implement,’ a State’s decision to act on the basis of those
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differences does not give rise to a constitutional violation,” Board of Trustees of
the Univ. of Ala. v. Garrett , 531 U.S. 356, 366-67 (2001)—a rule that indisputably
applies generally without regard to resource scarcity. See also, e.g., Cleburne, 473
U.S. at 441 (similar); Vacco v. Quill, 521 U.S. 793, 799 (1997) (“The Constitution
does not require things which are different in fact or opinion to be treated in law as
though they were the same.”). Plaintiffs’ contrary argument—that when the State
recognizes opposite-sex marriages because they serve the State’s procreative
interests, it is constitutionally obliged to also recognize same-sex marriages even
though they do not similarly further those interests—is a non sequitur that is not, of
course, the law. To the contrary, by definition, a line drawn between those who
most clearly implicate a government interest and those who do not cannot be said
to “rest[ ] on grounds wholly irrelevant to the achievement of the State’s
objective,” as it must to fail rational-basis review. Heller , 509 U.S. at 324.
Plaintiffs are thus simply wrong in contending that California’s refusal to
recognize same-sex relationships as marriages must itself further the State’s
interest in responsible procreation. See Pl. Br. 57. To be sure, these interests are,
we submit, furthered by California’s refusal to do so—as we have demonstrated,
there are substantial reasons for concern that redefining marriage to include same-
sex relationships would weaken that institution and harm the interests it has
traditionally served. See Prop. Br. 93-104. But the relevant constitutional inquiry
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is whether the distinction drawn by the traditional definition of marriage between
opposite-sex couples and all other types of relationships bears “a rational
relationship” to “some legitimate governmental purpose,” Heller , 509 U.S. at 320,
not, as Plaintiffs would in effect have it, whether that distinction is necessary to
advance that purpose, see, e.g., Vance, 440 U.S. at 102 n.20 (holding it “irrelevant
… that other alternatives might achieve approximately the same results”). Indeed,
even where heightened scrutiny applies, the Supreme Court has rejected the
argument that a statutory distinction may be upheld only if it is necessary to
achieve the government’s purpose. See Michael M. v. Superior Court , 450 U.S.
464, 473 (1981) (plurality) (rejecting argument that statutory rape statute punishing
only males was “not necessary to deter teenage pregnancy because a gender-
neutral statute, where both male and female would be subject to prosecution,
would serve that goal equally well” as, inter alia, not reflecting “[t]he relevant
inquiry”).22
2. Plaintiffs also argue that the classification drawn by the traditional
definition of marriage does not bear a rational relationship to the state’s
22 Contrary to Plaintiffs’ contentions, see Pl. Br. 57-58, 89, Romer does notreflect a different rule. Romer struck down Amendment 2 not because its
treatment of gays and lesbians was unnecessary to further the purposes served by
“Colorado’s antidiscrimination laws protecting other minority groups,” Pl. Br. 58,
but because the sweeping disparity of treatment it established between gay men
and lesbians, on the one hand, and all other citizens, on the other hand, did not bear
a reasonable relationship to any government purpose. See 517 U.S. at 633, 635.
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indisputably legitimate—indeed compelling—interest in responsible procreation
because opposite-sex couples who are unable or unwilling to procreate are
permitted to marry. See Pl. Br. 89. But it is well settled that rational-basis review
allows the State to draw bright lines, “rough accommodations,” Heller , 509 U.S. at
321, and “commonsense distinction[s],” id . at 326, based on “generalization[s],”
id ., presumptions, see Murgia, 427 U.S. at 315, and “common-sense
proposition[s],” Vance, 440 U.S. at 112. And “courts are compelled under
rational-basis review to accept [such] generalizations,” Heller , 509 U.S. at 321,
presumptions, and propositions unless they hold true in “so few” circumstances “as
to render [a line based upon them] wholly unrelated to the objective” of the law
drawing that line, Murgia, 427 U.S. at 315-16; see also Williamson v. Lee Optical,
348 U.S. 483, 487 (1955) (upholding categorical rule that was based on an
assumption that the legislature “might have concluded” was “often enough” true).
The presumption that sexual relationships between men and women can
result in pregnancy and childbirth holds true for the vast majority of couples and is
plainly sufficient to render rational, at least, the “commonsense distinction” the law
has always drawn between opposite-sex couples, on the one hand, and same-sex
couples, who are categorically incapable of natural procreation, on the other hand.
Furthermore, as we have already demonstrated, any attempt to ensure a closer fit
between marriage and society’s interest in responsible procreation would be
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burdensome, intolerably intrusive, and ultimately ineffective. See Prop. Br. 60-64.
For all of these reasons, it is not surprising that courts have repeatedly rejected the
argument that allowing opposite-sex couples who cannot, or do not intend to, have
children to marry defeats the rational relationship between marriage and
responsible procreation. See id . 61 n.28.
Indeed, as the district court recognized in Adams v. Howerton, because case-
by-case inquiries into fertility are simply not a “real alternative” for achieving
society’s “compelling interest in encouraging and fostering procreation … and
providing status and stability to the environment in which children are raised,”
allowing “legal marriage as between all couples of opposite sex” is “the least
intrusive alternative available to protect the procreative relationship.” 486 F. Supp.
2d 1119, 1124-25 (1980), aff’d on other grounds, 673 F.2d 1036 (9th Cir. 1982).
Accordingly, that court concluded that the traditional definition of marriage could
survive even strict scrutiny. Id .; see also Nguyen v. INS, 533 U.S. 53, 69-70 (2001)
(even where heightened scrutiny applies, courts have not “required that the statute
under consideration must be capable of achieving its ultimate objective in every
instance” and Congress may enact “an easily administered scheme” to avoid “the
subjectivity, intrusiveness, and difficulties of proof” of “an inquiry into any
particular bond or tie”). Similarly, applying heightened scrutiny in a closely
analogous context, the Supreme Court rejected as “ludicrous” an argument that a
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law criminalizing statutory rape for the purpose of preventing teenage pregnancies
was “impermissibly overbroad because it makes unlawful sexual intercourse with
prepubescent females, who are, by definition, incapable of becoming pregnant.”
Michael M ., 450 U.S. at 475 (plurality); see also id . at 480 n.10 (Stewart, J.,
concurring) (rejecting argument that the statute was “overinclusive because it does
not allow a defense that contraceptives were used, or that procreation was for some
other reason impossible,” because, inter alia, “a statute recognizing [such
defenses] would encounter difficult if not impossible problems of proof”). For all
of these reasons, society’s undisputed and compelling interest in channeling
procreation into marriage plainly suffices to sustain Proposition 8 against
Plaintiffs’ constitutional attack.
3. California’s interest in responsible procreation and childrearing does
not depend on any judgment about the relative parenting capabilities of opposite-
sex and same-sex couples. See Prop. Br. 84-87. Plaintiffs’ discussion of the same-
sex parenting literature nonetheless confirms that the instinctive, commonsense
belief that married biological parents provide the optimal environment for raising
children is entirely rational. Plaintiffs fail to cite to a single study comparing
outcomes for the children of married biological parents and those of same-sex
parents. Thus, Plaintiffs have failed to undermine, let alone remove “from debate,”
the studies showing that married biological parents provide the best structure for
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raising children. See Prop. Br. 78-82, 87; Paul R. Amato, The Impact of Family
Formation Change on the Cognitive, Social, and Emotional Well-Being of the Next
Generation, 15 FUTURE CHILD 75, 89 (2005) (ER 371) (“Research clearly
demonstrates that children growing up with two continuously married parents are
less likely than other children to experience a wide range of cognitive, emotional,
and social problems, not only during childhood, but also in adulthood…. This
distinction is even stronger if we focus on children growing up with two happily
married biological parents.”); see also American College of Pediatricians Br. 4-16
(“ACP Br.”).23
Plaintiffs respond that “[i]f one is studying the impact of parenting by same-
sex couples, … the appropriate comparison group is unmarried heterosexual
parents.” Pl. Br. 86. But such studies would say nothing about whether the
benefits of marriage would flow equally to children of gays and lesbians as they do
to the children of married biological parents. And even if Plaintiffs framed the
right question, the studies they trumpet fail to follow their own methodology:
during cross-examination, their expert, Dr. Lamb, admitted that the studies he
23
The weakness of Plaintiffs’ position is underscored by their reliance on thedeposition testimony of Dr. Paul Nathanson, Proponents’ withdrawn expert on
comparative religion, who expressly disclaimed expertise in fields relevant to the
same-sex parenting literature. ER 1997-2000. In any event, Dr. Nathanson clearly
expressed his view that it was in society’s interest for children to be raised by their
biological mothers and fathers. ER 2001-02.
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relied upon drew no distinction between the children of married and unmarried
heterosexual couples. ER 271.
As Professor Steven Nock of the University of Virginia has demonstrated,
the same-sex parenting literature is a shell game, carefully constructed with two
critical steps designed to ensure the desired results. See ER 596; see also, e.g.,
ACP Br. 6-8. First, researchers start with the assumption that the children of
heterosexuals and gays and lesbians have the same outcomes, a dubious
assumption in light of the many studies showing that family structures with only
one non-biological parent are suboptimal. See, e.g., ER 362, 545.
Second, the studies use “miniscule” samples. Judith Stacey & Timothy J.
Biblarz, (How) Does the Sexual Orientation of Parents Matter?, 66 AM. SOC. REV.
159, 168 n.9 (2001) (ER 1942, 1951). The small samples allow the many
differences observed between the children of opposite-sex and same-sex couples to
be dismissed as statistically insignificant, leaving the initial assumption
undisturbed.24
The 2010 meta-analysis trumpeted by Plaintiffs makes this very
24 See, e.g., Wainright, J., Delinquency, Victimization, and Substance Use
Among Adolescents With Famale Same-Sex Parents, 20 JOURNAL OF FAMILY
PSYCHOLOGY 526, 528 (2006) (ER 1897) (children of same-sex parents faredworse than the children of opposite sex parents including being more likely to have
sex under the influence of alcohol or drugs and more likely to encounter problems
related to alcohol); FIONA TASKER, GROWING UP IN A LESBIAN FAMILY: EFFECTS
ON CHILD DEVELOPMENT 127-33 (1997) (ER 1969-75) (finding children of lesbians
more likely to engage in premarital promiscuous sex than children of opposite sex
couples).
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point: “some of the findings of no differences may miss real differences … because
some studies use levels of significance that may be too restrictive for their very
small samples.” Judith Stacey & Timothy J. Biblarz, How Does the Gender of
Parents Matter? JOURNAL OF MARRIAGE AND FAMILY 3, 8 (2010). And to make
matters worse, the tiny samples are not randomly selected, and thus the meta-
analysis cited by Plaintiffs acknowledges that “[t]his research remains
disproportionately on White, middle-class families.” Id. at 10.25
Plaintiffs respond that while past studies lacked representative samples “now
there is a study based upon the most representative sample imaginable—the United
States Census.” Pl. Br. 87. But even this lone study itself concedes that “the
census data are far from ideal for the subject under study here.” SER 572. Further,
this study did not purport to find broad similarities between children of same-sex
and opposite-sex couples. Rather, it focused narrowly on grade retention—
whether children were held back in school—and did not measure any other aspects
of child adjustment. SER 577. The study noted “the unadjusted means show that
own children of heterosexual married couples are significantly less likely to be left
back in school than own children of same-sex couples.” SER 588. It thus tells us
25Plaintiffs also cite five professional organizations’ policy statements, but
these pronouncements rest on the same inconclusive studies relied on by Plaintiffs
here, and thus amount to little more than manifestos of prevailing orthodoxy, just
as were prior unfavorable statements issued by these very organizations regarding
homosexuality.
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nothing that undermines the widely shared understanding that married biological
parents provide the optimal environment for raising children.26
Plaintiffs cite Professor Norval Glenn as acknowledging that “[t]here have
been dozens of studies of same-sex parenting.” Pl. Br. 86 (quoting ER 447). But,
Professor Glenn continues, “this body of research leaves open the question about
the relative efficacy of same-sex and opposite-sex parenting.” ER 447. He notes
that “[t]he research that would provide relevant evidence has not been done, and …
is not likely soon to be done.” ER 448. Indeed, he fears the pertinent research will
never be conducted
due to the political struggle for same-sex marriage. Given the
widespread support for same-sex marriage among social and
behavioral scientists, it is becoming politically incorrect in academic
circles even to suggest that arguments being used in support of same-
sex marriage might be wrong. There already seems to be some
reluctance on the part of researchers and scholars to address issues
concerning fatherlessness and the relative merits of same-sex and
opposite-sex parenting.
Id.
Plaintiffs claim that “[Proponents] offered no witness … and identified no
26Plaintiffs also claim that “whereas earlier opponents of same-sex parenting
complained of the absence of ‘long-term, longitudinal studies,’ … now there arestudies that have followed children from infancy into early adulthood.” Pl. Br. 87.
But the study cited by Plaintiffs as paradigmatic looked at a small sample, did not
include gay fathers, and did not purport to compare same-sex parents to married
biological parents. See SER 460, 468. Although not all of Plaintiffs’ studies share
the complete universe of flaws, the fact remains that none makes a relevant
comparison with a robust random sample.
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basis in social science” to support the proposition that children benefit from being
raised by their married biological parents. Pl. Br. 83.27
Not only have we cited
authoritative studies making just this point, see Prop. Br. 78-81, 87, Plaintiffs’ own
studies acknowledge that “[s]tudies of family structure and children’s outcomes
nearly universally find at least a modest advantage for children raised by their
married biological parents.” E.g., SER 568.
Finally, Plaintiffs claim that a “tide” of research shows that adopted children
do just as well as children raised by their biological parents and thus demonstrates
that the biological connection between children and parents is irrelevant. Pl. Br.
27Plaintiffs claim that after Proponents’ withdrawn expert Professor Marks
was shown that some studies he relied on included a small number of adopted
children as biological children, “he offered to revise his opinion that married
biological parents were the ideal family structure … by deleting the word ‘biological.’ ” Pl. Br. 84. To the contrary, while Marks agreed that the word
“biological” should be deleted with respect to some of the studies he cited, MarksDepo. at 147, 277-78, he characterized the assertion that the inclusion of adopted
children in some of the studies invalidated his conclusions as “ridiculous.” Marks
Depo. at 185. (Marks Deposition excerpts are attached as Exhibit B.) Marks
ultimately concluded that even with “marriage-based adoptive families as the wild
card … there is a potent outcome difference when you combine biology and
marriage.” Id. at 169-70.
Plaintiffs’ claim that Marks refused to endorse the proposition “that children
benefit from having a parent of each gender,” Pl. Br. 84-85, rests on a semantic
game. Marks referred to himself as “agnostic” as to the theory of “gender-
differentiated parenting,” only because he considered gender to be “defined ascultural as opposed to sex, which would be more biologically driven.” Marks
Depo. at 203-04. He clearly articulated that children benefit from having parents
with biologically different sexes, a mother and a father: “I don’t think I make any
specific arguments that argue a whole lot about the cultural construct of gender.
I’m dealing with sex, a “biological father and biological mother.” Id. at 203; seealso ACP Br. 16-27.
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83-84. Yet, as one of the very studies cited by Plaintiffs acknowledges, “many
studies and several meta-analyses have shown that adopted children lag behind in
physical growth, school performance, and language abilities; show more
attachment and behavior problems; and are substantially overrepresented in mental
health referrals and services for learning problems.” SER 490. The study also
recognizes that “adoptees have to cope with difficulties connected with the lack of
genetic relatedness … to their adoptive parents.” SER 491.
Further, adoptive parents must pass through a rigorous screening process and
are therefore disproportionately likely to be “well educated” and to provide their
“adopted children with an enriched and nurturing environment.” SER 491. Thus,
evidence that the children of all married, biological parents have similar outcomes
to a tiny subclass of children raised by carefully screened adoptive parents does not
refute, but supports, the idea that, all things being equal, the interests of children
are best served when they are raised by their married, biological parents.
Plaintiffs, in short, have not come close to disproving the instinctive, deeply
ingrained belief that, all else being equal, children are most likely to thrive when
raised by the father and mother who brought them into this world. And Plaintiffs
certainly have not shown this belief to be irrational.
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C. Proposition 8 advances California’s interest in proceeding with
caution when considering a fundamental change to a vital social
institution.
Our opening brief demonstrated why Californians reasonably may decide to
await further results of nascent experiments with same-sex marriage in other
jurisdictions before fundamentally redefining that bedrock institution. Prop. Br.
93-104. Plaintiffs say that our “failure of proof”—evinced by a lack of supporting
affidavits or witness testimony discussing “data” and “studies”—means that this
interest in proceeding with caution cannot be sustained. Pl. Br. 92-94. But it is
Plaintiffs, not we, who bear the burden of proof. And the burden they bear is not
merely to show by a preponderance of the evidence that concerns about the long-
term societal impact of fundamentally redefining marriage are unwarranted, but to
demonstrate conclusively that such concerns are not even “plausible,” “reasonably
conceivable,” “debatable,” or “arguable.” Heller , 509 U.S. at 320, 326, 333. In
other words, Plaintiffs must show that those who believe society should further
study the issue before fundamentally redefining marriage are not just wrong, but
irrational.
Plaintiffs cannot, of course, meet this heavy burden. They deride the idea
that redefining marriage to include same-sex couples could have negative long-
term consequences as simply a “theory,” Pl. Br. 93, but due to the novelty of same-
sex marriage, opinions about its potential effects—whether positive, negative, or
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indifferent—are necessarily theoretical.
And while the future societal consequences of redefining marriage cannot
yet be known with certainty, concerns about them are certainly rational. They are
rooted principally in recognition of the fact that eliminating the necessary presence
of a man and a woman from the legal definition of marriage decisively severs any
inherent connection between that institution and societal interests in responsible
procreation and childrearing, thus leading to the eminently reasonable concern that
over time such a change would harm marriage’s ability to serve these vital
interests. Indeed, these concerns are shared by scores of scholars from all relevant
disciplines, see, e.g., WITHERSPOON INSTITUTE, MARRIAGE AND THE PUBLIC GOOD
18-19 (2006), recognized as reasonable by prominent supporters of same-sex
marriage, see, e.g., William Meezan & Jonathan Rauch, Gay Marriage, Same-Sex
Parenting, and America’s Children, 15 FUTURE CHILDREN 97, 110 (2005), and
based in substantial part on the arguments made in support of same-sex marriage
and their necessary implications, see, e.g., DAVID BLANKENHORN, THE FUTURE OF
MARRIAGE 127-69 (2007) (ER 1800-1842.). See generally Nat’l Org. Marriage Br.
The feeble evidence Plaintiffs marshal against this precautionary interest
does nothing to undercut its obvious rationality. Indeed, even the authors of the
“seminal” 2009 study that Plaintiffs say “empirically tested” claims that redefining
marriage could harm the institution of marriage, Pl. Br. 92, acknowledged that
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“[w]e cannot say that we have disproved the existence of a link between laws
permitting gay marriage and a negative impact on ‘family values’ indicators,” and
that “it may be too early to tell exactly what the effects of laws regulating same-sex
marriage are at this point because the debates over gay marriage and its legal
recognition and bans are in their infancy,” SER 671.
Plaintiffs also point to testimony of various experts—Professors Cott,
Peplau, and Badgett and Mr. Blankenhorn—that purportedly undermines this
interest. Pl. Br. 17-18. But as we have shown, while Professors Cott and Peplau
discussed short-run data from Massachusetts’ still-infant experience with same-sex
marriage, both disclaimed giving it much credence. See Prop. Br. 39-41.
Professor Badgett’s opinions are likewise based on short-run data from some of the
tiny number of “States and countries where [same-sex marriage] has been
permitted.” See Pl. Br 17. But the limited empirical data available from the brief
experience of a handful of jurisdictions that have redefined marriage does not
begin to suffice to eliminate reasonable concerns about the societal impact of
fundamentally redefining marriage.28
And while Mr. Blankenhorn acknowledged
28 Plaintiffs point to testimony from Professor Badgett asserting that post-same-sex marriage statistics from the Netherlands are in line with preexisting
trends, but the evidence in the record shows that several preexisting negative trends
were exacerbated following that Nation’s redefinition of marriage. See Nat’l Org.
Marriage Br. 28-29. This data, from the jurisdiction that has longest recognized
same-sex relationships as marriages, provides little comfort to those who are
concerned about the possible consequences of such a seismic change.
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that heterosexuals have contributed to the weakening of marriage through the
process of deinstitutionalization, he also opined that redefining marriage to include
same-sex couples would “significantly further and in some respects culminate” that
process. SER 282.
Plaintiffs also claim that the finite and limited number of same-sex
marriages that took place in the wake of In re Marriage Cases and remain valid
today have not weakened marriage in California. But there is no reason to expect
that these few marriages performed just two years ago would produce any
meaningful data on the consequences of redefining marriage to include same-sex
couples. Much more salient is the action sparked by the court decision that led to
those marriages—the enactment of Proposition 8, which reaffirmed the State’s
commitment to the traditional understanding of marriage as the union of a man and
a woman.
D. Proposition 8’s rationality is not undermined by its alleged effects
on gays and lesbians and their children.
Throughout their brief, Plaintiffs assert that the traditional definition of
marriage reaffirmed by Proposition 8 stigmatizes and harms gays and lesbians and
deprives them and their children of the benefits of marriage. Indeed, Plaintiffs
recklessly insinuate that the traditional definition of marriage is somehow
responsible for suicides and hate crimes. See Pl. Br. 106-07. Such inflammatory
claims are false, regrettable, and ultimately do not bear on Proposition 8’s
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rationality.29
1. Contrary to Plaintiffs’ bald assertion, we do not agree that
Proposition 8 sends a “discriminatory message” that gay and lesbian individuals
are “inferior” and “not good enough,” nor that the traditional definition of marriage
“does profound and enduring stigmatic harm to gay men and lesbians—and their
families.” Pl. Br. 56. Society defines marriage as an opposite-sex relationship, not
because such couples are virtuous or morally praiseworthy, but because of the
unique potential such relationships have either to harm, or to further, society’s
interests in responsible procreation. That is why the fundamental right to marry
has never been conditioned on an inquiry into the virtues and vices of individuals
seeking to marry. Society cannot stop the immoral or irresponsible from engaging
in potentially procreative sexual relationships and presumes that even such
individuals are more likely to take care of the children that result from their sexual
activity if they are married than if they are not.
Conversely, the fact that same-sex relationships are not recognized as
marriages does not reflect a judgment by the State that individuals in such
relationships are inferior or undeserving, but simply the fact that such relationships
do not implicate society’s interest in responsible procreation in the same way that
29San Francisco also claims that Proposition 8 costs it money. But
California’s Legislative Analyst authoritatively determined that over the long run
Proposition 8 would “likely [have] little fiscal impact on state and local
governments.” ER 1030.
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opposite-sex relationships do. It is simply not stigmatic for the law to treat
different things differently. See, e.g., Johnson, 415 U.S. at 383.
Plaintiffs themselves brought this point into sharp focus below, unwittingly,
with a hypothetical example of a reprobate opposite-sex couple who “can get
married the morning after meeting each other at a night club,” while an upstanding
same-sex couple in an enduring, committed relationship cannot. ER 1796. But
society plainly has a vital interest in encouraging the opposite-sex couple, if and
when they do decide to have sexual relations, to marry and to commit themselves
to take responsibility for raising any children produced by their union, whether
intentionally or unintentionally, into responsible, productive citizens. These vital
societal interests are plainly related to the uniquely procreative capacity of
opposite-sex relationships, and it is plainly rational for the State to maintain a
unique institution to serve these interests. See Prop. Br. 82-85.
2. There is simply no empirical basis for Plaintiffs’ assertion that
California’s decision to adhere to the traditional definition of marriage leads to
hate crimes against gays and lesbians or to suicides or any other type of adverse
mental health outcome for these individuals. To the contrary, Plaintiffs’ expert
Professor Herek admitted at trial that there is no empirical support for the claim
that there is a link between hate crimes against gays and lesbians and the
traditional definition of marriage. ER 302. Indeed, according to authoritative FBI
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statistics, the per capita rate of hate crimes based on sexual orientation is much
lower in California than in Massachusetts, which has recognized same-sex
relationships as marriages since 2004. See ER 1890. Similarly, Plaintiffs’ expert
Professor Meyer admitted that he is unaware of any empirical data suggesting that
gays and lesbians suffer from worse mental health outcomes in California than
they do in Massachusetts, the Netherlands, or any other jurisdiction that recognizes
same-sex relationships as marriages. See ER 249-53.
3. As we have already demonstrated, California protects same-sex
relationships and provides for the children of same-sex couples through the
institution of domestic partnership, and there is no empirical evidence whatsoever
that those children would obtain any incremental benefits above and beyond those
available through domestic partnership if their same-sex parents were married. See
Prop. Br. 85 n.45. While Plaintiffs trumpet Mr. Blankenhorn’s statement that
children raised by same-sex couples might benefit if their parents were permitted
to marry, see Pl. Br. 51, they ignore his further statement that he believes
essentially the same benefits “can be achieved through … domestic partnerships.”
ER 345.30
30Nor is there any merit in Plaintiffs’ claim that, like antimiscegenation
laws, the age-old definition of marriage is “at war” with its traditional purposes.
Pl. Br. 50-51. Not only did the Supreme Court unanimously reject this analogy,
see Baker , 409 U.S. 810, but relationships between men and women of different
races are exactly the same as any other opposite-sex relationships in all respects
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4. In all events, the voters were entitled to weigh any speculative
potential benefits that might result from redefining marriage to include same-sex
relationships against the risk that such a seismic change would weaken that
bedrock institution and the vital interests it has traditionally served. See Prop. Br.
93-104; supra at 66-70. Indeed, “[b]y maintaining the traditional definition of
marriage while simultaneously granting legal recognition and expanded rights to
same-sex relationships, the [State] has struck a careful balance to satisfy the
diverse needs and desires of Californians.” In re Marriage Cases, 143 Cal. App.
4th 873, 935-36 (Cal. Ct. App. 2006), rev’d , 183 P.3d 384 (Cal. 2008). The
Constitution simply does not “authorize the judiciary to sit as a super legislature”
to second guess the wisdom or desirability” of the balance the people of California
have struck. Heller v. Doe, 509 U.S. at 319; see also, e.g., Williamson, 348 U.S. at
487 (“it is for the legislature, not the courts, to balance the advantages and
disadvantages” of economic or social regulation); Glucksberg, 521 U.S. at 722
(unless “a challenged state action implicate[s] a fundamental right,” there is no
need for “complex balancing of competing interests”); Board of Trustees of the
Univ. of Ala., 531 U.S. at 357-58 (so long as its actions are rational, State may
“quite hard headedly—and perhaps hardheartedly” refuse to accommodate
relevant to the fundamental purposes of marriage. In particular, interracial
opposite-sex relationships, just like any other such relationships, can in general
produce children, often unintentionally, through even casual sexual behavior. The
same is simply not true of same-sex relationships. See Prop. Br. 82-87.
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competing interests). Accordingly, so long as the traditional definition of marriage
is rationally related to a legitimate state interest, Plaintiffs’ contentions regarding
the alleged harms that definition inflicts are relevant only to democratic policy
decisions, and can provide no basis for judicial invalidation of Proposition 8.31
VIII. NOTHING IN CALIFORNIA LAW NOR THE CIRCUMSTANCES SURROUNDING
ITS ENACTMENT RENDERS PROPOSITION 8 UNCONSTITUTIONAL.
A. The circumstances that led to Proposition 8’s enactment do not
distinguish it from the laws of other states that protect the
traditional definition of marriage.
1. Plaintiffs and San Francisco repeatedly characterize Proposition 8 as
“stripping” gays and lesbians of their preexisting rights. As even the California
Supreme Court recognized, however, “describ[ing] Proposition 8 as ‘eliminating’
or ‘stripping’ same-sex couples of a fundamental constitutional right … drastically
overstates the effect of Proposition 8 on the fundamental state constitutional rights
of same-sex couples.” Strauss, 207 P.3d at 102. Such hyperbole also obscures the
reality that for all but four-and-a-half months of California’s 161-year existence,
marriage has been defined as the union of a man and a woman. The California
Supreme Court’s decision in In re Marriage Cases, which briefly interrupted that
practice, was overturned by the voters at the first possible opportunity. Indeed,
31Although San Francisco claims that Plyler v. Doe, 457 U.S. 202 (1982),
permits this Court to find Proposition 8 irrational in light of the harms it allegedly
inflicts, the Supreme Court has confined that anomalous decision to its facts. See
Prop. Br. 34 n.12.
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that decision was no more final than the earlier California Court of Appeal decision
upholding the State’s traditional definition of marriage: It was reviewed and
overturned by a higher tribunal—the People themselves.
Further, the United States Constitution is simply not a one-way ratchet that
forever binds a State to laws and policies that go beyond what the Fourteenth
Amendment would otherwise require. Such a regime not only would be
“destructive of a State’s democratic processes and of its ability to experiment,” but
it would affirmatively “discourage[ ] the States from providing greater protection”
to their citizens than the Fourteenth Amendment requires. Crawford v. Board of
Educ., 458 U.S. 527, 535, 539 (1982). “In short, having gone beyond the
requirements of the Federal Constitution, [California] was free to return … to the
standard prevailing generally throughout the United States.” Id . at 542.
2. Plaintiffs’ description of Proposition 8 as “stripping” gays and
lesbians of a preexisting constitutional right is plainly a gambit to align this case
with Romer . But the features of Colorado’s Amendment 2 that led to its
invalidation are simply not present here. Most importantly, Colorado’s law, which
“prohibit[ed] all legislative, executive or judicial action at any level of state or
local government designed to protect” gays and lesbians, simply lacked any
“rational relationship to legitimate state interests,” Romer , 517 U.S. at 624, 632, an
infirmity that does not afflict Proposition 8.
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Furthermore, unlike Amendment 2, Proposition 8 does not impose “a broad
and undifferentiated disability” that inexplicably “denies … protection across the
board,” id . at 632-33, but rather acts with narrow precision, restoring the traditional
definition of marriage while otherwise leaving undisturbed the manifold rights and
protections California law provides gays and lesbians. See Strauss v. Horton, 207
P.3d at 102 (contrasting Proposition 8 and its “limited effect” with a law like
Amendment 2 that “sweepingly … leaves [a minority] group vulnerable to public
or private discrimination in all areas without legal recourse”). And far from being
a “peculiar” or “exceptional” law “unprecedented in our jurisprudence,” Romer ,
517 U.S. at 632, 633, Proposition 8 simply restored to California law the definition
of marriage as it has existed not only throughout California’s history, but
throughout the history of the civilized world.32
3. Nor is Proposition 8 part of an “arbitrary and contradictory patchwork
of marriage regulations.” Pl. Br. 58. As an initial matter, of the five categories of
32For similar reasons, Proposition 8 is also nothing like the California
constitutional amendment struck down in Reitman v. Mulkey, 387 U.S. 369 (1967).
That measure was enacted in reaction to laws prohibiting racial discrimination in
housing, but it “struck more deeply and more widely” than “just repeal[ing] an
existing law.” Id. at 377, 380. By broadly establishing a “right to discriminate onracial grounds … immune from legislative, executive, or judicial regulation at any
level of the state government,” id . at 376, 377, its only conceivable purpose was
impermissibly “authorizing the perpetuation of … private discrimination,” id. at
375. In any event, the issue in Reitman was not whether the challenged law passed
rational-basis review, but whether the State’s facilitation of private racial
discrimination constituted race discrimination by the State. See id. at 378.
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couples Plaintiffs say California marriage law creates, three are present in every
state that maintains the traditional definition of marriage: (1) unmarried opposite-
sex couples, (2) married opposite-sex couples, and (3) unmarried same-sex
couples.
Furthermore, there is nothing “arbitrary and contradictory” about the other
two categories, which consist of same-sex couples legally married before the
passage of Proposition 8 that California recognizes as married. Because the
California Supreme Court refused to stay the effect of In re Marriage Cases until
the people could vote on Proposition 8, see In re Marriage Cases, No. S147999,
2008 Cal. LEXIS 6807, at *1-2 (Cal. June 4, 2008), that court was promptly forced
to decide whether Proposition 8 operated to invalidate the same-sex marriages that
took place between In re Marriage Cases and Proposition 8’s passage. In holding
that Proposition 8 did not apply retroactively, the court acted to protect the vested
rights of same-sex couples who had married in reliance on its earlier decision. See
Strauss, 207 P.3d at 122. So-called “grandfather clauses” that preserve rights that
were vested before a change in the law are common and constitutionally
unremarkable. Even where heightened scrutiny applies, the Constitution “does not
require that a regulatory regime singlemindedly pursue one objective to the
exclusion of all others,” Coyote Publishing, Inc. v. Miller , 598 F.3d 592, 610 (9th
Cir. 2010), and the fact that California has struck a “balance” between the interests
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served by the traditional definition of marriage and other “important but competing
state interests” does not render its interest in preserving the traditional definition of
marriage “any less substantial” than if it had struck a different balance, id. at 606.
The California Legislature has now purported to extend this rationale to the
finite and limited pool of same-sex couples who were legally married outside of
California before Proposition 8 was adopted and who subsequently move to
California. See CAL. FAM. CODE § 308(b). To the extent this statute can be
squared with Proposition 8, see Strauss, 207 P.3d at 122 n.48 (declining to reach
the question), it would be for similar reasons as preserving the pre-Proposition 8
California same-sex marriages. To the extent it cannot be squared with Proposition
8, the statute was simply beyond the power of California’s Legislature to enact.
Either way, it can provide no basis for invalidating Proposition 8.
4. These features of California marriage law ultimately have their roots
in the In re Marriage Cases decision. That short-lived decision simply cannot be
taken to place the traditional definition of marriage in California on shakier
constitutional footing than in states that have never recognized same-sex
relationships as marriages, for “the Fourteenth Amendment [does not] require the
people of a State to adhere to a judicial construction of their State Constitution
when that Constitution itself vests final authority in the people.” Crawford , 458
U.S. at 540. If it was rational for California to adhere to the traditional definition
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of marriage for the first 159 years of its existence, it was equally rational for
California to restore that definition after a 143-day hiatus by enacting Proposition
8.
B. Proposition 8 is not irrational in light of other California laws.
California, like other States, has vital interests in encouraging men and
women in potentially procreative relationships to form stable and lasting bonds for
the purpose of bearing and raising any offspring that may result from their union.
And many Californians, like others, have legitimate concerns about the
consequences of abandoning the age-old definition of marriage in favor of a new
and all-but-untested one that decisively severs the institution’s inherent connection
to responsible procreation and childrearing. These interests, rooted in indisputable
biological and historical fact, are not undermined by any other provision of
California law.
1. Certainly these interests are not undermined by California’s decision
to provide same-sex couples with essentially the same rights and responsibilities of
marriage through domestic partnerships, see CAL. FAM. CODE § 297.5, while
preserving the denomination of marriage, and the encouragement and support it
provides, to those relationships—committed opposite-sex couples—most likely to
further the interests marriage has traditionally served. Although Plaintiffs claim
that domestic partnerships “stigmatize” gays and lesbians by branding their
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relationships “with a mark of inferiority,” Pl. Br. 53-54, it is simply not stigmatic
to treat different things differently. See supra at 70-73. Further, Plaintiffs’ claim
is belied by the fact that California’s domestic partnership legislation was
authored, sponsored, supported, and hailed by leading advocates of gay and lesbian
rights.33
And when an alternative status such as domestic partnerships is in place,
many gays and lesbians choose that alternative even when marriage is also
available. See, e.g., ER 1880 (many Californians entered domestic partnerships
during months in 2008 when same-sex relationships could be recognized as
marriages); ER 1879 (almost 30% of same-sex couples in the Netherlands enter
registered partnerships rather than have their relationships recognized as
marriages). Indeed, research by Plaintiffs’ expert Professor Herek shows that more
self-identified gays, lesbians, and bisexuals support civil unions or domestic
partnerships than support redefining marriage to include same-sex relationships.
ER1166 (finding that 89.1% support civil unions, while 77.9% support redefining
marriage). Some gay and lesbian rights advocates prefer an alternative institution
over redefining marriage in light of the biological, historical, and cultural
33 The California legislation that extended the rights and benefits of marriageto domestic partners was authored by members of California’s Gay and Lesbian
Legislative Caucus and sponsored by Equality California. See ER 1875. Upon its
enactment, Equality California’s Executive Director stated that “[w]e are
overjoyed by the historic passage of this critical civil-rights bill for same-sex
couples and their families,” and he thanked “each of the legislators who stood up
for civil rights by voting for this bill.” ER1876.
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differences between heterosexual and homosexual relationships. See, e.g., ER
1859 (“Larger gains with respect to dignity very likely might be had with the
development of a body of family law which is for and by gay and lesbian people.
A version of civil unions or domestic partnership may very likely be the way to go
then.”). And, as Professor Badgett has acknowledged, some gay rights advocates
fear that redefining marriage to include same-sex couples could “marginalize and
stigmatize some families” by “creating a hierarchy of relationships within the
GLBT community.” ER 1920.
For all these reasons, California’s maintenance of domestic partnerships for
same-sex couples bears no resemblance to the “separate-and-inherently-unequal”
system of racially segregated education struck down in Brown v. Board of
Education, 347 U.S. 483 (1954). Pl. Br. 53-54. As even Attorney General Brown
argued: “Such hyperbole ignores inconvenient historical facts. Domestic
partnerships and civil unions, unlike Jim Crow laws, were not conceived by a
majority group for the purpose of oppressing a minority group. Rather, they were
sponsored by gay and lesbian rights groups.” Answer Brief of Attorney General
and State of California, In re Marriage Cases at 46 (Cal. June 14, 2007) (ER
1789). Nor did Jim Crow laws, unlike the traditional definition of marriage,
advance interests wholly independent from invidious discrimination.
In sum, California has gone far beyond any legal requirement, and far
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beyond the practice of almost every other state, in affording gays and lesbians legal
protections, including virtually all the rights, benefits, and privileges of marriage.
It is simply specious to argue that by doing so the State has put the traditional
definition of marriage on weaker constitutional footing than in those states that
have done nothing to recognize same-sex relationships.
2. Plaintiffs and San Francisco maintain that by enacting other laws
regulating parenting and childrearing, California has disclaimed the procreative
interests traditionally served by marriage. Those interests, however, reflect
biological and historical realities that simply cannot be erased by judicial or
legislative fiat. Furthermore, Plaintiffs and San Francisco ignore the most
pertinent statement of policy related to these issues in California law—Proposition
8 itself. Indeed, the people of California could not have more forcefully
underscored the “state’s current interest … in preserving the traditional definition
of marriage” than “by having [it] enshrined in the state Constitution.” Strauss, 207
P.3d at 122. Proposition 8 thus indisputably confirms California’s abiding interest
in the traditional institution of marriage and the purposes it has universally served.
What is more, California law plainly recognizes irresponsible procreation and
fatherlessness as pressing social problems. See Prop. Br. 80 n.41. Against this
backdrop, it is untenable to claim that California has somehow rejected the
interests served by the traditional definition of marriage.
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Indeed, Plaintiffs’ and San Francisco’s conception of what it would take for
California rationally to maintain the traditional opposite-sex definition of marriage
surely could not be met by any family law system that has ever existed. They
apparently would require, among other things, that California: forbid “the old
[and] the infertile” from marrying, Pl. Br. 89; limit marriage to couples with an
“intent” to have children, SF Br. 11; reserve “parental status” to married couples,
SF Br. 11; and completely prohibit “gay men and lesbians [from] rais[ing]
children,” Pl. Br. 80. It is absurd to suggest that the Constitution would look more
favorably on such a draconian and implausible regime.
In the final analysis, Plaintiffs and San Francisco would permit this Court to
credit the traditional procreative purposes of marriage only if California single-
mindedly pursued them in all areas of her law, while at the same time failing to
make any provision whatsoever to accommodate the interests implicated by the
practical realities that gays and lesbians form relationships, that some gays and
lesbians raise children, that some children will be born outside of marriage, and
that some marriages end due to death or divorce or otherwise do not suffice to care
for children. This is plainly not the law, see Coyote, 598 F.3d at 610, and such
rigidity is particularly inappropriate when the Court is employing the “paradigm of
judicial restraint” applicable here. FCC v. Beach Commc’ns, 508 U.S. at 314.
Simply put, neither the fact that California could do more to promote responsible
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procreation and childrearing through the institution of marriage nor the fact that
California has enacted other laws to help ensure the welfare of all of its children in
anyway suggests that the institution of marriage in California no longer plays a
meaningful role in furthering the compelling interests it has always served.
C. The campaign to pass Proposition 8 does not undermine its
constitutionality.
1. Plaintiffs argue that (i) the district court was correct in “finding” that
the motivation of seven million voters in supporting Proposition 8 was animus
towards gays and lesbians, and (ii) that snippets from a handful of public messages
among the cacophony of voices debating Proposition 8 constituted a proper and
sufficient basis from which to deduce this motive. To build their case, Plaintiffs
first quote McCreary County v. ACLU of Kentucky, 545 U.S. 844, 862 (2005), for
the proposition that to discern the purpose of an enactment courts engage in an
objective inquiry that can take account of “the traditional external signs that show
up in the ‘text, legislative history, and implementation of the statute.’ ” Of course,
the snippets of advertisements cited by the district court are none of these things,
so Plaintiffs leap beyond McCreary to argue that these snippets are part of the
“ ‘historical context’ ” from which a court may discover collective intent. Pl. Br.
99. Remarkably, Plaintiffs cite Southern Alameda Spanish Speaking Organization
v. Union City, 424 F.2d 291, 295 (9th Cir. 1970) (“SASSO”), for this proposition.
SASSO, however, expressly rejected the notion that “the question of motivation for
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[a] referendum (apart from a consideration of its effect) is an appropriate one for
judicial inquiry.” Id at 295.
When considering constitutional challenges to referenda, the Supreme Court
has likewise never relied on the subjective motivations of referenda sponsors or
voters. Instead, the Court looks to text and effects. See Hunter v. Erickson, 393
U.S. 385 (1969); James v. Valtierra, 402 U.S. 137 (1971); Crawford v. Board of
Educ., 458 U.S. at 543-45 (characterizing “claim of discriminatory intent on the
part of millions of voters as but ‘pure speculation’ ” and refusing to “impugn the
motives of the State’s electorate”); Romer v. Evans, 517 U.S. 620 (1996). As the
Sixth Circuit has correctly recognized, the Supreme Court’s referendum cases thus
make clear that a reviewing court “may not even inquire into the electorate’s
possible actual motivations for adopting a measure via initiative or referendum.”
Equality Found. of Greater Cincinnati v. Cincinnati, 128 F.3d at 293 n.4; see also
Arthur v. Toledo, 782 F.2d 565, 573-74 (6th Cir. 1986).
Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982), is not to the
contrary. There the Court examined the text of the statute and its effect and—as in
every other referendum case finding an unconstitutional purpose—ascribed a
discriminatory purpose to the electorate only by concluding that the effects of the
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law precluded any other purpose. 458 U.S. at 471.34
2. Like the district court, Plaintiffs, San Francisco, and their amici
selectively quote from a mere handful of the cacophony of messages that were
before the voters in the hard fought Proposition 8 campaign in a vain attempt to
paint the initiative as driven by animus and bigotry. When understood in context,
however, even these cherry-picked messages for the most part reflect valid reasons
for supporting the traditional definition of marriage.
Like the district court, Plaintiffs and San Francisco highlight statements
expressing the view that marriage protects children and parental concerns about
what their young children will be taught about marriage. But as we have already
explained, neither message is in any way sinister or improper. See Prop. Br. 108-
09.35
34In confirming this conclusion, the Court did state that “[n]either the
initiative’s sponsors, nor the District Court, nor the Court of Appeals had any
difficulty perceiving the racial nature” of the challenged initiative. Id. Significantly, however, the Court of Appeals (this Court) “f[ound] it unnecessary”
to address whether the law “was motivated by a discriminatory purpose,” SeattleSchool Dist. No. 1 v. Washington, 633 F.2d 1338, 1342 (9th Cir. 1980), and thus
cannot be said to have looked to any evidence of such purpose. 35
Plaintiffs claim that the education-based argument was “highly
misleading.” Pl. Br. 101 n.26. But they cannot deny that: (1) California lawrequires school districts that provide comprehensive sexual health education to
“teach respect for marriage,” CAL. EDUC. CODE § 51933(b)(7); (2) following
Massachusetts’ redefinition of marriage second graders in that State were read a
book celebrating same-sex marriage without prior parental notification, see Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008); and (3) while same-sex marriage was legal
in California, a class of first grade public school students was taken on a field trip
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Other statements trumpeted by Plaintiffs and San Francisco reflect other
legitimate concerns. San Francisco, for example, makes much of a snippet from an
official campaign document stating that a vote against Proposition 8 would destroy
“the sanctity of marriage.” See SF Br. 22 (quoting ER 1036). Read in context,
however, the statement was simply part of an argument that redefining marriage
would deinstitutionalize marriage:
If Proposition 8 is defeated, the sanctity of marriage will
be destroyed and its powerful influence on the betterment
of society will be lost. The defeat of Prop. 8 would resultin the very meaning of marriage being transformed into
nothing more than a contractual relationship between
adults. No longer will the interests of children and
families even be a consideration. We will no longer
celebrate marriage as a union of husband and wife, but
rather a relationship between ‘Party A’ and ‘Party B.’
ER 1036.36
Though often inartfully or unpersuasively expressed, most of the other
highlighted messages likewise reflect legitimate views about the potential
widespread impact of redefining marriage, the importance of both a mother and a
to San Francisco’s City Hall to celebrate their teacher’s same-sex wedding, see ER
2005. These facts are surely sufficient to give a reasonable parent grounds for
concern about how same-sex marriage might be taught to young children. 36 A similar example is the simulcast statement of a Princeton University
lecturer cited by both Plaintiffs and San Francisco. See Pl. Br. 100 & SF Br. 21
(citing SER 552-53). The statement was part of a broader discussion explaining
that a primary purpose of marriage is to bind mothers and fathers to their children.
And the problem with affirming same-sex marriage, that discussion makes clear, is
that legally redefining marriage to do so sends a message that “kids are not entitled
to a … relationship with their genetic parents.” SER 552.
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father to a child’s development, and the potential for redefining marriage to include
same-sex couples to start society down an undesirable slippery slope.37
3. We do not deny that some extreme statements reflecting bigotry were
made on both sides of the hard-fought Proposition 8 debate, as is perhaps
inevitable whenever divisive issues implicate individuals’ most deeply held values
and beliefs. See, e.g., ER 2007 (anti-Proposition 8 advertisement reflecting anti-
Mormon bigotry). But while “negative attitudes” may often accompany
unconstitutional laws, “their presence alone does not a constitutional violation
make.” Board of Trustees v. Garrett , 531 U.S. at 367. Indeed, so long as a law is
rationally related to a legitimate state interest, such attitudes are not
constitutionally fatal. See id.; see also Michael M. v. Superior Court , 450 U.S. at
472 n.7 (plurality).
In particular, though Plaintiffs place great emphasis on certain bigoted and
uninformed statements made by Dr. Hak-Shing William Tam, there is no more
basis to impute such homophobic views to the more than seven million
37In addition, many of the materials cited were not part of the official
ProtectMarriage.com Yes on 8 campaign, and some may have never been made
public at all. One of the items Plaintiffs cite, for example, is a document—plainlya draft—attached to an email sent to ProtectMarriage.com chairman Ron Prentice
from an individual affiliated with a different organization. See SER 615-27; Pl. Br.
103 (citing SER 622). In a declaration filed with the district court, Mr. Prentice
explained that “neither I nor ProtectMarriage.com is aware of what version, if any,
of this document [was] ultimately published, and neither I nor Protect Marriage
ever provided any edits or response to this email.” ER1774.
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Californians who supported Proposition 8 than there would be to impute the anti-
religious bigotry of a small number of Proposition 8 opponents to the millions of
Californians who voted against Proposition 8. Certainly, nothing in the evidence
suggests that extremist views were held by more than a small sliver of the
electorate on either side of the Proposition 8 debate.
Indeed, the evidence affirmatively undercuts the notion that Dr. Tam’s views
could have influenced the election in any meaningful way. According to his
uncontroverted testimony, he had no involvement in formulating the official
ProtectMarriage.com campaign’s strategy or messaging, ER 1715, and he did not
share his discriminatory viewpoints on homosexuality with anyone from
ProtectMarriage.com at any time during the campaign, ER 1714. Dr. Tam’s
negligible influence on the campaign is well illustrated by the very “campaign
material” Plaintiffs cite—a letter containing offensive, inflammatory rhetoric that
they claim Dr. Tam “posted … on his website.” Pl. Br. 101-02 (citing SER 349).
In reality, Dr. Tam testified that he sent the letter to approximately 100 people and
that he did not even know that a recipient had posted it on the internet. See ER
1712-13. Furthermore, the letter appears not to have been posted until after the
campaign was over . See SER 349 (showing “last updated” date of September 4,
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2009).38
Even farther afield are the personal views Dr. Tam expressed during his
trial testimony, which could not possibly have affected the Proposition 8 campaign.
See Pl. Br. 100.
* * *
In the end, it appears that Plaintiffs themselves are unconvinced by their
claim that Proposition 8 was motivated by a “desire to relegate gay men and
lesbians to second class status,” or even that voter motivation is relevant: Like
their witnesses, see Prop. Br. 107 n.56, Plaintiffs concede that “[t]here are many
reasons why someone might be opposed to marriage between individuals of the
same sex,” but they argue that Proposition 8 is nonetheless unconstitutional
“whatever the reason that voters supported” it because it “embodies an irrational
and discriminatory classification that denies gay men and lesbians the fundamental
right to marry enjoyed by all other citizens.” Pl. Br. 104-05. Plaintiffs, in other
words, apparently recognize that Proposition 8’s constitutionality turns not on
voter motivation but rather on whether or not it is rationally related to a legitimate
state interest. If that is Plaintiffs’ position, they are right—and because Proposition
8 advances legitimate, indeed compelling, state interests, this Court is bound to
38Plaintiffs and San Francisco also cite other documents apparently posted
on Dr. Tam’s personal website. That website, however, consists largely of articles
written in Chinese and had been visited only about 1600 times as of 2010. See ER
1983-84, 1989-90; ER 2003. It could not have played any meaningful role
whatsoever in shaping the views of the more than seven million individuals who
voted for Proposition 8.
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- 92 -
uphold it. For as the Supreme Court has explained, regardless of what “reasoning
in fact underlay the legislative decision,” so long as “there are plausible reasons”
supporting the legislation, judicial “inquiry is at an end.” Railroad Retirement Bd.
v. Fritz, 449 U.S. 166, 179 (1980).
CONCLUSION
For these reasons, the district court’s ruling should be reversed.
November 1, 2010 Respectfully submitted,
s/ Charles J. CooperAndrew P. Pugno
LAW OFFICES OF ANDREW P. PUGNO
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Attorneys for Defendant-Intervenors-Appellants Hollingsworth, Knight,Gutierrez, Jansson, and ProtectMarriage.com
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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
Note: This form must be signed by the attorney or unrepresented litigant and
attached to the end of the brief.
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This brief complies with the enlargement of brief size permitted by Ninth CircuitRule 28-4. The brief’s 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.
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This brief complies with the enlargement of brief size granted by court order dated
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pursuant to Circuit Rule 32-2 and is words, lines
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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.
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("s/" plus typed name is acceptable for electronically-filed documents)
Date
1 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.
23, 274
/s/ Charles J. Cooper
November 1, 2010
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I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the
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Please see attached service list.
10-16696
November 1, 2010
/s/ Charles J. Cooper
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SERVICE LIST
Arthur N. Bailey, Jr., Esq.
HAUSFELD LLP44 Montgomery Street, Suite 3400
San Francisco, California 94104
Thomas Brejcha
THOMAS MORE SOCIETY
29 S. La Salle Street, Suite 440
Chicago, IL 60603
Suzanne B. Goldberg
Clinical Professor of Law & Director
SEXUALITY & GENDER LAW
CLINIC
COLUMBIA LAW SCHOOL
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Street
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Assistant Attorney General
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Jeffrey MateerLIBERTY INSTITUTE
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Anthony R. Picarello, Jr.Michael F. Moses
UNITED STATES CATHOLIC
CONFERENCE
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COLUMBUS SCHOOL OF LAW
The Catholic University of America3600 John McCormack Road, NE
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AMERICAN CENTER FOR LAW
AND JUSTICE
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Anita L. StaverLIBERTY COUNSEL
P.O. Box 540774
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Mathew D. Staver
LIBERTY COUNSEL
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2nd Floor
Maitland, FL 32751
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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
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EXHIBIT A
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MINUTES FORM 11 DOC Initials of Deputy Clerk _kh_
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No. SACV 09-0286 DOC (MLGx) Date: July 15, 2009
Title: SMELT ET AL. V. UNITED STATES OF AMERICA, ET AL.
DOCKET ENTRY[I hereby certify that this document was served by first class mail or Government messenger service, postage prepaid, to all counsel (or parties) at their
respective most recent address of record in this action on this date.]
Date:____________ Deputy Clerk: ___________________________________
PRESENT:
THE HONORABLE DAVID O. CARTER, JUDGE
Kristee Hopkins Not PresentCourtroom Clerk Court Reporter
ATTORNEYS PRESENT FOR PLAINTIFFS:ATTORNEYS PRESENT FOR DEFENDANTS:
NONE PRESENT NONE PRESENT
PROCEEDING (IN CHAMBERS): GRANTING MOTION TO DISMISS
Before the Court is Defendant State of California’s (“California”) Motion to Dismiss (the
Motion”). After reviewing the moving papers, hearing oral argument, and for the reasons set forth
below, the Court hereby GRANTS the Motion.
I. BACKGROUND
On December 29, 2008, Plaintiffs Arthur Bruno Smelt and Christopher David Hammer
(“Plaintiffs”) filed the instant case in California Superior Court. The case was removed to this Court on
March 9, 2009. The Plaintiffs in this case are a same-sex couple who received a Declaration of
Domestic Partnership from the State of California on January 10, 2000 and were subsequently married
under the laws of California, “on or subsequent to July 10, 2008" – i.e., before Proposition 8 was passed
in California’s November 4, 2008 election. Plaintiffs allege that “the refusal of all states and
jurisdictions” to recognize the validity of their marriage results in the denial to them of numerous rights
benefits and responsibilities bestowed on all other married couples, so long as they are opposite-sex
couples. Plaintiffs state that the rights, benefits and responsibilities that they are denied include the
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right to social security survivor benefits, decision-making authority for funeral arrangements and the
disposition of a spouse’s body, the right to bereavement leave in the even to of a spouse’s death, the
presumption that both spouses are the parent of a child born during marriage, and the right to a certain
division of their spouse’s separate property and the couple’s marital property upon the death of a spouse
who dies intestate. Plaintiffs further argue that the denial of such rights, benefits and responsibilities
has caused them to suffer severe emotional distress, mental anguish, humiliation, loss of liberty and the
pursuit of happiness, denial of equal protection of laws, denial of freedom of association, denial of privacy rights, and denial of the right to travel to establish residency anywhere in the United States with
the full recognition of the legality of Plaintiffs’ marriage.
Plaintiffs target their action at the federal Defense of Marriage Act, 1 U.S.C. §7; 28
U.S.C. §1738C (the “DOMA”), as well as “Proposition 8". Proposition 8 was a provision on the
California state ballot in the November 4, 2008 election that amended the California Constitution to
define marriage as between a man and a woman only. Plaintiffs assert that this amendment violates
several portions of the U.S. Constitution.
Plaintiffs seek broad relief. Plaintiffs seek a permanent injunction compelling the United
States and the State of California (“Defendants”) to “take all necessary acts to require the entire nation
of the United States of America, all of its territories and jurisdictions, to eliminate any distinction in the
law that prejudices the rights of Plaintiffs.” Additionally, Plaintiffs seek a declaratory judgment
“establishing that any law that restricts Plaintiffs’ rights of distinguishes Plaintiffs’ rights in any way
from any opposite gender couple to be unconstitutional, under the United States Constitution, including
all provisions of the [DOMA].”
In the instant Motion, California moves to dismiss the claims against it, which pertain
only to Proposition 8, arguing that Plaintiffs lack standing to pursue said claims.
II. LEGAL STANDARD
A. Standing
Each element of standing is "an indispensable part of the plaintiff's case," and accordingly
"must be supported in the same way as any other matter on which the plaintiff bears the burden, i.e.,
with the manner and degree of evidence required at the successive stages of the litigation." Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130 (1992). To establish standing, a plaintiff
must demonstrate: (1) an ‘injury in fact’ – an invasion of a legally protected interest which is (a)
concrete and particularized, and (b) ‘actual or imminent, not ‘conjectural’ or ‘hypothetical’”; (2) “there
must be a causal connection between the injury and the conduct complained of – the injury has to be‘fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the
independent action of some third party not before the court;” and (3) “it must be ‘likely,’ as opposed to
merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’” Id . at 2136 (internal
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citations omitted). See also Bird v. Lewis & Clark College, 303 F.3d 1015, 1019 (9th Cir. 2002)
(internal quotation marks and citations omitted)("In the context of declaratory and injunctive relief, [a
plaintiff] must demonstrate that [he or she] has suffered or is threatened with a concrete and
particularized legal harm . . . coupled with a sufficient likelihood that [he or she] will again be wronged
in a similar way.").
III. DISCUSSION
This is the second time that Plaintiffs have come before this Court, presenting
substantially similar arguments each time. In Smelt, et al. v. County of Orange, California, et al.,
SACV04-1042 DOC (MLGx), Plaintiffs filed suit before Judge Gary L. Taylor, arguing that they had
applied for, and been denied, a marriage license by the County Clerk of Orange County, California, in
violation of the U.S. Constitution. More specifically, Plaintiffs argued that Section 2 of the DOMA
violates the United States Constitution’s Due Process, equal protection rights under the Fifth
Amendment, the Right to Privacy and the Full Faith and Credit Clause. Additionally, they argued that
Section 3 of the DOMA violates the “liberty interests protected by the Due Process Clause”;
discriminates “on the basis of gender” and “sexual orientation” in violation of equal protection; and
violates “the privacy interest protected by the Right to Privacy.” Plaintiffs also argued that the
California Family Code violated the U.S. Constitution. Plaintiffs sought a declaratory judgment that
the relevant sections of the California Family Code and the DOMA were unconstitutional as well as
injunctive relief “[m]andating the use of gender-neutral terms and issuing a marriage license to [them].”
Judge Taylor (1) abstained from deciding the constitutionality of the challenged sections
of the California Family Code until the resolution of cases then-pending before the California Court of
appeal concerning whether the portions of the California Family Code that limit marriage to opposite-
sex couples violated the California Constitution, (2) held that Plaintiffs had no standing to challenge
Section 2 of the DOMA, and (3) held that Plaintiffs had no standing to challenge Section 3 of the
DOMA but that that section did not violate the U.S. Constitution. In Smelt v. County of Orange, 374
F.Supp.2d 861, 685 (C.D. Cal. 2005), the Ninth Circuit reviewed Judge Taylor’s ruling in SACV04-
1042 DOC (MLGx), upholding his decision to abstain as to Plaintiffs’ challenge to the California
Family Code, upholding his decision that Plaintiffs did not have standing to challenge either Section 3
or Section 2 of the DOMA as Plaintiffs were not married (and as they presented abstract and
generalized grievances), and vacating his decision regarding the merits of the DOMA Section 3 claim
as, given the “abstract facial attack made,” no one could “know whether in the context of some
particular statute as applied to some particular person in some particular situation Congress’s use of the
word ‘marriage’ [would] amount to an unconstitutional classification.”
On remand, the case was transferred to this Court. On August 29, 2008, this Courtdismissed the case, as directed by the Ninth Circuit. The Plaintiffs filed the instant lawsuit on
November 3, 2008, this time including the fact that, after the filing of the initial lawsuit, they had been
married under California law.
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Once again, the instant Motion turns not on the merits of the dispute, but on standing.
California correctly asserts that Plaintiffs no longer have standing to pursue their claims against the
State of California, as they relate to the enforcement of Proposition 8. Proposition 8, as codified in
Section 7.5 to Article I of the California Constitution, was recently held by the California Supreme
Court to present no bar to the recognition of Plaintiffs’ marriage within California, as said marriage was
performed before Proposition 8 was passed. Strauss v. Horton, 46 Cal.4th 364 (Cal. 2009). As
Plaintiffs’ marriage is valid within California, they cannot present an injury with respect to therecognition of their marriage by the State of California under Lujan and, therefore, they do not have
standing to pursue their claims against the State of California. 504 U.S. 555.
IV. OUTCOME
For the foregoing reasons, the Motion is GRANTED and the State of California is
HEREBY DISMISSED WITHOUT PREJUDICE.
The Clerk shall serve this minute order on all parties to the action.
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EXHIBIT B
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Loren Dean Marks October 30, 2009Washington, DC
1-800-FOR-DEPOAlderson Reporting Company
Page 1
1 UNITED STATES DISTRICT COURT
2 NORTHERN DISTRICT OF CALIFORNIA
3 KRISTIN M. PERRY, et al., )
4 Plaintiffs, )
5 v. ) No. 09-CV-2292 VRW
6 ARNOLD SCHWARZENEGGER, in )
7 his official capacity as )
8 Governor of California, )
9 et al., )
10 Defendants. )
11
12 Washington, D.C.
13 Friday, October 30, 2009
14 Deposition of LOREN DEAN MARKS, called for
15 examination by counsel for Plaintiffs in the
16 above-entitled matter, the witness being duly sworn
17 by CHERYL A. LORD, a Notary Public in and for the
18 District of Columbia, taken at the offices of COOPER
19 & KIRK PLLC, 1523 New Hampshire Avenue N.W.,
20 Washington, D.C., at 9:31 a.m., and the proceedings
21 being taken down by Stenotype by CHERYL A. LORD, RPR,
22 CRR.
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Loren Dean Marks October 30, 2009Washington, DC
1-800-FOR-DEPOAlderson Reporting Company
38 (Pages 146 to 149)
Page 146
1 headings in various studies, it's -- it's rarely
2 explicitly mentioned.
3 Q. Is Johnson's study one that you would
4 characterize as gold standard social science?
5 A. I think it's a fine study, yes.6 Q. Can you turn to page 12, please.
7 A. M-hm.
8 Q. Page 12, the first bullet point numbered
9 1, I'll read it and you can read along: 10 family
10 types are defined as follows in order of decreasing
11 frequency. 1, mother, father. The respondent
12 reported the presence in the household of a mother
13 and a father, open paren, biological or adoptive,
14 close paren. The respondent did not report in the
15 presence -- the presence in the household of any of
16 the other 7 relations, that is, the respondent did
17 not report living with a stepmother, a stepfather, an
18 other relative, a nonrelative, or a spouse.
19 Do you take that to mean that -- to mean
20 as I do that Johnson defined a mother or a father as
21 a biological or an adoptive mother or father?
22 A. Yes.
Page 147
1 Q. Do you read that as I do that Johnson does
2 not distinguish between biological and adoptive
3 parents?
4 A. He doesn't there.5 Q. Do you believe that Wilcox -- Wilcox's
6 statement turning back to page 25 -- you need not
7 turn to it because it's quoted in paragraph 15 of
8 your report.
9 Do you believe that Wilcox's statement
10 that teens living with both biological parents are
11 significantly less likely to use illicit drugs,
12 alcohol, tobacco -- do you believe that's accurately
13 supported by the Johnson study?
14 A. Taking a close look at these -- at these
15 definitions as been presented, I would withdraw
16 that.
17 Q. Would you also withdraw your emphasis on
18 both biological parents?
19 A. Certainly so.
20 Q. Would you delete the word biological?
21 A. I would.
22 Q. I want to move now to your discussion of
Page 148
1 criminality and incarceration.
2 In paragraph -- where is it? -- oh,
3 I'm -- yes, paragraph 16, you state that: In another
4 examination of criminality and delinquency, Rickel
5and Langer found that children who were residing with
6 their biological fathers were the least involved in
7 delinquent behavior, while children with stepfathers
8 fared worse. Single-parented children fell in
9 between.
10 And for that proposition, you cite Rickel
11 and Langer's 1985 study, and you see also to David
12 Popenoe's book.
13 Are you sure as you sit here right now
14 that you used the term that Rickel and Langer --
15 excuse me -- used the term biological fathers as you
16 used the term biological fathers in your report?
17 A. No, not positive.
18 Q. Do you know if Rickel and Langer used the
19 term biological fathers at all?
20 A. One of hundreds of studies, Mr. McGill.
21 Q. So is the answer, you don't know if Rickel
22 and Langer used biological fathers?
Page 149
1 A. I don't recall.
2 Q. Have you read the Rickel and Langer study?
3 A. I've read just portions of it, as I
4 mentioned earlier.5 Q. Can you tell me what methodology Rickel
6 and Langer used to reach their conclusions?
7 A. No.
8 Q. Can you tell me when Rickel and Langer
9 gathered the data for their study?
10 A. No.
11 It was published in '85, how -- how far
12 before that, I don't know.
13 Q. If I told you the data was gathered in the
14 late 1960s, would you assume that was correct?
15 A. I couldn't refute it.
16 MR. McGILL: Mark this as exhibit 6,
17 please.
18 (Marks Exhibit No. 6
19 was marked for
20 identification.)
21 BY MR. McGILL:
22 Q. I want to direct you first to page 601
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43 (Pages 166 to 169)
Page 166
1 focuses specifically on those families is nascent and
2 new.
3 There's hundreds of studies as I mentioned
4 early on, each of which may have their own little
5twist or wrinkle. In social science, we call it an
6 operational definition.
7 Those -- those differ from study to study.
8 And if I were to tease out every one of those
9 definitions in a 12-page report, we wouldn't -- we
10 would never get to the report. There are some --
11 some admittedly broad-brush strokes and assumptions
12 that are made. As a writer I had to make some of
13 those.
14 And leave it at that.
15 Q. And one of the assumptions you made was
16 that where a study labeled a family intact or as
17 having biological parents, you assumed, did you not,
18 that the parents had a genetic connection to the
19 child?
20 A. I did --
21 Q. So you --
22 A. -- because --
Page 167
1 Q. Please continue.
2 A. -- because the researchers in -- in, you
3 know, Susan Brown's case and Johnson, they elected to
4 include adoptive families in with their definition of 5 intact.
6 Q. If you were designing a study that sought
7 to demonstrate the importance of biological parenting
8 as opposed to nonbiological parenting, how would you
9 do it?
10 A. I think the way I would probably go about
11 it would be to do a comparison between the intact
12 family as we've discussed to do it with a
13 marriage-based adoptive family and also probably to
14 include a third party of step- -- stepfamily, but I
15 would be very careful to control for income given
16 some of the assumptions that I made earlier about
17 adoptive families having more economic resources.
18 Q. Of any of the studies that you have
19 reviewed in connection with your work as an expert,
20 are you aware of any study that does as you just
21 suggested right there?
22 A. There -- I think there are studies that at
Page 168
1 least use an idea or 2.
2 Lansford -- I think Brown at some -- some
3 level has given some similar ideas, but again, we're
4 talking about hundreds of studies, Mr. McGill, to
5 pull one out and specifically looking at an6 adoption -- Lansford may have, 2001.
7 Q. Based on your work as a social scientist
8 and your experience in the social sciences for -- as
9 a professor for 8 years, in the absence of a study
10 that compared biological parents to nonbiological
11 parents, is it possible to draw an inference that
12 biological parents are superior at generating
13 beneficial child outcomes than nonbiological
14 parents?
15 A. And we're talking about intact forms --
16 Q. Intact.
17 A. -- with everything except biology and
18 place.
19 MR. THOMPSON: Just so the record is
20 clear, is marriage in place in in this question?
21 BY MR. McGILL:
22 Q. My question was, in the absence of any
Page 169
1 study that compares biological parents to
2 nonbiological parents, is it possible to draw an
3 inference that biological parents are superior to
4 nonbiological parents?5 A. In terms of the research that exists, I
6 think we've established that -- that question is
7 tough to address, which is I assume why you asked for
8 an inference. I think it's a risky -- risky
9 inference.
10 That's -- that's why we have empirical
11 research.
12 Q. Is there any study that you've discussed
13 in your report or cited in your list of references
14 that tends to demonstrate that biological parents are
15 superior to nonbiological parents at creating
16 beneficial child outcomes?
17 A. With -- with the marriage-based adoptive
18 families as the wild card that sometimes are not
19 included, sometimes as we have seen Johnson '96 are
20 included under the intact heading, there are studies
21 that -- that indicate once again that there is a
22 potent outcome difference when you combine biology
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44 (Pages 170 to 173)
Page 170
1 and marriage.
2 We -- we talked earlier about teasing that
3 out. Causation, no. Correlation, yes.
4 Q. What -- what study are you referring to
5when you said, powerful evidence of biological
6 parenting combined with marriage?
7 A. There I'm talking about Child Trends 2002,
8 Kristin Moore, et al., McLanahan and Sandefur, 1994,
9 Amato, 2005.
10 Neither of those -- well, I'll just stop
11 there.
12 Q. Can you please turn to paragraph 34 of
13 your report, which is marked as exhibit 2.
14 This is where you discuss the Moore Child
15 Trends report.
16 Correct?
17 A. Correct.
18 Q. And that report states: It is not simply
19 the presence of 2 parents as some have assumed but
20 the presence of 2 biological parents that seems to
21 support children's development.
22 Is this one of the studies that you say is
Page 171
1 powerful evidence of the importance of biological
2 parenting?
3 A. I don't know that I used the word
4 powerful.5 I've repeatedly stated that it's not just
6 biology, but biology in connection with marriage,
7 that combination.
8 Q. And Moore and her Child Trends report is
9 one of the studies you cite for that proposition?
10 A. One, yes.
11 Q. And have you read the Kristin Moore Child
12 Trends research brief?
13 A. Kristin, yes.
14 Q. Do you understand it?
15 A. As I said earlier, there's always things
16 that kind of go over your head, but, yes, I believe I
17 do, reasonable.
18 Q. What's the central thesis of her --
19 A. Again, in terms of memory, I struggle,
20 Mr. McGill.
21 There are about 5 Child Trends reports
22 that year. I believe the one that I specifically
Page 172
1 cite dealt with adolescent development or things of
2 that nature as opposed to others.
3 Q. The -- this is not a study of original
4 research, is it?
5A. Child Trends is a nonpartisan group that
6 looks at issues that are -- they're viewed to have
7 profound policy implications. They -- they sometimes
8 do conduct primary research.
9 I believe that this particular report is a
10 brief -- or they're relying heavily on studies,
11 especially gold standard studies of others.
12 Q. And --
13 MR. McGILL: Will you mark that as exhibit
14 number 8, please.
15 (Marks Exhibit No. 8
16 was marked for
17 identification.)
18 BY MR. McGILL:
19 Q. I would direct you to the last paragraph
20 in the right-hand column, which is the portion that
21 you quoted.
22 It states: Children growing up with
Page 173
1 stepparents also have lower levels of well-being than
2 children growing up with biological parents.
3 It drops a footnote at that point.
4 Thus it is not simply the presence of 25 parents as some have assumed but the presence of 2
6 biological parents that seem to support the
7 children's development.
8 In your experience as a social scientist,
9 what authority do you believe Moore, et al., cited
10 for that proposition?
11 A. Let me look at the beginning again.
12 2 parents versus the presence of
13 biological parents.
14 It's a point among others that both Amato
15 and McLanahan and Sandefur have considered.
16 Q. Do you think that Moore and her colleagues
17 were relying on the source that they cited in
18 footnote 5?
19 A. To -- to make the statement that we just
20 read?
21 Q. Yes.
22 A. I think it's likely that they were relying
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1 Well, I've listed here that that was drawn
2 from Popenoe.
3 Q. Is your reference to intact families
4 accurate?
5 A. May -- may include adopted as well, but6 memory doesn't -- doesn't serve me there.
7 Q. Onward we go.
8 Paragraph 37.
9 A. M-hm.
10 Q. Here you quote at some length from
11 Lorraine Blackmon's review: For African American
12 children, parental marriage produces important
13 benefits.
14 And then it ends by saying: Marriage
15 itself appears to be contributing strongly to better
16 outcomes for black children.
17 And then you drop a footnote, footnote 59.
18 And you state there that: The researchers
19 are again referring to marriage between the
20 biological father and the mother.
21 Are you sure that's the case?
22 A. Well, as we've seen in a few of these
Page 183
1 studies, they include -- some of them include intact,
2 adoptive families under -- under biological. That
3 certainly is possible if not probable in some of
4 these studies cited by Blackmon, since it's a review5 where they cite -- they claimed to cite 120 or so.
6 In this case, I would anticipate that they
7 would probably have at least some studies. They
8 included a handful of adopted marriage-based families
9 in there.
10 Q. Do you wish to revise your statement that
11 the phrase parental marriage refers to marriage
12 between the biological father and mother?
13 A. I think that what I would do there is say
14 typically, conceptually, although some of the
15 studies, Johnson, et al., and others do include in
16 their definition adoptive families under that
17 heading.
18 Q. So we couldn't conclude from Blackmon's
19 conclusion here that the benefits of marriage to --
20 for black children are in any way limited to
21 biological parents?
22 A. I think that that's an overstatement,
Page 184
1 although in several of the studies that we've pulled
2 out, they mention that they include in -- different
3 social scientists want to be -- and, you know, more
4 or less inclusive or claiming the definition of who
5they include in the study. We've seen in several of
6 these cases that they decide to include adoptive
7 families, which are a small, small minority in the
8 general population, a small minority. I don't know
9 the exact figures.
10 But when you're dealing as these
11 researchers are with broad national-based samples,
12 they are as I mentioned earlier, sometimes painting
13 with a broad brush.
14 If some of these studies we're talking
15 about, they use the term biological or intact and
16 they throw in some -- some adopted studies, we would
17 call that noise at some level, that there's a little
18 bit of -- there's a little bit of muddying of
19 concepts, but unless we -- unless we know that
20 conceptually, they're including so many adoptive
21 families, I find that very hard to believe to
22 overthrow the general conclusion of a study based on
Page 185
1 thousands and thousands of people.
2 It's --
3 Q. Well, but --
4 A. Well, it's -- it's conceptually an5 inconvenience to -- to have a nonclear-cut
6 definition, but the points that are being made, if --
7 if adoptive families comprise 1 or 2 or 3 percent of
8 the subgroup of what they're calling intact
9 biological families, we're talking about a study
10 that's still 97 percent pure.
11 It doesn't overthrow -- it makes my
12 definition, which is necessarily messy upfront, less
13 convenient, less clean, but it -- you don't throw out
14 the baby with the bath water because they decided to
15 include a few adoptive families under the intact
16 heading. That's ridiculous.
17 Further if -- if they decided to put the
18 intact families or the marriage-based adoptive
19 families in for whatever reason in with stepparent
20 families, and it only accounted for a very small
21 minority of the studies in that total population,
22 it's -- it's again impure conceptually, but it
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Page 186
1 doesn't ruin the whole study. It doesn't ruin the
2 conclusions.
3 You're always by definition dealing with
4 noise in social science. The best of these studies
5 are claiming to explain sometimes 30, 35 percent, 406 percent of the variance.
7 They're offering incomplete explanations.
8 They're doing the very best they can with -- with
9 real life, which is pretty messy, Mr. McGill. And
10 adoptive families as I said before, I -- I -- from a
11 scholarly vantage, I don't have anything particularly
12 for or against them.
13 If -- if some of the researchers decide to
14 put them in with intact, that's -- that's fine. And
15 with stepfamilies, that's fine.
16 But I would prefer -- I believe that they
17 deserve a discrete category themselves. My belief
18 doesn't apply to a hundred different researchers who
19 approach this -- this tough problem.
20 It's a tough problem to -- to tease out,
21 that they're going to approach it in different ways.
22 I would only reframe the statement that I make there
Page 187
1 a little bit.
2 I wouldn't -- I wouldn't retract it. It
3 would be ideal to know specifically at the end of the
4 day, to call somebody on these gold standard studies5 and say, okay, you had 12,000 and 6,000 were intact
6 families, of that 6,000, how many were adopted, so
7 that they could tell you 30, 60, a hundred. And
8 you'd know what kind of noise you were dealing with,
9 but you still wouldn't throw the study out.
10 And I wouldn't throw out my conclusion. I
11 would -- I would refine it, but I wouldn't throw it
12 out.
13 Q. Is there anything in Blackmon's statement
14 that for African American children, parental marriage
15 produces important benefits?
16 Let's focus on that sentence.
17 A. Okay.
18 Q. Is there anything in that sentence that
19 would allow you to infer that a marriage of adoptive
20 parents produces less importance benefits than
21 marriage of biological parents?
22 A. No, I don't think so, from that sense.
Page 188
1 Q. And so you would admit, then, that your
2 footnote 59 where you say that parental marriage was
3 referring to the marriage between a biological mother
4 and a father -- were you not in that footnote trying
5to draw exactly that inference, that it's the
6 biological marriage that produces importance benefits
7 to the exclusion of other nonbiological marriages?
8 A. That's a reference to the way biological
9 was conceptualized in a number of the studies that
10 were being drawn on.
11 And as I've said, I would want -- you
12 know, in -- in hindsight, your point being a good
13 one, I would be more refined in emphasizing that
14 researchers conceptualize that a little bit
15 differently.
16 MR. THOMPSON: Can we take a 5-minute
17 break?
18 If you're in the middle of something --
19 THE VIDEOGRAPHER: 10 minutes.
20 MR. McGILL: Do you want to wait till the
21 tape is up?
22 MR. THOMPSON: Sure.
Page 189
1 THE WITNESS: Let's keep rolling.
2 BY MR. McGILL:
3 Q. In paragraph 41 -- and we're nearing the
4 end of your report -- paragraph 41, you state that:5 When biological fatherhood and marriage are combined,
6 the research indicates that children tend to fare
7 better, at least in part because married fathers tend
8 to have better relationships with the mothers of
9 their children than fathers in marriage alternatives.
10 And for that proposition, you cite Nock's
11 1998 book.
12 Do you know if Nock was referring to bio-
13 -- referred ever to biological fatherhood?
14 We're in paragraph 41.
15 A. In marriage alternatives.
16 Q. And I'm focused here on the phrase
17 biological fatherhood.
18 A. Biological.
19 I have read Nock's book in its entirety,
20 but it's been a while. Let me look at the statement
21 one more time, Mr. McGill.
22 Married fathers tend to have better
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Page 198
1 adjustment than the intact family?
2 MR. THOMPSON: Objection, compound.
3 A. Gay or lesbian --
4 BY MR. McGILL:
5Q. Let's break -- let's break it up.
6 A. Okay. Go ahead.
7 Q. Do you have an opinion as to whether
8 the -- whether a married lesbian couple, let us say
9 they were married in Massachusetts, is as likely to
10 produce good childhood adjustment, good child
11 adjustment than the intact family?
12 MR. THOMPSON: And I'm going to object on
13 the grounds that his rebuttal report may well address
14 this, but I'm going to let him answer it subject to
15 the caveat that he's thinking about this and will be
16 thinking hard about it over the next week and a half.
17 But go ahead.
18 BY MR. McGILL:
19 Q. If the answer is that you do not yet have
20 an opinion formed, please give that answer, but if
21 you have an opinion, I'd like to hear it.
22 MR. THOMPSON: I'm just saying it's
Page 199
1 subject to the caveat that he may revise the opinion
2 or expand on the opinion, but it's the focus of
3 ongoing research.
4 But go ahead.5 A. Intact lesbian married couple -- well, I
6 mean, lesbian married couple compared with intact
7 marriage, my -- my read on the scholarly research is
8 that as I mentioned, there have only been 1 or 2 --
9 perhaps another study or 2 that I'm unaware of that
10 have directly made that kind of a comparison, but
11 there are several that have compared lesbian mothers
12 to single-parent or single-mother families.
13 BY MR. McGILL:
14 Q. I guess I didn't -- I did not get out of
15 that whether you have an opinion or not.
16 A. The opinion that I have would be
17 inferential based on the gold standard studies that
18 I've referred to that indicate the intact families do
19 substantially better across the critical concerns
20 that I outlined in the research report than
21 single-mother or single-parent families do.
22 By inference, cautious, careful inference,
Page 200
1 it would seem right now that it would be likely that
2 the answer to that question would be the intact
3 family would have better child development outcomes.
4 But we've got again, 2 or 3 studies, and I'm going to
5be patient and see -- let the research speak its
6 piece.
7 Again, as mentioned, I'm formulating.
8 Q. And are you -- in your answer, you are
9 referring to a married lesbian couple?
10 A. That's -- it's a good question, because in
11 terms of marriage, you want to talk about nascent,
12 you know, and brand-new and budding. We're -- we're
13 having to deal, you know, in the research now almost
14 solely to my knowledge in the same-sex parenting
15 literature with cohabiting couple -- or cohabiting
16 lesbian relationships or domestic partnerships.
17 So there's -- in fact, I know of no -- no
18 study that specifically addresses lesbian marriage
19 and child outcomes. Partnerships, yes, cohabiting,
20 yes, but marriage is -- marriage is brand-new.
21 There may be a Massachusetts study coming
22 out that I'm not aware of, but --
Page 201
1 Q. You cite in your report on a few occasions
2 David Popenoe's book, here, Life Without Father.
3 Are you familiar with this book?
4 A. I am.5 Q. Have you read it in its entirety?
6 A. I have.
7 Q. Are you familiar with Popenoe's argument
8 that gender-differentiated parenting is essential for
9 good child outcomes?
10 A. I am.
11 Q. Do you agree with that argument?
12 A. The research that I have read shows --
13 shows mixed support I would say at best for that
14 thesis of Dr. Popenoe's.
15 There is some research that supports it.
16 There's some that would refute it, including
17 literature that I've read by Dr. Lamb.
18 Q. So you did not rely on the theory most
19 famously espoused by Dr. Popenoe that
20 gender-differentiated parenting is essential for good
21 child outcomes?
22 You did not rely on that theory in
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1 arriving at your conclusions?
2 A. No.
3 I use -- I don't know that any of the 6
4 critical concerns that I outline are
5gender-laden-oriented.
6 I use biological intact parenting not of
7 my choice necessarily, because it's -- it's the
8 phrase as we've seen that -- that Child Trends --
9 that McLanahan and Sandefur use in assessing the
10 scholarship.
11 It's not Popenoe influence.
12 Q. Would it -- is it influenced by a theory
13 of the importance of gender-differentiated parenting
14 at all, whether -- as espoused by Popenoe or someone
15 else?
16 A. I don't -- let me think for a moment.
17 One more time if you don't mind restating
18 the question.
19 Q. Do your conclusions in this case rely upon
20 the theory of gender-differentiated parenting and
21 specifically the importance of gender-differentiated
22 parenting to reaching good child outcomes at all,
Page 203
1 whether as espoused by Popenoe or someone else?
2 A. Gender -- gender is usually defined as
3 cultural as opposed to sex, which would be more
4 biologically driven.5 In terms of gender-differentiated
6 parenting, I don't think I make any specific
7 arguments that argue a whole lot about the cultural
8 construct of gender. I'm dealing with sex, meaning
9 intact, you know --
10 Q. Right.
11 A. -- biological father and biological
12 mother.
13 I don't -- I don't think that the report
14 deals with gender differentiation specifically.
15 Frankly I felt the critical concerns that I listed
16 were more important, more salient.
17 Q. So I want to just make sure I understand
18 it.
19 Your -- you are -- you do not share the
20 view relied upon by -- or espoused by Popenoe that
21 there are parenting activities that men can do that
22 women cannot do and -- or are very unlikely to do,
Page 204
1 and there are parenting activities that women can do
2 that men are very unlikely to do. And I'm not
3 talking about biologically, you know, obvious
4 parenting activities, such as breast feeding, but his
5theory that men play with their children differently
6 and in a way that women do not, and women care for
7 their children differently in a way that men do not.
8 Is that general theory of parenting taken
9 at its broadest level of generality -- is that at all
10 a basis for the conclusions you reach in your report?
11 A. That's -- that's not a theory that -- that
12 I espouse.
13 In terms of research, I think I mentioned
14 earlier in the day that that's highly contested
15 ground. It's highly contested ground, and frankly,
16 it's not a battle that I would fight either way.
17 I don't know that you'd say I'm agnostic
18 on the issue, but I've seen good scholarship from
19 both sides and I'm not ready to buy either theory.
20 Q. But importantly for this proceeding, it is
21 not a basis for the conclusions in your report?
22 A. It's not a basis for it, no.
Page 205
1 Q. Okay. So the basis for your conclusion
2 that the intact family -- I just want to read it --
3 A. You bet.
4 12?5 MR. THOMPSON: 44, the conclusions.
6 BY MR. McGILL:
7 Q. 44.
8 Your basis for the conclusion that the
9 intact family is the ideal context for these child
10 outcomes, the basis for your conclusion that the
11 intact family is the ideal context for these child
12 outcomes is based on as I understand it 2 factors.
13 One is the marital structure, and second
14 is the biological link between parents and children.
15 A. That's correct.
16 Q. Are there other --
17 MR. THOMPSON: Do you have anything to add
18 to that?
19 THE WITNESS: No.
20 I'll continue to listen for a moment.
21 MR. THOMPSON: Well, no, if you have more,
22 because you don't know what he's going to say. So if
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Page 274
1 Do I impose it on others?
2 I believe in cleaning up my own backyard.
3 Q. And for clarity sake, the -- the dogma
4 that you referred to just in your last response,
5that's known as the law of chastity.
6 Correct?
7 A. That is correct.
8 Q. Did your religious convictions impact your
9 opinion that the ideal family structure is marriage
10 between man and a woman and a child biologically
11 related to each in any way?
12 A. My exposure to -- to that -- that dogma
13 I'm sure is one of many factors that -- that ran
14 around in my head.
15 But again I was called as an expert
16 witness in the same sense that I wouldn't come in
17 here and make my argument based on what's stated in
18 the family proclamation to the world. I took that
19 same approach in my scholarly -- my scholarly work.
20 I think I've addressed again and again
21 that I acknowledge potential for bias and that that
22 makes challenge fair play. However, please remember
Page 275
1 my earlier statement that I also have taken upon me
2 the burden of challenge. This is -- you know,
3 scholarship is about strengths and challenges, not
4 just dogmatically presenting one.5 Q. When is the first time you held the belief
6 that the ideal family structure is marriage between a
7 man and a woman and a child biologically related to
8 each?
9 MR. THOMPSON: Objection, relevance.
10 A. Mr. McGill, I don't know. I don't know
11 how to answer that question.
12 BY MR. McGILL:
13 Q. Is it -- is it fair to say that you held
14 that view, you held that belief before your
15 engagement as an expert in this case?
16 A. Yes.
17 Q. Is it fair to say you held that belief
18 before you received your Ph.D. degree?
19 A. Yes.
20 Q. Did you hold that belief before you
21 graduated from college?
22 A. Yes.
Page 276
1 Q. So that belief predates your work as a
2 social scientist?
3 A. Yes.
4 MR. McGILL: We'll take a 1- , 2-minute
5break and find out if there are any last questions.
6 MR. THOMPSON: Sound good.
7 THE VIDEOGRAPHER: We're going off the
8 record. The time is now 6:09 PM.
9 (Recess.)
10 THE VIDEOGRAPHER: The time is now 6:13
11 PM. You may proceed.
12 BY MR. McGILL:
13 Q. Dr. Marks, earlier in the deposition
14 today, we addressed paragraph 15 of your report,
15 which is marked as exhibit 2.
16 A. Okay.
17 Q. Can you go back to that.
18 A. I'll try -- I'll try and get there
19 quickly. Okay.
20 Q. And addressing the last sentence: Wilcox
21 and colleagues state that teens living with both
22 biological parents are significantly less likely to
Page 277
1 illicit drugs alcohol and tobacco.
2 And you said that on reflection, having
3 reviewed with me the Johnson study, you would delete
4 the word biological.5 A. Said, delete.
6 I probably would have contextualized it
7 differently, added to it to make it accurate for the
8 1996 study and more precisely consistent with 1996.
9 Q. So you might have said, teens living with
10 both biological and adoptive families?
11 A. Including adoptive, yeah.
12 Q. And my question, which is my very last
13 question, is, are there any other changes you would
14 make to this report that you would -- or any words
15 you would like to delete before trial?
16 A. No.
17 I would want to be more precise on the
18 definitions than I was in a couple of cases. It's
19 the danger of large studies. I would want to be more
20 precise, but I stand behind the report as is.
21 Q. Do you stand behind the -- do you
22 recall -- excuse me -- do you recall when we went --
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Page 278
1 when we discussed the Rinkel and Langer report?
2 A. Yes.
3 That was a natural -- or natural father
4 versus biological.
5 Correct?6 Q. It was -- you used biological --
7 A. And they used natural.
8 Q. -- but Rinkel and Langer studied natural
9 fathers, stepfathers, no father?
10 MR. THOMPSON: Surrogates.
11 A. And surrogates.
12 BY MR. McGILL:
13 Q. Which included stepfather.
14 A. It included adopted under the natural --
15 or it was -- anyway, go ahead.
16 Q. So my question is, would you change that?
17 Would you change that use of biological
18 there?
19 A. Yes, I would be precise -- more precise.
20 Q. Do you recall when we went through the
21 Blackmon paper?
22 A. Yes.
Page 279
1 Q. And his use of parental marriage, that
2 term?
3 A. (Nodding head.)
4 Q. Would you change footnote 59 where you say5 that Blackmon was, quote, referring to marriage
6 between the biological father and mother?
7 A I would make it more precise And as a
Page 280
1 MR. McGILL: Thank you.
2 As Melanie wrote to me, "you are done."
3 THE VIDEOGRAPHER: This concludes the
4 deposition of Dr. Loren Marks. The time is now 6:18
5 PM. The total number of videotapes used were 7.
6 Thank you.
7 (Whereupon, at 6:18 p.m., the taking of
8 the instant deposition ceased.)
9
10
11
12 _____________________________
13 Signature of the Witness
14
15 SUBSCRIBED AND SWORN to before me this _______ day of
16 _________________, 20________.
17
18
19 _____________________________
20 Notary Public
21
22 My Commission Expires:________________
Page 281
1 CERTIFICATE OF COURT REPORTER
2 UNITED STATES OF AMERICA )
3 DISTRICT OF COLUMBIA )
4 I, CHERYL A. LORD, the reporter before5 whom the foregoing deposition was taken, do hereby
6 certify that the witness whose testimony appears in
7 the foregoing deposition was sworn by me; that the
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