1 IN THE UNITED STATES DISTRICT COURT
2 FOR THE NORTHERN DISTRICT OF CALIFORNIA
3

United States District Court For the Northern District of California

4 KRISTIN M PERRY, SANDRA B STIER,
5 PAUL T KATAMI and JEFFREY J ZARRILLO,

6 Plaintiffs,

7 CITY AND COUNTY OF SAN FRANCISCO,

8 Plaintiff-Intervenor,

9 v

10 ARNOLD SCHWARZENEGGER, in his
11 official capacity as Governor of California; EDMUND G BROWN JR, in
12 his official capacity as Attorney General of California; MARK B
13 HORTON, in his official capacity as Director of the California
14 Department of Public Health and State Registrar of Vital
15 Statistics; LINETTE SCOTT, in her official capacity as Deputy
16 Director of Health Information & Strategic Planning for the
17 California Department of Public Health; PATRICK O’CONNELL, in his
18 official capacity as ClerkRecorder of the County of
19 Alameda; and DEAN C LOGAN, in his official capacity as Registrar-
20 Recorder/County Clerk for the County of Los Angeles,

21 Defendants,

22 DENNIS HOLLINGSWORTH, GAIL J

23 KNIGHT, MARTIN F GUTIERREZ, HAKSHING WILLIAM TAM, MARK A

24 JANSSON and PROTECTMARRIAGE.COM – YES ON 8, A PROJECT OF CALIFORNIA

25 RENEWAL, as official proponents of Proposition 8,

26 Defendant-Intervenors.

27

/

No C 09-2292 VRW PRETRIAL PROCEEDINGS AND
TRIAL EVIDENCE g
CREDIBILITY DETERMINATIONS g
FINDINGS OF FACT g
CONCLUSIONS OF LAW g
ORDER

28

1

TABLE OF CONTENTS

2

BACKGROUND TO PROPOSITION 8 . . . . . . . . . . . . . . . . 1

3

PROCEDURAL HISTORY OF THIS ACTION . . . . . . . . . . . . . 3

4

PLAINTIFFS’ CASE AGAINST PROPOSITION 8 . . . . . . . . . . . 5

5

PROPONENTS’ DEFENSE OF PROPOSITION 8 . . . . . . . . . . . . 6

6

TRIAL PROCEEDINGS AND SUMMARY OF TESTIMONY . . . . . . . . 10

7

8 CREDIBILITY DETERMINATIONS . . . . . . . . . . . . . . . . . . 25

9

PLAINTIFFS’ WITNESSES . . . . . . . . . . . . . . . . . . 25

10

PROPONENTS’ WITNESSES . . . . . . . . . . . . . . . . . . 35

United States District Court For the Northern District of California

11

12 FINDINGS OF FACT . . . . . . . . . . . . . . . . . . . . . . . 54

13

THE PARTIES . . . . . . . . . . . . . . . . . . . . . . . 54

14

WHETHER ANY EVIDENCE SUPPORTS CALIFORNIA’S REFUSAL TO

RECOGNIZE MARRIAGE BETWEEN TWO PEOPLE BECAUSE OF THEIR SEX 60 15

WHETHER ANY EVIDENCE SHOWS CALIFORNIA HAS AN INTEREST

16

IN DIFFERENTIATING BETWEEN SAME-SEX AND OPPOSITE-SEX UNIONS 71

17

WHETHER THE EVIDENCE SHOWS THAT PROPOSITION 8 ENACTED

A PRIVATE MORAL VIEW WITHOUT ADVANCING A LEGITIMATE

18

GOVERNMENT INTEREST . . . . . . . . . . . . . . . . . . . 85

19

20 CONCLUSIONS OF LAW . . . . . . . . . . . . . . . . . . . . . . 109

21

DUE PROCESS . . . . . . . . . . . . . . . . . . . . . . . 109

22

EQUAL PROTECTION . . . . . . . . . . . . . . . . . . . . . 117

23

24 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 135

25

26 REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

27

28

1

Plaintiffs challenge a November 2008 voter-enacted

2 amendment to the California Constitution (“Proposition 8” or “Prop

3 8”). Cal Const Art I, § 7.5. In its entirety, Proposition 8

4 provides: “Only marriage between a man and a woman is valid or

5 recognized in California.” Plaintiffs allege that Proposition 8

6 deprives them of due process and of equal protection of the laws

7 contrary to the Fourteenth Amendment and that its enforcement by

8 state officials violates 42 USC § 1983.

9

Plaintiffs are two couples. Kristin Perry and Sandra

10 Stier reside in Berkeley, California and raise four children

United States District Court For the Northern District of California

11 together. Jeffrey Zarrillo and Paul Katami reside in Burbank,

12 California. Plaintiffs seek to marry their partners and have been

13 denied marriage licenses by their respective county authorities on

14 the basis of Proposition 8. No party contended, and no evidence at

15 trial suggested, that the county authorities had any ground to deny

16 marriage licenses to plaintiffs other than Proposition 8.

17

Having considered the trial evidence and the arguments of

18 counsel, the court pursuant to FRCP 52(a) finds that Proposition 8

19 is unconstitutional and that its enforcement must be enjoined.

20

21 BACKGROUND TO PROPOSITION 8

22

In November 2000, the voters of California adopted

23 Proposition 22 through the state’s initiative process. Entitled

24 the California Defense of Marriage Act, Proposition 22 amended the

25 state’s Family Code by adding the following language: “Only

26 marriage between a man and a woman is valid or recognized in

27 California.” Cal Family Code § 308.5. This amendment further

28 codified the existing definition of marriage as “a relationship

United States District Court For the Northern District of California

1 between a man and a woman.” In re Marriage Cases, 183 P3d 384, 407

2 (Cal 2008).

3

In February 2004, the mayor of San Francisco instructed

4 county officials to issue marriage licenses to same-sex couples.

5 The following month, the California Supreme Court ordered San

6 Francisco to stop issuing such licenses and later nullified the

7 marriage licenses that same-sex couples had received. See Lockyer

8 v City & County of San Francisco, 95 P3d 459 (Cal 2004). The court

9 expressly avoided addressing whether Proposition 22 violated the

10 California Constitution.

11

Shortly thereafter, San Francisco and various other

12 parties filed state court actions challenging or defending

13 California’s exclusion of same-sex couples from marriage under the

14 state constitution. These actions were consolidated in San

15 Francisco superior court; the presiding judge determined that, as a

16 matter of law, California’s bar against marriage by same-sex

17 couples violated the equal protection guarantee of Article I

18 Section 7 of the California Constitution. In re Coordination

19 Proceeding, Special Title [Rule 1550(c)], 2005 WL 583129 (March 14,

20 2005). The court of appeal reversed, and the California Supreme

21 Court granted review. In May 2008, the California Supreme Court

22 invalidated Proposition 22 and held that all California counties

23 were required to issue marriage licenses to same-sex couples. See

24 In re Marriage Cases, 189 P3d 384. From June 17, 2008 until the

25 passage of Proposition 8 in November of that year, San Francisco

26 and other California counties issued approximately 18,000 marriage

27 licenses to same-sex couples.

28 \\

2

United States District Court For the Northern District of California

1

After the November 2008 election, opponents of

2 Proposition 8 challenged the initiative through an original writ of

3 mandate in the California Supreme Court as violating the rules for

4 amending the California Constitution and on other grounds; the

5 California Supreme Court upheld Proposition 8 against those

6 challenges. Strauss v Horton, 207 P3d 48 (Cal 2009). Strauss

7 leaves undisturbed the 18,000 marriages of same-sex couples

8 performed in the four and a half months between the decision in In

9 re Marriage Cases and the passage of Proposition 8. Since

10 Proposition 8 passed, no same-sex couple has been permitted to

11 marry in California.

12

13 PROCEDURAL HISTORY OF THIS ACTION

14

Plaintiffs challenge the constitutionality of Proposition

15 8 under the Fourteenth Amendment, an issue not raised during any

16 prior state court proceeding. Plaintiffs filed their complaint on

17 May 22, 2009, naming as defendants in their official capacities

18 California’s Governor, Attorney General and Director and Deputy

19 Director of Public Health and the Alameda County Clerk-Recorder and

20 the Los Angeles County Registrar-Recorder/County Clerk

21 (collectively “the government defendants”). Doc #1. With the

22 exception of the Attorney General, who concedes that Proposition 8

23 is unconstitutional, Doc #39, the government defendants refused to

24 take a position on the merits of plaintiffs’ claims and declined to

25 defend Proposition 8. Doc #42 (Alameda County), Doc #41 (Los

26 Angeles County), Doc #46 (Governor and Department of Public Health

27 officials).

28 \\

3

United States District Court For the Northern District of California

1

Defendant-intervenors, the official proponents of

2 Proposition 8 under California election law (“proponents”), were

3 granted leave in July 2009 to intervene to defend the

4 constitutionality of Proposition 8. Doc #76. On January 8, 2010,

5 Hak-Shing William Tam, an official proponent and defendant-

6 intervenor, moved to withdraw as a defendant, Doc #369; Tam’s

7 motion is denied for the reasons stated in a separate order filed

8 herewith. Plaintiff-intervenor City and County of San Francisco

9 (“CCSF” or “San Francisco”) was granted leave to intervene in

10 August 2009. Doc #160 (minute entry).

11

The court denied plaintiffs’ motion for a preliminary

12 injunction on July 2, 2009, Doc #77 (minute entry), and denied

13 proponents’ motion for summary judgment on October 14, 2009, Doc

14 #226 (minute entry). Proponents moved to realign the Attorney

15 General as a plaintiff; the motion was denied on December 23, 2009,

16 Doc #319. Imperial County, a political subdivision of California,

17 sought to intervene as a party defendant on December 15, 2009, Doc

18 #311; the motion is denied for the reasons addressed in a separate

19 order filed herewith.

20

The parties disputed the factual premises underlying

21 plaintiffs’ claims and the court set the matter for trial. The

22 action was tried to the court January 11-27, 2010. The trial

23 proceedings were recorded and used by the court in preparing the

24 findings of fact and conclusions of law; the clerk is now DIRECTED

25 to file the trial recording under seal as part of the record. The

26 parties may retain their copies of the trial recording pursuant to

27 the terms of the protective order herein, see Doc #672.

28 \\

4

United States District Court For the Northern District of California

1 Proponents’ motion to order the copies’ return, Doc #698, is

2 accordingly DENIED.

3

4 PLAINTIFFS’ CASE AGAINST PROPOSITION 8

5

The Due Process Clause provides that no “State [shall]

6 deprive any person of life, liberty, or property, without due

7 process of law.” US Const Amend XIV, § 1. Plaintiffs contend that

8 the freedom to marry the person of one’s choice is a fundamental

9 right protected by the Due Process Clause and that Proposition 8

10 violates this fundamental right because:

11

1. It prevents each plaintiff from marrying the person of

his or her choice; 12

2. The choice of a marriage partner is sheltered by the

13

Fourteenth Amendment from the state’s unwarranted

usurpation of that choice; and 14

3. California’s provision of a domestic partnership —— a

15

status giving same-sex couples the rights and

responsibilities of marriage without providing marriage

16

—— does not afford plaintiffs an adequate substitute for

marriage and, by disabling plaintiffs from marrying the

17

person of their choice, invidiously discriminates,

without justification, against plaintiffs and others who

18

seek to marry a person of the same sex.

19

The Equal Protection Clause provides that no state shall

20 “deny to any person within its jurisdiction the equal protection of

21 the laws.” US Const Amend XIV, § 1. According to plaintiffs,

22 Proposition 8 violates the Equal Protection Clause because it:

23

1. Discriminates against gay men and lesbians by denying

them a right to marry the person of their choice whereas

24

heterosexual men and women may do so freely; and

25

2. Disadvantages a suspect class in preventing only gay men

and lesbians, not heterosexuals, from marrying. 26

27 Plaintiffs argue that Proposition 8 should be subjected to

28 heightened scrutiny under the Equal Protection Clause because gays

5

United States District Court For the Northern District of California

1 and lesbians constitute a suspect class. Plaintiffs further

2 contend that Proposition 8 is irrational because it singles out

3 gays and lesbians for unequal treatment, as they and they alone may

4 not marry the person of their choice. Plaintiffs argue that

5 Proposition 8 discriminates against gays and lesbians on the basis

6 of both sexual orientation and sex.

7

Plaintiffs conclude that because Proposition 8 is

8 enforced by state officials acting under color of state law and

9 because it has the effects plaintiffs assert, Proposition 8 is

10 actionable under 42 USC § 1983. Plaintiffs seek a declaration that

11 Proposition 8 is invalid and an injunction against its enforcement.

12

13 PROPONENTS’ DEFENSE OF PROPOSITION 8

14

Proponents organized the official campaign to pass

15 Proposition 8, known as ProtectMarriage.com —— Yes on 8, a Project

16 of California Renewal (“Protect Marriage”). Proponents formed and

17 managed the Protect Marriage campaign and ensured its efforts to

18 pass Proposition 8 complied with California election law. See FF

19 13-17 below. After orchestrating the successful Proposition 8

20 campaign, proponents intervened in this lawsuit and provided a

21 vigorous defense of the constitutionality of Proposition 8.

22

The ballot argument submitted to the voters summarizes

23 proponents’ arguments in favor of Proposition 8 during the 2008

24 campaign. The argument states:

25

Proposition 8 is simple and straightforward. * * *

Proposition 8 is about preserving marriage; it’s not an attack

26

on the gay lifestyle. * * * It protects our children from

being taught in public schools that “same-sex marriage” is the

27

same as traditional marriage. * * * While death, divorce, or

other circumstances may prevent the ideal, the best situation

28

for a child is to be raised by a married mother and father.

6

United States District Court For the Northern District of California

1

* * * If the gay marriage ruling [of the California Supreme

Court] is not overturned, TEACHERS COULD BE REQUIRED to teach

2

young children there is no difference between gay marriage and

traditional marriage.

3

We should not accept a court decision that may

result in public schools teaching our own kids that gay

4

marriage is ok. * * * [W]hile gays have the right to their

private lives, they do not have the right to redefine marriage

5

for everyone else.

6 PX00011 California Voter Information Guide, California General

7 Election, Tuesday, November 4, 2008 at PM 003365 (emphasis in

8 original).

9

In addition to the ballot arguments, the Proposition 8

10 campaign presented to the voters of California a multitude of

11 television, radio and internet-based advertisements and messages.

12 The advertisements conveyed to voters that same-sex relationships

13 are inferior to opposite-sex relationships and dangerous to

14 children. See FF 79-80 below. The key premises on which

15 Proposition 8 was presented to the voters thus appear to be the

16 following:

17

1. Denial of marriage to same-sex couples preserves

marriage; 18

2. Denial of marriage to same-sex couples allows gays and

19

lesbians to live privately without requiring others,

including (perhaps especially) children, to recognize or

20

acknowledge the existence of same-sex couples;

21

3. Denial of marriage to same-sex couples protects children;

22

4. The ideal child-rearing environment requires one male

parent and one female parent; 23

5. Marriage is different in nature depending on the sex of

24

the spouses, and an opposite-sex couple’s marriage is

superior to a same-sex couple’s marriage; and 25

6. Same-sex couples’ marriages redefine opposite-sex

26

couples’ marriages.

27

28
1 All cited evidence is available at http://ecf.cand.uscourts.gov/cand/09cv2292

7

United States District Court For the Northern District of California

1

A state’s interest in an enactment must of course be

2 secular in nature. The state does not have an interest in

3 enforcing private moral or religious beliefs without an

4 accompanying secular purpose. See Lawrence v Texas, 539 US 558,

5 571 (2003); see also Everson v Board of Education of Ewing

6 Township, 330 US 1, 15 (1947).

7

Perhaps recognizing that Proposition 8 must advance a

8 secular purpose to be constitutional, proponents abandoned previous

9 arguments from the campaign that had asserted the moral superiority

10 of opposite-sex couples. Instead, in this litigation, proponents

11 asserted that Proposition 8:

12

1. Maintains California’s definition of marriage as

excluding same-sex couples; 13

2. Affirms the will of California citizens to exclude same-

14

sex couples from marriage;

15

3. Promotes stability in relationships between a man and a

woman because they naturally (and at times

16

unintentionally) produce children; and

17

4. Promotes “statistically optimal” child-rearing

households; that is, households in which children are

18

raised by a man and a woman married to each other.

19 Doc #8 at 17-18.

20

While proponents vigorously defended the

21 constitutionality of Proposition 8, they did so based on legal

22 conclusions and cross-examinations of some of plaintiffs’

23 witnesses, eschewing all but a rather limited factual presentation.

24

Proponents argued that Proposition 8 should be evaluated

25 solely by considering its language and its consistency with the

26 “central purpose of marriage, in California and everywhere else,

27 * * * to promote naturally procreative sexual relationships and to

28 channel them into stable, enduring unions for the sake of producing

8

United States District Court For the Northern District of California

1 and raising the next generation.” Doc #172-1 at 21. Proponents

2 asserted that marriage for same-sex couples is not implicit in the

3 concept of ordered liberty and thus its denial does not deprive

4 persons seeking such unions of due process. See generally Doc

5 #172-1. Nor, proponents continued, does the exclusion of same-sex

6 couples in California from marriage deny them equal protection

7 because, among other reasons, California affords such couples a

8 separate parallel institution under its domestic partnership

9 statutes. Doc #172-1 at 75 et seq.

10

At oral argument on proponents’ motion for summary

11 judgment, the court posed to proponents’ counsel the assumption

12 that “the state’s interest in marriage is procreative” and inquired

13 how permitting same-sex marriage impairs or adversely affects that

14 interest. Doc #228 at 21. Counsel replied that the inquiry was

15 “not the legally relevant question,” id, but when pressed for an

16 answer, counsel replied: “Your honor, my answer is: I don’t know.

17 I don’t know.” Id at 23.

18

Despite this response, proponents in their trial brief

19 promised to “demonstrate that redefining marriage to encompass

20 same-sex relationships” would effect some twenty-three specific

21 harmful consequences. Doc #295 at 13-14. At trial, however,

22 proponents presented only one witness, David Blankenhorn, to

23 address the government interest in marriage. Blankenhorn’s

24 testimony is addressed at length hereafter; suffice it to say that

25 he provided no credible evidence to support any of the claimed

26 adverse effects proponents promised to demonstrate. During closing

27 arguments, proponents again focused on the contention that

28 “responsible procreation is really at the heart of society’s

9

United States District Court For the Northern District of California

1 interest in regulating marriage.” Tr 3038:7-8. When asked to

2 identify the evidence at trial that supported this contention,

3 proponents’ counsel replied, “you don’t have to have evidence of

4 this point.” Tr 3037:25-3040:4.

5

Proponents’ procreation argument, distilled to its

6 essence, is as follows: the state has an interest in encouraging

7 sexual activity between people of the opposite sex to occur in

8 stable marriages because such sexual activity may lead to pregnancy

9 and children, and the state has an interest in encouraging parents

10 to raise children in stable households. Tr 3050:17-3051:10. The

11 state therefore, the argument goes, has an interest in encouraging

12 all opposite-sex sexual activity, whether responsible or

13 irresponsible, procreative or otherwise, to occur within a stable

14 marriage, as this encourages the development of a social norm that

15 opposite-sex sexual activity should occur within marriage. Tr

16 3053:10-24. Entrenchment of this norm increases the probability

17 that procreation will occur within a marital union. Because same-

18 sex couples’ sexual activity does not lead to procreation,

19 according to proponents the state has no interest in encouraging

20 their sexual activity to occur within a stable marriage. Thus,

21 according to proponents, the state’s only interest is in opposite-

22 sex sexual activity.

23

24 TRIAL PROCEEDINGS AND SUMMARY OF TESTIMONY

25

The parties’ positions on the constitutionality of

26 Proposition 8 raised significant disputed factual questions, and

27 for the reasons the court explained in denying proponents’ motion

28 //

10

United States District Court For the Northern District of California

1 for summary judgment, Doc #228 at 72-91, the court set the matter

2 for trial.

3

The parties were given a full opportunity to present

4 evidence in support of their positions. They engaged in

5 significant discovery, including third-party discovery, to build an

6 evidentiary record. Both before and after trial, both in this

7 court and in the court of appeals, the parties and third parties

8 disputed the appropriate boundaries of discovery in an action

9 challenging a voter-enacted initiative. See, for example, Doc

10 ##187, 214, 237, 259, 372, 513.

11

Plaintiffs presented eight lay witnesses, including the

12 four plaintiffs, and nine expert witnesses. Proponents’

13 evidentiary presentation was dwarfed by that of plaintiffs.

14 Proponents presented two expert witnesses and conducted lengthy and

15 thorough cross-examinations of plaintiffs’ expert witnesses but

16 failed to build a credible factual record to support their claim

17 that Proposition 8 served a legitimate government interest.

18

Although the evidence covered a range of issues, the

19 direct and cross-examinations focused on the following broad

20 questions:

21

WHETHER ANY EVIDENCE SUPPORTS CALIFORNIA’S REFUSAL TO

RECOGNIZE MARRIAGE BETWEEN TWO PEOPLE BECAUSE OF THEIR SEX; 22

WHETHER ANY EVIDENCE SHOWS CALIFORNIA HAS AN INTEREST IN

23

DIFFERENTIATING BETWEEN SAME-SEX AND OPPOSITE-SEX UNIONS; and

24

WHETHER THE EVIDENCE SHOWS PROPOSITION 8 ENACTED A PRIVATE

MORAL VIEW WITHOUT ADVANCING A LEGITIMATE GOVERNMENT INTEREST. 25

26

Framed by these three questions and before detailing the

27 court’s credibility determinations and findings of fact, the court

28 abridges the testimony at trial:

11

United States District Court For the Northern District of California

1

WHETHER ANY EVIDENCE SUPPORTS CALIFORNIA’S REFUSAL TO

RECOGNIZE MARRIAGE BETWEEN TWO PEOPLE BECAUSE OF THEIR SEX

2

3

All four plaintiffs testified that they wished to marry

4 their partners, and all four gave similar reasons. Zarrillo wishes

5 to marry Katami because marriage has a “special meaning” that would

6 alter their relationships with family and others. Zarrillo

7 described daily struggles that arise because he is unable to marry

8 Katami or refer to Katami as his husband. Tr 84:1-17. Zarrillo

9 described an instance when he and Katami went to a bank to open a

10 joint account, and “it was certainly an awkward situation walking

11 to the bank and saying, ‘My partner and I want to open a joint bank

12 account,’ and hearing, you know, ‘Is it a business account? A

13 partnership?’ It would just be a lot easier to describe the

14 situation —— might not make it less awkward for those individuals,

15 but it would make it —— crystalize it more by being able to say

16 * * * ‘My husband and I are here to open a bank account.’” Id. To

17 Katami, marriage to Zarrillo would solidify their relationship and

18 provide them the foundation they seek to raise a family together,

19 explaining that for them, “the timeline has always been marriage

20 first, before family.” Tr 89:17-18.

21

Perry testified that marriage would provide her what she

22 wants most in life: a stable relationship with Stier, the woman she

23 loves and with whom she has built a life and a family. To Perry,

24 marriage would provide access to the language to describe her

25 relationship with Stier: “I’m a 45-year-old woman. I have been in

26 love with a woman for 10 years and I don’t have a word to tell

27 anybody about that.” Tr 154:20-23. Stier explained that marrying

28 Perry would make them feel included “in the social fabric.” Tr

12

United States District Court For the Northern District of California

1 175:22. Marriage would be a way to tell “our friends, our family,

2 our society, our community, our parents * * * and each other that

3 this is a lifetime commitment * * * we are not girlfriends. We are

4 not partners. We are married.” Tr 172:8-12.

5

Plaintiffs and proponents presented expert testimony on

6 the meaning of marriage. Historian Nancy Cott testified about the

7 public institution of marriage and the state’s interest in

8 recognizing and regulating marriages. Tr 185:9-13. She explained

9 that marriage is “a couple’s choice to live with each other, to

10 remain committed to one another, and to form a household based on

11 their own feelings about one another, and their agreement to join

12 in an economic partnership and support one another in terms of the

13 material needs of life.” Tr 201:9-14. The state’s primary purpose

14 in regulating marriage is to create stable households. Tr 222:13-

15 17.

16

Think tank founder David Blankenhorn testified that

17 marriage is “a socially-approved sexual relationship between a man

18 and a woman” with a primary purpose to “regulate filiation.” Tr

19 2742:9-10, 18. Blankenhorn testified that others hold to an

20 alternative and, to Blankenhorn, conflicting definition of

21 marriage: “a private adult commitment” that focuses on “the tender

22 feelings that the spouses have for one another.” Tr 2755:25-

23 2756:1; 2756:10-2757:17; 2761:5-6. To Blankenhorn, marriage is

24 either a socially approved sexual relationship between a man and a

25 woman for the purpose of bearing and raising children who are

26 biologically related to both spouses or a private relationship

27 between two consenting adults.

28 \\

13

United States District Court For the Northern District of California

1

Cott explained that marriage as a social institution

2 encompasses a socially approved sexual union and an affective

3 relationship and, for the state, forms the basis of stable

4 households and private support obligations.

5

Both Cott and Blankenhorn addressed marriage as a

6 historical institution. Cott pointed to consistent historical

7 features of marriage, including that civil law, as opposed to

8 religious custom, has always been supreme in regulating and

9 defining marriage in the United States, Tr 195:9-15, and that one’s

10 ability to consent to marriage is a basic civil right, Tr 202:2-5.

11 Blankenhorn identified three rules of marriage (discussed further

12 in the credibility determinations, section I below), which he

13 testified have been consistent across cultures and times: (1) the

14 rule of opposites (the “man/woman” rule); (2) the rule of two; and

15 (3) the rule of sex. Tr 2879:17-25.

16

Cott identified historical changes in the institution of

17 marriage, including the removal of race restrictions through court

18 decisions and the elimination of coverture and other gender-based

19 distinctions. Blankenhorn identified changes that to him signify

20 the deinstitutionalization of marriage, including an increase in

21 births outside of marriage and an increasing divorce rate.

22

Both Cott and Blankenhorn testified that California

23 stands to benefit if it were to resume issuing marriage licenses to

24 same-sex couples. Blankenhorn noted that marriage would benefit

25 same-sex couples and their children, would reduce discrimination

26 against gays and lesbians and would be “a victory for the worthy

27 ideas of tolerance and inclusion.” Tr 2850:12-13. Despite the

28 multitude of benefits identified by Blankenhorn that would flow to

14

United States District Court For the Northern District of California

1 the state, to gays and lesbians and to American ideals were

2 California to recognize same-sex marriage, Blankenhorn testified

3 that the state should not recognize same-sex marriage. Blankenhorn

4 reasoned that the benefits of same-sex marriage are not valuable

5 enough because same-sex marriage could conceivably weaken marriage

6 as an institution. Cott testified that the state would benefit

7 from recognizing same-sex marriage because such marriages would

8 provide “another resource for stability and social order.” Tr

9 252:19-23.

10

Psychologist Letitia Anne Peplau testified that couples

11 benefit both physically and economically when they are married.

12 Peplau testified that those benefits would accrue to same-sex as

13 well as opposite-sex married couples. To Peplau, the desire of

14 same-sex couples to marry illustrates the health of the institution

15 of marriage and not, as Blankenhorn testified, the weakening of

16 marriage. Economist Lee Badgett provided evidence that same-sex

17 couples would benefit economically if they were able to marry and

18 that same-sex marriage would have no adverse effect on the

19 institution of marriage or on opposite-sex couples.

20

As explained in the credibility determinations, section I

21 below, the court finds the testimony of Cott, Peplau and Badgett to

22 support findings on the definition and purpose of civil marriage;

23 the testimony of Blankenhorn is unreliable. The trial evidence

24 provides no basis for establishing that California has an interest

25 in refusing to recognize marriage between two people because of

26 their sex.

27 \\

28 \\

15

United States District Court For the Northern District of California

1

WHETHER ANY EVIDENCE SHOWS CALIFORNIA HAS AN INTEREST IN

DIFFERENTIATING BETWEEN SAME-SEX AND OPPOSITE-SEX UNIONS

2

3

Plaintiffs’ experts testified that no meaningful

4 differences exist between same-sex couples and opposite-sex

5 couples. Blankenhorn identified one difference: some opposite-sex

6 couples are capable of creating biological offspring of both

7 spouses while same-sex couples are not.

8

Psychologist Gregory Herek defined sexual orientation as

9 “an enduring sexual, romantic, or intensely affectional attraction

10 to men, to women, or to both men and women. It’s also used to

11 refer to an identity or a sense of self that is based on one’s

12 enduring patterns of attraction. And it’s also sometimes used to

13 describe an enduring pattern of behavior.” Tr 2025:5-11. Herek

14 explained that homosexuality is a normal expression of human

15 sexuality; the vast majority of gays and lesbians have little or no

16 choice in their sexual orientation; and therapeutic efforts to

17 change an individual’s sexual orientation have not been shown to be

18 effective and instead pose a risk of harm to the individual.

19 Proponents did not present testimony to contradict Herek but

20 instead questioned him on data showing that some individuals report

21 fluidity in their sexual orientation. Herek responded that the

22 data proponents presented does nothing to contradict his conclusion

23 that the vast majority of people are consistent in their sexual

24 orientation.

25

Peplau pointed to research showing that, despite

26 stereotypes suggesting gays and lesbians are unable to form stable

27 relationships, same-sex couples are in fact indistinguishable from

28 opposite-sex couples in terms of relationship quality and

16

United States District Court For the Northern District of California

1 stability. Badgett testified that same-sex and opposite-sex

2 couples are very similar in most economic and demographic respects.

3 Peplau testified that the ability of same-sex couples to marry will

4 have no bearing on whether opposite-sex couples choose to marry or

5 divorce.

6

Social epidemiologist Ilan Meyer testified about the harm

7 gays and lesbians have experienced because of Proposition 8. Meyer

8 explained that Proposition 8 stigmatizes gays and lesbians because

9 it informs gays and lesbians that the State of California rejects

10 their relationships as less valuable than opposite-sex

11 relationships. Proposition 8 also provides state endorsement of

12 private discrimination. According to Meyer, Proposition 8

13 increases the likelihood of negative mental and physical health

14 outcomes for gays and lesbians.

15

Psychologist Michael Lamb testified that all available

16 evidence shows that children raised by gay or lesbian parents are

17 just as likely to be well-adjusted as children raised by

18 heterosexual parents and that the gender of a parent is immaterial

19 to whether an adult is a good parent. When proponents challenged

20 Lamb with studies purporting to show that married parents provide

21 the ideal child-rearing environment, Lamb countered that studies on

22 child-rearing typically compare married opposite-sex parents to

23 single parents or step-families and have no bearing on families

24 headed by same-sex couples. Lamb testified that the relevant

25 comparison is between families headed by same-sex couples and

26 families headed by opposite-sex couples and that studies comparing

27 these two family types show conclusively that having parents of

28 different genders is irrelevant to child outcomes.

17

United States District Court For the Northern District of California

1

Lamb and Blankenhorn disagreed on the importance of a

2 biological link between parents and children. Blankenhorn

3 emphasized the importance of biological parents, relying on studies

4 comparing children raised by married, biological parents with

5 children raised by single parents, unmarried mothers, step families

6 and cohabiting parents. Tr 2769:14-24 (referring to DIX0026

7 Kristin Anderson Moore, Susan M Jekielek, and Carol Emig, Marriage

8 from a Child’s Perspective: How Does Family Structure Affect

9 Children, and What Can We Do about It, Child Trends (June 2002));

10 Tr 2771:1-13 (referring to DIX0124 Sara McLanahan and Gary

11 Sandefur, Growing Up with a Single Parent: What Hurts, What Helps

12 (Harvard 1994)). As explained in the credibility determinations,

13 section I below, none of the studies Blankenhorn relied on isolates

14 the genetic relationship between a parent and a child as a variable

15 to be tested. Lamb testified about studies showing that adopted

16 children or children conceived using sperm or egg donors are just

17 as likely to be well-adjusted as children raised by their

18 biological parents. Tr 1041:8-17. Blankenhorn agreed with Lamb

19 that adoptive parents “actually on some outcomes outstrip

20 biological parents in terms of providing protective care for their

21 children.” Tr 2795:3-5.

22

Several experts testified that the State of California

23 and California’s gay and lesbian population suffer because domestic

24 partnerships are not equivalent to marriage. Badgett explained

25 that gays and lesbians are less likely to enter domestic

26 partnerships than to marry, meaning fewer gays and lesbians have

27 the protection of a state-recognized relationship. Both Badgett

28 and San Francisco economist Edmund Egan testified that states

18

United States District Court For the Northern District of California

1 receive greater economic benefits from marriage than from domestic

2 partnerships. Meyer testified that domestic partnerships actually

3 stigmatize gays and lesbians even when enacted for the purpose of

4 providing rights and benefits to same-sex couples. Cott explained

5 that domestic partnerships cannot substitute for marriage because

6 domestic partnerships do not have the same social and historical

7 meaning as marriage and that much of the value of marriage comes

8 from its social meaning. Peplau testified that little of the

9 cultural esteem surrounding marriage adheres to domestic

10 partnerships.

11

To illustrate his opinion that domestic partnerships are

12 viewed by society as different from marriage, Herek pointed to a

13 letter sent by the California Secretary of State to registered

14 domestic partners in 2004 informing them of upcoming changes to the

15 law and suggesting dissolution of their partnership to avoid any

16 unwanted financial effects. Tr 2047:15-2048:5, PX2265 (Letter from

17 Kevin Shelley, California Secretary of State, to Registered

18 Domestic Partners). Herek concluded that a similar letter to

19 married couples would not have suggested divorce. Tr 2048:6-13.

20

The experts’ testimony on domestic partnerships is

21 consistent with the testimony of plaintiffs, who explained that

22 domestic partnerships do not satisfy their desire to marry. Stier,

23 who has a registered domestic partnership with Perry, explained

24 that “there is certainly nothing about domestic partnership * * *

25 that indicates the love and commitment that are inherent in

26 marriage.” Tr 171:8-11. Proponents did not challenge plaintiffs’

27 experts on the point that marriage is a socially superior status to

28 domestic partnership; indeed, proponents stipulated that “[t]here

19

United States District Court For the Northern District of California

1 is a significant symbolic disparity between domestic partnership

2 and marriage.” Doc #159-2 at 6.

3

Proponents’ cross-examinations of several experts

4 challenged whether people can be categorized based on their sexual

5 orientation. Herek, Meyer and Badgett responded that sexual

6 orientation encompasses behavior, identity and attraction and that

7 most people are able to answer questions about their sexual

8 orientation without formal training. According to the experts,

9 researchers may focus on one element of sexual orientation

10 depending on the purpose of the research and sexual orientation is

11 not a difficult concept for researchers to apply.

12

As explained in the credibility determinations, section I

13 below, and the findings of fact, section II below, the testimony

14 shows that California has no interest in differentiating between

15 same-sex and opposite-sex unions.

16

17

WHETHER THE EVIDENCE SHOWS PROPOSITION 8 ENACTED A PRIVATE

18

MORAL VIEW WITHOUT ADVANCING A LEGITIMATE GOVERNMENT INTEREST

19

The testimony of several witnesses disclosed that a

20 primary purpose of Proposition 8 was to ensure that California

21 confer a policy preference for opposite-sex couples over same-sex

22 couples based on a belief that same-sex pairings are immoral and

23 should not be encouraged in California.

24

Historian George Chauncey testified about a direct

25 relationship between the Proposition 8 campaign and initiative

26 campaigns from the 1970s targeting gays and lesbians; like earlier

27 campaigns, the Proposition 8 campaign emphasized the importance of

28 protecting children and relied on stereotypical images of gays and

20

United States District Court For the Northern District of California

1 lesbians, despite the lack of any evidence showing that gays and

2 lesbians pose a danger to children. Chauncey concluded that the

3 Proposition 8 campaign did not need to explain what children were

4 to be protected from; the advertisements relied on a cultural

5 understanding that gays and lesbians are dangerous to children.

6

This understanding, Chauncey observed, is an artifact of

7 the discrimination gays and lesbians faced in the United States in

8 the twentieth century. Chauncey testified that because homosexual

9 conduct was criminalized, gays and lesbians were seen as criminals;

10 the stereotype of gay people as criminals therefore became

11 pervasive. Chauncey noted that stereotypes of gays and lesbians as

12 predators or child molesters were reinforced in the mid-twentieth

13 century and remain part of current public discourse. Lamb

14 explained that this stereotype is not at all credible, as gays and

15 lesbians are no more likely than heterosexuals to pose a threat to

16 children.

17

Political scientist Gary Segura provided many examples of

18 ways in which private discrimination against gays and lesbians is

19 manifested in laws and policies. Segura testified that negative

20 stereotypes about gays and lesbians inhibit political compromise

21 with other groups: “It’s very difficult to engage in the give-and-

22 take of the legislative process when I think you are an inherently

23 bad person. That’s just not the basis for compromise and

24 negotiation in the political process.” Tr 1561:6-9. Segura

25 identified religion as the chief obstacle to gay and lesbian

26 political advances. Political scientist Kenneth Miller disagreed

27 with Segura’s conclusion that gays and lesbians lack political

28 power, Tr 2482:4-8, pointing to some successes on the state and

21

United States District Court For the Northern District of California

1 national level and increased public support for gays and lesbians,

2 but agreed that popular initiatives can easily tap into a strain of

3 antiminority sentiment and that at least some voters supported

4 Proposition 8 because of anti-gay sentiment.

5

Proponent Hak-Shing William Tam testified about his role

6 in the Proposition 8 campaign. Tam spent substantial time, effort

7 and resources campaigning for Proposition 8. As of July 2007, Tam

8 was working with Protect Marriage to put Proposition 8 on the

9 November 2008 ballot. Tr 1900:13-18. Tam testified that he is the

10 secretary of the America Return to God Prayer Movement, which

11 operates the website “1man1woman.net.” Tr 1916:3-24.

12 1man1woman.net encouraged voters to support Proposition 8 on

13 grounds that homosexuals are twelve times more likely to molest

14 children, Tr 1919:3-1922:21, and because Proposition 8 will cause

15 states one-by-one to fall into Satan’s hands, Tr 1928:6-13. Tam

16 identified NARTH (the National Association for Research and Therapy

17 of Homosexuality) as the source of information about homosexuality,

18 because he “believe[s] in what they say.” Tr 1939:1-9. Tam

19 identified “the internet” as the source of information connecting

20 same-sex marriage to polygamy and incest. Tr 1957:2-12. Protect

21 Marriage relied on Tam and, through Tam, used the website

22 1man1woman.net as part of the Protect Marriage Asian/Pacific

23 Islander outreach. Tr 1976:10-15; PX2599 (Email from Sarah Pollo, 24 Account Executive, Schubert Flint Public Affairs (Aug 22, 2008) 25 attaching meeting minutes). Tam signed a Statement of Unity with 26 Protect Marriage, PX2633, in which he agreed not to put forward

27 “independent strategies for public messaging.” Tr 1966:16-1967:16.

28 \\

22

United States District Court For the Northern District of California

1

Katami and Stier testified about the effect Proposition 8

2 campaign advertisements had on their well-being. Katami explained

3 that he was angry and upset at the idea that children needed to be

4 protected from him. After watching a Proposition 8 campaign

5 message, PX0401 (Video, Tony Perkins, Miles McPherson, and Ron

6 Prentice Asking for Support of Proposition 8), Katami stated that

7 “it just demeans you. It just makes you feel like people are

8 putting efforts into discriminating against you.” Tr 108:14-16.

9 Stier, as the mother of four children, was especially disturbed at

10 the message that Proposition 8 had something to do with protecting

11 children. She felt the campaign messages were “used to sort of try

12 to educate people or convince people that there was a great evil to

13 be feared and that evil must be stopped and that evil is us, I

14 guess. * * * And the very notion that I could be part of what

15 others need to protect their children from was just —— it was more

16 than upsetting. It was sickening, truly. I felt sickened by that

17 campaign.” Tr 177:9-18.

18

Egan and Badgett testified that Proposition 8 harms the

19 State of California and its local governments economically. Egan

20 testified that San Francisco faces direct and indirect economic

21 harms as a consequence of Proposition 8. Egan explained that San

22 Francisco lost and continues to lose money because Proposition 8

23 slashed the number of weddings performed in San Francisco. Egan

24 explained that Proposition 8 decreases the number of married

25 couples in San Francisco, who tend to be wealthier than single

26 people because of their ability to specialize their labor, pool

27 resources and access state and employer-provided benefits.

28 Proposition 8 also increases the costs associated with

23

United States District Court For the Northern District of California

1 discrimination against gays and lesbians. Proponents challenged

2 only the magnitude and not the existence of the harms Egan

3 identified. Badgett explained that municipalities throughout

4 California and the state government face economic disadvantages

5 similar to those Egan identified for San Francisco.

6

For the reasons stated in the sections that follow, the

7 evidence presented at trial fatally undermines the premises

8 underlying proponents’ proffered rationales for Proposition 8. An

9 initiative measure adopted by the voters deserves great respect.

10 The considered views and opinions of even the most highly qualified

11 scholars and experts seldom outweigh the determinations of the

12 voters. When challenged, however, the voters’ determinations must

13 find at least some support in evidence. This is especially so when

14 those determinations enact into law classifications of persons.

15 Conjecture, speculation and fears are not enough. Still less will

16 the moral disapprobation of a group or class of citizens suffice,

17 no matter how large the majority that shares that view. The

18 evidence demonstrated beyond serious reckoning that Proposition 8

19 finds support only in such disapproval. As such, Proposition 8 is

20 beyond the constitutional reach of the voters or their

21 representatives.

22 \\

23 \\

24 \\

25 \\

26 \\

27 \\

28 \\

24

United States District Court For the Northern District of California

1

I

2

CREDIBILITY DETERMINATIONS

3 PLAINTIFFS’ WITNESSES

4

Plaintiffs presented the testimony of the four

5 plaintiffs, four lay witnesses and nine expert witnesses.

6 Proponents did not challenge the credibility of the lay witnesses

7 or the qualifications of the expert witnesses to offer opinion

8 testimony.

9

Having observed and considered the testimony presented,

10 the court concludes that plaintiffs’ lay witnesses provided

11 credible testimony:

12

13 1. Jeffrey Zarrillo, a plaintiff, testified about coming out as a

14

gay man. (Tr 77:12-15: “Coming out is a very personal and

15

internal process. * * * You have to get to the point where

16

you’re comfortable with yourself, with your own identity and

17

who you are.”) Zarrillo described his nine-year relationship

18

with Katami. (Tr 79:20-21: “He’s the love of my life. I love

19

him probably more than I love myself.”)

20

21 2. Paul Katami, a plaintiff, testified about his reasons for

22

wanting to marry Zarrillo. (Tr 89:1-3: “Being able to call

23

him my husband is so definitive, it changes our relationship.”

24

Tr 90:24-91:2: “I can safely say that if I were married to

25

Jeff, that I know that the struggle that we have validating

26

ourselves to other people would be diminished and potentially

27

eradicated.”) Katami explained why it was difficult for him

28

to tell others about his sexual orientation even though he has

25

United States District Court For the Northern District of California

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 3. 17 18 19 20 21 22 23 24 25 26 27 28 \\

been gay for “as long as [he] can remember.” (Tr 91:17-92:2: “I struggled with it quite a bit. Being surrounded by what seemed everything heterosexual * * * you tend to try and want to fit into that.”) Katami described how the Proposition 8 campaign messages affected him. (Tr 97:1-11: “[P]rotect the children is a big part of the [Proposition 8] campaign. And when I think of protecting your children, you protect them from people who will perpetrate crimes against them, people who might get them hooked on a drug, a pedophile, or some person that you need protecting from. You don’t protect yourself from an amicable person or a good person. You protect yourself from things that can harm you physically, emotionally. And so insulting, even the insinuation that I would be part of that category.”)
Kristin Perry, a plaintiff, testified about her relationship with Stier. (Tr 139:16-17; 140:13-14: Stier is “maybe the sparkliest person I ever met. * * * [T]he happiest I feel is in my relationship with [Stier.]”) Perry described why she wishes to marry. (Tr 141:22-142:1: “I want to have a stable and secure relationship with her that then we can include our children in. And I want the discrimination we are feeling with Proposition 8 to end and for a more positive, joyful part of our lives to * * * begin.”) Perry described the reason she and Stier registered as domestic partners. (Tr 153:16-17: “[W]e are registered domestic partners based on just legal advice that we received for creating an estate plan.”)

26

United States District Court For the Northern District of California

1 4. 2 3 4 5 6 7 8 9 10 11 12 13 5. 14 15 16 17 18 19 6. 20 21 22 23 24 25 26 27 7. 28

Sandra Stier, a plaintiff, testified about her relationship with Perry, with whom she raises their four children. (Tr 167:3-5: “I have fallen in love one time and it’s with [Perry].”). Stier explained why she wants to marry Perry despite their domestic partnership. (Tr 171:8-13: “[T]here is certainly nothing about domestic partnership as an institution —— not even as an institution, but as a legal agreement that indicates the love and commitment that are inherent in marriage, and [domestic partnership] doesn’t have anything to do for us with the nature of our relationship and the type of enduring relationship we want it to be.”)
Helen Zia, a lay witness, testified regarding her experiences with discrimination and about how her life changed when she married her wife in 2008. (Tr 1235:10-13: “I’m beginning to understand what I’ve always read —— marriage is the joining of two families.”)
Jerry Sanders, the mayor of San Diego and a lay witness, testified regarding how he came to believe that domestic partnerships are discriminatory. (Tr 1273:10-17: On a lastminute decision not to veto a San Diego resolution supporting same-sex marriage: “I was saying that one group of people did not deserve the same dignity and respect, did not deserve the same symbolism about marriage.”)
Ryan Kendall, a lay witness, testified about his experience as a teenager whose parents placed him in therapy to change his

27

United States District Court For the Northern District of California

1

sexual orientation from homosexual to heterosexual. (Tr

2

1521:20: “I knew I was gay. I knew that could not be

3

changed.”) Kendall described the mental anguish he endured

4

because of his family’s disapproval of his sexual orientation.

5

(Tr 1508:9-10, 1511:2-16: “I remember my mother looking at me

6

and telling me that I was going to burn in hell. * * * [M]y

7

mother would tell me that she hated me, or that I was

8

disgusting, or that I was repulsive. Once she told me that

9

she wished she had had an abortion instead of a gay son.”)

10

11 8. Hak-Shing William Tam, an official proponent of Proposition 8

12

and an intervening defendant, was called as an adverse witness

13

and testified about messages he disseminated during the

14

Proposition 8 campaign. (Tr 1889:23-25: “Q: Did you invest

15

substantial time, effort, and personal resources in

16

campaigning for Proposition 8? A: Yes.”)

17

18

Plaintiffs called nine expert witnesses. As the

19 education and experience of each expert show, plaintiffs’ experts

20 were amply qualified to offer opinion testimony on the subjects

21 identified. Moreover, the experts’ demeanor and responsiveness

22 showed their comfort with the subjects of their expertise. For

23 those reasons, the court finds that each of plaintiffs’ proffered

24 experts offered credible opinion testimony on the subjects

25 identified.

26

27 1. Nancy Cott, a historian, testified as an expert in the history

28

of marriage in the Untied States. Cott testified that

28

United States District Court For the Northern District of California

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 2. 17 18 19 20 21 22 23 24 25 26 27 28

marriage has always been a secular institution in the United
States, that regulation of marriage eased the state’s burden
to govern an amorphous populace and that marriage in the
United States has undergone a series of transformations since
the country was founded.
a. PX2323 Cott CV: Cott is a professor of American history at Harvard University and the director of the Schlesinger Library on the History of Women in America;
b. PX2323: In 1974, Cott received a PhD from Brandeis University in the history of American civilization;
c. PX2323: Cott has published eight books, including Public Vows: A History of Marriage and the Nation (2000), and has published numerous articles and essays;
d. Tr 186:5-14: Cott devoted a semester in 1998 to researching and teaching a course at Yale University in the history of marriage in the United States;
e. Tr 185:9-13; 188:6-189:10: Cott’s marriage scholarship focuses on marriage as a public institution and as a structure regulated by government for social benefit.
George Chauncey, a historian, was qualified to offer testimony
on social history, especially as it relates to gays and
lesbians. Chauncey testified about the widespread private and
public discrimination faced by gays and lesbians in the
twentieth century and the ways in which the Proposition 8
campaign echoed that discrimination and relied on stereotypes
against gays and lesbians that had developed in the twentieth
century.
a. PX2322 Chauncey CV: Chauncey is a professor of history and American studies at Yale University; from 1991-2006, Chauncey was a professor of history at the University of Chicago;
b. Tr 357:15-17: Chauncey received a PhD in history from Yale University in 1989;

29

United States District Court For the Northern District of California

1 2 3 4 5 6 7 8 9 3. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

c. PX2322: Chauncey has authored or edited books on the subject of gay and lesbian history, including Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940 (1994) and Hidden from History: Reclaiming the Gay and Lesbian Past (1989, ed);
d. Tr 359:17-360:11: Chauncey relies on government records, interviews, diaries, films and advertisements along with studies by other historians and scholars in conducting his research;
e. Tr 360:12-21: Chauncey teaches courses in twentieth century United States history, including courses on lesbian and gay history.
Lee Badgett, an economist, testified as an expert on
demographic information concerning gays and lesbians, same-sex
couples and children raised by gays and lesbians, the effects
of the exclusion of same-sex couples from the institution of
marriage and the effect of permitting same-sex couples to
marry on heterosexual society and the institution of marriage.
Badgett offered four opinions: (1) Proposition 8 has inflicted
substantial economic harm on same-sex couples and their
children; (2) allowing same-sex couples to marry would not
have any adverse effect on the institution of marriage or on
opposite-sex couples; (3) same-sex couples are very similar to
opposite-sex couples in most economic and demographic
respects; and (4) Proposition 8 has imposed economic losses on
the State of California and on California counties and
municipalities. Tr 1330:9-1331:5.
a. PX2321 Badgett CV: Badgett is a professor of economics at UMass Amherst and the director of the Williams Institute at UCLA School of Law;
b. PX2321: Badgett received her PhD in economics from UC Berkeley in 1990;
c. Tr 1325:2-17; PX2321: Badgett has written two books on gay and lesbian relationships and same-sex marriage:

30

United States District Court For the Northern District of California

1 2 3 4 5 6 7 8 9 10 11 12 13 14 4. 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Money, Myths, and Change: The Economic Lives of Lesbians and Gay Men (2001) and When Gay People Get Married: What Happens When Societies Legalize Same-Sex Marriage (2009); Badgett has also published several articles on the same subjects;
d. Tr 1326:4-13: Badgett co-authored two reports (PX1268 Brad Sears and M V Lee Badgett, The Impact of Extending Marriage to Same-Sex Couples on the California Budget, The Williams Institute (June 2008) and PX1283 M V Lee Badgett and R Bradley Sears, Putting a Price on Equality? The Impact of Same-Sex Marriage on California’s Budget, 16 Stan L & Pol Rev 197 (2005)) analyzing the fiscal impact of allowing same-sex couples to marry in California;
e. Tr 1326:18-1328:4: Badgett has been invited to speak at many universities and at the American Psychological Association convention on the economics of same-sex relationships;
f. Tr 1329:6-22: Badgett has testified before federal and state government bodies about domestic partner benefits and antidiscrimination laws.
Edmund A Egan, the chief economist in the San Francisco
Controller’s Office, testified for CCSF as an expert in urban
and regional economic policy. Egan conducted an economic
study of the prohibition of same-sex marriage on San
Francisco’s economy and concluded that the prohibition
negatively affects San Francisco’s economy in many ways. Tr
683:19-684:19.
a. Tr 678:1-7: As the chief economist for CCSF, Egan directs the Office of Economic Analysis and prepares economic impact analysis reports for pending legislation;
b. Tr 681:16-682:25: In preparing economic impact reports, Egan relies on government data and reports, private reports and independent research to determine whether legislation has “real regulatory power” and the effects of the legislation on private behavior;
c. PX2324 Egan CV: Egan received a PhD in city and regional planning from UC Berkeley in 1997;

31

United States District Court For the Northern District of California

1 2 3 5. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 6. 23 24 25 26 27 28

d. Tr 679:1-14: Egan is an adjunct faculty member at UC Berkeley and teaches graduate students on regional and urban economics and regional and city planning.
Letitia Anne Peplau, a psychologist, was qualified as an
expert on couple relationships within the field of psychology.
Peplau offered four opinions: (1) for adults who choose to
enter marriage, that marriage is often associated with many
important benefits; (2) research has shown remarkable
similarities between same-sex and opposite-sex couples; (3) if
same-sex couples are permitted to marry, they will likely
experience the same benefits from marriage as opposite-sex
couples; and (4) permitting same-sex marriage will not harm
opposite-sex marriage. Tr 574:6-19.
a. PX2329 Peplau CV: Peplau is a professor of psychology and vice chair of graduate studies in psychology at UCLA;
b. Tr 569:10-12: Peplau’s research focuses on social psychology, which is a branch of psychology that focuses on human relationships and social influence; specifically, Peplau studies close personal relationships, sexual orientation and gender;
c. Tr 571:13: Peplau began studying same-sex relationships in the 1970s;
d. Tr 571:19-572:13; PX2329: Peplau has published or edited about ten books, authored about 120 peer-reviewed articles and published literature reviews on psychology, relationships and sexuality.
Ilan Meyer, a social epidemiologist, testified as an expert in
public health with a focus on social psychology and
psychiatric epidemiology. Meyer offered three opinions: (1)
gays and lesbians experience stigma, and Proposition 8 is an
example of stigma; (2) social stressors affect gays and
lesbians; and (3) social stressors negatively affect the
mental health of gays and lesbians. Tr 817:10-19.

32

United States District Court For the Northern District of California

1 2 3 4 5 6 7 8 9 10 7. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

a. PX2328 Meyer CV: Meyer is an associate professor of sociomedical sciences at Columbia University’s Mailman School of Public Health;
b. PX2328; Tr 807:20-808:7: Meyer received a PhD in sociomedical sciences from Columbia University in 1993;
c. Tr 810:19-811:16: Meyer studies the relationship between social issues and structures and patterns of mental health outcomes with a specific focus on lesbian, gay and bisexual populations;
d. Tr 812:9-814:22: Meyer has published about forty peerreviewed articles, teaches a course on gay and lesbian issues in public health, has received numerous awards for his professional work and has edited and reviewed journals and books.
Gregory Herek, a psychologist, testified as an expert in
social psychology with a focus on sexual orientation and
stigma. Herek offered opinions concerning: (1) the nature of
sexual orientation and how sexual orientation is understood in
the fields of psychology and psychiatry; (2) the amenability
of sexual orientation to change through intervention; and (3)
the nature of stigma and prejudice as they relate to sexual
orientation and Proposition 8. Tr 2023:8-14.
a. PX2326 Herek CV: Herek is a professor of psychology at UC Davis;
b. PX2326: Herek received a PhD in personality and social psychology from UC Davis in 1983;
c. Tr 2018:5-13: Social psychology is the intersection of psychology and sociology in that it focuses on human behavior within a social context; Herek’s dissertation focused on heterosexuals’ attitudes towards lesbians and gay men;
d. Tr 2020:1-5: Herek regularly teaches a course on sexual orientation and prejudice;
e. PX2326; Tr 2021:12-25; Tr 2022:11-14: Herek serves on editorial boards of peer-reviewed journals and has published over 100 articles and chapters on sexual orientation, stigma and prejudice.

33

United States District Court For the Northern District of California

1 8. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 9. 19 20 21 22 23 24 25 26 27 28

Michael Lamb, a psychologist, testified as an expert on the
developmental psychology of children, including the
developmental psychology of children raised by gay and lesbian
parents. Lamb offered two opinions: (1) children raised by
gays and lesbians are just as likely to be well-adjusted as
children raised by heterosexual parents; and (2) children of
gay and lesbian parents would benefit if their parents were
able to marry. Tr 1009:23-1010:4.
a. PX2327 Lamb CV: Lamb is a professor and head of the Department of Social and Developmental Psychology at the University of Cambridge in England;
b. Tr 1003:24-1004:6; PX2327: Lamb was the head of the section on social and emotional development of the National Institute of Child Health and Human Development in Washington DC for seventeen years;
c. Tr 1007:2-1008:8; PX2327: Lamb has published approximately 500 articles, many about child adjustment, has edited 40 books in developmental psychology, reviews about 100 articles a year and serves on editorial boards on several academic journals;
d. PX2327: Lamb received a PhD from Yale University in 1976.
Gary Segura, a political scientist, testified as an expert on
the political power or powerlessness of minority groups in the
United States, and of gays and lesbians in particular. Segura
offered three opinions: (1) gays and lesbians do not possess a
meaningful degree of political power; (2) gays and lesbians
possess less power than groups granted judicial protection;
and (3) the conclusions drawn by proponents’ expert Miller are
troubling and unpersuasive. Tr 1535:3-18.
a. PX2330 Segura CV: Segura is a professor of political science at Stanford University and received a PhD in political science from the University of Illinois in 1992;

34

United States District Court For the Northern District of California

1

b. Tr 1525:1-10: Segura and a colleague, through the

Stanford Center for Democracy, operate the American

2

National Elections Studies, which provides political

scientists with data about the American electorate’s

3

views about politics;

4

c. Tr 1525:11-19: Segura serves on the editorial boards of

major political science journals;

5

d. Tr 1525:22-1526:24: Segura’s work focuses on political

6

representation and whether elected officials respond to

the voting public; within the field of political

7

representation, Segura focuses on minorities;

8

e. PX2330; Tr 1527:25-1528:14: Segura has published about

twenty-five peer-reviewed articles, authored about

9

fifteen chapters in edited volumes and has presented at

between twenty and forty conferences in the past ten

10

years;

11

f. PX2330; Tr 1528:21-24: Segura has published three pieces

specific to gay and lesbian politics and political

12

issues;

13

g. Tr 1532:11-1533:17: Segura identified the methods he used

and materials he relied on to form his opinions in this

14

case. Relying on his background as a political

scientist, Segura read literature on gay and lesbian

15

politics, examined the statutory status of gays and

lesbians and public attitudes about gays and lesbians,

16

determined the presence or absence of gays and lesbians

in political office and considered ballot initiatives

17

about gay and lesbian issues.

18

19 PROPONENTS’ WITNESSES

20

Proponents elected not to call the majority of their

21 designated witnesses to testify at trial and called not a single

22 official proponent of Proposition 8 to explain the discrepancies

23 between the arguments in favor of Proposition 8 presented to voters

24 and the arguments presented in court. Proponents informed the

25 court on the first day of trial, January 11, 2010, that they were

26 withdrawing Loren Marks, Paul Nathanson, Daniel N Robinson and

27 Katherine Young as witnesses. Doc #398 at 3. Proponents’ counsel

28 stated in court on Friday, January 15, 2010, that their witnesses

35

United States District Court For the Northern District of California

1 “were extremely concerned about their personal safety, and did not

2 want to appear with any recording of any sort, whatsoever.” Tr

3 1094:21-23.

4

The timeline shows, however, that proponents failed to

5 make any effort to call their witnesses after the potential for

6 public broadcast in the case had been eliminated. The Supreme

7 Court issued a temporary stay of transmission on January 11, 2010

8 and a permanent stay on January 13, 2010. See Hollingsworth v

9 Perry, 130 SCt 1132 (Jan 11, 2010); Hollingsworth v Perry, 130 SCt

10 705 (Jan 13, 2010). The court withdrew the case from the Ninth

11 Circuit’s pilot program on broadcasting on January 15, 2010. Doc

12 #463. Proponents affirmed the withdrawal of their witnesses that

13 same day. Tr 1094:21-23. Proponents did not call their first

14 witness until January 25, 2010. The record does not reveal the

15 reason behind proponents’ failure to call their expert witnesses.

16

Plaintiffs entered into evidence the deposition testimony

17 of two of proponents’ withdrawn witnesses, as their testimony

18 supported plaintiffs’ claims. Katherine Young was to testify on

19 comparative religion and the universal definition of marriage. Doc

20 #292 at 4 (proponents’ December 7 witness list) Doc #286-4 at 2

21 (expert report). Paul Nathanson was to testify on religious

22 attitudes towards Proposition 8. Doc #292 at 4 (proponents’

23 December 7 witness list); Doc #280-4 at 2 (expert report).

24

Young has been a professor of religious studies at McGill

25 University since 1978. PX2335 Young CV. She received her PhD in

26 history of religions and comparative religions from McGill in 1978.

27 Id. Young testified at her deposition that homosexuality is a

28 normal variant of human sexuality and that same-sex couples possess

36

United States District Court For the Northern District of California

1 the same desire for love and commitment as opposite-sex couples.

2 PX2545 (dep tr); PX2544 (video of same). Young also explained that

3 several cultures around the world and across centuries have had

4 variations of marital relationships for same-sex couples. Id.

5

Nathanson has a PhD in religious studies from McGill

6 University and is a researcher at McGill’s Faculty for Religious

7 Studies. PX2334 Nathanson CV. Nathanson is also a frequent

8 lecturer on consequences of marriage for same-sex couples and on

9 gender and parenting. Id. Nathanson testified at his deposition

10 that religion lies at the heart of the hostility and violence

11 directed at gays and lesbians and that there is no evidence that

12 children raised by same-sex couples fare worse than children raised

13 by opposite-sex couples. PX2547 (dep tr); PX2546 (video of same).

14

Proponents made no effort to call Young or Nathanson to

15 explain the deposition testimony that plaintiffs had entered into

16 the record or to call any of the withdrawn witnesses after

17 potential for contemporaneous broadcast of the trial proceedings

18 had been eliminated. Proponents called two witnesses:

19

20 1. David Blankenhorn, founder and president of the Institute for

21

American Values, testified on marriage, fatherhood and family

22

structure. Plaintiffs objected to Blankenhorn’s qualification

23

as an expert. For the reasons explained hereafter,

24

Blankenhorn lacks the qualifications to offer opinion

25

testimony and, in any event, failed to provide cogent

26

testimony in support of proponents’ factual assertions.

27

28

37

United States District Court For the Northern District of California

1 2. Kenneth P Miller, a professor of government at Claremont

2

McKenna College, testified as an expert in American and

3

California politics. Plaintiffs objected that Miller lacked

4

sufficient expertise specific to gays and lesbians. Miller’s

5

testimony sought to rebut only a limited aspect of plaintiffs’

6

equal protection claim relating to political power.

7

8 David Blankenhorn

9

Proponents called David Blankenhorn as an expert on

10 marriage, fatherhood and family structure. Blankenhorn received a

11 BA in social studies from Harvard College and an MA in comparative

12 social history from the University of Warwick in England. Tr

13 2717:24-2718:3; DIX2693 (Blankenhorn CV). After Blankenhorn

14 completed his education, he served as a community organizer in low-

15 income communities, where he developed an interest in community and

16 family institutions after “seeing the weakened state” of those

17 institutions firsthand, “especially how children were living

18 without their fathers.” Tr 2719:3-18. This experience led

19 Blankenhorn in 1987 to found the Institute for American Values,

20 which he describes as “a nonpartisan think tank” that focuses

21 primarily on “issues of marriage, family, and child well-being.”

22 Tr 2719:20-25. The Institute commissions research and releases

23 reports on issues relating to “fatherhood, marriage, family

24 structure [and] child well-being.” Tr 2720:6-19. The Institute

25 also produces an annual report “on the state of marriage in

26 America.” Tr 2720:24-25.

27

Blankenhorn has published two books on the subjects of

28 marriage, fatherhood and family structure: Fatherless America:

38

United States District Court For the Northern District of California

1 Confronting Our Most Urgent Social Problem (HarperCollins 1995),

2 DIX0108, and The Future of Marriage (Encounter Books 2006),

3 DIX0956. Tr 2722:2-12. Blankenhorn has edited four books about

4 family structure and marriage, Tr 2728:13-22, and has co-edited or

5 co-authored several publications about marriage. Doc #302 at 21.

6

Plaintiffs challenge Blankenhorn’s qualifications as an

7 expert because none of his relevant publications has been subject

8 to a traditional peer-review process, Tr 2733:2-2735:4, he has no

9 degree in sociology, psychology or anthropology despite the

10 importance of those fields to the subjects of marriage, fatherhood

11 and family structure, Tr 2735:15-2736:9, and his study of the

12 effects of same-sex marriage involved “read[ing] articles and

13 ha[ving] conversations with people, and tr[ying] to be an informed

14 person about it,” Tr 2736:13-2740:3. See also Doc #285

15 (plaintiffs’ motion in limine). Plaintiffs argue that

16 Blankenhorn’s conclusions are not based on “objective data or

17 discernible methodology,” Doc #285 at 25, and that Blankenhorn’s

18 conclusions are instead based on his interpretation of selected

19 quotations from articles and reports, id at 26.

20

The court permitted Blankenhorn to testify but reserved

21 the question of the appropriate weight to give to Blankenhorn’s

22 opinions. Tr 2741:24-2742:3. The court now determines that

23 Blankenhorn’s testimony constitutes inadmissible opinion testimony

24 that should be given essentially no weight.

25

Federal Rule of Evidence 702 provides that a witness may

26 be qualified as an expert “by knowledge, skill, experience,

27 training, or education.” The testimony may only be admitted if it

28 “is based upon sufficient facts or data” and “is the product of

39

United States District Court For the Northern District of California

1 reliable principles and methods.” Id. Expert testimony must be

2 both relevant and reliable, with a “basis in the knowledge and

3 experience of [the relevant] discipline.” Kumho Tire Co v

4 Carmichael, 526 US 137, 147, 149 (1999) (citing Daubert v Merrell

5 Dow Pharm, 509 US 579, 589, 592 (1993)).

6

While proponents correctly assert that formal training in

7 the relevant disciplines and peer-reviewed publications are not

8 dispositive of expertise, education is nevertheless important to

9 ensure that “an expert, whether basing testimony upon professional

10 studies or personal experience, employs in the courtroom the same

11 level of intellectual rigor that characterizes the practice of an

12 expert in the relevant field.” Kumho Tire, 526 US at 152. Formal

13 training shows that a proposed expert adheres to the intellectual

14 rigor that characterizes the field, while peer-reviewed

15 publications demonstrate an acceptance by the field that the work

16 of the proposed expert displays “at least the minimal criteria” of

17 intellectual rigor required in that field. Daubert v Merrell Dow

18 Pharm, 43 F3d 1311, 1318 (9th Cir 1995) (on remand) (“Daubert II”).

19

The methodologies on which expert testimony may be based

20 are “not limited to what is generally accepted,” Daubert II at 1319

21 n11, but “nothing in either Daubert or the Federal Rules of

22 Evidence requires a district court to admit opinion evidence that

23 is connected to existing data only by the ipse dixit of the

24 expert.” General Electric Co v Joiner, 522 US 136, 146 (1997).

25 The party proffering the evidence “must explain the expert’s

26 methodology and demonstrate in some objectively verifiable way that

27 the expert has both chosen a reliable * * * method and followed it

28 faithfully.” Daubert II, 43 F3d at 1319 n11.

40

United States District Court For the Northern District of California

1

Several factors are relevant to an expert’s reliability:

2 (1) “whether [a method] can be (and has been) tested”; (2) “whether

3 the [method] has been subjected to peer review and publication”;

4 (3) “the known or potential rate of error”; (4) “the existence and

5 maintenance of standards controlling the [method’s] operation”; (5)

6 “a * * * degree of acceptance” of the method within “a relevant

7 * * * community,” Daubert, 509 US at 593-94; (6) whether the expert

8 is “proposing to testify about matters growing naturally and

9 directly out of research they have conducted independent of the

10 litigation,” Daubert II, 43 F3d at 1317; (7) whether the expert has

11 unjustifiably extrapolated from an accepted premise to an unfounded

12 conclusion, see Joiner, 522 US at 145-146; (8) whether the expert

13 has adequately accounted for obvious alternative explanations, see

14 generally Claar v Burlington Northern RR Co, 29 F3d 499 (9th Cir

15 1994); (9) whether the expert “employs in the courtroom the same

16 level of intellectual rigor that characterizes the practice of an

17 expert in the relevant field,” Kumho Tire, 526 US at 152; and (10)

18 whether the field of expertise claimed by the expert is known to

19 reach reliable results for the type of opinion the expert would

20 give, see id at 151.

21

Blankenhorn offered opinions on the definition of

22 marriage, the ideal family structure and potential consequences of

23 state recognition of marriage for same-sex couples. None of

24 Blankenhorn’s opinions is reliable.

25

Blankenhorn’s first opinion is that marriage is “a

26 socially-approved sexual relationship between a man and a woman.”

27 Tr 2742:9-10. According to Blankenhorn, the primary purpose of

28 marriage is to “regulate filiation.” Tr 2742:18. Blankenhorn

41

United States District Court For the Northern District of California

1 testified that the alternative and contradictory definition of

2 marriage is that “marriage is fundamentally a private adult

3 commitment.” Tr 2755:25-2756:1; Tr 2756:4-2757:17 (DIX0093 Law

4 Commission of Canada, Beyond Conjugality: Recognizing and

5 Supporting Close Personal Adult Relationships (2001)). He

6 described this definition as focused on “the tender feelings that

7 spouses have for one another,” Tr 2761:5-6. Blankenhorn agrees

8 this “affective dimension” of marriage exists but asserts that

9 marriage developed independently of affection. Tr 2761:9-2762:3.

10

Blankenhorn thus sets up a dichotomy for the definition

11 of marriage: either marriage is defined as a socially approved

12 sexual relationship between a man and a woman for the purpose of

13 bearing and raising children biologically related to both spouses,

14 or marriage is a private relationship between two consenting

15 adults. Blankenhorn did not address the definition of marriage

16 proposed by plaintiffs’ expert Cott, which subsumes Blankenhorn’s

17 dichotomy. Cott testified that marriage is “a couple’s choice to

18 live with each other, to remain committed to one another, and to

19 form a household based on their own feelings about one another, and

20 their agreement to join in an economic partnership and support one

21 another in terms of the material needs of life.” Tr 201:9-14.

22 There is nothing in Cott’s definition that limits marriage to its

23 “affective dimension” as defined by Blankenhorn, and yet Cott’s

24 definition does not emphasize the biological relationship linking

25 dependents to both spouses.

26

Blankenhorn relied on the quotations of others to define

27 marriage and provided no explanation of the meaning of the passages

28 he cited or their sources. Tr 2744:4-2755:16. Blankenhorn’s mere

42

United States District Court For the Northern District of California

1 recitation of text in evidence does not assist the court in

2 understanding the evidence because reading, as much as hearing, “is

3 within the ability and experience of the trier of fact.” Beech

4 Aircraft Corp v United States, 51 F3d 834, 842 (9th Cir 1995).

5

Blankenhorn testified that his research has led him to

6 conclude there are three universal rules that govern marriage: (1)

7 the rule of opposites (the “man/woman” rule); (2) the rule of two;

8 and (3) the rule of sex. Tr 2879:17-25. Blankenhorn explained

9 that there are “no or almost no exceptions” to the rule of

10 opposites, Tr 2882:14, despite some instances of ritualized same-

11 sex relationships in some cultures, Tr 2884:25-2888:16.

12 Blankenhorn explained that despite the widespread practice of

13 polygamy across many cultures, the rule of two is rarely violated,

14 because even within a polygamous marriage, “each marriage is

15 separate.” Tr 2892:1-3; Tr 2899:16-2900:4 (“Q: Is it your view

16 that that man who has married one wife, and then another wife, and

17 then another wife, and then another wife, and then another wife,

18 and now has five wives, and they are all his wives at the same

19 time, that that marriage is consistent with your rule of two? * * *

20 A: I concur with Bronislaw Malinowski, and others, who say that

21 that is consistent with the two rule of marriage.”). Finally,

22 Blankenhorn could only hypothesize instances in which the rule of

23 sex would be violated, including where “[h]e’s in prison for life,

24 he’s married, and he is not in a system in which any conjugal

25 visitation is allowed.” Tr 2907:13-19.

26

Blankenhorn’s interest and study on the subjects of

27 marriage, fatherhood and family structure are evident from the

28 record, but nothing in the record other than the “bald assurance”

43

United States District Court For the Northern District of California

1 of Blankenhorn, Daubert II, 43 F3d at 1316, suggests that

2 Blankenhorn’s investigation into marriage has been conducted to the

3 “same level of intellectual rigor” characterizing the practice of

4 anthropologists, sociologists or psychologists. See Kumho Tire,

5 526 US at 152. Blankenhorn gave no explanation of the methodology

6 that led him to his definition of marriage other than his review of

7 others’ work. The court concludes that Blankenhorn’s proposed

8 definition of marriage is “connected to existing data only by the

9 ipse dixit” of Blankenhorn and accordingly rejects it. See Joiner,

10 522 US at 146.

11

Blankenhorn’s second opinion is that a body of evidence

12 supports the conclusion that children raised by their married,

13 biological parents do better on average than children raised in

14 other environments. Tr 2767:11-2771:11. The evidence Blankenhorn

15 relied on to support his conclusion compares children raised by

16 married, biological parents with children raised by single parents,

17 unmarried mothers, step families and cohabiting parents. Tr

18 2769:14-24 (referring to DIX0026 Kristin Anderson Moore, Susan M

19 Jekielek, and Carol Emig, Marriage from a Child’s Perspective: How

20 Does Family Structure Affect Children, and What Can We Do about It,

21 Child Trends (June 2002)); Tr 2771:1-11 (referring to DIX0124 Sara

22 McLanahan and Gary Sandefur, Growing Up with a Single Parent: What

23 Hurts, What Helps (Harvard 1994)).

24

Blankenhorn’s conclusion that married biological parents

25 provide a better family form than married non-biological parents is

26 not supported by the evidence on which he relied because the

27 evidence does not, and does not claim to, compare biological to

28 non-biological parents. Blankenhorn did not in his testimony

44

United States District Court For the Northern District of California

1 consider any study comparing children raised by their married

2 biological parents to children raised by their married adoptive

3 parents. Blankenhorn did not testify about a study comparing

4 children raised by their married biological parents to children

5 raised by their married parents who conceived using an egg or sperm

6 donor. The studies Blankenhorn relied on compare various family

7 structures and do not emphasize biology. Tr 2768:9-2772:6. The

8 studies may well support a conclusion that parents’ marital status

9 may affect child outcomes. The studies do not, however, support a

10 conclusion that the biological connection between a parent and his

11 or her child is a significant variable for child outcomes. The

12 court concludes that “there is simply too great an analytical gap

13 between the data and the opinion proffered.” Joiner, 522 US at

14 146. Blankenhorn’s reliance on biology is unsupported by evidence,

15 and the court therefore rejects his conclusion that a biological

16 link between parents and children influences children’s outcomes.

17

Blankenhorn’s third opinion is that recognizing same-sex

18 marriage will lead to the deinstitutionalization of marriage. Tr

19 2772:21-2775:23. Blankenhorn described deinstitutionalization as a

20 process through which previously stable patterns and rules forming

21 an institution (like marriage) slowly erode or change. Tr 2773:4-

22 24. Blankenhorn identified several manifestations of

23 deinstitutionalization: out-of-wedlock childbearing, rising divorce

24 rates, the rise of non-marital cohabitation, increasing use of

25 assistive reproductive technologies and marriage for same-sex

26 couples. Tr 2774:20-2775:23. To the extent Blankenhorn believes

27 that same-sex marriage is both a cause and a symptom of

28 deinstitutionalization, his opinion is tautological. Moreover, no

45

United States District Court For the Northern District of California

1 credible evidence supports Blankenhorn’s conclusion that same-sex

2 marriage could lead to the other manifestations of

3 deinstitutionalization.

4

Blankenhorn relied on sociologist Andrew Cherlin (DIX0049

5 The Deinstitutionalization of American Marriage, 66 J Marriage &

6 Family 848 (Nov 2004)) and sociologist Norval Glen (DIX0060 The

7 Struggle for Same-Sex Marriage, 41 Society 25 (Sept/Oct 2004)) to

8 support his opinion that same-sex marriage may speed the

9 deinstitutionalization of marriage. Neither of these sources

10 supports Blankenhorn’s conclusion that same-sex marriage will

11 further deinstitutionalize marriage, as neither source claims same-

12 sex marriage as a cause of divorce or single parenthood.

13 Nevertheless, Blankenhorn testified that “the further

14 deinstitutionalization of marriage caused by the legalization of

15 same-sex marriage,” Tr 2782:3-5, would likely manifest itself in

16 “all of the consequences [already discussed].” Tr 2782:15-16.

17

Blankenhorn’s book, The Future of Marriage, DIX0956,

18 lists numerous consequences of permitting same-sex couples to

19 marry, some of which are the manifestations of

20 deinstitutionalization listed above. Blankenhorn explained that

21 the list of consequences arose from a group thought experiment in

22 which an idea was written down if someone suggested it. Tr 2844:1-

23 12; DIX0956 at 202. Blankenhorn’s group thought experiment began

24 with the untested assumption that “gay marriage, like almost any

25 major social change, would be likely to generate a diverse range of

26 consequences.” DIX0956 at 202. The group failed to consider that

27 recognizing the marriage of same-sex couples might lead only to

28 minimal, if any, social consequences.

46

United States District Court For the Northern District of California

1

During trial, Blankenhorn was presented with a study that

2 posed an empirical question whether permitting marriage or civil

3 unions for same-sex couples would lead to the manifestations

4 Blankenhorn described as indicative of deinstitutionalization.

5 After reviewing and analyzing available evidence, the study

6 concludes that “laws permitting same-sex marriage or civil unions

7 have no adverse effect on marriage, divorce, and abortion rates,

8 the percent of children born out of wedlock, or the percent of

9 households with children under 18 headed by women.” PX2898 (Laura

10 Langbein & Mark A Yost, Jr, Same-Sex Marriage and Negative

11 Externalities, 90 Soc Sci Q 2 (June 2009) at 305-306). Blankenhorn

12 had not seen the study before trial and was thus unfamiliar with

13 its methods and conclusions. Nevertheless, Blankenhorn dismissed

14 the study and its results, reasoning that its authors “think that

15 [the conclusion is] so self-evident that anybody who has an

16 opposing point of view is not a rational person.” Tr 2918:19-21.

17

Blankenhorn’s concern that same-sex marriage poses a

18 threat to the institution of marriage is further undermined by his

19 testimony that same-sex marriage and opposite-sex marriage operate

20 almost identically. During cross-examination, Blankenhorn was

21 shown a report produced by his Institute in 2000 explaining the six

22 dimensions of marriage: (1) legal contract; (2) financial

23 partnership; (3) sacred promise; (4) sexual union; (5) personal

24 bond; and (6) family-making bond. PX2879 (Coalition for Marriage, 25 Family and Couples Education, et al, The Marriage Movement: A 26 Statement of Principles (Institute for American Values 2000)). 27 Blankenhorn agreed that same-sex marriages and opposite-sex

28 marriages would be identical across these six dimensions. Tr

47

United States District Court For the Northern District of California

1 2913:8-2916:18. When referring to the sixth dimension, a family-

2 making bond, Blankenhorn agreed that same-sex couples could “raise”

3 children. Tr 2916:17.

4

Blankenhorn gave absolutely no explanation why

5 manifestations of the deinstitutionalization of marriage would be

6 exacerbated (and not, for example, ameliorated) by the presence of

7 marriage for same-sex couples. His opinion lacks reliability, as

8 there is simply too great an analytical gap between the data and

9 the opinion Blankenhorn proffered. See Joiner, 522 US at 146.

10

Blankenhorn was unwilling to answer many questions

11 directly on cross-examination and was defensive in his answers.

12 Moreover, much of his testimony contradicted his opinions.

13 Blankenhorn testified on cross-examination that studies show

14 children of adoptive parents do as well or better than children of

15 biological parents. Tr 2794:12-2795:5. Blankenhorn agreed that

16 children raised by same-sex couples would benefit if their parents

17 were permitted to marry. Tr 2803:6-15. Blankenhorn also testified

18 he wrote and agrees with the statement “I believe that today the

19 principle of equal human dignity must apply to gay and lesbian

20 persons. In that sense, insofar as we are a nation founded on this

21 principle, we would be more American on the day we permitted same-

22 sex marriage than we were the day before.” DIX0956 at 2; Tr

23 2805:6-2806:1.

24

Blankenhorn stated he opposes marriage for same-sex

25 couples because it will weaken the institution of marriage, despite

26 his recognition that at least thirteen positive consequences would

27 flow from state recognition of marriage for same-sex couples,

28 including: (1) by increasing the number of married couples who

48

United States District Court For the Northern District of California

1 might be interested in adoption and foster care, same-sex marriage

2 might well lead to fewer children growing up in state institutions

3 and more children growing up in loving adoptive and foster

4 families; and (2) same-sex marriage would signify greater social

5 acceptance of homosexual love and the worth and validity of same-

6 sex intimate relationships. Tr 2839:16-2842:25; 2847:1-2848:3;

7 DIX0956 at 203-205.

8

Blankenhorn’s opinions are not supported by reliable

9 evidence or methodology and Blankenhorn failed to consider evidence

10 contrary to his view in presenting his testimony. The court

11 therefore finds the opinions of Blankenhorn to be unreliable and

12 entitled to essentially no weight.

13

14 Kenneth P Miller

15

Proponents called Kenneth P Miller, a professor of

16 government at Claremont McKenna College, as an expert in American

17 and California politics. Tr 2427:10-12. Plaintiffs conducted voir

18 dire to examine whether Miller had sufficient expertise to testify

19 authoritatively on the subject of the political power of gays and

20 lesbians. Tr 2428:3-10. Plaintiffs objected to Miller’s

21 qualification as an expert in the areas of discrimination against

22 gays and lesbians and gay and lesbian political power but did not

23 object to his qualification as an expert on initiatives. Tr

24 2435:21-2436:4.

25

Miller received a PhD from the University of California

26 (Berkeley) in 2002 in political science and is a professor of

27 government at Claremont McKenna College. Doc #280-6 at 39-44

28 (Miller CV). Plaintiffs contend that Miller lacks sufficient

49

United States District Court For the Northern District of California

1 expertise to offer an opinion on the relative political power of

2 gay men and lesbians. Having considered Miller’s background,

3 experience and testimony, the court concludes that, while Miller

4 has significant experience with politics generally, he is not

5 sufficiently familiar with gay and lesbian politics specifically to

6 offer opinions on gay and lesbian political power.

7

Miller testified that factors determining a group’s

8 political power include money, access to lawmakers, the size and

9 cohesion of a group, the ability to attract allies and form

10 coalitions and the ability to persuade. Tr 2437:7-14. Miller

11 explained why, in his opinion, these factors favor a conclusion

12 that gays and lesbians have political power. Tr 2442-2461.

13

Miller described religious, political and corporate

14 support for gay and lesbian rights. Miller pointed to failed

15 initiatives in California relating to whether public school

16 teachers should be fired for publicly supporting homosexuality and

17 whether HIV-positive individuals should be quarantined or reported

18 as examples of political successes for gays and lesbians. Tr

19 2475:21-2477:16. Miller testified that political powerlessness is

20 the inability to attract the attention of lawmakers. Tr 2487:1-2.

21 Using that test, Miller concluded that gays and lesbians have

22 political power both nationally and in California. Tr 2487:10-21.

23

Plaintiffs cross-examined Miller about his knowledge of

24 the relevant scholarship and data underlying his opinions. Miller

25 admitted that proponents’ counsel provided him with most of the

26 “materials considered” in his expert report. Tr 2497:13-2498:22;

27 PX0794A (annotated index of materials considered). See also Doc 28 #280 at 23-35 (Appendix to plaintiffs’ motion in limine listing 158

50

United States District Court For the Northern District of California

1 sources that appear on both Miller’s list of materials considered

2 and the list of proponents’ withdrawn expert, Paul Nathanson,

3 including twenty-eight websites listing the same “last visited”

4 date). Miller stated that he did not know at the time of his

5 deposition the status of antidiscrimination provisions to protect

6 gays and lesbians at the state and local level, Tr 2506:3-2507:1,

7 could only identify Don’t Ask, Don’t Tell and the federal Defense

8 of Marriage Act as examples of official discrimination against gays

9 and lesbians, Tr 2524:4-2525:2, and that he has read no or few

10 books or articles by George Chauncey, Miriam Smith, Shane Phelan,

11 Ellen Riggle, Barry Tadlock, William Eskridge, Mark Blasius,

12 Urvashi Vaid, Andrew Sullivan and John D’Emilio, Tr 2518:15-

13 2522:25.

14

Miller admitted he had not investigated the scope of

15 private employment discrimination against gays and lesbians and had

16 no reason to dispute the data on discrimination presented in PX0604

17 (The Employment Non-Discrimination Act of 2009, Hearings on HR 3017

18 before the House Committee on Education and Labor, 111 Cong, 1st

19 Sess (Sept 23, 2009) (testimony of R Bradley Sears, Executive

20 Director of the Williams Institute)). Tr 2529:15-2530:24. Miller

21 did not know whether gays and lesbians have more or less political

22 power than African Americans, either in California or nationally,

23 because he had not researched the question. Tr 2535:9-2539:13.

24

Plaintiffs questioned Miller on his earlier scholarship

25 criticizing the California initiative process because initiatives

26 eschew compromise and foster polarization, undermine the authority

27 and flexibility of representative government and violate norms of

28 openness, accountability, competence and fairness. Tr 2544:10-

51

United States District Court For the Northern District of California

1 2547:7. In 2001 Miller wrote that he was especially concerned that

2 initiative constitutional amendments undermine representative

3 democracy. Tr 2546:14-2548:15.

4

Plaintiffs questioned Miller on data showing 84 percent

5 of those who attend church weekly voted yes on Proposition 8, 54

6 percent of those who attend church occasionally voted no on

7 Proposition 8 and 83 percent of those who never attend church voted

8 no on Proposition 8. Tr 2590:10-2591:7; PX2853 at 9 Proposition 8

9 Local Exit Polls - Election Center 2008, CNN). Plaintiffs also

10 asked about polling data showing 56 percent of those with a union

11 member in the household voted yes on Proposition 8. Tr 2591:25-

12 2592:6; PX2853 at 13. Miller stated he had no reason to doubt the

13 accuracy of the polling data. Tr 2592:7-8. Miller did not explain

14 how the data in PX2853 are consistent with his conclusion that many

15 religious groups and labor unions are allies of gays and lesbians.

16

Miller testified that he did not investigate the extent

17 of anti-gay harassment in workplaces or schools. Tr 2600:7-17,

18 2603:9-24. Miller stated he had not investigated the ways in which

19 anti-gay stereotypes may have influenced Proposition 8 voters. Tr

20 2608:19-2609:1. Miller agreed that a principle of political

21 science holds that it is undesirable for a religious majority to

22 impose its religious views on a minority. Tr 2692:16-2693:7.

23

Miller explained on redirect that he had reviewed “most”

24 of the materials listed in his expert report and that he “tried to

25 review all of them.” Tr 2697:11-16. Miller testified that he

26 believes initiatives relating to marriage for same-sex couples

27 arise as a check on the courts and do not therefore implicate a

28 fear of the majority imposing its will on the minority. Tr

52

United States District Court For the Northern District of California

1 2706:17-2707:6. Miller explained that prohibiting same-sex couples

2 from marriage “wasn’t necessarily invidious discrimination against”

3 gays and lesbians. Tr 2707:20-24.

4

The credibility of Miller’s opinions relating to gay and

5 lesbian political power is undermined by his admissions that he:

6 (1) has not focused on lesbian and gay issues in his research or

7 study; (2) has not read many of the sources that would be relevant

8 to forming an opinion regarding the political power of gays and

9 lesbians; (3) has no basis to compare the political power of gays

10 and lesbians to the power of other groups, including

11 African-Americans and women; and (4) could not confirm that he

12 personally identified the vast majority of the sources that he

13 cited in his expert report, see PX0794A. Furthermore, Miller

14 undermined the credibility of his opinions by conceding that gays

15 and lesbians currently face discrimination and that current

16 discrimination is relevant to a group’s political power.

17

Miller’s credibility was further undermined because the

18 opinions he offered at trial were inconsistent with the opinions he

19 expressed before he was retained as an expert. Specifically,

20 Miller previously wrote that gays and lesbians, like other

21 minorities, are vulnerable and powerless in the initiative process,

22 see PX1869 (Kenneth Miller, Constraining Populism: The Real 23 Challenge of Initiative Reform, 41 Santa Clara L Rev 1037 (2001)), 24 contradicting his trial testimony that gays and lesbians are not

25 politically vulnerable with respect to the initiative process.

26 Miller admitted that at least some voters supported Proposition 8

27 based on anti-gay sentiment. Tr 2606:11-2608:18.

28 \\

53

United States District Court For the Northern District of California

1

For the foregoing reasons, the court finds that Miller’s

2 opinions on gay and lesbian political power are entitled to little

3 weight and only to the extent they are amply supported by reliable

4 evidence.

5

6

II

7

FINDINGS OF FACT2

8

Having considered the evidence presented at trial, the

9 credibility of the witnesses and the legal arguments presented by

10 counsel, the court now makes the following findings of fact

11 pursuant to FRCP 52(a). The court relies primarily on the

12 testimony and exhibits cited herein, although uncited cumulative

13 documentary evidence in the record and considered by the court also

14 supports the findings.

15

16 THE PARTIES

17

Plaintiffs

18 1. Kristin Perry and Sandra Stier reside together in Alameda

19

County, California and are raising four children. They are

20

lesbians in a committed relationship who seek to marry.

21 2. On May 21, 2009, Perry and Stier applied for a marriage

22

license from defendant O’Connell, the Alameda County

23

Clerk-Recorder, who denied them a license due to Proposition 8

24

because they are of the same sex.

25

26

27

28 2 To the extent any of the findings of fact should more properly be considered
conclusions of law, they shall be deemed as such.

54

United States District Court For the Northern District of California

1 3. Paul Katami and Jeffrey Zarrillo reside together in Los

2

Angeles County, California. They are gay men in a committed

3

relationship who seek to marry.

4 4. On May 20, 2009, Katami and Zarrillo applied for a marriage

5

license from defendant Logan, the Los Angeles County Clerk,

6

who denied them a license due to Proposition 8 because they

7

are of the same sex.

8

9

Plaintiff-Intervenor

10 5. San Francisco is a charter city and county under the

11

California Constitution and laws of the State of California.

12

Cal Const Art XI, § 5(a); SF Charter Preamble.

13 6. San Francisco is responsible for issuing marriage licenses,

14

performing civil marriage ceremonies and maintaining vital

15

records of marriages. Cal Fam Code §§ 350(a), 401(a), 400(b).

16

17

Defendants

18 7. Arnold Schwarzenegger is the Governor of California.

19 8. Edmund G Brown, Jr is the Attorney General of California.

20 9. Mark B Horton is the Director of the California Department of

21

Public Health and the State Registrar of Vital Statistics of

22

the State of California. In his official capacity, Horton is

23

responsible for prescribing and furnishing the forms for

24

marriage license applications, the certificate of registry of

25

marriage, including the license to marry, and the marriage

26

certificate. See Doc #46 ¶ 15 (admitting Doc #1 ¶ 15).

27 10. Linette Scott is the Deputy Director of Health Information &

28

Strategic Planning for the California Department of Public

55

United States District Court For the Northern District of California

1

Health. Scott reports to Horton and is the official

2

responsible for prescribing and furnishing the forms for

3

marriage license applications, the certificate of registry of

4

marriage, including the license to marry, and the marriage

5

certificate. See Doc #46 ¶ 16 (admitting Doc #1 ¶ 16).

6 11. Patrick O’Connell is the Alameda County Clerk-Registrar and is

7

responsible for maintaining vital records of marriages,

8

issuing marriage licenses and performing civil marriage

9

ceremonies. See Doc #42 ¶ 17 (admitting Doc #1 ¶ 17).

10 12. Dean C Logan is the Los Angeles County

11

Registrar-Recorder/County Clerk and is responsible for

12

maintaining vital records of marriages, issuing marriage

13

licenses and performing civil marriage ceremonies. Doc #41 ¶

14

13 (admitting Doc #1 ¶ 18).

15

16

Defendant-Intevenors (Proponents)

17 13. Dennis Hollingsworth, Gail J Knight, Martin F Gutierrez,

18

Hak-Shing William Tam and Mark A Jansson are the “official

19

proponents” of Proposition 8 under California law.

20

a. Doc #8-6 at ¶ 19 (Decl of David Bauer);

21

b. Doc #8 at 14 (Proponents’ motion to intervene:

“Proponents complied with a myriad of legal requirements

22

to procure Proposition 8’s enactment, such as (1) filing

forms prompting the State to prepare Proposition 8’s

23

Title and Summary, (2) paying the initiative filing fee,

(3) drafting legally compliant signature petitions, (4)

24

overseeing the collection of more than 1.2 million

signatures, (5) instructing signature-collectors on

25

state-law guidelines, and (6) obtaining certifications

from supervising signature-gatherers.”). 26

27

28

56

United States District Court For the Northern District of California

1 14. Proponents dedicated substantial time, effort, reputation and

2

personal resources in campaigning for Proposition 8.

3

a. Tr 1889:23-1893:15: Tam spent the majority of his hours

in 2008 working to pass Proposition 8;

4

b. Doc #8-1 at ¶ 27 (Decl of Dennis Hollingsworth);

5

c. Doc #8-2 at ¶ 27 (Decl of Gail J Knight); 6

d. Doc #8-3 (Decl of Martin F Gutierrez: describing

7

activities to pass and enforce Proposition 8);

e. Doc #8-4 at ¶ 27 (Decl of Hak-Shing William Tam); 8

f. Doc #8-5 at ¶ 27 (Decl of Mark A Jansson). 9

10 15. Proponents established ProtectMarriage.com —— Yes on 8, a

11

Project of California Renewal (“Protect Marriage”) as a

12

“primarily formed ballot measure committee” under California

13

law.

14

a. Doc #8-1 at ¶ 13 (Decl of Dennis Hollingsworth);

15

b. Doc #8-2 at ¶ 13 (Decl of Gail J Knight);

16

c. Doc #8-3 at ¶ 13 (Decl of Martin F Gutierrez);

17

d. Doc #8-4 at ¶ 13 (Decl of Hak-Shing William Tam);

18

e. Doc #8-5 at ¶ 13 (Decl of Mark A Jansson).

19 16. The Protect Marriage Executive Committee includes Ron

20

Prentice, Edward Dolejsi, Mark A Jansson and Doug Swardstrom.

21

Andrew Pugno acts as General Counsel. David Bauer is the

22

Treasurer and officer of record for Protect Marriage.

23

a. Doc #372 at 4 (identifying the above individuals based on

the declaration of Ron Prentice, submitted under seal on

24

November 6, 2009);

25

b. PX0209 Letter from Protect Marriage to Jim Abbott (Oct

20, 2008): Letter to a business that donated money to a

26

group opposing Proposition 8 demanding “a donation of a

like amount” to Protect Marriage. The letter is signed

27

by: Ron Prentice, Protect Marriage Chairman; Andrew

Pugno, Protect Marriage General Counsel; Edward Dolejsi,

28

Executive Director, California Catholic Conference; and

57

United States District Court For the Northern District of California

1

Mark Jansson, a Protect Marriage Executive Committee

Member.

2

3 17. Protect Marriage was responsible for all aspects of the

4

campaign to qualify Proposition 8 for the ballot and enact it

5

into law.

6

a. Doc #8-6 at ¶¶ 4, 6, 10, 11 (Decl of David Bauer);

7

b. PX2403 Email from Kenyn Cureton, Vice-President, Family

Research Council, to Prentice at 1 (Aug 25, 2008):

8

Cureton attaches a kit to be distributed to Christian

voters through churches to help them promote Proposition

9

8. Cureton explains to Prentice that Family Research

Council (“FRC”) found out from Pugno that FRC “need[s] to

10

take FRC logos off of the CA version of the videos (legal

issues) and just put ProtectMarriage.com on everything”

11

and FRC is “making those changes.”;

12

c. PX2640 Email from Pugno to Tam (Feb 5, 2008) at 2: “I do

not think it is likely, but in the event you are

13

contacted by the media or anyone else regarding the

Marriage Amendment [Proposition 8], I would encourage you

14

to please refer all calls to the campaign phone number.

* * * It is crucial that our public message be very

15

specific.”;

16

d. PX2640 Email from Pugno to Tam (Feb 5, 2008) at 2: Pugno

explains that Tam is “an exception” to Protect Marriage’s

17

press strategy and should speak on behalf of the campaign

directly to the Chinese press. See Tr 1906:9-12; 18

e. Tr 1892:9-12 (Tam: In October 2007, Tam was waiting for

19

instructions from Protect Marriage regarding when he

should start collecting signatures to place Proposition 8

20

on the ballot.);

21

f. Tr 1904:3-5 (Tam: Tam participated in a debate because

Protect Marriage told him to do so.); 22

g. Tr 1998:23-1999:11 (Tam: Protect Marriage reimbursed

23

individuals who ran print and television ads in support

of Proposition 8.); 24

h. Tr 1965:15-1966:4 (Tam: Tam signed a “Statement of Unity

25

with respect to the Proposition 8 campaign” both “[o]n

behalf of [him]self and on behalf of the Traditional

26

Family Coalition.”);

27

i. PX2476 Email from Tam to list of supporters (Oct 22,

2007): “I’m still waiting for ProtectMarriage.com for 28

58

United States District Court For the Northern District of California

1

instructions of when we would start the signature

collection for [Proposition 8].”

2

3 18. Protect Marriage is a “broad coalition” of individuals and

4

organizations, including the Church of Jesus Christ of

5

Latter-Day Saints (the “LDS Church”), the California Catholic

6

Conference and a large number of evangelical churches.

7

a. PX2310 About ProtectMarriage.com, Protect Marriage

(2008): Protect Marriage “about” page identifies a

8

“broad-based coalition” in support of Proposition 8;

9

b. PX0577 Frank Schubert and Jeff Flint, Passing Prop 8,

Politics (Feb 2009) at 47: “We had the support of

10

virtually the entire faith community in California.”;

11

c. Tr 1585:20-1590:2 (Segura: Churches, because of their

hierarchical structure and ability to speak to

12

congregations once a week, have a “very strong

communication network” with churchgoers. A network of

13

“1700 pastors” working with Protect Marriage in support

of Proposition 8 is striking because of “the sheer

14

breadth of the [religious] organization and its level of

coordination with Protect Marriage.”);

15

d. Tr 1590:23-1591:12 (Segura: An “organized effort” and

16

“formal association” of religious groups formed the

“broad-based coalition” of Protect Marriage.); 17

e. Tr 1609:12-1610:6 (Segura: The coalition between the

18

Catholic Church and the LDS Church against a minority

group was “unprecedented.”); 19

f. PX2597 Email from Prentice to Lynn Vincent (June 19,

20

2008): Prentice explains that “[f]rom the initial efforts

in 1998 for the eventual success of Prop 22 in 2000, a

21

coalition of many organizations has existed, including

evangelical, Catholic and Mormon groups” and identifies

22

Catholic and evangelical leaders working to pass

Proposition 8; 23

g. PX0390A Video, Ron Prentice Addressing Supporters of

24

Proposition 8, Excerpt: Prentice explains the importance

of contributions from the LDS Church, Catholic bishops

25

and evangelical ministers to the Protect Marriage

campaign; 26

h. PX0577 Frank Schubert and Jeff Flint, Passing Prop 8,

27

Politics at 46 (Feb 2009): “By this time, leaders of the

Church of Jesus Christ of Latter Day Saints had endorsed

28

Prop 8 and joined the campaign executive committee. Even

59

United States District Court For the Northern District of California

1

though the LDS were the last major denomination to join

the campaign, their members were immensely helpful in

2

early fundraising, providing much-needed contributions

while we were busy organizing Catholic and Evangelical

3

fundraising efforts.”

4

WHETHER ANY EVIDENCE SUPPORTS CALIFORNIA’S REFUSAL TO

5

RECOGNIZE MARRIAGE BETWEEN TWO PEOPLE BECAUSE OF THEIR SEX

6 19. Marriage in the United States has always been a civil matter.

7

Civil authorities may permit religious leaders to solemnize

8

marriages but not to determine who may enter or leave a civil

9

marriage. Religious leaders may determine independently

10

whether to recognize a civil marriage or divorce but that

11

recognition or lack thereof has no effect on the relationship

12

under state law.

13

a. Tr 195:13-196:21 (Cott: “[C]ivil law has always been

supreme in defining and regulating marriage. * * *

14

[Religious practices and ceremonies] have no particular

bearing on the validity of marriages. Any clerics,

15

ministers, rabbis, et cetera, that were accustomed to

* * * performing marriages, only do so because the state

16

has given them authority to do that.”);

17

b. Cal Fam Code §§ 400, 420.

18 20. A person may not marry unless he or she has the legal capacity

19

to consent to marriage.

20

a. Tr 202:2-15 (Cott: Marriage “is a basic civil right. It

expresses the right of a person to have the liberty to be

21

able to consent validly.”);

22

b. Cal Fam Code §§ 300, 301.

23 21. California, like every other state, has never required that

24

individuals entering a marriage be willing or able to

25

procreate.

26

a. Cal Fam Code § 300 et seq;

27

b. In re Marriage Cases, 183 P3d 384, 431 (Cal 2008) (“This

contention [that marriage is limited to opposite-sex

28

couples because only a man and a woman can produce

60

United States District Court For the Northern District of California

1

children biologically related to both] is fundamentally

flawed[.]”);

2

c. Lawrence v Texas, 539 US 558, 604-05 (2003) (Scalia, J,

3

dissenting) (“If moral disapprobation of homosexual

conduct is ‘no legitimate state interest’ for purposes of

4

proscribing that conduct * * * what justification could

there possibly be for denying the benefits of marriage to

5

homosexual couples exercising ‘the liberty protected by

the Constitution’? Surely not the encouragement of

6

procreation, since the sterile and the elderly are

allowed to marry.”); 7

d. Tr 222:22-223:22 (Cott: “There has never been a

8

requirement that a couple produce children in order to

have a valid marriage. Of course, people beyond

9

procreative age have always been allowed to marry. * * *

[P]rocreative ability has never been a qualification for

10

marriage.”).

11 22. When California became a state in 1850, marriage was

12

understood to require a husband and a wife. See Cal Const,

13

Art XI § 14 (1849); In re Marriage Cases, 183 P3d at 407.

14 23. The states have always required the parties to give their free

15

consent to a marriage. Because slaves were considered

16

property of others at the time, they lacked the legal capacity

17

to consent and were thus unable to marry. After emancipation,

18

former slaves viewed their ability to marry as one of the most

19

important new rights they had gained. Tr 202:2-203:12 (Cott).

20 24. Many states, including California, had laws restricting the

21

race of marital partners so that whites and non-whites could

22

not marry each other.

23

a. Tr 228:9-231:3 (Cott: In “[a]s many as 41 states and

territories,” laws placed restrictions on “marriage

24

between a white person and a person of color.”);

25

b. Tr 236:17-238:23 (Cott: Racially restrictive marriage

laws “prevented individuals from having complete choice

26

on whom they married, in a way that designated some

groups as less worthy than other groups[.]” Defenders of

27

race restrictions argued the laws were “naturally-based

and God’s plan just being put into positive law, the

28

efforts to undo them met extreme alarm among those who

61

United States District Court For the Northern District of California

1

thought these laws were correct. * * * [P]eople who

supported [racially restrictive marriage laws] saw these

2

as very important definitional features of who could and

should marry, and who could not and should not.”);

3

c. Tr 440:9-13 (Chauncey: Jerry Falwell criticized Brown v

4

Board of Education, because school integration could

“lead to interracial marriage, which was then sort of the

5

ultimate sign of black and white equality.”);

6

d. PX2547 (Nathanson Nov 12, 2009 Dep Tr 108:12-23:

Defenders of race restrictions in marriage argued that

7

such discrimination was protective of the family); PX2546

(video of same); 8

e. Pace v Alabama, 106 US 583, 585 (1883) (holding that

9

anti-miscegenation laws did not violate the Constitution

because they treated African-Americans and whites the

10

same);

11

f. PX0710 at RFA No 11: Attorney General admits that

California banned interracial marriage until the

12

California Supreme Court invalidated the prohibition in

Perez v Sharp, 198 P2d 17 (Cal 1948); 13

g. PX0707 at RFA No 11: Proponents admit that California

14

banned certain interracial marriages from early in its

history as a state until the California Supreme Court

15

invalidated those restrictions in Perez, 198 P2d 17.

16 25. Racial restrictions on an individual’s choice of marriage

17

partner were deemed unconstitutional under the California

18

Constitution in 1948 and under the United States Constitution

19

in 1967. An individual’s exercise of his or her right to

20

marry no longer depends on his or her race nor on the race of

21

his or her chosen partner.

22

a. Loving v Virginia, 388 US 1 (1967);

23

b. Perez v Sharp, 198 P2d 17 (Cal 1948).

24 26. Under coverture, a woman’s legal and economic identity was

25

subsumed by her husband’s upon marriage. The husband was the

26

legal head of household. Coverture is no longer part of the

27

marital bargain.

28

62

United States District Court For the Northern District of California

1

a. PX0710 at RFA No 12: Attorney General admits that the

doctrine of coverture, under which women, once married,

2

lost their independent legal identity and became the

property of their husbands, was once viewed as a central

3

component of the civil institution of marriage;

4

b. Tr 240:11-240:15 (Cott: Under coverture, “the wife was

covered, in effect, by her husband’s legal and economic

5

identity. And she —— she lost her independent legal and

economic individuality.”); 6

c. Tr 240:22-241:6 (Cott: Coverture “was the marital bargain

7

to which both spouses consented. And it was a reciprocal

bargain in which the husband had certain very important

8

* * * obligations that were enforced by the state. His

obligation was to support his wife, provide her with the

9

basic material goods of life, and to do so for their

dependents. And her part of the bargain was to serve and

10

obey him, and to lend to him all of her property, and

also enable him to take all of her earnings, and

11

represent her in court or in any sort of legal or

economic transaction.”); 12

d. Tr 241:7-11 (Cott: Coverture “was a highly-asymmetrical

13

bargain that, to us today, appears to enforce inequality.

* * * But I do want to stress it was not simply

14

domination and submission. It was a mutual bargain, a

reciprocal bargain joined by consent.”); 15

e. Tr 243:5-244:10 (Cott: The sexual division of roles of

16

spouses began to shift in the late nineteenth century and

came fully to an end under the law in the 1970s.

17

Currently, the state’s assignment of marital roles is

gender-neutral. “[B]oth spouses are obligated to support

18

one another, but they are not obligated to one another

with a specific emphasis on one spouse being the provider

19

and the other being the dependent.”);

20

f. Follansbee v Benzenberg, 122 Cal App 2d 466, 476 (2d Dist

1954) (“The legal status of a wife has changed. Her

21

legal personality is no longer merged in that of her

husband.”). 22

23 27. Marriage between a man and a woman was traditionally organized

24

based on presumptions of a division of labor along gender

25

lines. Men were seen as suited for certain types of work and

26

women for others. Women were seen as suited to raise children

27

and men were seen as suited to provide for the family.

28

63

United States District Court For the Northern District of California

1

a. Tr 239:25-245:8, 307:14-308:9, 340:14-342:12 (Cott:

Marriage laws historically have been used to dictate the

2

roles of spouses. Under coverture, a wife’s legal and

economic identity was merged into that of her husband’s.

3

The coverture system was based on assumptions of what was

then considered a natural division of labor between men

4

and women.);

5

b. Tr 241:19-23 (Cott: “[A]ssumptions were, at the time,

that men were suited to be providers * * * whereas,

6

women, the weaker sex, were suited to be dependent.”);

7

c. PX1245 Letitia Anne Peplau and Adam W Fingerhut, The

Close Relationships of Lesbians and Gay Men, 58 Annual

8

Rev Pschol 405, 408 (2007): “Traditional heterosexual

marriage is organized around two basic principles: a

9

division of labor based on gender and a norm of greater

male power and decision-making authority.”; 10

d. PX2547 (Nathanson Nov 12, 2009 Dep Tr 108:24-109:9:

11

Defenders of prejudice or stereotypes against women

argued that such discrimination was meant to be

12

protective of the family. (PX2546 video of same); see

also PX2545 (Young Nov 13, 2009 Dep Tr 214:19-215:13:

13

same, PX2544 video of same);

14

e. PX1319 Hendrik Hartog, Lecture, Marital Exits and Marital

Expectations in Nineteenth Century America, 80 Georgetown

15

L J 95, 101, 128-129 (1991): “Even in equity, a wife

could not usually sue under her own name.” And “the most

16

important feature of marriage was the public assumption

of a relationship of rights and duties, of men acting as

17

husbands and women acting as wives.”;

18

f. PX1328 Note, A Reconsideration of Husband’s Duty to

Support and Wife’s Duty to Render Services, 29 Va L Rev

19

857, 858 (1943): “Marriage deprived [the wife] of her

legal capacity in most matters affecting property.” 20

21 28. The development of no-fault divorce laws made it simpler for

22

spouses to end marriages and allowed spouses to define their

23

own roles within a marriage.

24

a. Tr 338:5-14 (Cott: No-fault divorce “was an indication of

the shift * * * [that] spousal roles used to be dictated

25

by the state. Now they are dictated by the couple

themselves. There’s no requirement that they do X or Y

26

if they are one spouse or the other.”);

27

b. Tr 339:10-14 (Cott: The move to no-fault divorce

underlines the fact that marriage no longer requires 28

64

United States District Court For the Northern District of California

1

specific performance of one marital role or another based

on gender.);

2

c. PX1319 Hendrik Hartog, Lecture, Marital Exits and Marital

3

Expectations in Nineteenth Century America, 80 Georgetown

L J 95, 97, 121 (1991): In nineteenth century America,

4

marriage was permanent, spousal roles were non-negotiable

and divorce “punished the guilty for criminal conduct”

5

and “provided a form of public punishment for a spouse

who had knowingly and criminally violated his or her

6

public vows of marriage.”;

7

d. PX1308 Betsey Stevenson and Justin Wolfers, Marriage and

Divorce: Changes and their Driving Forces, Institute for

8

the Study of Labor at 2-3, Fig 1 (Feb 2007): Current

divorce rates are consistent with trends that developed

9

before states adopted no-fault divorce.

10 29. In 1971, California amended Cal Civ Code § 4101, which had

11

previously set the age of consent to marriage at twenty-one

12

years for males and eighteen years for females, to read “[a]ny

13

unmarried person of the age of 18 years or upwards, and not

14

otherwise disqualified, is capable of consenting to and

15

consummating marriage.” Cal Civ Code § 4101 (1971); In re

16

Marriage Cases, 183 P3d at 408.

17 30. In the 1970s, several same-sex couples sought marriage

18

licenses in California, relying on the amended language in Cal

19

Civ Code § 4101. In re Marriage Cases, 183 P3d at 409. In

20

response, the legislature in 1977 amended the marriage

21

statute, former Cal Civ Code § 4100, to read “[m]arriage is a

22

personal relation arising out of a civil contract between a

23

man and a woman * * *.” Id. That provision became Cal Fam

24

Code § 300. The legislative history of the enactment

25

supports a conclusion that unique roles of a man and a woman

26

in marriage motivated legislators to enact the amendment. See

27

In re Marriage Cases, 183 P3d at 409.

28

65

United States District Court For the Northern District of California

1 31. In 2008, the California Supreme Court held that certain

2

provisions of the Family Code violated the California

3

Constitution to the extent the statutes reserve the

4

designation of marriage to opposite-sex couples. In re

5

Marriage Cases, 183 P3d at 452. The language “between a man

6

and a woman” was stricken from section 300, and section 308.5

7

(Proposition 22) was stricken in its entirety. Id at 453.

8 32. California has eliminated marital obligations based on the

9

gender of the spouse. Regardless of their sex or gender,

10

marital partners share the same obligations to one another and

11

to their dependants. As a result of Proposition 8, California

12

nevertheless requires that a marriage consist of one man and

13

one woman.

14

a. Cal Const Art, I § 7.5 (Proposition 8);

15

b. Cal Fam Code § 720.

16 33. Eliminating gender and race restrictions in marriage has not

17

deprived the institution of marriage of its vitality.

18

a. PX0707 at RFA No 13: Proponents admit that eliminating

the doctrine of coverture has not deprived marriage of

19

its vitality and importance as a social institution;

20

b. PX0710 at RFA No 13: Attorney General admits that

gender-based reforms in civil marriage law have not

21

deprived marriage of its vitality and importance as a

social institution; 22

c. Tr 245:9-247:3 (Cott: “[T]he primacy of the husband as

23

the legal and economic representative of the couple, and

the protector and provider for his wife, was seen as

24

absolutely essential to what marriage was” in the

nineteenth century. Gender restrictions were slowly

25

removed from marriage, but “because there were such

alarms about it and such resistance to change in this

26

what had been seen as quite an essential characteristic

of marriage, it took a very very long time before this

27

trajectory of the removal of the state from prescribing

these rigid spousal roles was complete.” The removal of

28

gender inequality in marriage is now complete “to no

66

United States District Court For the Northern District of California

1

apparent damage to the institution. And, in fact, I

think to the benefit of the institution.”);

2

d. PX0707 at RFA No 13: Proponents admit that eliminating

3

racial restrictions on marriage has not deprived marriage

of its vitality and importance as a social institution;

4

e. PX0710 at RFA No 13: Attorney General admits that

5

race-based reforms in civil marriage law have not

deprived marriage of its vitality and importance as a

6

social institution;

7

f. Tr 237:9-239:24 (Cott: When racial restrictions on

marriage across color lines were abolished, there was

8

alarm and many people worried that the institution of

marriage would be degraded and devalued. But “there has

9

been no evidence that the institution of marriage has

become less popular because * * * people can marry

10

whoever they want.”).

11 34. Marriage is the state recognition and approval of a couple’s

12

choice to live with each other, to remain committed to one

13

another and to form a household based on their own feelings

14

about one another and to join in an economic partnership and

15

support one another and any dependents. Tr 187:11-16; 188:16-

16

189:2; 201:9-14 (Cott).

17 35. The state has many purposes in licensing and fostering

18

marriage. Some of the state’s purposes benefit the persons

19

married while some benefit the state:

20

a. Facilitating governance and public order by organizing

individuals into cohesive family units. Tr 222:13-17

21

(Cott: “[T]he purpose of the state in licensing and

incentivizing marriage is to create stable households in

22

which the adults who reside there and are committed to

one another by their own consents will support one

23

another as well as their dependents.”);

24

b. Developing a realm of liberty, intimacy and free

decision-making by spouses, Tr 189:7-15 (Cott: “[T]he

25

realm created by marriage, that private realm has been

repeatedly reiterated as a —— as a realm of liberty for

26

intimacy and free decision making by the parties[.]”);

27

c. Creating stable households. Tr 226:8-15 (Cott: The

government’s aim is “to create stable and enduring unions

28

between couples.);

67

United States District Court For the Northern District of California

1

d. Legitimating children. Tr 225:16-227:4 (Cott:

2

Historically, legitimating children was a very important

function of marriage, especially among propertied

3

families. Today, legitimation is less important,

although unmarried couples’ children still have to show

4

“that they deserve these inheritance rights and other

benefits of their parents.”);

5

e. Assigning individuals to care for one another and thus

6

limiting the public’s liability to care for the

vulnerable. Tr 226:8-227:4 (Cott: Marriage gives private

7

actors responsibility over dependents.); Tr 222:18-20

(“The institution of marriage has always been at least as

8

much about supporting adults as it has been about

supporting minors.”); 9

f. Facilitating property ownership. Tr 188:20-22 (Marriage

10

is “the foundation of the private realm of * * * property

transmission.”). 11

12 36. States and the federal government channel benefits, rights and

13

responsibilities through marital status. Marital status

14

affects immigration and citizenship, tax policy, property and

15

inheritance rules and social benefit programs.

16

a. Tr 1341:2-16 (Badgett: Specific tangible economic harms

flow from being unable to marry, including lack of access

17

to health insurance and other employment benefits, higher

income taxes and taxes on domestic partner benefits.); 18

b. Tr 235:24-236:16 (Cott: The government has historically

19

channeled many benefits through marriage; as an example,

the Social Security Act had “a very distinct marital

20

advantage for those who were married couples as compared

to either single individuals or unmarried couples.”); 21

c. PX1397 US General Accounting Office Report at 1, Jan 23,

22

2004: Research identified “a total of 1138 federal

statutory provisions classified in the United States Code

23

in which marital status is a factor in determining or

receiving benefits, rights, and privileges.”. 24

25 37. Marriage creates economic support obligations between

26

consenting adults and for their dependents.

27

a. Tr 222:13-17 (Cott: “[T]he purpose of the state in

licensing and incentivizing marriage is to create stable

28

households in which the adults who reside there and are

68

United States District Court For the Northern District of California

1

committed to one another by their own consents will

support one another as well as their dependents.”);

2

b. Cal Fam Code § 720.

3

4 38. Marriage benefits both spouses by promoting physical and

5

psychological health. Married individuals are less likely to

6

engage in behaviors detrimental to health, like smoking or

7

drinking heavily. Married individuals live longer on average

8

than unmarried individuals.

9

a. Tr 578:11-579:9 (Peplau: A recent, large-scale study by

the Centers for Disease Control found that married

10

individuals, on average, fare better on “virtually every

measure” of health compared to non-married individuals.); 11

b. PX0708 at RFA No 84: Proponents admit that opposite-sex

12

couples who are married experience, on average, less

anxiety and depression and greater happiness and

13

satisfaction with life than do non-married opposite-sex

couples or persons not involved in an intimate

14

relationship;

15

c. Tr 578:2-10 (Peplau: “[T]he very consistent findings from

[a very large body of research on the impact of marriage

16

on health] are that, on average, married individuals fare

better. They are physically healthier. They tend to

17

live longer. They engage in fewer risky behaviors. They

look better on measures of psychological well-being.”); 18

d. Tr 688:10-12 (Egan: “[M]arried individuals are healthier,

19

on average, and, in particular, behave themselves in

healthier ways than single individuals.”); 20

e. PX1043 Charlotte A Schoenborn, Marital Status and Health:

21

United States, 1999-2002, US Department of Health and

Human Services at 1 (Dec 15, 2004): “Regardless of

22

population subgroup (age, sex, race, Hispanic origin,

education, income, or nativity) or health indicator (fair

23

or poor health, limitations in activities, low back pain,

headaches, serious psychological distress, smoking, or

24

leisure-time physical inactivity), married adults were

generally found to be healthier than adults in other

25

marital status categories.”;

26

f. PX0803 California Health Interview Survey (2009): Married

individuals are less likely to have psychological

27

distress than individuals who are single and never

married, divorced, separated, widowed or living with

28

their partner;

69

United States District Court For the Northern District of California

1

g. PX0807 Press Release, Agency for Healthcare Research and

2

Quality, Marriage Encourages Healthy Behaviors among the

Elderly, Especially Men (Oct 26, 1998): Marriage

3

encourages healthy behaviors among the elderly.

4 39. Material benefits, legal protections and social support

5

resulting from marriage can increase wealth and improve

6

psychological well-being for married spouses.

7

a. PX0809 Joseph Lupton and James P Smith, Marriage, Assets,

and Savings, RAND (Nov 1999): Marriage is correlated with

8

wealth accumulation;

9

b. Tr 1332:19-1337:2 (Badgett: Marriage confers numerous

economic benefits, including greater specialization of

10

labor and economies of scale, reduced transactions costs,

health and insurance benefits, stronger statement of

11

commitment, greater validation and social acceptance of

the relationship and more positive workplace outcomes.

12

Some benefits are not quantifiable but are nevertheless

substantial.); 13

c. PX0708 at RFA No 85: Proponents admit that societal

14

support is central to the institution of marriage and

that marital relationships are typically entered in the

15

presence of family members, friends and civil or

religious authorities; 16

d. PX0708 at RFA No 87: Proponents admit that marriage

17

between a man and a woman can be a source of relationship

stability and commitment, including by creating barriers

18

and constraints on dissolving the relationship.

19 40. The long-term nature of marriage allows spouses to specialize

20

their labor and encourages spouses to increase household

21

efficiency by dividing labor to increase productivity.

22

a. Tr 1331:15-1332:9; 1332:25-1334:17 (Badgett);

23

b. PX0708 at RFA No 88: Proponents admit that marriage

between a man and a woman encourages spouses to increase

24

household efficiency, including by dividing their labor

in ways that increase the family’s productivity in

25

producing goods and services for family members.

26

27

28

70

United States District Court For the Northern District of California

1 41. The tangible and intangible benefits of marriage flow to a

2

married couple’s children.

3

a. Tr 1042:20-1043:8 (Lamb: explaining that when a

cohabiting couple marries, that marriage can improve the

4

adjustment outcomes of the couple’s child because of “the

advantages that accrue to marriage.”);

5

b. PX0886 Position Statement, American Psychiatric

6

Association, Support of Legal Recognition of Same-Sex

Civil Marriage (July 2005): Marriage benefits children of

7

that couple.

8

WHETHER ANY EVIDENCE SHOWS CALIFORNIA HAS AN INTEREST IN

9

DIFFERENTIATING BETWEEN SAME-SEX AND OPPOSITE-SEX UNIONS

10 42. Same-sex love and intimacy are well-documented in human

11

history. The concept of an identity based on object desire;

12

that is, whether an individual desires a relationship with

13

someone of the opposite sex (heterosexual), same sex

14

(homosexual) or either sex (bisexual), developed in the late

15

nineteenth century.

16

a. Tr 531:25-533:24 (Chauncey: The categories of

heterosexual and homosexual emerged in the late

17

nineteenth century, although there were people at all

time periods in American history whose primary erotic and

18

emotional attractions were to people of the same sex.);

19

b. Tr 2078:10-12 (Herek: “[H]eterosexual and homosexual

behaviors alike have been common throughout human

20

history[.]”);

21

c. Tr 2064:22-23 (Herek: In practice, we generally refer to

three groups: homosexuals, heterosexuals and bisexuals.); 22

d. Tr 2027:4-9 (Herek: “[S]exual orientation is at its heart

23

a relational construct, because it is all about a

relationship of some sort between one individual and

24

another, and a relationship that is defined by the sex of

the two persons involved[.]”). 25

26 43. Sexual orientation refers to an enduring pattern of sexual,

27

affectional or romantic desires for and attractions to men,

28

women or both sexes. An individual’s sexual orientation can

71

United States District Court For the Northern District of California

1

be expressed through self-identification, behavior or

2

attraction. The vast majority of people are consistent in

3

self-identification, behavior and attraction throughout their

4

adult lives.

5

a. Tr 2025:3-12 (Herek: “Sexual orientation is a term that

we use to describe an enduring sexual, romantic, or

6

intensely affectional attraction to men, to women, or to

both men and women. It’s also used to refer to an

7

identity or a sense of self that is based on one’s

enduring patterns of attraction. And it’s also sometimes

8

used to describe an enduring pattern of behavior.”);

9

b. Tr 2060:7-11 (Herek: Most social science and behavioral

research has assessed sexual orientation in terms of

10

attraction, behavior or identity, or some combination

thereof.); 11

c. Tr 2072:19-2073:4 (Herek: “[T]he vast majority of people

12

are consistent in their behavior, their identity, and

their attractions.”); 13

d. Tr 2086:13-21 (Herek: The Laumann study (PX0943 Edward O

14

Laumann, et al, The Social Organization of Sexuality:

Sexual Practices in the United States (Chicago 1994))

15

shows that 90 percent of people in Laumann’s sample were

consistently heterosexual in their behavior, identity and

16

attraction, and a core group of one to two percent of the

sample was consistently lesbian, gay or bisexual in their

17

behavior, identity and attraction.);

18

e. Tr 2211:8-10 (Herek: “[I]f I were a betting person, I

would say that you would do well to bet that [a person’s]

19

future sexual behavior will correspond to [his or her]

current identity.”). 20

21 44. Sexual orientation is commonly discussed as a characteristic

22

of the individual. Sexual orientation is fundamental to a

23

person’s identity and is a distinguishing characteristic that

24

defines gays and lesbians as a discrete group. Proponents’

25

assertion that sexual orientation cannot be defined is

26

contrary to the weight of the evidence.

27

a. Tr 2026:7-24 (Herek: In his own research, Herek has asked

28

ordinary people if they are heterosexual, straight, gay,

72

United States District Court For the Northern District of California

1

lesbian or bisexual, and that is a question people

generally are able to answer.);

2

b. Tr 858:24-859:5 (Meyer: Sexual orientation is perceived

3

as “a core thing about who you are.” People say: “This

is who I am. * * * [I]t is a central identity that is

4

important.”);

5

c. Tr 2027:14-18 (Herek: These sorts of relationships, that

need for intimacy and attachment is a very core part of

6

the human experience and a very fundamental need that

people have.); 7

d. Tr 2324:8-13 (Herek: If two women wish to marry each

8

other, it is reasonable to assume that they are lesbians.

And if two men want to marry each other, it is reasonable

9

to assume that they are gay.);

10

e. Tr 2304:9-2309:1 (Herek: Researchers may define sexual

orientation based on behavior, identity or attraction

11

based on the purpose of a study, so that an individual

studying sexually transmitted infections may focus on

12

behavior while a researcher studying child development

may focus on identity. Researchers studying racial and

13

ethnic minorities similarly focus their definition of the

population to be studied based on the purpose of the

14

study. Most people are nevertheless consistent in their

behavior, identity and attraction.); 15

f. Tr 2176:23-2177:14 (Herek, responding to cross-

16

examination that sexual orientation is a socially

constructed classification and not a “valid concept”:

17

“[Social constructionists] are talking about the

construction of [sexual orientation] at the cultural

18

level, in the same way that we have cultural

constructions of race and ethnicity and social class.

19

* * * But to say that there’s no such thing as class or

race or ethnicity or sexual orientation is to, I think,

20

minimize the importance of that construction.);

21

g. Tr 1372:10-1374:7 (Badgett: DIX1108 The Williams

Institute, Best Practices for Asking Questions about

22

Sexual Orientation on Surveys (Nov 2009), includes a

discussion about methods for conducting surveys; it does

23

not conflict with the substantial evidence demonstrating

that sexual orientation is a distinguishing

24

characteristic that defines gay and lesbian individuals

as a discrete group.). 25

26 45. Proponents’ campaign for Proposition 8 assumed voters

27

understood the existence of homosexuals as individuals

28

distinct from heterosexuals.

73

United States District Court For the Northern District of California

1

a. PX0480A Video supporting Proposition 8: Supporters of

Proposition 8 identified “homosexuals and those

2

sympathetic to their demands” as supporters of marriage

for same-sex couples;

3

b. PX2153 Advertisement, Honest Answers to Questions Many

4

Californians Are Asking About Proposition 8, Protect

Marriage (2008): “The 98% of Californians who are not gay

5

should not have their religious freedoms and freedom of

expression be compromised to afford special legal rights

6

for the 2% of Californians who are gay.”;

7

c. PX2156 Protect Marriage, Myths and Facts About

Proposition 8: “Proposition 8 does not interfere with

8

gays living the lifestyle they choose. However, while

gays can live as they want, they should not have the

9

right to redefine marriage for the rest of society.”;

10

d. PX0021 Leaflet, California Family Council, The California

Marriage Protection Act (“San Diego County’s ‘Tipping

11

Point’”) at 2: The leaflet asserts that “homosexuals” do

not want to marry; instead, the goal of the “homosexual

12

community” is to annihilate marriage;

13

e. PX0577 Frank Schubert and Jeff Flint, Passing Prop 8,

Politics at 45 (Feb 2009): The Proposition 8 campaign was

14

organized in light of the fact that many Californians are

“tolerant” of gays; 15

f. PX0001 California Voter Information Guide, California

16

General Election, Tuesday, November 4, 2008 at PM 3365:

“[W]hile gays have the right to their private lives, they

17

do not have the right to redefine marriage for everyone

else” (emphasis in original). 18

19 46. Individuals do not generally choose their sexual orientation.

20

No credible evidence supports a finding that an individual

21

may, through conscious decision, therapeutic intervention or

22

any other method, change his or her sexual orientation.

23

a. Tr 2032:15-22 (Herek: Herek has conducted research in

which he has found that the vast majority of lesbians and

24

gay men, and most bisexuals as well, when asked how much

choice they have about their sexual orientation say that

25

they have “no choice” or “very little choice” about it.);

26

b. Tr 2054:12-2055:24 (Herek: PX0928 at 39 contains a table

that reports data on approximately 2,200 people who

27

responded to questions about how much choice they had

about being lesbian, gay or bisexual. Among gay men, 87

28

percent said that they experienced no or little choice

74

United States District Court For the Northern District of California

1

about their sexual orientation. Among lesbians, 70

percent said that they had no or very little choice about

2

their sexual orientation.); Tr 2056:4-25 (Herek: PX0930

demonstrates that 88 percent of gay men reported that

3

they had “no choice at all” about their sexual

orientation, and 68 percent of lesbians said they had “no

4

choice at all,” and another 15 percent reported a small

amount of choice.);

5

c. Tr 2252:1-10 (Herek: “It is certainly the case that there

6

have been many people who, most likely because of

societal stigma, wanted very much to change their sexual

7

orientation and were not able to do so.”);

8

d. Tr 2314:3-17 (Herek: Herek agrees with Peplau’s statement

that “[c]laims about the potential erotic plasticity of

9

women do not mean that most women will actually exhibit

change over time. At a young age, many women adopt

10

patterns of heterosexuality that are stable across their

lifetime. Some women adopt enduring patterns of same-sex

11

attractions and relationships.”);

12

e. Tr 2202:8-22 (Herek: “[M]ost people are brought up in

society assuming that they will be heterosexual. Little

13

boys are taught that they will grow up and marry a girl.

Little girls are taught they will grow up and marry a

14

boy. And growing up with those expectations, it is not

uncommon for people to engage in sexual behavior with

15

someone of the other sex, possibly before they have

developed their real sense of who they are, of what their

16

sexual orientation is. And I think that’s one of the

reasons why * * * [gay men and lesbians have]

17

experience[d] heterosexual intercourse. * * * [I]t is not

part of their identity. It’s not part of who they are,

18

and not indicative of their current attractions.”);

19

f. Tr 2033:6-2034:20 (Herek: Therapies designed to change an

individual’s sexual orientation have not been found to be

20

effective in that they have not been shown to

consistently produce the desired outcome without causing

21

harm to the individuals involved.); Tr 2039:1-3 (Herek:

Herek is not aware of any major mental health

22

organizations that have endorsed the use of such

therapies.); 23

g. Tr 140:6, 141:14-19 (Perry: Perry is a lesbian and feels

24

that she was born with her sexual orientation. At 45

years old, she does not think that it might somehow

25

change.);

26

h. Tr 166:24-167:9 (Stier: Stier is 47 years old and has

fallen in love one time in her life —— with Perry.); 27

i. Tr 77:4-5 (Zarrillo: Zarrillo has been gay “as long as

28

[he] can remember.”);

75

United States District Court For the Northern District of California

1

j. Tr 91:15-17 (Katami: Katami has been a “natural-born gay”

“as long as he can remember.”);

2

k. Tr 1506:2-11 (Kendall: “When I was a little kid, I knew I

3

liked other boys. But I didn’t realize that meant I was

gay until I was, probably, 11 or 12 years old. * * * I

4

ended up looking up the word ‘homosexual’ in the

dictionary. And I remember reading the definition[.]

5

* * * And it slowly dawned on me that that’s what I

was.”); 6

l. Tr 1510:6-8 (Kendall: “I knew I was gay just like I knew

7

I’m short and I’m half Hispanic. And I just never

thought that those facts would change.”). 8

9 47. California has no interest in asking gays and lesbians to

10

change their sexual orientation or in reducing the number of

11

gays and lesbians in California.

12

a. PX0707 at RFA No 21: Proponents admit that same-sex

sexual orientation does not result in any impairment in

13

judgment or general social and vocational capabilities;

14

b. PX0710 at RFA No 19: Attorney General admits that sexual

orientation bears no relation to a person’s ability to

15

perform in or contribute to society;

16

c. PX0710 at RFA No 22: Attorney General admits that the

laws of California recognize no relationship between a

17

person’s sexual orientation and his or her ability to

raise children; to his or her capacity to enter into a

18

relationship that is analogous to marriage; or to his or

her ability to participate fully in all economic and

19

social institutions, with the exception of civil

marriage; 20

d. Tr 1032:6-12 (Lamb: Gay and lesbian sexual orientations

21

are “normal variation[s] and are considered to be aspects

of well-adjusted behavior.”); 22

e. Tr 2027:19-2028:2 (Herek: Homosexuality is not considered

23

a mental disorder. The American Psychiatric Association,

the American Psychological Association and other major

24

professional mental health associations have all gone on

record affirming that homosexuality is a normal

25

expression of sexuality and that it is not in any way a

form of pathology.); 26

f. Tr 2530:25-2532:25 (Miller: Miller agrees that “[c]ourts

27

and legal scholars have concluded that sexual orientation

is not related to an individual’s ability to contribute

28

to society or perform in the workplace.”).

76

United States District Court For the Northern District of California

1 48. Same-sex couples are identical to opposite-sex couples in the

2

characteristics relevant to the ability to form successful

3

marital unions. Like opposite-sex couples, same-sex couples

4

have happy, satisfying relationships and form deep emotional

5

bonds and strong commitments to their partners. Standardized

6

measures of relationship satisfaction, relationship adjustment

7

and love do not differ depending on whether a couple is same-

8

sex or opposite-sex.

9

a. PX0707 at RFA No 65: Proponents admit that gay and

lesbian individuals, including plaintiffs, have formed

10

lasting, committed and caring relationships with persons

of the same sex and same-sex couples share their lives

11

and participate in their communities together;

12

b. PX0707 at RFA No 58: Proponents admit that many gay men

and lesbians have established loving and committed

13

relationships;

14

c. PX0710 at RFA No 65: Attorney General admits that gay men

and lesbians have formed lasting, committed and caring

15

same-sex relationships and that same-sex couples share

their lives and participate in their communities

16

together;

17

d. PX0710 at RFA No 58: Attorney General admits that

California law implicitly recognizes an individual’s

18

capacity to establish a loving and long-term committed

relationship with another person that does not depend on

19

the individual’s sexual orientation;

20

e. Tr 583:12-585:21 (Peplau: Research that has compared the

quality of same-sex and opposite-sex relationships and

21

the processes that affect those relationships

consistently shows “great similarity across couples, both

22

same-sex and heterosexual.”);

23

f. Tr 586:22-587:1 (Peplau: Reliable research shows that “a

substantial proportion of lesbians and gay men are in

24

relationships, that many of those relationships are

long-term.”); 25

g. PX2545 (Young Nov 13 2009 Dep Tr 122:17-123:1: Young

26

agrees with the American Psychoanalytic Association’s

statement that “gay men and lesbians possess the same

27

potential and desire for sustained loving and lasting

relationships as heterosexuals.”); PX2544 at 12:40-14:15

28

(video of same);

77

United States District Court For the Northern District of California

1

h. PX2545 (Young Nov 13, 2009 Dep Tr 100:17-101:5: Young

agrees that love and commitment are reasons both gay

2

people and heterosexuals have for wanting to marry.);

PX2544 at 10:35-10:55 (video of same);

3

i. Tr 1362:17-21 (Badgett: Same-sex couples wish to marry

4

for many of the same reasons that opposite-sex couples

marry.);

5

j. Tr 1362:5-10 (Badgett: Same-sex couples have more

6

similarities than differences with opposite-sex couples,

and any differences are marginal.); 7

k. PX2096 Adam Romero, et al, Census Snapshot: California,

8

The Williams Institute at 1 (Aug 2008): “In many ways,

the more than 107,000 same-sex couples living in

9

California are similar to married couples. According to

Census 2000, they live throughout the state, are racially

10

and ethnically diverse, have partners who depend upon one

another financially, and actively participate in

11

California’s economy. Census data also show that 18% of

same-sex couples in California are raising children.” 12

13 49. California law permits and encourages gays and lesbians to

14

become parents through adoption, foster parenting or assistive

15

reproductive technology. Approximately eighteen percent of

16

same-sex couples in California are raising children.

17

a. PX0707 at RFA No 66: Proponents admit that gay and

lesbian individuals raise children together; 18

b. PX0710 at RFA No 22: Attorney General admits that the

19

laws of California recognize no relationship between a

person’s sexual orientation and his or her ability to

20

raise children;

21

c. PX0709 at RFA No 22: Governor admits that California law

does not prohibit individuals from raising children on

22

the basis of sexual orientation;

23

d. PX0710 at RFA No 57: Attorney General admits that

California law protects the right of gay men and lesbians

24

in same-sex relationships to be foster parents and to

adopt children by forbidding discrimination on the basis

25

of sexual orientation;

26

e. Cal Welf & Inst Code § 16013(a): “It is the policy of

this state that all persons engaged in providing care and

27

services to foster children * * * shall not be subjected

to discrimination or harassment on the basis of their 28

78

United States District Court For the Northern District of California

1

clients’ or their own actual or perceived * * * sexual

orientation.”;

2

f. Cal Fam Code § 297.5(d): “The rights and obligations of

3

registered domestic partners with respect to a child of

either of them shall be the same as those of spouses.”;

4

g. Elisa B v Superior Court, 117 P3d 660, 670 (Cal 2005)

5

(holding that under the Uniform Parentage Act, a parent

may have two parents of the same sex);

6

h. PX2096 Adam Romero, et al, Census Snapshot: California,

7

The Williams Institute at 2 (Aug 2008): “18% of same-sex

couples in California are raising children under the age

8

of 18.”;

9

i. Tr 1348:23-1350:2 (Badgett: Same-sex couples in

California are raising 37,300 children under the age of

10

18.).

11 50. Same-sex couples receive the same tangible and intangible

12

benefits from marriage that opposite-sex couples receive.

13

a. Tr 594:17-20 (Peplau: “My opinion, based on the great

similarities that have been documented between same-sex

14

couples and heterosexual couples, is th[at] if same-sex

couples were permitted to marry, that they also would

15

enjoy the same benefits [from marriage].”);

16

b. Tr 598:1-599:19 (Peplau: Married same-sex couples in

Massachusetts have reported various benefits from

17

marriage including greater commitment to the

relationship, more acceptance from extended family, less

18

worry over legal problems, greater access to health

benefits and benefits for their children.); 19

c. PX0787 Position Statement, American Psychiatric

20

Association, Support of Legal Recognition of Same-Sex

Civil Marriage at 1 (July 2005): “In the interest of

21

maintaining and promoting mental health, the American

Psychiatric Association supports the legal recognition of

22

same-sex civil marriage with all rights, benefits, and

responsibilities conferred by civil marriage, and opposes

23

restrictions to those same rights, benefits, and

responsibilities.” 24

25 51. Marrying a person of the opposite sex is an unrealistic option

26

for gay and lesbian individuals.

27

a. PX0707 at RFA No 9: Proponents admit that for many gay

and lesbian individuals, marriage to an individual of the

28

opposite sex is not a meaningful alternative;

79

United States District Court For the Northern District of California

1

b. PX0710 at RFA No 9: Attorney General admits that for gay

2

men and lesbians, opposite-sex marriage may not be a

meaningful alternative to same-sex marriage to the extent

3

that it would compel them to negate their sexual

orientation and identity;

4

c. Tr 85:9-21 (Zarrillo: “I have no attraction, desire, to

5

be with a member of the opposite sex.”);

6

d. Tr 2042:14-25 (Herek: While gay men and lesbians in

California are permitted to marry, they are only

7

permitted to marry a member of the opposite sex. For the

vast majority of gay men and lesbians, that is not a

8

realistic option. This is true because sexual

orientation is about the relationships people form —— it

9

defines the universe of people with whom one is able to

form the sort of intimate, committed relationship that

10

would be the basis for marriage.);

11

e. Tr 2043:1-2044:10 (Herek: Some gay men and lesbians have

married members of the opposite sex, but many of those

12

marriages dissolve, and some of them experience

considerable problems simply because one of the partners

13

is gay or lesbian. A gay or lesbian person marrying a

person of the opposite sex is likely to create a great

14

deal of conflict and tension in the relationship.).

15 52. Domestic partnerships lack the social meaning associated with

16

marriage, and marriage is widely regarded as the definitive

17

expression of love and commitment in the United States.

18

a. PX0707 at RFA No 38: Proponents admit that there is a

significant symbolic disparity between domestic

19

partnership and marriage;

20

b. PX0707 at RFA No 4: Proponents admit that the word

“marriage” has a unique meaning; 21

c. Tr 207:9-208:6 (Cott, describing the social meaning of

22

marriage in our culture: Marriage has been the “happy

ending to the romance.” Marriage “is the principal happy

23

ending in all of our romantic tales”; the “cultural

polish on marriage” is “as a destination to be gained by

24

any couple who love one another.”);

25

d. Tr 208:9-17 (Cott: “Q. Let me ask you this. How does the

cultural value and the meaning, social meaning of

26

marriage, in your view, compare with the social meaning

of domestic partnerships and civil unions? A. I

27

appreciate the fact that several states have extended ——

maybe it’s many states now, have extended most of the

28

material rights and benefits of marriage to people who

80

United States District Court For the Northern District of California

1

have civil unions or domestic partnerships. But there

really is no comparison, in my historical view, because

2

there is nothing that is like marriage except

marriage.”);

3

e. Tr 611:1-7 (Peplau: “I have great confidence that some of

4

the things that come from marriage, believing that you

are part of the first class kind of relationship in this

5

country, that you are * * * in the status of

relationships that this society most values, most

6

esteems, considers the most legitimate and the most

appropriate, undoubtedly has benefits that are not part

7

of domestic partnerships.”);

8

f. Tr 1342:14-1343:12 (Badgett: Some same-sex couples who

might marry would not register as domestic partners

9

because they see domestic partnership as a second class

status.); 10

g. Tr 1471:1-1472:8 (Badgett: Same-sex couples value the

11

social recognition of marriage and believe that the

alternative status conveys a message of inferiority.); 12

h. Tr 1963:3-8 (Tam: “If ‘domestic partner’ is defined as it

13

is now, then we can explain to our children that, yeah,

there are some same-sex person wants to have a lifetime

14

together as committed partners, and that is called

‘domestic partner,’ but it is not ‘marriage.’” (as

15

stated)).

16 53. Domestic partners are not married under California law.

17

California domestic partnerships may not be recognized in

18

other states and are not recognized by the federal government.

19

a. Cal Fam Code §§ 297-299.6 (establishing domestic

partnership as separate from marriage); 20

b. Compare Doc #686 at 39 with Doc #687 at 47: The court

21

asked the parties to identify which states recognize

California domestic partnerships. No party could

22

identify with certainty the states that recognize them.

Plaintiffs and proponents agree only that Connecticut,

23

New Jersey and Washington recognize California domestic

partnerships. See also #688 at 2: “To the best of the

24

Administrative Defendants’ knowledge,” Connecticut,

Washington DC, Washington, Nevada, New Hampshire and New

25

Jersey recognize California domestic partnerships;

26

c. Gill v Office of Personnel Management et al, No 09-10309-

JLT at Doc #70 (July 8, 2010) (holding the federal

27

Defense of Marriage Act (“DOMA”) unconstitutional as

applied to plaintiffs who are married under state law.

28

(Domestic partnerships are not available in Massachusetts

81

United States District Court For the Northern District of California

1

and thus the court did not address whether a person in a

domestic partnership would have standing to challenge

2

DOMA.)); see also In re Karen Golinski, 587 F3d 901, 902

(9th Cir 2009) (finding that Golinski could obtain

3

coverage for her wife under the Federal Employees Health

Benefits Act without needing to consider whether the

4

result would be the same for a federal employee’s

domestic partner).

5

6 54. The availability of domestic partnership does not provide gays

7

and lesbians with a status equivalent to marriage because the

8

cultural meaning of marriage and its associated benefits are

9

intentionally withheld from same-sex couples in domestic

10

partnerships.

11

a. Tr 613:23-614:12 (Peplau: There is a significant symbolic

disparity between marriage and domestic partnerships; a

12

domestic partnership is “not something that is

necessarily understood or recognized by other people in

13

your environment.”);

14

b. Tr 659:8-15 (Peplau: As a result of the different social

meanings of a marriage and a domestic partnership, there

15

is a greater degree of an enforceable trust in a marriage

than a domestic partnership.); 16

c. Tr 2044:20-2045:22 (Herek: The difference between

17

domestic partnerships and marriage is much more than

simply a word. “[J]ust the fact that we’re here today

18

suggests that this is more than just a word * * *

clearly, [there is] a great deal of strong feeling and

19

emotion about the difference between marriage and

domestic partnerships.”); 20

d. Tr 964:1-3 (Meyer: Domestic partnerships reduce the value

21

of same-sex relationships.);

22

e. PX0710 at RFA No 37: Attorney General admits that

establishing a separate legal institution for state

23

recognition and support of lesbian and gay families, even

if well-intentioned, marginalizes and stigmatizes gay

24

families;

25

f. Tr 142:2-13 (Perry: When you are married, “you are

honored and respected by your family. Your children know

26

what your relationship is. And when you leave your home

and you go to work or you go out in the world, people

27

know what your relationship means.”);

28

82

United States District Court For the Northern District of California

1

g. Tr 153:4-155:5 (Perry: Stier and Perry completed

documents to register as domestic partners and mailed

2

them in to the state. Perry views domestic partnership

as an agreement; it is not the same as marriage, which

3

symbolizes “maybe the most important decision you make as

an adult, who you choose [as your spouse].”);

4

h. Tr 170:12-171:14 (Stier: To Stier, domestic partnership

5

feels like a legal agreement between two parties that

spells out responsibilities and duties. Nothing about

6

domestic partnership indicates the love and commitment

that are inherent in marriage, and for Stier and Perry,

7

“it doesn’t have anything to do * * * with the nature of

our relationship and the type of enduring relationship we

8

want it to be. It’s just a legal document.”);

9

i. Tr 172:6-21 (Stier: Marriage is about making a public

commitment to the world and to your spouse, to your

10

family, parents, society and community. It is the way to

tell them and each other that this is a lifetime

11

commitment. “And I have to say, having been married for

12 years and been in a domestic partnership for 10 years,

12

it’s different. It’s not the same. I want —— I don’t

want to have to explain myself.”); 13

j. Tr 82:9-83:1 (Zarrillo: “Domestic partnership would

14

relegate me to a level of second class citizenship. * * *

It’s giving me part of the pie, but not the whole thing

15

* * * [I]t doesn’t give due respect to the relationship

that we have had for almost nine years.”); 16

k. Tr 115:3-116:1 (Katami: Domestic partnerships “make[]you

17

into a second, third, and * * * fourth class citizen now

that we actually recognize marriages from other states.

18

* * * None of our friends have ever said, ‘Hey, this is

my domestic partner.’”). 19

20 55. Permitting same-sex couples to marry will not affect the

21

number of opposite-sex couples who marry, divorce, cohabit,

22

have children outside of marriage or otherwise affect the

23

stability of opposite-sex marriages.

a. Tr 596:13-597:3 (Peplau: Data from Massachusetts on the

24

“annual rates for marriage and for divorce” for “the four

years prior to same-sex marriage being legal and the four

25

years after” show “that the rates of marriage and divorce

are no different after [same-sex] marriage was permitted

26

than they were before.”);

27

b. Tr 605:18-25 (Peplau: Massachusetts data are “very

consistent” with the argument that permitting same-sex 28

83

United States District Court For the Northern District of California

1

couples to marry will not have an adverse effect on the

institution of marriage.);

2

c. Tr 600:12-602:15 (Peplau: Allowing same-sex couples to

3

marry will have “no impact” on the stability of

marriage.);

4

d. PX1145 Matthew D Bramlett and William D Mosher, First

5

Marriage Dissolution, Divorce, and Remarriage: United

States, US Department of Health and Human Services at 2

6

(May 31, 2001): Race, employment status, education, age

at marriage and other similar factors affect rates of

7

marriage and divorce;

8

e. PX1195 Matthew D Bramlett and William D Mosher,

Cohabitation, Marriage, Divorce, and Remarriage in the

9

United States, Vital and Health Statistics 23:22, US

Department of Health and Human Services at 12 (July

10

2002): Race and socioeconomic status, among other

factors, are correlated with rates of marital stability; 11

f. PX0754 American Anthropological Association, Statement on

12

Marriage and the Family: The viability of civilization or

social order does not depend upon marriage as an

13

exclusively heterosexual institution.

14 56. The children of same-sex couples benefit when their parents

15

can marry.

16

a. Tr 1332:19-1337:25 (Badgett: Same-sex couples and their

children are denied all of the economic benefits of

17

marriage that are available to married couples.);

18

b. PX0787 Position Statement, American Psychiatric

Association, Support of Legal Recognition of Same-Sex

19

Civil Marriage at 1 (July 2005): “The children of

unmarried gay and lesbian parents do not have the same

20

protection that civil marriage affords the children of

heterosexual couples.”; 21

c. Tr 1964:17-1965:2 (Tam: It is important to children of

22

same-sex couples that their parents be able to marry.);

23

d. Tr 599:12-19 (Peplau: A survey of same-sex couples who

married in Massachusetts shows that 95 percent of

24

same-sex couples raising children reported that their

children had benefitted from the fact that their parents

25

were able to marry.).

26

27

28

84

United States District Court For the Northern District of California

1 WHETHER THE EVIDENCE SHOWS THAT PROPOSITION 8 ENACTED A PRIVATE MORAL VIEW WITHOUT ADVANCING A LEGITIMATE GOVERNMENT INTEREST
2

3 57. Under Proposition 8, whether a couple can obtain a marriage

4

license and enter into marriage depends on the genders of the

5

two parties relative to one another. A man is permitted to

6

marry a woman but not another man. A woman is permitted to

7

marry a man but not another woman. Proposition 8 bars state

8

and county officials from issuing marriage licenses to same-

9

sex couples. It has no other legal effect.

10

a. Cal Const Art I, § 7.5 (Proposition 8);

11

b. PX0001 California Voter Information Guide, California

General Election, Tuesday, November 4, 2008: Proposition

12

8 “eliminates right of same-sex couples to marry.”

13 58. Proposition 8 places the force of law behind stigmas against

14

gays and lesbians, including: gays and lesbians do not have

15

intimate relationships similar to heterosexual couples; gays

16

and lesbians are not as good as heterosexuals; and gay and

17

lesbian relationships do not deserve the full recognition of

18

society.

19

a. Tr 611:13-19 (Peplau: “[B]eing prevented by the

government from being married is no different than other

20

kinds of stigma and discrimination that have been

studied, in terms of their impact on relationships.”); 21

b. Tr 529:21-530:23 (Chauncey: The campaign for Proposition

22

8 presented marriage for same-sex couples as an adult

issue, although children are frequently exposed to

23

romantic fairy tales or weddings featuring opposite-sex

couples.); 24

c. Tr 854:5-14 (Meyer: “Proposition 8, in its social

25

meaning, sends a message that gay relationships are not

to be respected; that they are of secondary value, if of

26

any value at all; that they are certainly not equal to

those of heterosexuals.”); 27

d. Tr 2047:13-2048:13 (Herek: In 2004, California enacted

28

legislation that increased the benefits and

85

United States District Court For the Northern District of California

1

responsibilities associated with domestic partnership,

which became effective in 2005. In the second half of

2

2004, the California Secretary of State mailed a letter

to all registered domestic partners advising them of the

3

changes and telling recipients to consider whether to

dissolve their partnership. Herek “find[s] it difficult

4

to imagine that if there were changes in tax laws that

were going to affect married couples, that you would have

5

the state government sending letters to people suggesting

that they consider whether or not they want to get

6

divorced before this new law goes into effect. I think

that —— that letter just illustrates the way in which

7

domestic partnerships are viewed differently than

marriage.”); 8

e. PX2265 Letter from Kevin Shelley, California Secretary of

9

State, to Registered Domestic Partners: Shelley explains

domestic partnership law will change on January 1, 2005

10

and suggests that domestic partners dissolve their

partnership if they do not wish to be bound by the new

11

structure of domestic partnership;

12

f. Tr 972:14-17 (Meyer: “Laws are perhaps the strongest of

social structures that uphold and enforce stigma.”); 13

g. Tr 2053:8-18 (Herek: Structural stigma provides the

14

context and identifies which members of society are

devalued. It also gives a level of permission to

15

denigrate or attack particular groups, or those who are

perceived to be members of certain groups in society.); 16

h. Tr 2054:7-11 (Herek: Proposition 8 is an instance of

17

structural stigma.).

18 59. Proposition 8 requires California to treat same-sex couples

19

differently from opposite-sex couples.

20

a. See PX0710 at RFA No 41: Attorney General admits that

because two types of relationships —— one for same-sex

21

couples and one for opposite-sex couples —— exist in

California, a gay or lesbian individual may be forced to

22

disclose his or her sexual orientation when responding to

a question about his or her marital status; 23

b. Compare Cal Fam Code §§ 300-536 (marriage) with Cal Fam

24

Code §§ 297-299.6 (registered domestic partnerships).

25 60. Proposition 8 reserves the most socially valued form of

26

relationship (marriage) for opposite-sex couples.

27

a. Tr 576:15-577:14 (Peplau: Study by Gary Gates, Lee

Badgett and Deborah Ho suggests that same-sex couples are 28

86

United States District Court For the Northern District of California

1

“three times more likely to get married than to enter

into” domestic partnerships or civil unions.);

2

b. PX1273 M V Lee Badgett, When Gay People Get Married at

3

58, 59, 60 (NYU 2009): “Many Dutch couples saw marriage

as better because it had an additional social meaning

4

that registered partnership, as a recent political

invention, lacked.” “In some places, the cultural and

5

political trappings of statuses that are not marriage

send a very clear message of difference and inferiority

6

to gay and lesbian couples.” “[W]hen compared to

marriage, domestic partnerships may become a mark of

7

second-class citizenship and are less understood

socially. In practice, these legal alternatives to

8

marriage are limited because they do not map onto a

well-developed social institution that gives the act of

9

marrying its social and cultural meaning.”;

10

c. Tr 2044:20-2045:22 (Herek: The difference between

domestic partnerships and marriage is more than simply a

11

word. If we look at public opinion data, for example,

there is a sizable proportion of the public, both in

12

California and the United States, who say that they are

willing to let same-sex couples have domestic

13

partnerships or civil unions, but not marriage. This

suggests a distinction in the minds of a large number of

14

Americans —— it is not simply a word. In addition,

looking at the recent history of California, when it

15

became possible for same-sex couples to marry, thousands

of them did. And many of those were domestic partners.

16

So, clearly, they thought there was something different

about being married.); 17

d. PX0504B Video, Satellite Simulcast in Defense of

18

Marriage, Excerpt at 0:38-0:56: Speaker warns that if

Proposition 8 does not pass, children will be taught

19

“that gay marriage is not just a different type of a

marriage, they’re going to be taught that it’s a good

20

thing.”

21 61. Proposition 8 amends the California Constitution to codify

22

distinct and unique roles for men and women in marriage.

23

a. Tr 1087:5-18 (Lamb: The “traditional family” refers to a

family with a married mother and father who are both

24

biologically related to their children where the mother

stays at home and the father is the bread winner.); 25

b. PX0506 Protect Marriage, The Fine Line Transcript (Oct 1,

26

2008) at 13: “Children need a loving family and yes they

need a mother and father. Now going on what Sean was

27

saying here about the consequences of this, if Prop 8

doesn’t pass then it will be illegal to distinguish

28

between heterosexual and same sex couples when it comes

87

United States District Court For the Northern District of California

1

to adoption. Um Yvette just mentioned some statistics

about growing up in families without a mother and father

2

at home. How important it is to have that kind of thing.

I’m not a sociologist. I’m not a psychologist. I’m just

3

a human being but you don’t need to be wearing a white

coat to know that kids need a mom and dad. I’m a dad and

4

I know that I provide something different than my wife

does in our family and my wife provides something

5

entirely different than I do in our family and both are

vital.”; 6

c. PX0506 Protect Marriage, The Fine Line Transcript at 6

7

(Oct 1, 2008): “When moms are in the park taking care of

their kids they always know where those kids are. They

8

have like a, like a radar around them. They know where

those kids are and there’s just a, there’s a bond between

9

a mom and a kid different from a dad. I’m not saying

dads don’t have that bond but they don’t. It’s just

10

different. You know middle of the night mom will wake

up. Dad will just sleep you know if there’s a little

11

noise in the room. And, and when kids get scared they

run to mommy. Why? They spent 9 months in mommy. They

12

go back to where they came.”;

13

d. PX390 Video, Ron Prentice Addressing Supporters of

Proposition 8, Part I at 5:25-6:04: Prentice tells people

14

at a religious rally that marriage is not about love but

instead about women civilizing men: “Again, because it’s

15

not about two people in love, it’s about men becoming

civilized frankly, and I can tell you this from personal

16

experience and every man in this audience can do the same

if they’ve chosen to marry, because when you do find the

17

woman that you love you are compelled to listen to her,

and when the woman that I love prior to my marrying her

18

told me that my table manners were less than adequate I

became more civilized; when she told me that my rust

19

colored corduroy were never again to be worn, I became

more civilized.”; 20

e. PX0506 Protect Marriage, The Fine Line Transcript (Oct 1,

21

2008) at 15: “Skin color is morally trivial as you

pointed out but sex is fundamental to everything. There

22

is no difference between a white or a black human being

but there’s a big difference between a man and a woman.”; 23

f. PX1867 Transcript, ABC Protecting Marriage at 27:6-9: Dr

24

Jennifer Roback Morse states that “[t]he function of

marriage is to attach mothers and fathers to one another

25

and mothers and fathers to their children, especially

fathers to children.”; 26

g. PX0480A Video supporting Proposition 8 at 2:00-2:24:

27

Prentice states that “[c]hildren need the chance to have

both mother love and father love. And that moms and

28

dads, male and female, complement each other. They don’t

88

United States District Court For the Northern District of California

1

bring to a marriage and to a family the same natural set

of skills and talents and abilities. They bring to

2

children the blessing of both masculinity and

femininity.”;

3

h. PX2403 Email from Kenyn Cureton, Vice-President, Family

4

Research Council, to Prentice at 3 (Aug 25, 2008):

Attached to the email is a kit to be distributed to

5

Christian voters through churches to help them promote

Proposition 8 which states: “Thank God for the difference

6

between men and women. In fact, the two genders were

meant to complete each other physically, emotionally, and

7

in every other way. Also, both genders are needed for a

healthy home. As Dr James Dobson notes, ‘More than ten

8

thousand studies have concluded that kids do best when

they are raised by mothers and fathers.’”; 9

i. PX1868 Transcript, Love, Power, Mind (CCN simulcast Sept

10

25, 2008) at 43:19-24: “Same sex marriage, it will

unravel that in a significant way and say that really

11

male and female, mother and father, husband and wife are

just really optional for the family, not necessary. And

12

that is a radically anti-human thing to say.”;

13

j. PX1867 Transcript, ABC Protecting Marriage at 28:18-23:

“And we know that fatherlessness has caused significant

14

problems for a whole generation of children and same-sex

marriage would send us more in that direction of

15

intentionally fatherless homes.”;

16

k. PX0506 Protect Marriage, The Fine Line Transcript at 5

(Oct 1, 2008): Miles McPherson states that it is a truth

17

“that God created the woman bride as the groom’s

compatible marriage companion.” 18

19 62. Proposition 8 does not affect the First Amendment rights of

20

those opposed to marriage for same-sex couples. Prior to

21

Proposition 8, no religious group was required to recognize

22

marriage for same-sex couples.

23

a. In re Marriage Cases, 189 P3d at 451-452 (“[A]ffording

same-sex couples the opportunity to obtain the

24

designation of marriage will not impinge upon the

religious freedom of any religious organization,

25

official, or any other person; no religion will be

required to change its religious policies or practices

26

with regard to same-sex couples, and no religious

officiant will be required to solemnize a marriage in

27

contravention of his or her religious beliefs.”) (Citing

Cal Const Art I, § 4); 28

89

United States District Court For the Northern District of California

1

b. Tr 194:24-196:21 (Cott: Civil law, not religious custom,

is supreme in defining and regulating marriage in the

2

United States.);

3

c. Cal Fam Code §§ 400, 420.

4 63. Proposition 8 eliminates the right to marry for gays and

5

lesbians but does not affect any other substantive right under

6

the California Constitution. Strauss, 207 P3d at 102

7

(“Proposition 8 does not eliminate the substantial substantive

8

[constitutional] protections afforded to same-sex couples[.]”)

9

(emphasis in original).

10 64. Proposition 8 has had a negative fiscal impact on California

11

and local governments.

12

a. Tr 1330:23-25 (Badgett: “Proposition 8 has imposed some

economic losses on the State of California and on

13

counties and municipalities.”);

14

b. Tr 1364:16-1369:4 (Badgett: Denying same-sex couples the

right to marry imposes costs on local governments such as

15

loss of tax revenue, higher usage of means-tested

programs, higher costs for healthcare of uninsured

16

same-sex partners and loss of skilled workers.);

17

c. Tr 720:1-12 (Egan: “What we’re really talking about in

the nonquantifiable impacts are the long-term advantages

18

of marriage as an institution, and the long-term costs of

discrimination as a way that weakens people’s

19

productivity and integration into the labor force.

Whether it’s weakening their education because they’re

20

discriminated against at school, or leading them to

excessive reliance on behavioral and other health

21

services, these are impacts that are hard to quantify,

but they can wind up being extremely powerful. How much

22

healthier you are over your lifetime. How much wealth

you generate because you are in a partnership.”); 23

d. Tr 1367:5-1368:1 (Badgett: Denying same-sex couples the

24

right to marry tends to reduce same-sex couples’ income,

which “will make them more likely to need and be eligible

25

for those means-tested programs that are paid for by the

state.” Similarly, to the extent that same-sex couples

26

cannot obtain health insurance for their partners and

children, there will be more people who might need to

27

sign up for the state’s sponsored health programs.).

28

90

United States District Court For the Northern District of California

1 65. CCSF would benefit economically if Proposition 8 were not in

2

effect.

3

a. CCSF would benefit immediately from increased wedding

revenue and associated expenditures and an increased

4

number of county residents with health insurance. Tr

691:24-692:3; Tr 708:16-20 (Egan);

5

b. CCSF would benefit economically from decreased

6

discrimination against gays and lesbians, resulting in

decreased absenteeism at work and in schools, lower

7

mental health costs and greater wealth accumulation.

Tr 685:10-14; Tr 689:4-10; Tr 692:12-19; Tr 720:1-12

8

(Egan);

9

c. CCSF enacted the Equal Benefits Ordinance to mandate that

city contractors and vendors provide same-sex partners of

10

employees with benefits equal to those provided to

opposite-sex spouses of employees. CCSF bears the cost

11

of enforcing the ordinance and defending it against legal

challenges. Tr 714:15-715:10 (Egan). 12

13 66. Proposition 8 increases costs and decreases wealth for same-

14

sex couples because of increased tax burdens, decreased

15

availability of health insurance and higher transactions costs

16

to secure rights and obligations typically associated with

17

marriage. Domestic partnership reduces but does not eliminate

18

these costs.

19

a. Tr 1330:14-16 (Badgett: Proposition 8 has “inflicted

substantial economic harm on same-sex couples and their

20

children who live here in California.”);

21

b. Tr 1331:12-1337:25 (Badgett: Marriage confers economic

benefits including greater specialization of labor,

22

reduced transactions costs, health and insurance benefits

and more positive workplace outcomes.); 23

c. Tr 1341:2-1342:13 (Badgett: Couples that would marry but

24

would not enter into a domestic partnership suffer

tangible economic harm such as higher taxes and limited

25

access to health insurance.);

d. PX1259 MV Lee Badgett, Unequal Taxes on Equal Benefits:

26

The Taxation of Domestic Partner Benefits, The Williams

Institute at 1 (Dec 2007): “[W]orkers who have an

27

unmarried domestic partner are doubly burdened: Their

employers typically do not provide coverage for domestic 28

91

United States District Court For the Northern District of California

1

partners; and even when partners are covered, the

partner’s coverage is taxed as income to the employee.”;

2

e. PX2898 Laura Langbein and Mark A Yost, Same-Sex Marriage

3

and Negative Externalities, 490 Soc Sci Q 293, 307

(2009): “For example, the ban on gay marriage induces

4

failures in insurance and financial markets. Because

spousal benefits do not transfer (in most cases) to

5

domestic partners, there are large portions of the

population that should be insured, but instead receive

6

inequitable treatment and are not insured properly. * * *

This is equally true in the treatment of estates on the

7

death of individuals. In married relationships, it is

clear to whom an estate reverts, but in the cases of

8

homosexual couples, there is no clear right of ownership,

resulting in higher transactions costs, widely regarded

9

as socially inefficient.”;

10

f. PX0188 Report of the Council on Science and Public

Health, Health Care Disparities in Same-Sex Households, C

11

Alvin Head (presenter) at 9: “Survey data confirm that

same-sex households have less access to health insurance.

12

If they have health insurance, they pay more than married

heterosexual workers, and also lack other financial

13

protections. * * * [C]hildren in same-sex households lack

the same protections afforded children in heterosexual

14

households.”;

15

g. PX0189 American Medical Association Policy: Health Care

Disparities in Same-Sex Partner Households, Policy D-

16

160.979 at 1: “[E]xclusion from civil marriage

contributes to health care disparities affecting same-sex

17

households.”;

18

h. PX1261 California Employer Health Benefits Survey,

California HealthCare Foundation at 7 (Dec 2008): Only 56

19

percent of California firms offered health insurance to

unmarried same-sex couples in 2008; 20

i. PX1266 National Center for Lesbian Rights and Equality

21

California, The California Domestic Partnership Law: What

it Means for You and Your Family at 13 (2009): Domestic

22

partnerships create more transactions costs than exist in

marriage. “Despite * * * automatic legal protection for

23

children born to registered domestic partners, [the

National Center for Lesbian Rights] is strongly

24

recommending that all couples obtain a court judgment

declaring both partners to be their child’s legal

25

parents, either an adoption or a parentage judgment.”;

26

j. PX1269 Michael Steinberger, Federal Estate Tax

Disadvantages for Same-Sex Couples, The Williams

27

Institute at 1 (July 2009): “Using data from several

government data sources, this report estimates the dollar

28

value of the estate tax disadvantage faced by same-sex

92

United States District Court For the Northern District of California

1

couples. In 2009, the differential treatment of same-sex

and married couples in the estate tax code will affect an

2

estimated 73 same-sex couples, costing each of them, on

average, more than $3.3 million.”

3

4 67. Proposition 8 singles out gays and lesbians and legitimates

5

their unequal treatment. Proposition 8 perpetuates the

6

stereotype that gays and lesbians are incapable of forming

7

long-term loving relationships and that gays and lesbians are

8

not good parents.

9

a. Tr 2054:7-11 (Herek: In “a definitional sense,”

Proposition 8 is an instance of structural stigma against

10

gays and lesbians.);

11

b. Tr 826:21-828:4 (Meyer: Domestic partnership does not

eliminate the structural stigma of Proposition 8 because

12

it does not provide the symbolic or social meaning of

marriage.); 13

c. Tr 820:23-822:5 (Meyer: One of the stereotypes that is

14

part of the stigma surrounding gay men and lesbians is

that gay men and lesbians are incapable of, uninterested

15

in and not successful at having intimate relationships.);

16

d. Tr 407:8-408:4 (Chauncey: The fear of homosexuals as

child molesters or as recruiters continues to play a role

17

in debates over gay rights, and with particular attention

to gay teachers, parents and married couples —— people

18

who might have close contact with children.);

19

e. PX0001 California Voter Information Guide, California

General Election, Tuesday, November 4, 2008 at PM 3365:

20

“TEACHERS COULD BE REQUIRED to teach young children that

there is no difference between gay marriage and

21

traditional marriage.” (emphasis in original);

22

f. Tr 854:5-22 (Meyer: Proposition 8 “sends a message that

gay relationships are not to be respected; that they are

23

of secondary value, if of any value at all; that they are

certainly not equal to those of heterosexuals. * * * [So]

24

in addition to achieving the literal aims of not allowing

gay people to marry, it also sends a strong message about

25

the values of the state; in this case, the Constitution

itself. And it sends a message that would, in [Meyer’s]

26

mind, encourage or at least is consistent with holding

prejudicial attitudes. So that doesn’t add up to a very

27

welcoming environment.”).

28

93

United States District Court For the Northern District of California

1 68. Proposition 8 results in frequent reminders for gays and

2

lesbians in committed long-term relationships that their

3

relationships are not as highly valued as opposite-sex

4

relationships.

5

a. Tr 846:22-847:12 (Meyer: When gay men and lesbians have

to explain why they are not married, they “have to

6

explain, I’m really not seen as equal. I’m —— my status

is —— is not respected by my state or by my country, by

7

my fellow citizens.”);

8

b. Tr 1471:1-1472:8 (Badgett: Badgett’s interviews with

same-sex couples indicate that couples value the social

9

recognition of marriage and believe that the alternative

status conveys a message of inferiority.); 10

c. Tr 151:20-24 (Perry: A passenger on a plane once assumed

11

that she could take the seat that Perry had been saving

for Stier because Perry referred to Stier as her

12

“partner.”);

13

d. Tr 174:3-175:4 (Stier: It has been difficult to explain

to others her relationship with Perry because they are

14

not married.);

15

e. Tr 175:5-17 (Stier: It is challenging to fill out forms

in doctor’s offices that ask whether she is single,

16

married or divorced because “I have to find myself, you

know, scratching something out, putting a line through it

17

and saying ‘domestic partner’ and making sure I explain

to folks what that is to make sure that our transaction

18

can go smoothly.”);

19

f. Tr 841:17-844:11; 845:7-10 (Meyer: For lesbians and gay

men, filling out a form requiring them to designate their

20

marital status can be significant because the form-filler

has no box to check. While correcting a form is a minor

21

event, it is significant for the gay or lesbian person

because the form evokes something much larger for the

22

person —— a social disapproval and rejection. “It’s

about, I’m gay and I’m not accepted here.”). 23

24 69. The factors that affect whether a child is well-adjusted are:

25

(1) the quality of a child’s relationship with his or her

26

parents; (2) the quality of the relationship between a child’s

27

parents or significant adults in the child’s life; and (3) the

28

94

United States District Court For the Northern District of California

1

availability of economic and social resources. Tr 1010:13-

2

1011:13 (Lamb).

3 70. The gender of a child’s parent is not a factor in a child’s

4

adjustment. The sexual orientation of an individual does not

5

determine whether that individual can be a good parent.

6

Children raised by gay or lesbian parents are as likely as

7

children raised by heterosexual parents to be healthy,

8

successful and well-adjusted. The research supporting this

9

conclusion is accepted beyond serious debate in the field of

10

developmental psychology.

11

a. Tr 1025:4-23 (Lamb: Studies have demonstrated “very

conclusively that children who are raised by gay and

12

lesbian parents are just as likely to be well-adjusted as

children raised by heterosexual parents.” These results

13

are “completely consistent with our broader understanding

of the factors that affect children’s adjustment.”); 14

b. PX2565 American Psychological Association, Answers to

15

Your Questions: For a Better Understanding of Sexual

Orientation and Homosexuality at 5 (2008): “[S]ocial

16

science has shown that the concerns often raised about

children of lesbian and gay parents —— concerns that are

17

generally grounded in prejudice against and stereotypes

about gay people —— are unfounded.”; 18

c. PX2547 (Nathanson Nov 12, 2009 Dep Tr 49:05-49:19:

19

Sociological and psychological peer-reviewed studies

conclude that permitting gay and lesbian individuals to

20

marry does not cause any problems for children); PX2546

at 2:20-3:10 (video of same). 21

22 71. Children do not need to be raised by a male parent and a

23

female parent to be well-adjusted, and having both a male and

24

a female parent does not increase the likelihood that a child

25

will be well-adjusted. Tr 1014:25-1015:19; 1038:23-1040:17

26

(Lamb).

27

28

95

United States District Court For the Northern District of California

1 72. The genetic relationship between a parent and a child is not

2

related to a child’s adjustment outcomes. Tr 1040:22-1042:10

3

(Lamb).

4 73. Studies comparing outcomes for children raised by married

5

opposite-sex parents to children raised by single or divorced

6

parents do not inform conclusions about outcomes for children

7

raised by same-sex parents in stable, long-term relationships.

8

Tr 1187:13-1189:6 (Lamb).

9 74. Gays and lesbians have been victims of a long history of

10

discrimination.

11

a. Tr 3080:9-11 (Proponents’ counsel: “We have never

disputed and we have offered to stipulate that gays and

12

lesbians have been the victims of a long and shameful

history of discrimination.”); 13

b. Tr 361:11-15 (Chauncey: Gays and lesbians “have

14

experienced widespread and acute discrimination from both

public and private authorities over the course of the

15

twentieth century. And that has continuing legacies and

effects.”); see also Tr 361-390 (Chauncey: discussing

16

details of discrimination against gays and lesbians);

17

c. PX2566 Letter from John W Macy, Chairman, Civil Service

Commission, to the Mattachine Society of Washington (Feb

18

25, 1966) at 2-4: The Commission rejected the Mattachine

Society’s request to rescind the policy banning active

19

homosexuals from federal employment. “Pertinent

considerations here are the revulsion of other employees

20

by homosexual conduct and the consequent disruption of

service efficiency, the apprehension caused other

21

employees of homosexual advances, solicitations or

assaults, the unavoidable subjection of the sexual

22

deviate to erotic stimulation through on-the-job use of

the common toilet, shower and living facilities, the

23

offense to members of the public who are required to deal

with a known or admitted sexual deviate to transact

24

Government business, the hazard that the prestige and

authority of a Government position will be used to foster

25

homosexual activity, particularly among the youth, and

the use of Government funds and authority in furtherance

26

of conduct offensive both to the mores and the law of our

society.”; 27

d. PX2581 Letter from E D Coleman, Exempt Organizations

28

Branch, IRS, to the Pride Foundation at 1, 4-5 (Oct 8,

96

United States District Court For the Northern District of California

1

1974): The Pride Foundation is not entitled to an

exemption under Internal Revenue Code § 501(c)(3) because

2

the organization’s goal of “advanc[ing] the welfare of

the homosexual community” was “perverted or deviate

3

behavior” “contrary to public policy and [is] therefore,

not ‘charitable.’”

4

5 75. Public and private discrimination against gays and lesbians

6

occurs in California and in the United States.

7

a. PX0707 at RFA No 29: Proponents admit that gays and

lesbians continue to experience instances of

8

discrimination;

9

b. PX0711 at RFA Nos 3, 8, 13, 18, 23: Attorney General

admits 263 hate crime events based on sexual orientation

10

bias occurred in California in 2004, 255 occurred in

2005, 246 occurred in 2006, 263 occurred in 2007 and 283

11

occurred in 2008;

12

c. PX0672 at 18; PX0673 at 20; PX0674 at 20; PX0675 at 3;

PX0676 at 1 (California Dept of Justice, Hate Crime in

13

California, 2004-2008): From 2004 to 2008, between 17 and

20 percent of all hate crime offenses in California were

14

motivated by sexual orientation bias;

15

d. PX0672 at 26; PX0673 at 28; PX0674 at 28; PX0675 at 26;

PX0676 at 20 (California Dept of Justice, Hate Crime in

16

California, 2004-2008): From 2004 to 2008, between 246

and 283 hate crime events motivated by sexual orientation

17

bias occurred each year in California;

18

e. Tr 548:23 (Chauncey: There is still significant

discrimination against lesbians and gay men in the United

19

States.);

20

f. Tr 1569:11-1571:5 (Segura: “[O]ver the last five years,

there has actually been an increase in violence directed

21

toward gay men and lesbians”; “gays and lesbians are

representing a larger and larger portion of the number of

22

acts of bias motivated violence” and “are far more likely

to experience violence”; “73 percent of all the hate

23

crimes committed against gays and lesbians also include

an act of violence * * * we are talking about the most

24

extreme forms of hate based violence”; the hate crimes

accounted for “71 percent of all hate-motivated murders”

25

and “[f]ifty-five percent of all hate-motivated rapes” in

2008; “There is simply no other person in society who

26

endures the likelihood of being harmed as a consequence

of their identity than a gay man or lesbian.”); 27

g. PX0605 The Williams Institute, et al, Documenting

28

Discrimination on the Basis of Sexual Orientation and

97

United States District Court For the Northern District of California

1

Gender Identity in State Employment at 1 (Sept 2009):

“There is a widespread and persistent pattern of

2

unconstitutional discrimination on the basis of sexual

orientation and gender identity against [California]

3

government employees” and the pattern of discrimination

is similar for private sector employees in California;

4

h. PX0619 The Williams Institute, Chapter 14: Other Indicia

5

of Animus against LGBT People by State and Local

Officials, 1980-Present at 14-8 (2009): Statements made

6

by legislators, judges, governors and other officials in

all fifty states show hostility towards gays and

7

lesbians, including a 1999 statement by California State

Senator Richard Mountjoy that “being gay ‘is a sickness

8

* * * an uncontrolled passion similar to that which would

cause someone to rape.’”; 9

i. Tr 2510:23-2535:7 (Miller: Miller agrees that “there has

10

been severe prejudice and discrimination against gays and

lesbians” and “widespread and persistent” discrimination

11

against gays and lesbians and that “there is ongoing

discrimination in the United States” against gays and

12

lesbians.);

13

j. Tr 2572:11-16 (Miller: Gays and lesbians are still the

“object of prejudice and stereotype.”); 14

k. Tr 2599:17-2604:7 (Miller: Miller agrees that “there are

15

some gays and lesbians who are fired from their jobs,

refused work, paid less, and otherwise discriminated

16

against in the workplace because of their sexual

orientation.”). 17

18 76. Well-known stereotypes about gay men and lesbians include a

19

belief that gays and lesbians are affluent, self-absorbed and

20

incapable of forming long-term intimate relationships. Other

21

stereotypes imagine gay men and lesbians as disease vectors or

22

as child molesters who recruit young children into

23

homosexuality. No evidence supports these stereotypes.

24

a. DIX1162 Randy Albelda, et al, Poverty in the Lesbian,

Gay, and Bisexual Community, The Williams Institute at 1

25

(Mar 2009): “A popular stereotype paints lesbians and gay

men as an affluent elite * * *. [T]he misleading myth of

26

affluence steers policymakers, community organizations

service providers, and the media away from fully

27

understanding poverty among LGBT people.”;

28

98

United States District Court For the Northern District of California

1

b. Tr 474:12-19 (Chauncey: Medical pronouncements that were

hostile to gays and lesbians provided a powerful source

2

of legitimation to anti-homosexual sentiment and were

themselves a manifestation of discrimination against gays

3

and lesbians.);

4

c. Tr 820:23-822:5 (Meyer: One of the stereotypes that is

part of the stigma surrounding gay men and lesbians is

5

that gay men and lesbians are incapable of, uninterested

in and not successful at having intimate relationships.

6

Gay men and lesbians have been described as social

isolates, as unconnected to society and people who do not

7

participate in society the way everyone else does —— as

“a pariah, so to speak.”); 8

d. PX1011 David Reuben, Everything You Always Wanted to Know

9

About Sex (But Were Afraid to Ask) 129-151 at 143 (Van

Rees 1969): “What about all of the homosexuals who live

10

together happily for years? What about them? They are

mighty rare birds among the homosexual flock. Moreover,

11

the ‘happy’ part remains to be seen. The bitterest

argument between husband and wife is a passionate love

12

sonnet by comparison with a dialogue between a butch and

his queen. Live together? Yes. Happily? Hardly.”; 13

e. Tr 361:23-363:9 (Chauncey: Even though not all sodomy

14

laws solely penalized homosexual conduct, over the course

of the twentieth century, sodomy laws came to symbolize

15

the criminalization of homosexual sex in particular.

This was most striking in Bowers v Hardwick, which reads

16

as though the law at issue simply bears on homosexual sex

when in fact the Georgia law at issue criminalized both

17

homosexual and heterosexual sodomy.);

18

f. Tr 484:24-485:5 (Chauncey: The federal government was

slow to respond to the AIDS crisis, and this was in part

19

because of the association of AIDS with a “despised

group.”); 20

g. Tr 585:22-586:8 (Peplau: There is no empirical support

21

for the negative stereotypes that gay men and lesbians

have trouble forming stable relationships or that those

22

relationships are inferior to heterosexual

relationships.); 23

h. PX2337 Employment of Homosexuals and Other Sex Perverts

24

in Government, S Rep No 81-241, 81st Congress, 2d Sess

(1950) at 4: “Most of the authorities agree and our

25

investigation has shown that the presence of a sex

pervert in a Government agency tends to have a corrosive

26

influence on his fellow employees. These perverts will

frequently attempt to entice normal individuals to engage

27

in perverted practices. This is particularly true in the

case of young and impressionable people who might come

28

under the influence of a pervert. Government officials

99

United States District Court For the Northern District of California

1

have the responsibility of keeping this type of corrosive

influence out of the agencies under their control. It is

2

particularly important that the thousands of young men

and women who are brought into Federal jobs not be

3

subjected to that type of influence while in the service

of the Government. One homosexual can pollute a

4

Government office.”;

5

i. Tr 395:6-25 (Chauncey: Like most outsider groups, there

have been stereotypes associated with gay people; indeed,

6

a range of groups, including medical professionals and

religious groups, have worked in a coordinated way to

7

develop stereotypical images of gay people.);

8

j. Tr 397:2-6; Tr 397:25-398:5 (Chauncey: “[I]n some ways,

the most dangerous stereotypes for homosexuals really

9

developed between the 1930s and ‘50s, when there were a

series of press and police campaigns that identified

10

homosexuals as child molesters.” These press campaigns

against assaults on children focused on sex perverts or

11

sex deviants. Through these campaigns, the homosexual

emerged as a sex deviant.); 12

k. PX2281 George Chauncey, The Postwar Sex Crime Panic, in

13

William Graebner, ed, True Stories from the Past 160, 171

(McGraw-Hill 1993): Contains excerpts from wide-

14

circulation Coronet Magazine, Fall 1950: “Once a man

assumes the role of homosexual, he often throws off all

15

moral restraints. * * * Some male sex deviants do not

stop with infecting their often-innocent partners: they

16

descended through perversions to other forms of

depravity, such as drug addiction, burglary, sadism, and

17

even murder.”;

18

l. Tr 400:18-401:8 (Chauncey: This excerpt from Coronet

Magazine, PX2281 at 171, depicts homosexuals as subjects

19

of moral decay. In addition, there is a sense of

homosexuality as a disease in which the carriers infect

20

other people. And the term “innocent” pretty clearly

indicates that the authors are talking about children.); 21

m. PX2281 Chauncey, The Postwar Sex Crime Panic, at 170-171:

22

Contains a statement made by a Special Assistant Attorney

General of California in 1949: “The sex pervert, in his

23

more innocuous form, is too frequently regarded as merely

a ‘queer’ individual who never hurts anyone but himself.

24

* * * All too often we lose sight of the fact that the

homosexual is an inveterate seducer of the young of both

25

sexes * * * and is ever seeking for younger victims.”;

26

n. Tr 402:21-24 (Chauncey: These articles (in PX2281) were

mostly addressed to adults who were understandably

27

concerned about the safety of their children, and who

“were being taught to believe that homosexuals posed a

28

threat to their children.”);

100

United States District Court For the Northern District of California

1

o. Tr 407:8-408:4 (Chauncey: One of the most enduring

legacies of the emergence of these stereotypes is the

2

creation and then reenforcement of a series of demonic

images of homosexuals that stay with us today. This fear

3

of homosexuals as child molesters or as recruiters

continues to play a role in debates over gay rights, and

4

with particular attention to gay teachers, parents and

married couples —— people who might have close contact

5

with children.);

6

p. Tr 1035:13-1036:19 (Lamb: Social science studies have

disproven the hypothesis that gays and lesbians are more

7

likely to abuse children.).

8 77. Religious beliefs that gay and lesbian relationships are

9

sinful or inferior to heterosexual relationships harm gays and

10

lesbians.

11

a. PX2547 (Nathanson Nov 12, 2009 Dep Tr 102:3-8: Religions

teach that homosexual relations are a sin and that

12

contributes to gay bashing); PX2546 (video of same);

13

b. PX2545 (Young Nov 13, 2009 Dep Tr 55:15-55:20,

56:21-57:7: There is a religious component to the bigotry

14

and prejudice against gay and lesbian individuals); see

also id at 61:18-22, 62:13-17 (Catholic Church views

15

homosexuality as “sinful.”); PX2544 (video of same);

16

c. Tr 1565:2-1566:6 (Segura: “[R]eligion is the chief

obstacle for gay and lesbian political progress, and it’s

17

the chief obstacle for a couple of reasons. * * * [I]t’s

difficult to think of a more powerful social entity in

18

American society than the church. * * * [I]t’s a very

powerful organization, and in large measure they are

19

arrayed against the interests of gays and lesbians. * * *

[B]iblical condemnation of homosexuality and the teaching

20

that gays are morally inferior on a regular basis to a

huge percentage of the public makes the * * * political

21

opportunity structure very hostile to gay interests.

It’s very difficult to overcome that.”); 22

d. PX0390 Video, Ron Prentice Addressing Supporters of

23

Proposition 8, Part I at 0:20-0:40: Prentice explains

that “God has led the way” for the Protect Marriage

24

campaign and at 4:00-4:30: Prentice explains that “we do

mind” when same-sex couples want to take the name

25

“marriage” and apply it to their relationships, because

“that’s not what God wanted. * * * It’s real basic. * * *

26

It starts at Genesis 2.”;

27

e. Tr 395:14-18 (Chauncey: Many clergy in churches

considered homosexuality a sin, preached against it and

28

have led campaigns against gay rights.);

101

United States District Court For the Northern District of California

1

f. Tr 440:19-441:2 (Chauncey: The religious arguments that

were mobilized in the 1950s to argue against interracial

2

marriage and integration as against God’s will are

mirrored by arguments that have been mobilized in the

3

Proposition 8 campaign and many of the campaigns since

Anita Bryant’s “Save Our Children” campaign, which argue

4

that homosexuality itself or gay people or the

recognition of their equality is against God’s will.);

5

g. PX2853 Proposition 8 Local Exit Polls - Election Center

6

2008, CNN at 8: 84 percent of people who attended church

weekly voted in favor of Proposition 8;

7

h. PX0005 Leaflet, James L Garlow, The Ten Declarations For

8

Protecting Biblical Marriage at 1 (June 25, 2008): “The

Bible defines marriage as a covenantal union of one male

9

and one female. * * * We will avoid unproductive

arguments with those who, through the use of casuistry

10

and rationalization, revise biblical passages in order to

condone the practice of homosexuality or other sexual

11

sins.”;

12

i. PX0770 Congregation for the Doctrine of Faith,

Considerations Regarding Proposals to Give Legal

13

Recognition to Unions Between Homosexual Persons at 2:

“Sacred Scripture condemns homosexual acts as ‘a serious

14

depravity.’”;

15

j. PX0301 Catholics for the Common Good, Considerations

Regarding Proposals to Give Legal Recognition to Unions

16

Between Homosexual Persons, Excerpts from Vatican

Document on Legal Recognition of Homosexual Unions (Nov

17

22, 2009): There are absolutely no grounds for

considering homosexual unions to be “in any way similar

18

or even remotely analogous to God’s plan for marriage and

family”; “homosexual acts go against the natural moral

19

law” and “[u]nder no circumstances can * * * be

approved”; “[t]he homosexual inclination is * * *

20

objectively disordered and homosexual practices are sins

gravely contrary to chastity”; “[a]llowing children to be

21

adopted by persons living in such unions would actually

mean doing violence to these children”; and “legal

22

recognition of homosexual unions * * * would mean * * *

the approval of deviant behavior.”; 23

k. PX0168 Southern Baptist Convention, SBC Resolution, On

24

Same-Sex Marriage at 1 (June 2003): “Legalizing ‘same-sex

marriage’ would convey a societal approval of a

25

homosexual lifestyle, which the Bible calls sinful and

dangerous both to the individuals involved and to society

26

at large.”;

27

l. PX0771 Southern Baptist Convention, Resolution on

President Clinton’s Gay and Lesbian Pride Month

28

Proclamation (June 1999): “The Bible clearly teaches that

102

United States District Court For the Northern District of California

1

homosexual behavior is an abomination and shameful before

God.”;

2

m. PX2839 Evangelical Presbyterian Church, Position Paper on

3

Homosexuality at 3: “[H]omosexual practice is a

distortion of the image of God as it is still reflected

4

in fallen man, and a perversion of the sexual

relationship as God intended it to be.”;

5

n. PX2840 The Christian Life —— Christian Conduct: As

6

Regards the Institutions of God, Free Methodist Church at

5: “Homosexual behavior, as all sexual deviation, is a

7

perversion of God’s created order.”;

8

o. PX2842 A L Barry, What About * * * Homosexuality, The

Lutheran Church-Missouri Synod at 1: “The Lord teaches us

9

through His Word that homosexuality is a sinful

distortion of His desire that one man and one woman live

10

together in marriage as husband and wife.”;

11

p. PX2844 On Marriage, Family, Sexuality, and the Sanctity

of Life, Orthodox Church of America at 1: “Homosexuality

12

is to be approached as the result of humanity’s rebellion

against God.”; 13

q. Tr 1566:18-22 (Segura: “[Proponents’ expert] Dr Young

14

freely admits that religious hostility to homosexuals

[plays] an important role in creating a social climate

15

that’s conducive to hateful acts, to opposition to their

interest in the public sphere and to prejudice and

16

discrimination.”);

17

r. Tr 2676:8-2678:24 (Miller: Miller agrees with his former

statement that “the religious characteristics of

18

California’s Democratic voters” explain why so many

Democrats voted for Barack Obama and also for Proposition

19

8.).

20 78. Stereotypes and misinformation have resulted in social and

21

legal disadvantages for gays and lesbians.

22

a. Tr 413:22-414:6 (Chauncey: The “Save Our Children”

campaign in Dade County, Florida in 1977 was led by Anita

23

Bryant, a famous Baptist singer. It sought to overturn

an enactment that added sexual orientation to an

24

antidiscrimination law, and it drew on and revived

earlier stereotypes of homosexuals as child molesters.); 25

b. Tr 1554:14-19 (Segura: Ballot initiatives banning

26

marriage equality have been passed in thirty-three

states.); 27

28

103

United States District Court For the Northern District of California

1

c. Tr 2608:16-18 (Miller: “My view is that at least some

people voted for Proposition 8 on the basis of anti-gay

2

stereotypes and prejudice.”);

3

d. Tr 538:15-539:10 (Chauncey: Chauncey is less optimistic

now that same-sex marriage will become common in the

4

United States than he was in 2004. Since 2004, when

Chauncey wrote Why Marriage? The History Shaping Today’s

5

Debate over Gay Equality, the majority of states have

enacted legislation or constitutional amendments that

6

would prohibit same-sex couples from marrying. Some have

been enacted by legislative vote, but a tremendous number

7

of popular referenda have enacted these discriminatory

measures.); 8

e. Tr 424:18-23 (Chauncey: “[T]he wave of campaigns that we

9

have seen against gay marriage rights in the last decade

are, in effect, the latest stage and cycle of anti-gay

10

rights campaigns of a sort that I have been describing;

that they continue with a similar intent and use some of

11

the same imagery.”);

12

f. Tr 412:20-413:1 (Chauncey: The series of initiatives we

have seen since the mid-to-late 1970s over gay rights are

13

another example of continuing prejudice and hostility.);

14

g. Tr 564:4-16 (Chauncey: The term “the gay agenda” was

mobilized particularly effectively in the late 1980s and

15

early 1990s in support of initiatives designed to

overturn gay rights laws. The term tries to construct

16

the idea of a unitary agenda and that picks up on

long-standing stereotypes.); 17

h. Tr 1560:22-1561:9 (Segura: “[T]he role of prejudice is

18

profound. * * * [I]f the group is envisioned as being

somehow * * * morally inferior, a threat to children, a

19

threat to freedom, if there’s these deeply-seated

beliefs, then the range of compromise is dramatically

20

limited. It’s very difficult to engage in the

give-and-take of the legislative process when I think you

21

are an inherently bad person. That’s just not the basis

for compromise and negotiation in the political

22

process.”);

23

i. Tr 1563:5-1564:21 (Segura: “[T]he American public is not

very fond of gays and lesbians.” Warmness scores for

24

gays and lesbians are as much as 16 to 20 points below

the average score for religious, racial and ethnic

25

groups; over 65 percent of respondents placed gays and

lesbians below the midpoint, below the score of 50,

26

whereas a third to 45 percent did the same for other

groups. When “two-thirds of all respondents are giving

27

gays and lesbians a score below 50, that’s telling

elected officials that they can say bad things about gays

28

and lesbians, and that could be politically advantageous

104

United States District Court For the Northern District of California

1

to them because * * * many parts of the electorate feel

the same way.” Additionally, “the initiative process

2

could be fertile ground to try to mobilize some of these

voters to the polls for that cause.”);

3

j. PX0619 The Williams Institute, Chapter 14: Other Indicia

4

of Animus against LGBT People by State and Local

Officials, 1980-Present at 9 (2009): The Williams

5

Institute collected negative comments made by politicians

about gays and lesbians in all fifty states. An Arizona

6

state representative compared homosexuality to

“bestiality, human sacrifice, and cannibalism.” A

7

California state senator described homosexuality as “a

sickness * * * an uncontrolled passion similar to that

8

which would cause someone to rape.”;

9

k. PX0796 Kenneth P Miller, The Democratic Coalition’s

Religious Divide: Why California Voters Supported Obama

10

but Not Same-Sex Marriage, 119 Revue Française d’Études

Américaines 46, 52 (2009): “In the decade between 1998

11

and 2008, thirty states held statewide elections on state

constitutional amendments defining marriage as a union

12

between a man and a woman. * * * Voters approved marriage

amendments in all thirty states where they were able to

13

vote on the question, usually by large margins.”

14 79. The Proposition 8 campaign relied on fears that children

15

exposed to the concept of same-sex marriage may become gay or

16

lesbian. The reason children need to be protected from same-

17

sex marriage was never articulated in official campaign

18

advertisements. Nevertheless, the advertisements insinuated

19

that learning about same-sex marriage could make a child gay

20

or lesbian and that parents should dread having a gay or

21

lesbian child.

22

a. Tr 424:24-429:6 (Chauncey: Proposition 8 Official Voter

Guide evoked fears about and contained stereotypical

23

images of gay people.);

24

b. PX0710 at RFA No 51: Attorney General admits that some of

the advertising in favor of Proposition 8 was based on

25

fear of and prejudice against homosexual men and women;

26

c. Tr 2608:16-18 (Miller: “My view is that at least some

people voted for Proposition 8 on the basis of anti-gay

27

stereotypes and prejudice.”);

28

105

United States District Court For the Northern District of California

1

d. PX0577 Frank Schubert and Jeff Flint, Passing Prop 8,

Politics at 45-47 (Feb 2009): “[P]assing Proposition 8

2

would depend on our ability to convince voters that

same-sex marriage had broader implications for

3

Californians and was not only about the two individuals

involved in a committed gay relationship.” “We strongly

4

believed that a campaign in favor of traditional marriage

would not be enough to prevail.” “We probed long and

5

hard in countless focus groups and surveys to explore

reactions to a variety of consequences our issue experts

6

identified” and they decided to create campaign messaging

focusing on “how this new ‘fundamental right’ would be

7

inculcated in young children through public schools.”

“[T]here were limits to the degree of tolerance

8

Californians would afford the gay community. They would

entertain allowing gay marriage, but not if doing so had

9

significant implications for the rest of society.” “The

Prop 8 victory proves something that readers of Politics

10

magazine know very well: campaigns matter.”;

11

e. PX2150 Mailing leaflet, Protect Marriage: “[F]our

activist judges on the Supreme Court in San Francisco

12

ignored four million voters and imposed same-sex marriage

on California. Their ruling means it is no longer about

13

‘tolerance.’ Acceptance of Gay Marriage is Now

Mandatory.”; 14

f. PX0015 Video, Finally the Truth; PX0016 Video, Have You

15

Thought About It?; and PX0091 Video, Everything to Do

With Schools: Protect Marriage television ads threatening

16

unarticulated consequences to children if Proposition 8

does not pass; 17

g. PX0513 Letter from Tam to “friends”: “This November, San

18

Francisco voters will vote on a ballot to ‘legalize

prostitution.’ This is put forth by the SF city

19

government, which is under the rule of homosexuals. They

lose no time in pushing the gay agenda —— after

20

legalizing same-sex marriage, they want to legalize

prostitution. What will be next? On their agenda list

21

is: legalize having sex with children * * * We can’t lose

this critical battle. If we lose, this will very likely

22

happen * * * 1. Same-Sex marriage will be a permanent law

in California. One by one, other states would fall into

23

Satan’s hand. 2. Every child, when growing up, would

fantasize marrying someone of the same sex. More

24

children would become homosexuals. Even if our children

is safe, our grandchildren may not. What about our

25

children’s grandchildren? 3. Gay activists would target

the big churches and request to be married by their

26

pastors. If the church refuse, they would sue the

church.” (as written); 27

h. Tr 553:23-554:14 (Chauncey: Tam’s “What If We Lose”

28

letter is consistent in its tone with a much longer

106

United States District Court For the Northern District of California

1

history of anti-gay rhetoric. It reproduces many of the

major themes of the anti-gay rights campaigns of previous

2

decades and a longer history of anti-gay

discrimination.);

3

i. PX0116 Video, Massachusetts Parents Oppose Same-Sex

4

Marriage: Robb and Robin Wirthlin, Massachusetts parents,

warn that redefining marriage has an impact on every

5

level of society, especially on children, and claim that

in Massachusetts homosexuality and gay marriage will soon

6

be taught and promoted in every subject, including math,

reading, social studies and spelling; 7

j. Tr 530:24-531:11 (Chauncey: The Wirthlins’ advertisement

8

implies that the very exposure to the idea of

homosexuality threatens children and threatens their

9

sexual identity, as if homosexuality were a choice. In

addition, it suggests that the fact that gay people are

10

being asked to be recognized and have their relationships

recognized is an imposition on other people, as opposed

11

to an extension of fundamental civil rights to gay and

lesbian people.); 12

k. PX0391 Ron Prentice Addressing Supporters of Proposition

13

8, Part II at 1:25-1:40: “It’s all about education, and

how it will be completely turned over, not just

14

incrementally now, but whole hog to the other side.”;

15

l. Tr 1579:5-21 (Segura: “[O]ne of the enduring * * * tropes

of anti-gay argumentation has been that gays are a threat

16

to children. * * * [I]n the Prop 8 campaign [there] was a

campaign advertisement saying, * * * ‘At school today, I

17

was told that I could marry a princess too.’ And the

underlying message of that is that * * * if Prop 8

18

failed, the public schools are going to turn my daughter

into a lesbian.”); 19

m. PX0015 Video, Finally the Truth; PX0099 Video, It’s

20

Already Happened; PX0116 Video, Massachusetts Parents

Oppose Same-Sex Marriage; PX0401 Video, Tony Perkins,

21

Miles McPherson and Ron Prentice Asking for Support of

Proposition 8: Proposition 8 campaign videos focused on

22

the need to protect children;

23

n. PX0079 Asian American Empowerment Council, Asian American

Community Newsletter & Voter Guide (Oct/Nov 2008):

24

Children need to be protected from gays and lesbians;

25

o. Tr 1913:17-1914:12 (Tam: Tam supported Proposition 8

because he thinks “it is very important that our children

26

won’t grow up to fantasize or think about, Should I marry

Jane or John when I grow up? Because this is very

27

important for Asian families, the cultural issues, the

stability of the family.”); 28

107

United States District Court For the Northern District of California

1

p. Tr 558:16-560:12 (Chauncey: Tam’s deposition testimony

displays the deep fear about the idea that simple

2

exposure to homosexuality or to marriages of gay and

lesbian couples would lead children to become gay. And

3

the issue is not just marriage equality itself —— it is

sympathy to homosexuality. They oppose the idea that

4

children could be introduced in school to the idea that

there are gay people in the world. It is also consistent

5

with the idea that homosexuality is a choice and there is

an association between homosexuality and disease.); 6

q. PX0480A Video supporting Proposition 8 at 0:58-1:12:

7

Prentice states that “[i]f traditional marriage goes by

the wayside, then in every public school, children will

8

be indoctrinated with a message that is absolutely

contrary to the values that their family is attempting to

9

teach them at home.”

10 80. The campaign to pass Proposition 8 relied on stereotypes to

11

show that same-sex relationships are inferior to opposite-sex

12

relationships.

13

a. Tr 429:15-430:8, 431:17-432:11, 436:25-437:15,

438:8-439:6, 529:25-531:11; PX0015 Video, Finally the

14

Truth; PX0016 Video, Have You Thought About It?; PX0029

Video, Whether You Like It Or Not; PX0091 Video,

15

Everything to Do With Schools; PX0099 Video, It’s Already

Happened; PX1775 Photo leaflet, Protect Marriage (black

16

and white); PX1775A Photo leaflet, Protect Marriage

(color); PX1763 Poster with Phone Number, Protect

17

Marriage: (Chauncey: The campaign television and print

ads focused on protecting children and the concern that

18

people of faith and religious groups would somehow be

harmed by the recognition of gay marriage. The campaign

19

conveyed a message that gay people and relationships are

inferior, that homosexuality is undesirable and that

20

children need to be protected from exposure to gay people

and their relationships. The most striking image is of

21

the little girl who comes in to tell her mom that she

learned that a princess can marry a princess, which

22

strongly echoes the idea that mere exposure to gay people

and their relationships is going to lead a generation of

23

young people to become gay, which voters are to

understand as undesirable. The campaign conveyed a

24

message used in earlier campaigns that when gay people

seek any recognition this is an imposition on other

25

people rather than simply an extension of civil rights to

gay people.); 26

b. Compare above with Tr 412:23-413:1, 418:11-419:22,

27

420:3-20; PX1621 Pamphlet, Save Our Children; PX0864

Dudley Clendinen and Adam Nagourney, Out for Good: The

28

Struggle to Build a Gay Rights Movement in America at 303

108

United States District Court For the Northern District of California

1

(Touchstone 1999): (Chauncey: One of the earliest

anti-gay initiative campaigns used overt messaging of

2

content similar to the Proposition 8 campaign.);

3

c. PX0008 Memorandum, Protect Marriage, New YouTube Video

Clarifies Yes on 8 Proponents’ Concerns: Education and

4

Protection of Children is [sic] at Risk (Oct 31, 2008);

PX0025 Leaflet, Protect Marriage, Vote YES on Prop 8

5

(Barack Obama: “I’m not in favor of gay marriage

* * *.”); PX1565 News Release, Protect Marriage, First

6

Graders Taken to San Francisco City Hall for Gay Wedding

(Oct 11, 2008): Proposition 8 campaign materials warn

7

that unless Proposition 8 passes, children will be

exposed to indoctrination on gay lifestyles. These

8

materials invoke fears about the gay agenda.

9

10

III

11

CONCLUSIONS OF LAW3

12

Plaintiffs challenge Proposition 8 under the Due Process

13 and Equal Protection Clauses of the Fourteenth Amendment. Each

14 challenge is independently meritorious, as Proposition 8 both

15 unconstitutionally burdens the exercise of the fundamental right to

16 marry and creates an irrational classification on the basis of

17 sexual orientation.

18

19 DUE PROCESS

20

The Due Process Clause provides that no “State [shall]

21 deprive any person of life, liberty, or property, without due

22 process of law.” US Const Amend XIV, § 1. Due process protects

23 individuals against arbitrary governmental intrusion into life,

24 liberty or property. See Washington v Glucksberg, 521 US 702, 719-

25 720 (1997). When legislation burdens the exercise of a right

26 deemed to be fundamental, the government must show that the

27

28 3 To the extent any of the conclusions of law should more properly be considered
findings of fact, they shall be deemed as such.

109

United States District Court For the Northern District of California

1 intrusion withstands strict scrutiny. Zablocki v Redhail, 434 US

2 374, 388 (1978).

3 THE RIGHT TO MARRY PROTECTS AN INDIVIDUAL’S CHOICE OF MARITAL
4 PARTNER REGARDLESS OF GENDER

5

The freedom to marry is recognized as a fundamental right

6 protected by the Due Process Clause. See, for example, Turner v

7 Safely, 482 US 78, 95 (1987) (“[T]he decision to marry is a

8 fundamental right” and marriage is an “expression[ ] of emotional

9 support and public commitment.”); Zablocki, 434 US at 384 (1978)

10 (“The right to marry is of fundamental importance for all

11 individuals.”); Cleveland Board of Education v LaFleur, 414 US 632,

12 639-40 (1974) (“This Court has long recognized that freedom of

13 personal choice in matters of marriage and family life is one of

14 the liberties protected by the Due Process Clause of the Fourteenth

15 Amendment.”); Loving v Virginia, 388 US 1, 12 (1967) (The “freedom

16 to marry has long been recognized as one of the vital personal

17 rights essential to the orderly pursuit of happiness by free

18 men.”); Griswold v Connecticut, 381 US 479, 486 (1965) (“Marriage

19 is a coming together for better or for worse, hopefully enduring,

20 and intimate to the degree of being sacred. It is an association

21 that promotes a way of life, not causes; a harmony in living, not

22 political faiths; a bilateral loyalty, not commercial or social

23 projects. Yet it is an association for as noble a purpose as any

24 involved in our prior decisions.”).

25

The parties do not dispute that the right to marry is

26 fundamental. The question presented here is whether plaintiffs

27 seek to exercise the fundamental right to marry; or, because they

28

110

United States District Court For the Northern District of California

1 are couples of the same sex, whether they seek recognition of a new

2 right.

3

To determine whether a right is fundamental under the Due

4 Process Clause, the court inquires into whether the right is rooted

5 “in our Nation’s history, legal traditions, and practices.”

6 Glucksberg, 521 US at 710. Here, because the right to marry is

7 fundamental, the court looks to the evidence presented at trial to

8 determine: (1) the history, tradition and practice of marriage in

9 the United States; and (2) whether plaintiffs seek to exercise

10 their right to marry or seek to exercise some other right. Id.

11

Marriage has retained certain characteristics throughout

12 the history of the United States. See FF 19, 34-35. Marriage

13 requires two parties to give their free consent to form a

14 relationship, which then forms the foundation of a household. FF

15 20, 34. The spouses must consent to support each other and any

16 dependents. FF 34-35, 37. The state regulates marriage because

17 marriage creates stable households, which in turn form the basis of

18 a stable, governable populace. FF 35-37. The state respects an

19 individual’s choice to build a family with another and protects the

20 relationship because it is so central a part of an individual’s

21 life. See Bowers v Hardwick, 478 US 186, 204-205 (1986) (Blackmun,

22 J, dissenting).

23

Never has the state inquired into procreative capacity or

24 intent before issuing a marriage license; indeed, a marriage

25 license is more than a license to have procreative sexual

26 intercourse. FF 21. “[I]t would demean a married couple were it

27 to be said marriage is simply about the right to have sexual

28 intercourse.” Lawrence, 539 US at 567. The Supreme Court

111

United States District Court For the Northern District of California

1 recognizes that, wholly apart from procreation, choice and privacy

2 play a pivotal role in the marital relationship. See Griswold, 381

3 US at 485-486.

4

Race restrictions on marital partners were once common in

5 most states but are now seen as archaic, shameful or even bizarre.

6 FF 23-25. When the Supreme Court invalidated race restrictions in

7 Loving, the definition of the right to marry did not change. 388

8 US at 12. Instead, the Court recognized that race restrictions,

9 despite their historical prevalence, stood in stark contrast to the

10 concepts of liberty and choice inherent in the right to marry. Id.

11

The marital bargain in California (along with other

12 states) traditionally required that a woman’s legal and economic

13 identity be subsumed by her husband’s upon marriage under the

14 doctrine of coverture; this once-unquestioned aspect of marriage

15 now is regarded as antithetical to the notion of marriage as a

16 union of equals. FF 26-27, 32. As states moved to recognize the

17 equality of the sexes, they eliminated laws and practices like

18 coverture that had made gender a proxy for a spouse’s role within a

19 marriage. FF 26-27, 32. Marriage was thus transformed from a

20 male-dominated institution into an institution recognizing men and

21 women as equals. Id. Yet, individuals retained the right to

22 marry; that right did not become different simply because the

23 institution of marriage became compatible with gender equality.

24

The evidence at trial shows that marriage in the United

25 States traditionally has not been open to same-sex couples. The

26 evidence suggests many reasons for this tradition of exclusion,

27 including gender roles mandated through coverture, FF 26-27, social

28 disapproval of same-sex relationships, FF 74, and the reality that

112

United States District Court For the Northern District of California

1 the vast majority of people are heterosexual and have had no reason

2 to challenge the restriction, FF 43. The evidence shows that the

3 movement of marriage away from a gendered institution and toward an

4 institution free from state-mandated gender roles reflects an

5 evolution in the understanding of gender rather than a change in

6 marriage. The evidence did not show any historical purpose for

7 excluding same-sex couples from marriage, as states have never

8 required spouses to have an ability or willingness to procreate in

9 order to marry. FF 21. Rather, the exclusion exists as an

10 artifact of a time when the genders were seen as having distinct

11 roles in society and in marriage. That time has passed.

12

The right to marry has been historically and remains the

13 right to choose a spouse and, with mutual consent, join together

14 and form a household. FF 19-20, 34-35. Race and gender

15 restrictions shaped marriage during eras of race and gender

16 inequality, but such restrictions were never part of the historical

17 core of the institution of marriage. FF 33. Today, gender is not

18 relevant to the state in determining spouses’ obligations to each

19 other and to their dependents. Relative gender composition aside,

20 same-sex couples are situated identically to opposite-sex couples

21 in terms of their ability to perform the rights and obligations of

22 marriage under California law. FF 48. Gender no longer forms an

23 essential part of marriage; marriage under law is a union of

24 equals.

25

Plaintiffs seek to have the state recognize their

26 committed relationships, and plaintiffs’ relationships are

27 consistent with the core of the history, tradition and practice of

28 marriage in the United States. Perry and Stier seek to be spouses;

113

United States District Court For the Northern District of California

1 they seek the mutual obligation and honor that attend marriage, FF

2 52. Zarrillo and Katami seek recognition from the state that their

3 union is “a coming together for better or for worse, hopefully

4 enduring, and intimate to the degree of being sacred.” Griswold,

5 381 US at 486. Plaintiffs’ unions encompass the historical purpose

6 and form of marriage. Only the plaintiffs’ genders relative to one

7 another prevent California from giving their relationships due

8 recognition.

9

Plaintiffs do not seek recognition of a new right. To

10 characterize plaintiffs’ objective as “the right to same-sex

11 marriage” would suggest that plaintiffs seek something different

12 from what opposite-sex couples across the state enjoy —— namely,

13 marriage. Rather, plaintiffs ask California to recognize their

14 relationships for what they are: marriages.

15
DOMESTIC PARTNERSHIPS DO NOT SATISFY CALIFORNIA’S OBLIGATION TO 16 ALLOW PLAINTIFFS TO MARRY

17

Having determined that plaintiffs seek to exercise their

18 fundamental right to marry under the Due Process Clause, the court

19 must consider whether the availability of Registered Domestic

20 Partnerships fulfills California’s due process obligation to same-

21 sex couples. The evidence shows that domestic partnerships were

22 created as an alternative to marriage that distinguish same-sex

23 from opposite-sex couples. FF 53-54; In re Marriage Cases, 183 P3d

24 384, 434 (Cal 2008) (One of the “core elements of th[e] fundamental

25 right [to marry] is the right of same-sex couples to have their

26 official family relationship accorded the same dignity, respect,

27 and stature as that accorded to all other officially recognized

28 family relationships.”); id at 402, 434, 445 (By “reserving the

114

United States District Court For the Northern District of California

1 historic and highly respected designation of marriage exclusively

2 to opposite-sex couples while offering same-sex couples only the

3 new and unfamiliar designation of domestic partnership,” the state

4 communicates the “official view that [same-sex couples’] committed

5 relationships are of lesser stature than the comparable

6 relationships of opposite-sex couples.”). Proponents do not

7 dispute the “significant symbolic disparity between domestic

8 partnership and marriage.” Doc #159-2 at 6.

9

California has created two separate and parallel

10 institutions to provide couples with essentially the same rights

11 and obligations. Cal Fam Code § 297.5(a). Domestic partnerships

12 are not open to opposite-sex couples unless one partner is at least

13 sixty-two years old. Cal Fam Code § 297(b)(5)(B). Apart from this

14 limited exception —— created expressly to benefit those eligible

15 for benefits under the Social Security Act —— the sole basis upon

16 which California determines whether a couple receives the

17 designation “married” or the designation “domestic partnership” is

18 the sex of the spouses relative to one another. Compare Cal Fam

19 Code §§ 297-299.6 (domestic partnership) with §§ 300-536

20 (marriage). No further inquiry into the couple or the couple’s

21 relationship is required or permitted. Thus, California allows

22 almost all opposite-sex couples only one option —— marriage —— and

23 all same-sex couples only one option —— domestic partnership. See

24 id, FF 53-54.

25

The evidence shows that domestic partnerships do not

26 fulfill California’s due process obligation to plaintiffs for two

27 reasons. First, domestic partnerships are distinct from marriage

28 and do not provide the same social meaning as marriage. FF 53-54.

115

United States District Court For the Northern District of California

1 Second, domestic partnerships were created specifically so that

2 California could offer same-sex couples rights and benefits while

3 explicitly withholding marriage from same-sex couples. Id, Cal Fam

4 Code § 297 (Gov Davis 2001 signing statement: “In California, a

5 legal marriage is between a man and a woman. * * * This [domestic

6 partnership] legislation does nothing to contradict or undermine

7 the definition of a legal marriage.”).

8

The evidence at trial shows that domestic partnerships

9 exist solely to differentiate same-sex unions from marriages. FF

10 53-54. A domestic partnership is not a marriage; while domestic

11 partnerships offer same-sex couples almost all of the rights and

12 responsibilities associated with marriage, the evidence shows that

13 the withholding of the designation “marriage” significantly

14 disadvantages plaintiffs. FF 52-54. The record reflects that

15 marriage is a culturally superior status compared to a domestic

16 partnership. FF 52. California does not meet its due process

17 obligation to allow plaintiffs to marry by offering them a

18 substitute and inferior institution that denies marriage to same-

19 sex couples.

20

21 PROPOSITION 8 IS UNCONSTITUTIONAL BECAUSE IT DENIES PLAINTIFFS A FUNDAMENTAL RIGHT WITHOUT A LEGITIMATE (MUCH LESS COMPELLING)
22 REASON

23

Because plaintiffs seek to exercise their fundamental

24 right to marry, their claim is subject to strict scrutiny.

25 Zablocki, 434 US at 388. That the majority of California voters

26 supported Proposition 8 is irrelevant, as “fundamental rights may

27 not be submitted to [a] vote; they depend on the outcome of no

28 elections.” West Virginia State Board of Education v Barnette, 319

116

United States District Court For the Northern District of California

1 US 624, 638 (1943). Under strict scrutiny, the state bears the

2 burden of producing evidence to show that Proposition 8 is narrowly

3 tailored to a compelling government interest. Carey v Population

4 Services International, 431 US 678, 686 (1977). Because the

5 government defendants declined to advance such arguments,

6 proponents seized the role of asserting the existence of a

7 compelling California interest in Proposition 8.

8

As explained in detail in the equal protection analysis,

9 Proposition 8 cannot withstand rational basis review. Still less

10 can Proposition 8 survive the strict scrutiny required by

11 plaintiffs’ due process claim. The minimal evidentiary

12 presentation made by proponents does not meet the heavy burden of

13 production necessary to show that Proposition 8 is narrowly

14 tailored to a compelling government interest. Proposition 8

15 cannot, therefore, withstand strict scrutiny. Moreover, proponents

16 do not assert that the availability of domestic partnerships

17 satisfies plaintiffs’ fundamental right to marry; proponents

18 stipulated that “[t]here is a significant symbolic disparity

19 between domestic partnership and marriage.” Doc #159-2 at 6.

20 Accordingly, Proposition 8 violates the Due Process Clause of the

21 Fourteenth Amendment.

22

23 EQUAL PROTECTION

24

The Equal Protection Clause of the Fourteenth Amendment

25 provides that no state shall “deny to any person within its

26 jurisdiction the equal protection of the laws.” US Const Amend

27 XIV, § 1. Equal protection is “a pledge of the protection of equal

28 laws.” Yick Wo v Hopkins, 118 US 356, 369 (1886). The guarantee

117

United States District Court For the Northern District of California

1 of equal protection coexists, of course, with the reality that most

2 legislation must classify for some purpose or another. See Romer v

3 Evans, 517 US 620, 631 (1996). When a law creates a classification

4 but neither targets a suspect class nor burdens a fundamental

5 right, the court presumes the law is valid and will uphold it as

6 long as it is rationally related to some legitimate government

7 interest. See, for example, Heller v Doe, 509 US 312, 319-320

8 (1993).

9

The court defers to legislative (or in this case,

10 popular) judgment if there is at least a debatable question whether

11 the underlying basis for the classification is rational. Minnesota

12 v Clover Leaf Creamery Co, 449 US 456, 464 (1980). Even under the

13 most deferential standard of review, however, the court must

14 “insist on knowing the relation between the classification adopted

15 and the object to be attained.” Romer, 517 US at 632; Heller, 509

16 US at 321 (basis for a classification must “find some footing in

17 the realities of the subject addressed by the legislation”). The

18 court may look to evidence to determine whether the basis for the

19 underlying debate is rational. Plyler v Doe, 457 US 202, 228

20 (1982) (finding an asserted interest in preserving state resources

21 by prohibiting undocumented children from attending public school

22 to be irrational because “the available evidence suggests that

23 illegal aliens underutilize public services, while contributing

24 their labor to the local economy and tax money to the state fisc”).

25 The search for a rational relationship, while quite deferential,

26 “ensure[s] that classifications are not drawn for the purpose of

27 disadvantaging the group burdened by the law.” Romer, 517 US at

28 633. The classification itself must be related to the purported

118

United States District Court For the Northern District of California

1 interest. Plyler, 457 US at 220 (“It is difficult to conceive of a

2 rational basis for penalizing [undocumented children] for their

3 presence within the United States,” despite the state’s interest in

4 preserving resources.).

5

Most laws subject to rational basis easily survive equal

6 protection review, because a legitimate reason can nearly always be

7 found for treating different groups in an unequal manner. See

8 Romer, 517 US at 633. Yet, to survive rational basis review, a law

9 must do more than disadvantage or otherwise harm a particular

10 group. United States Department of Agriculture v Moreno, 413 US

11 528, 534 (1973).

12

13 SEXUAL ORIENTATION OR SEX DISCRIMINATION

14

Plaintiffs challenge Proposition 8 as violating the Equal

15 Protection Clause because Proposition 8 discriminates both on the

16 basis of sex and on the basis of sexual orientation. Sexual

17 orientation discrimination can take the form of sex discrimination.

18 Here, for example, Perry is prohibited from marrying Stier, a

19 woman, because Perry is a woman. If Perry were a man, Proposition

20 8 would not prohibit the marriage. Thus, Proposition 8 operates to

21 restrict Perry’s choice of marital partner because of her sex. But

22 Proposition 8 also operates to restrict Perry’s choice of marital

23 partner because of her sexual orientation; her desire to marry

24 another woman arises only because she is a lesbian.

25

The evidence at trial shows that gays and lesbians

26 experience discrimination based on unfounded stereotypes and

27 prejudices specific to sexual orientation. Gays and lesbians have

28 historically been targeted for discrimination because of their

119

United States District Court For the Northern District of California

1 sexual orientation; that discrimination continues to the present.

2 FF 74-76. As the case of Perry and the other plaintiffs

3 illustrates, sex and sexual orientation are necessarily

4 interrelated, as an individual’s choice of romantic or intimate

5 partner based on sex is a large part of what defines an

6 individual’s sexual orientation. See FF 42-43. Sexual orientation

7 discrimination is thus a phenomenon distinct from, but related to,

8 sex discrimination.

9

Proponents argue that Proposition 8 does not target gays

10 and lesbians because its language does not refer to them. In so

11 arguing, proponents seek to mask their own initiative. FF 57.

12 Those who choose to marry someone of the opposite sex ——

13 heterosexuals —— do not have their choice of marital partner

14 restricted by Proposition 8. Those who would choose to marry

15 someone of the same sex —— homosexuals —— have had their right to

16 marry eliminated by an amendment to the state constitution.

17 Homosexual conduct and identity together define what it means to be

18 gay or lesbian. See FF 42-43. Indeed, homosexual conduct and

19 attraction are constitutionally protected and integral parts of

20 what makes someone gay or lesbian. Lawrence, 539 US at 579; FF 42-

21 43; see also Christian Legal Society v Martinez, 561 US __, 130 SCt

22 2971, No 08-1371 Slip Op at 23 (“Our decisions have declined to

23 distinguish between status and conduct in [the context of sexual

24 orientation].”) (June 28, 2010) (citing Lawrence, 539 US at 583

25 (O’Connor, J, concurring)).

26

Proposition 8 targets gays and lesbians in a manner

27 specific to their sexual orientation and, because of their

28 relationship to one another, Proposition 8 targets them

120

United States District Court For the Northern District of California

1 specifically due to sex. Having considered the evidence, the

2 relationship between sex and sexual orientation and the fact that

3 Proposition 8 eliminates a right only a gay man or a lesbian would

4 exercise, the court determines that plaintiffs’ equal protection

5 claim is based on sexual orientation, but this claim is equivalent

6 to a claim of discrimination based on sex.

7

8 STANDARD OF REVIEW

9

As presently explained in detail, the Equal Protection

10 Clause renders Proposition 8 unconstitutional under any standard of

11 review. Accordingly, the court need not address the question

12 whether laws classifying on the basis of sexual orientation should

13 be subject to a heightened standard of review.

14

Although Proposition 8 fails to possess even a rational

15 basis, the evidence presented at trial shows that gays and lesbians

16 are the type of minority strict scrutiny was designed to protect.

17 Massachusetts Board of Retirement v Murgia, 427 US 307, 313 (1976)

18 (noting that strict scrutiny may be appropriate where a group has

19 experienced a “‘history of purposeful unequal treatment’ or been

20 subjected to unique disabilities on the basis of stereotyped

21 characteristics not truly indicative of their abilities” (quoting

22 San Antonio School District v Rodriguez, 411 US 1, 28 (1973)). See

23 FF 42-43, 46-48, 74-78. Proponents admit that “same-sex sexual

24 orientation does not result in any impairment in judgment or

25 general social and vocational capabilities.” PX0707 at RFA No 21.

26

The court asked the parties to identify a difference

27 between heterosexuals and homosexuals that the government might

28 fairly need to take into account when crafting legislation. Doc

121

United States District Court For the Northern District of California

1 #677 at 8. Proponents pointed only to a difference between same-

2 sex couples (who are incapable through sexual intercourse of

3 producing offspring biologically related to both parties) and

4 opposite-sex couples (some of whom are capable through sexual

5 intercourse of producing such offspring). Doc #687 at 32-34.

6 Proponents did not, however, advance any reason why the government

7 may use sexual orientation as a proxy for fertility or why the

8 government may need to take into account fertility when

9 legislating. Consider, by contrast, City of Cleburne v Cleburne

10 Living Center, 473 US 432, 444 (1985) (Legislation singling out a

11 class for differential treatment hinges upon a demonstration of

12 “real and undeniable differences” between the class and others);

13 see also United States v Virginia, 518 US 515, 533 (1996)

14 (“Physical differences between men and women * * * are enduring.”).

15 No evidence at trial illuminated distinctions among lesbians, gay

16 men and heterosexuals amounting to “real and undeniable

17 differences” that the government might need to take into account in

18 legislating.

19

The trial record shows that strict scrutiny is the

20 appropriate standard of review to apply to legislative

21 classifications based on sexual orientation. All classifications

22 based on sexual orientation appear suspect, as the evidence shows

23 that California would rarely, if ever, have a reason to categorize

24 individuals based on their sexual orientation. FF 47. Here,

25 however, strict scrutiny is unnecessary. Proposition 8 fails to

26 survive even rational basis review.

27 \\

28 \\

122

United States District Court For the Northern District of California

1 PROPOSITION 8 DOES NOT SURVIVE RATIONAL BASIS

2

Proposition 8 cannot withstand any level of scrutiny

3 under the Equal Protection Clause, as excluding same-sex couples

4 from marriage is simply not rationally related to a legitimate

5 state interest. One example of a legitimate state interest in not

6 issuing marriage licenses to a particular group might be a scarcity

7 of marriage licenses or county officials to issue them. But

8 marriage licenses in California are not a limited commodity, and

9 the existence of 18,000 same-sex married couples in California

10 shows that the state has the resources to allow both same-sex and

11 opposite-sex couples to wed. See Background to Proposition 8

12 above.

13

Proponents put forth several rationales for Proposition

14 8, see Doc #605 at 12-15, which the court now examines in turn: (1)

15 reserving marriage as a union between a man and a woman and

16 excluding any other relationship from marriage; (2) proceeding with

17 caution when implementing social changes; (3) promoting opposite-

18 sex parenting over same-sex parenting; (4) protecting the freedom

19 of those who oppose marriage for same-sex couples; (5) treating

20 same-sex couples differently from opposite-sex couples; and (6) any

21 other conceivable interest.

22 PURPORTED INTEREST #1: RESERVING MARRIAGE AS A UNION BETWEEN A MAN
23 AND A WOMAN AND EXCLUDING ANY OTHER RELATIONSHIP

24

Proponents first argue that Proposition 8 is rational

25 because it preserves: (1) “the traditional institution of marriage

26 as the union of a man and a woman”; (2) “the traditional social and

27 legal purposes, functions, and structure of marriage”; and (3) “the

28 traditional meaning of marriage as it has always been defined in

123

United States District Court For the Northern District of California

1 the English language.” Doc #605 at 12-13. These interests relate

2 to maintaining the definition of marriage as the union of a man and

3 a woman for its own sake.

4

Tradition alone, however, cannot form a rational basis

5 for a law. Williams v Illinois, 399 US 235, 239 (1970). The

6 “ancient lineage” of a classification does not make it rational.

7 Heller, 509 US at 327. Rather, the state must have an interest

8 apart from the fact of the tradition itself.

9

The evidence shows that the tradition of restricting an

10 individual’s choice of spouse based on gender does not rationally

11 further a state interest despite its “ancient lineage.” Instead,

12 the evidence shows that the tradition of gender restrictions arose

13 when spouses were legally required to adhere to specific gender

14 roles. See FF 26-27. California has eliminated all legally-

15 mandated gender roles except the requirement that a marriage

16 consist of one man and one woman. FF 32. Proposition 8 thus

17 enshrines in the California Constitution a gender restriction that

18 the evidence shows to be nothing more than an artifact of a

19 foregone notion that men and women fulfill different roles in civic

20 life.

21

The tradition of restricting marriage to opposite-sex

22 couples does not further any state interest. Rather, the evidence

23 shows that Proposition 8 harms the state’s interest in equality,

24 because it mandates that men and women be treated differently based

25 only on antiquated and discredited notions of gender. See FF 32,

26 57.

27

Proponents’ argument that tradition prefers opposite-sex

28 couples to same-sex couples equates to the notion that opposite-sex

124

United States District Court For the Northern District of California

1 relationships are simply better than same-sex relationships.

2 Tradition alone cannot legitimate this purported interest.

3 Plaintiffs presented evidence showing conclusively that the state

4 has no interest in preferring opposite-sex couples to same-sex

5 couples or in preferring heterosexuality to homosexuality. See FF

6 48-50. Moreover, the state cannot have an interest in

7 disadvantaging an unpopular minority group simply because the group

8 is unpopular. Moreno, 413 US at 534.

9

The evidence shows that the state advances nothing when

10 it adheres to the tradition of excluding same-sex couples from

11 marriage. Proponents’ asserted state interests in tradition are

12 nothing more than tautologies and do not amount to rational bases

13 for Proposition 8.

14
PURPORTED INTEREST #2: PROCEEDING WITH CAUTION WHEN IMPLEMENTING 15 SOCIAL CHANGES

16

Proponents next argue that Proposition 8 is related to

17 state interests in: (1) “[a]cting incrementally and with caution

18 when considering a radical transformation to the fundamental nature

19 of a bedrock social institution”; (2) “[d]ecreasing the probability

20 of weakening the institution of marriage”; (3) “[d]ecreasing the

21 probability of adverse consequences that could result from

22 weakening the institution of marriage”; and (4) “[d]ecreasing the

23 probability of the potential adverse consequences of same-sex

24 marriage.” Doc #605 at 13-14.

25

Plaintiffs presented evidence at trial sufficient to

26 rebut any claim that marriage for same-sex couples amounts to a

27 sweeping social change. See FF 55. Instead, the evidence shows

28 beyond debate that allowing same-sex couples to marry has at least

125

United States District Court For the Northern District of California

1 a neutral, if not a positive, effect on the institution of marriage

2 and that same-sex couples’ marriages would benefit the state. Id.

3 Moreover, the evidence shows that the rights of those opposed to

4 homosexuality or same-sex couples will remain unaffected if the

5 state ceases to enforce Proposition 8. FF 55, 62.

6

The contrary evidence proponents presented is not

7 credible. Indeed, proponents presented no reliable evidence that

8 allowing same-sex couples to marry will have any negative effects

9 on society or on the institution of marriage. The process of

10 allowing same-sex couples to marry is straightforward, and no

11 evidence suggests that the state needs any significant lead time to

12 integrate same-sex couples into marriage. See Background to

13 Proposition 8 above. Consider, by contrast, Cooper v Aaron, 358 US

14 1, 7 (1958) (recognizing that a school district needed time to

15 implement racial integration but nevertheless finding a delay

16 unconstitutional because the school board’s plan did not provide

17 for “the earliest practicable completion of desegregation”). The

18 evidence shows that allowing same-sex couples to marry will be

19 simple for California to implement because it has already done so;

20 no change need be phased in. California need not restructure any

21 institution to allow same-sex couples to marry. See FF 55.

22

Because the evidence shows same-sex marriage has and will

23 have no adverse effects on society or the institution of marriage,

24 California has no interest in waiting and no practical need to wait

25 to grant marriage licenses to same-sex couples. Proposition 8 is

26 thus not rationally related to proponents’ purported interests in

27 proceeding with caution when implementing social change.

28 \\

126

United States District Court For the Northern District of California

1 PURPORTED INTEREST #3: PROMOTING OPPOSITE-SEX PARENTING OVER SAME-
2 SEX PARENTING

3

Proponents’ largest group of purported state interests

4 relates to opposite-sex parents. Proponents argue Proposition 8:

5 (1) promotes “stability and responsibility in naturally procreative

6 relationships”; (2) promotes “enduring and stable family structures

7 for the responsible raising and care of children by their

8 biological parents”; (3) increases “the probability that natural

9 procreation will occur within stable, enduring, and supporting

10 family structures”; (4) promotes “the natural and mutually

11 beneficial bond between parents and their biological children”;

12 (5) increases “the probability that each child will be raised by

13 both of his or her biological parents”; (6) increases “the

14 probability that each child will be raised by both a father and a

15 mother”; and (7) increases “the probability that each child will

16 have a legally recognized father and mother.” Doc #605 at 13-14.

17

The evidence supports two points which together show

18 Proposition 8 does not advance any of the identified interests: (1)

19 same-sex parents and opposite-sex parents are of equal quality, FF

20 69-73, and (2) Proposition 8 does not make it more likely that

21 opposite-sex couples will marry and raise offspring biologically

22 related to both parents, FF 43, 46, 51.

23

The evidence does not support a finding that California

24 has an interest in preferring opposite-sex parents over same-sex

25 parents. Indeed, the evidence shows beyond any doubt that parents’

26 genders are irrelevant to children’s developmental outcomes. FF

27 70. Moreover, Proposition 8 has nothing to do with children, as

28 Proposition 8 simply prevents same-sex couples from marrying. FF

127

United States District Court For the Northern District of California

1 57. Same-sex couples can have (or adopt) and raise children. When

2 they do, they are treated identically to opposite-sex parents under

3 California law. FF 49. Even if California had an interest in

4 preferring opposite-sex parents to same-sex parents —— and the

5 evidence plainly shows that California does not —— Proposition 8 is

6 not rationally related to that interest, because Proposition 8 does

7 not affect who can or should become a parent under California law.

8 FF 49, 57.

9

To the extent California has an interest in encouraging

10 sexual activity to occur within marriage (a debatable proposition

11 in light of Lawrence, 539 US at 571) the evidence shows Proposition

12 8 to be detrimental to that interest. Because of Proposition 8,

13 same-sex couples are not permitted to engage in sexual activity

14 within marriage. FF 53. Domestic partnerships, in which sexual

15 activity is apparently expected, are separate from marriage and

16 thus codify California’s encouragement of non-marital sexual

17 activity. Cal Fam Code §§ 297-299.6. To the extent proponents

18 seek to encourage a norm that sexual activity occur within marriage

19 to ensure that reproduction occur within stable households,

20 Proposition 8 discourages that norm because it requires some sexual

21 activity and child-bearing and child-rearing to occur outside

22 marriage.

23

Proponents argue Proposition 8 advances a state interest

24 in encouraging the formation of stable households. Instead, the

25 evidence shows that Proposition 8 undermines that state interest,

26 because same-sex households have become less stable by the passage

27 of Proposition 8. The inability to marry denies same-sex couples

28 the benefits, including stability, attendant to marriage. FF 50.

128

United States District Court For the Northern District of California

1 Proponents failed to put forth any credible evidence that married

2 opposite-sex households are made more stable through Proposition 8.

3 FF 55. The only rational conclusion in light of the evidence is

4 that Proposition 8 makes it less likely that California children

5 will be raised in stable households. See FF 50, 56.

6

None of the interests put forth by proponents relating to

7 parents and children is advanced by Proposition 8; instead, the

8 evidence shows Proposition 8 disadvantages families and their

9 children.

10
PURPORTED INTEREST #4: PROTECTING THE FREEDOM OF THOSE WHO OPPOSE 11 MARRIAGE FOR SAME-SEX COUPLES

12

Proponents next argue that Proposition 8 protects the

13 First Amendment freedom of those who disagree with allowing

14 marriage for couples of the same sex. Proponents argue that

15 Proposition 8: (1) preserves “the prerogative and responsibility of

16 parents to provide for the ethical and moral development and

17 education of their own children”; and (2) accommodates “the First

18 Amendment rights of individuals and institutions that oppose same-

19 sex marriage on religious or moral grounds.” Doc #605 at 14.

20

These purported interests fail as a matter of law.

21 Proposition 8 does not affect any First Amendment right or

22 responsibility of parents to educate their children. See In re

23 Marriage Cases, 183 P3d at 451-452. Californians are prevented

24 from distinguishing between same-sex partners and opposite-sex

25 spouses in public accommodations, as California antidiscrimination

26 law requires identical treatment for same-sex unions and opposite-

27 sex marriages. Koebke v Bernardo Heights Country Club, 115 P3d

28 1212, 1217-1218 (Cal 2005). The evidence shows that Proposition 8

129

United States District Court For the Northern District of California

1 does nothing other than eliminate the right of same-sex couples to

2 marry in California. See FF 57, 62. Proposition 8 is not

3 rationally related to an interest in protecting the rights of those

4 opposed to same-sex couples because, as a matter of law,

5 Proposition 8 does not affect the rights of those opposed to

6 homosexuality or to marriage for couples of the same sex. FF 62.

7

To the extent proponents argue that one of the rights of

8 those morally opposed to same-sex unions is the right to prevent

9 same-sex couples from marrying, as explained presently those

10 individuals’ moral views are an insufficient basis upon which to

11 enact a legislative classification.

12
PURPORTED INTEREST #5: TREATING SAME-SEX COUPLES DIFFERENTLY FROM 13 OPPOSITE-SEX COUPLES

14

Proponents argue that Proposition 8 advances a state

15 interest in treating same-sex couples differently from opposite-sex

16 couples by: (1) “[u]sing different names for different things”; (2)

17 “[m]aintaining the flexibility to separately address the needs of

18 different types of relationships”; (3) “[e]nsuring that California

19 marriages are recognized in other jurisdictions”; and (4)

20 “[c]onforming California’s definition of marriage to federal law.”

21 Doc #605 at 14.

22

Here, proponents assume a premise that the evidence

23 thoroughly rebutted: rather than being different, same-sex and

24 opposite-sex unions are, for all purposes relevant to California

25 law, exactly the same. FF 47-50. The evidence shows conclusively

26 that moral and religious views form the only basis for a belief

27 that same-sex couples are different from opposite-sex couples. See

28 FF 48, 76-80. The evidence fatally undermines any purported state

130

United States District Court For the Northern District of California

1 interest in treating couples differently; thus, these interests do

2 not provide a rational basis supporting Proposition 8.

3

In addition, proponents appear to claim that Proposition

4 8 advances a state interest in easing administrative burdens

5 associated with issuing and recognizing marriage licenses. Under

6 precedents such as Craig v Boren, “administrative ease and

7 convenience” are not important government objectives. 429 US 190,

8 198 (1976). Even assuming the state were to have an interest in

9 administrative convenience, Proposition 8 actually creates an

10 administrative burden on California because California must

11 maintain a parallel institution for same-sex couples to provide the

12 equivalent rights and benefits afforded to married couples. See FF

13 53. Domestic partnerships create an institutional scheme that must

14 be regulated separately from marriage. Compare Cal Fam Code §§

15 297-299.6 with Cal Fam Code §§ 300-536. California may determine

16 whether to retain domestic partnerships or eliminate them in the

17 absence of Proposition 8; the court presumes, however, that as long

18 as Proposition 8 is in effect, domestic partnerships and the

19 accompanying administrative burden will remain. Proposition 8 thus

20 hinders rather than advances administrative convenience.

21

22 PURPORTED INTEREST #6: THE CATCHALL INTEREST

23

Finally, proponents assert that Proposition 8 advances

24 “[a]ny other conceivable legitimate interests identified by the

25 parties, amici, or the court at any stage of the proceedings.” Doc

26 #605 at 15. But proponents, amici and the court, despite ample

27 opportunity and a full trial, have failed to identify any rational

28 basis Proposition 8 could conceivably advance. Proponents,

131

United States District Court For the Northern District of California

1 represented by able and energetic counsel, developed a full trial

2 record in support of Proposition 8. The resulting evidence shows

3 that Proposition 8 simply conflicts with the guarantees of the

4 Fourteenth Amendment.

5

Many of the purported interests identified by proponents

6 are nothing more than a fear or unarticulated dislike of same-sex

7 couples. Those interests that are legitimate are unrelated to the

8 classification drawn by Proposition 8. The evidence shows that, by

9 every available metric, opposite-sex couples are not better than

10 their same-sex counterparts; instead, as partners, parents and

11 citizens, opposite-sex couples and same-sex couples are equal. FF

12 47-50. Proposition 8 violates the Equal Protection Clause because

13 it does not treat them equally.

14
A PRIVATE MORAL VIEW THAT SAME-SEX COUPLES ARE INFERIOR TO 15 OPPOSITE-SEX COUPLES IS NOT A PROPER BASIS FOR LEGISLATION

16

In the absence of a rational basis, what remains of

17 proponents’ case is an inference, amply supported by evidence in

18 the record, that Proposition 8 was premised on the belief that

19 same-sex couples simply are not as good as opposite-sex couples.

20 FF 78-80. Whether that belief is based on moral disapproval of

21 homosexuality, animus towards gays and lesbians or simply a belief

22 that a relationship between a man and a woman is inherently better

23 than a relationship between two men or two women, this belief is

24 not a proper basis on which to legislate. See Romer, 517 US at

25 633; Moreno, 413 US at 534; Palmore v Sidoti, 466 US 429, 433

26 (1984) (“[T]he Constitution cannot control [private biases] but

27 neither can it tolerate them.”).

28

132

United States District Court For the Northern District of California

1

The evidence shows that Proposition 8 was a hard-fought

2 campaign and that the majority of California voters supported the

3 initiative. See Background to Proposition 8 above, FF 17-18, 79-

4 80. The arguments surrounding Proposition 8 raise a question

5 similar to that addressed in Lawrence, when the Court asked whether

6 a majority of citizens could use the power of the state to enforce

7 “profound and deep convictions accepted as ethical and moral

8 principles” through the criminal code. 539 US at 571. The

9 question here is whether California voters can enforce those same

10 principles through regulation of marriage licenses. They cannot.

11 California’s obligation is to treat its citizens equally, not to

12 “mandate [its] own moral code.” Id (citing Planned Parenthood of

13 Southeastern Pa v Casey, 505 US 833, 850, (1992)). “[M]oral

14 disapproval, without any other asserted state interest,” has never

15 been a rational basis for legislation. Lawrence, 539 US at 582

16 (O'Connor, J, concurring). Tradition alone cannot support

17 legislation. See Williams, 399 US at 239; Romer, 517 US at 635;

18 Lawrence, 539 US at 579.

19

Proponents’ purported rationales are nothing more than

20 post-hoc justifications. While the Equal Protection Clause does

21 not prohibit post-hoc rationales, they must connect to the

22 classification drawn. Here, the purported state interests fit so

23 poorly with Proposition 8 that they are irrational, as explained

24 above. What is left is evidence that Proposition 8 enacts a moral

25 view that there is something “wrong” with same-sex couples. See FF

26 78-80.

27

The evidence at trial regarding the campaign to pass

28 Proposition 8 uncloaks the most likely explanation for its passage:

133

United States District Court For the Northern District of California

1 a desire to advance the belief that opposite-sex couples are

2 morally superior to same-sex couples. FF 79-80. The campaign

3 relied heavily on negative stereotypes about gays and lesbians and

4 focused on protecting children from inchoate threats vaguely

5 associated with gays and lesbians. FF 79-80; See PX0016 Video,

6 Have You Thought About It? (video of a young girl asking whether

7 the viewer has considered the consequences to her of Proposition 8

8 but not explaining what those consequences might be).

9

At trial, proponents’ counsel attempted through cross-

10 examination to show that the campaign wanted to protect children

11 from learning about same-sex marriage in school. See PX0390A

12 Video, Ron Prentice Addressing Supporters of Proposition 8,

13 Excerpt; Tr 132:25-133:3 (proponents’ counsel to Katami: “But the

14 fact is that what the Yes on 8 campaign was pointing at, is that

15 kids would be taught about same-sex relationships in first and

16 second grade; isn’t that a fact, that that’s what they were

17 referring to?”). The evidence shows, however, that Proposition 8

18 played on a fear that exposure to homosexuality would turn children

19 into homosexuals and that parents should dread having children who

20 are not heterosexual. FF 79; PX0099 Video, It’s Already Happened

21 (mother’s expression of horror upon realizing her daughter now

22 knows she can marry a princess).

23

The testimony of George Chauncey places the Protect

24 Marriage campaign advertisements in historical context as echoing

25 messages from previous campaigns to enact legal measures to

26 disadvantage gays and lesbians. FF 74, 77-80. The Protect

27 Marriage campaign advertisements ensured California voters had

28 these previous fear-inducing messages in mind. FF 80. The

134

United States District Court For the Northern District of California

1 evidence at trial shows those fears to be completely unfounded. FF

2 47-49, 68-73, 76-80.

3

Moral disapproval alone is an improper basis on which to

4 deny rights to gay men and lesbians. The evidence shows

5 conclusively that Proposition 8 enacts, without reason, a private

6 moral view that same-sex couples are inferior to opposite-sex

7 couples. FF 76, 79-80; Romer, 517 US at 634 (“[L]aws of the kind

8 now before us raise the inevitable inference that the disadvantage

9 imposed is born of animosity toward the class of persons

10 affected.”). Because Proposition 8 disadvantages gays and lesbians

11 without any rational justification, Proposition 8 violates the

12 Equal Protection Clause of the Fourteenth Amendment.

13

14

CONCLUSION

15

Proposition 8 fails to advance any rational basis in

16 singling out gay men and lesbians for denial of a marriage license.

17 Indeed, the evidence shows Proposition 8 does nothing more than

18 enshrine in the California Constitution the notion that opposite-

19 sex couples are superior to same-sex couples. Because California

20 has no interest in discriminating against gay men and lesbians, and

21 because Proposition 8 prevents California from fulfilling its

22 constitutional obligation to provide marriages on an equal basis,

23 the court concludes that Proposition 8 is unconstitutional.

24 \\

25 \\

26 \\

27 \\

28 \\

135

United States District Court For the Northern District of California

1

REMEDIES

2

Plaintiffs have demonstrated by overwhelming evidence

3 that Proposition 8 violates their due process and equal protection

4 rights and that they will continue to suffer these constitutional

5 violations until state officials cease enforcement of Proposition

6 8. California is able to issue marriage licenses to same-sex

7 couples, as it has already issued 18,000 marriage licenses to same-

8 sex couples and has not suffered any demonstrated harm as a result,

9 see FF 64-66; moreover, California officials have chosen not to

10 defend Proposition 8 in these proceedings.

11

Because Proposition 8 is unconstitutional under both the

12 Due Process and Equal Protection Clauses, the court orders entry of

13 judgment permanently enjoining its enforcement; prohibiting the

14 official defendants from applying or enforcing Proposition 8 and

15 directing the official defendants that all persons under their

16 control or supervision shall not apply or enforce Proposition 8.

17 The clerk is DIRECTED to enter judgment without bond in favor of

18 plaintiffs and plaintiff-intervenors and against defendants and

19 defendant-intervenors pursuant to FRCP 58.

20

21

IT IS SO ORDERED.

22

23

24

VAUGHN R WALKER

United States District Chief Judge 25

26

27

28

136

 
 Case3:09-cv-02292-VRW Document1-1 Filed05/22/09 Page1 of 11

1 GIBSON, DUNN & CRUTCHER LLP Theodore B. Olson, SBN 38137.
2 tolson@gibsondunn. com Matthew D. McGill (pro hac vice application pending)
3 Amir C. Tayrani, SBN 229609 1050 Connecticut Avenue, N.W. Washington, D.C. 20036
4 Telephone: (202) 955-8668, Facsimile: (202) 467-0539

5 Theodore J. Boutrous, Jr., SBN 132009 tboutrous@gibsondunn. com
6 Christopher D. Dusseault, SBN 177557 Ethan D. Dettmer, SBN 196046
7 Theane Evangelis Kapur, SBN 243570 Emique A. Monagas, SBN 239087
8 333 S. Grand Avenue, Los Angeles, California 90071 Telephone: (213) 229-7804, Facsimile: (213) 229-7520
9 BOIES, SCHILLER & FLEXNER LLP
10 David Boies (pro hac vice application pending) dboies@bsjllp. com
11 Theodore H. Uno, SBN 248603 333 Main Street, Armonk, New York 10504
12 Telephone: (914) 749-8200, Facsimile: (914) 749-8300

13 Attorneys for Plaintiffs KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and JEFFREY J. ZARRILLO

ORIGft~AL

14

UNITED STATES DISTRICT COURT
15
NORTHERN DISTRICT OF CALIFORNIA

16
cllQo. 17 KRiSTIN M. PERRY, SANDRA B. STIElcv PAUL T. KATAMI, and JEFFREY J.

22 9 2

18 ZARRILLO, Plaintiffs,

COMPLAINT FOR DECLARATORY, INJUNCTIVE, OR OTHER RELIEF

19

V.

20 ARNOLD SCHWARZENEGGER, in his official

21

capacity as Governor of California; EDMUND G. BROWN, JR., in his official capacity as

22

Attorney General of California; MARK B. HORTON, in his official capacity as Director of

23

the California Department of Public Health and State Registrar of Vital Statistics; LINETTE

24

SCOTT, in her official capacity as Deputy Director of Health Information & Strategic

25

Planning for the California Department of Public Health; PATRICK O'CONNELL, in his official

26

capacity as Clerk-Recorder for the County of Alameda; and DEAN C. LOGAN, in his official

27

capacity as Registrar-Recorder/County Clerk for the County of Los Angeles,

28

Defendants.

Gibson Dunn & Crutcher LLP

COMPLAINT

Case3:09-cv-02292-VRW Document1-1 Filed05/22/09 Page2 of 11

Plaintiffs Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo complain

2 of Defendants and allege:

3

INTRODUCTION

4

1. More than 30 years ago, the Supreme Court of the United States recognized that

5 "[m]arriage is one ofthe 'basic civil rights of man,' fundamental to our very existence and survivaL"

6 Loving v. Virginia, 388 U.S. 1, 12 ( 1967). But today, as a result of the passage of Proposition 8 in

7 November 2008, the State of California denies its gay and lesbian residents access to marriage by

8 providing in its constitution that only a civil marriage "between a man and a woman" is "valid or

9 recognized in California." Cal. Const Art. I § 7.5 ("Prop. 8"). Instead, California relegates same-sex

10 unions to the separate-but-unequal institution of domestic partnership. See Cal. Fam. Code §§ 297-

11 299.6. This unequal treatment of gays and lesbians denies them the basic liberties and equal

12 protection under the law that are guaranteed by the Fourteenth Amendment to the United States

13 Constitution.

14

2. For these reasons, Plaintiffs ask this Court to enjoin, preliminarily and permanently,

15 all enforcement of Prop. 8 and any other California statutes that seek to exclude gays and lesbians

16 from access to civil marriage.

17

JURISDICTION AND VENUE

18

3. This case raises questions under the Constitution of the United States and 42 U.S.C.

19 § 1983, and thus this Court has jurisdiction over all claims for relief pursuant to 28 U.S.C. § 1331.

20

4. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) because Defendant

21 O'Connell resides in this district and all Defendants reside in the State of California. Venue is also

22 proper in this Court because a substantial part ofthe events giving rise to the claim occurred in this

23 district.

24

NATURE OF DISPUTE

25

5. This action pursuant to 42 U.S.C. § 1983 seeks (1) a declaration that Prop. 8, which

26 denies gay and lesbian individuals the opportunity to marry civilly and enter into the same officially

27 sanctioned family relationship with their loved ones as heterosexual individuals, is unconstitutional

28
Gibson Dunn & Crutcher LLP

under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United
1
COMPLAINT

Case3:09-cv-02292-VRW Document1-1 Filed05/22/09 Page3 of 11

1 States Constitution, and (2) a preliminary and permanent injunction preventing Defendants from

2 enforcing that provision against Plaintiffs.

3

6. In an abundance of caution, and to the extent that they have any continuing legal force

4 after the California Supreme Court's decision in In reMarriage Cases, 183 P.3d 384 (Cal. 2008),

5 Plaintiffs also seek (1) a declaration that California Family Code§§ 300 and 308.5, which purport to

6 restrict civil marriage in California to opposite-sex couples, and California Family Code § 301, which

7 also could be read to impose such a restriction, are unconstitutional under the Due Process and Equal

8 Protection Clauses of the Fourteenth Amendment to the United States Constitution, and (2) a

9 preliminary and permanent injunction preventing Defendants from enforcing those provisions against

10 Plaintiffs.

11

7. Plaintiffs Perry and Stier are lesbian individuals in a committed relationship. Plaintiffs

12 Katami and Zarrillo are gay individuals in a committed relationship. Both couples desire to express

13 their love for and commitment to one another by getting married and obtaining official sanction for

14 their family from the State. But Prop. 8 denies them that right in violation ofthe Equal Protection and

15 Due Process Clauses of the Fourteenth Amendment to the United States Constitution.

16

8. To enforce the rights afforded by the United States Constitution, Plaintiffs bring this

17 suit pursuant to 42 U.S.C. § 1983 for declaratory and injunctive relief against the enforcement of

18 Prop. 8. Plaintiffs also seek to recover all their attorneys' fees, costs, and expenses incurred in this

19 action and any other relief that this Court may order.

20

THE PARTIES

21

9. Plaintiff Kristin M. Perry is a California citizen and resides in Alameda County,

22 California.

23

10. Plaintiff Sandra B. Stier is a California citizen and resides in Alameda County,

24 California.

25

11. Plaintiff Paul T. Katami is a California citizen and resides in Los Angeles County,

26 California.

27

12. Plaintiff Jeffrey J. Zarrillo is a California citizen and resides in Los Angeles County,

28 California.
Gibson Dunn & Crutcher LLP

2
COMPLAINT

Case3:09-cv-02292-VRW Document1-1 Filed05/22/09 Page4 of 11

13. Defendant Arnold Schwarzenegger is the Governor of the State of California. In his

2 official capacity, the Governor is the chief executive officer of the State of California. It is his

3 responsibility to ensure that the laws of the State are properly enforced. The Governor maintains an

4 office in San Francisco.

5

14. Defendant Edmund G. Brown, Jr., is the Attorney General of the State of California.

6 In his official capacity, the Attorney General is the chieflegal officer of the State of California. [tis

7 his duty to see that the laws of the State are uniformly and adequately enforced. The Attorney

8 General maintains offices in Oakland and San Francisco.

9

15. Defendant Mark B. Horton is the Director ofthe California Department of Public

10 Health and, as such, is the State Registrar of Vital Statistics of the State of California. In his official

11 capacity, the Director of the California Department of Public Health is responsible for prescribing and

12 furnishing the forms for the application for license to marry, the certificate of registry of marriage

13 including the license to marry, and the marriage certificate.

14

16. Defendant Linette Scott is the Deputy Director of Health Information & Strategic

15 Planning for the California Department of Public Health. Upon information and belief, Scott reports

16 to Defendant Horton and is the California Department of Public Health official responsible for

17 prescribing and furnishing the forms for the application for license to marry, the certificate of registry

18 of marriage including the license to marry, and the marriage certificate.

19

17. Defendant Patrick O'Connell is the Clerk-Registrar for the County of Alameda.

20 O'Connell is responsible for maintaining vital records of marriages, issuing marriage licenses, and

21 performing civil marriage ceremonies.

22

18. Defendant Dean C. Logan is the Registrar-Recorder/County Clerk for the County of

23 Los Angeles. Logan is responsible for maintaining vital records of marriages, issuing marriage

24 licenses, and performing civil marriage ceremonies.

25

19. Defendants, and those subject to their supervision, direction, and control, are

26 responsible for the enforcement of Prop. 8. The relief requested in this action is sought against each

27 Defendant, as well as against each Defendant's officers, employees, and agents, and against all

28
Gibson Dunn & Crutcher LLP

3
COMPLAINT

Case3:09-cv-02292-VRW Document1-1 Filed05/22/09 Page5 of 11

persons acting in cooperation with Defendant(s), under their supervision, at their direction, or under

2 their controL

3

FACTS

4

20. Gay and lesbian individuals have faced a long and painful history of societal and

5 government-sponsored discrimination in this country. Although their sexual orientation bears no

6 relation to their ability to contribute to society, gays and lesbians have been singled out for

7 discriminatory treatment. They have faced unconstitutional criminal penalties for private sexual

8 conduct between consenting adults, harassment, hate crimes, and discrimination in employment and

9 many other areas. They have even been the subject of laws stripping them of rights afforded to all

10 other citizens.

11

21. Beginning in the 1970s, gays and lesbians began to seek change and equality through

12 the legislative process in California. Unfortunately, that effort was met with resistance from those

13 who would deny them equal treatment. For example, several same-sex couples sought marriage

14 licenses in the mid-1970s from the county clerks in a number of California counties, but their

15 applications were denied. Then, in 1977, the California Legislature enacted California Family Code §

16 300, which defined marriage as "a personal relation arising out of a civil contract between a man and

17 a woman, to which the consent ofthe parties capable of making that contract is necessary."

18

22. Nonetheless, gays and lesbians continued to press for the recognition of their right to

19 equal treatment and were successful in making some gains. One such gain was the creation of

20 domestic partnerships by the California Legislature in 1999. CaL Stats. 1999, ch. 588, § 2 (adding

21 Cal. Fam. Code§§ 297-299.6). The 1999legislation defined "domestic partners" as "two adults who

22 have chosen to share one another's lives in an intimate and committed relationship of mutual caring."

23 Cal. Fam. Code§ 297(a). To qualifY for domestic partnership, a couple must share a common

24 residence, each be at least 18 years of age and unrelated by blood in any way that would prevent them

25 from being married to each other, not be married or a member of another domestic partnership, be

26 capable of consenting, and either both be persons of the same sex or include at least one person more

27 than 62 years of age. Cal. Fam. Code § 297(b).

28
Gibson Dunn & Crutcher LLP

4
COMPLAINT

Case3:09-cv-02292-VRW Document1-1 Filed05/22/09 Page6 of 11

1

23. Domestic partnership enables same-sex couples to obtain many of the substantive

2 legal benefits and privileges that California law provides to married couples, but denies them access

3 to civil marriage itself. It also treats same-sex couples differently in other respects, including but not

4 limited to the following: (1) To qualify for domestic partnership, both partners must have a common

5 residence at the time the partnership is established, Cal. Fam. Code § 297(b)(1 ), but there is no such

6 requirement for marriage; (2) both individuals must be 18 years of age to enter into a domestic

7 partnership, Cal. Fam. Code§ 297(b)(4), but a person under 18 may be married with the consent of a

8 parent or guardian or court order, Cal. Fam. Code§§ 302, 303; (3) to become domestic partners, both

9 individuals must complete and file a Declaration of Domestic Partnership with the Secretary of State,

10 who registers the declaration in a statewide registry, Cal. Fam. Code§ 298.5(a) & (b), but a couple

11 who wishes to marry must obtain a marriage license and certificate of registry of marriage from the

12 county clerk, have the marriage solemnized by an authorized individual, and return the license and

13 certificate of registry to the county recorder, who transmits it to the State Registrar of Vital Statistics,

14 Cal. Fam. Code§§ 306, 359; Cal. Health & Safety Code §§ 102285, 102330, 102355; (4) the

15 marriage laws establish a procedure through which an unmarried man and woman who have been

16 living together as husband and wife may enter into a "confidential marriage" in which the marriage

17 certificate and date of marriage are not made available to the public, Cal. Fam. Code§§ 500,511, but

18 the domestic partnership law contains no such provision; (5) Article XIII§ 3(o) & (p) of the

19 California Constitution grants a $1,000 property tax exemption to an "unmarried spouse of a deceased

20 veteran" who owns property valued at less than $10,000, but not to a domestic partner of a deceased

21 veteran; and (6) domestic partners may initiate a summary dissolution of a domestic partnership

22 without any court action, whereas a summary dissolution of a marriage becomes effective only upon

23 entry of a courtjudgment, Cal. Fam. Code§ 299(a)-(c); Cal. Fam. Code§ 2400 et seq.

24

24. After enactment of the domestic partnership law, gays and lesbians again experienced

25 a backlash, this time through the ballot initiative process. In 2000, a majority of California voters

26 approved Proposition 22 (codified at Cal. Fam. Code§ 308.5), which provided that "[o]nly marriage

27 between a man and a woman is valid or recognized in California." In Lockyer v. City & County of

28
Gibson Dunn & Crutcher LLP

San Francisco, 95 P.3d 459 (Cal. 2004), the California Supreme Court held that Family Code sections 5
COMPLAINT

Case3:09-cv-02292-VRW Document1-1 Filed05/22/09 Page7 of 11

300 and 308.5 prohibited public officials of the City and County of San Francisco from issuing

2 marriage licenses to same-sex couples, but it did not decide whether those laws were constitutional.

3

25. Fearing that Family Code sections 300 and 308.5 might be held unconstitutional,

4 opponents of same-sex marriage began an effort to put an initiative on the November 4, 2008, ballot

5 that would overturn the California Supreme Court's decision by amending the California Constitution

6 to ban same-sex marriage. On April24, 2008, the proponents of the ban submitted petitions with

7 enough signatures to place what would become Prop. 8 on the ballot.

8

26. On May 15, 2008, the California Supreme Court held that Family Code sections 300

9 and 308.5 were unconstitutional under the privacy, due process, and equal protection guarantees of

10 the California Constitution in In reMarriage Cases, 183 P.3d 384 (Cal. 2008).

11

27. On June 2, 2008, the Secretary of State declared that Prop. 8 could be placed on the

12 ballot. The General Election Voter Information Guide stated that Prop. 8 would "[c]hange[] the

13 California Constitution to eliminate the right of same-sex couples to marry in California." (Emphasis

14 added). Thus, the express and stated purpose of the ballot initiative was to strip gays and lesbians of

15 constitutional rights afforded to them by the California Constitution and to impose a special disability

16 on gays and lesbians alone by stripping them of state constitutional protections that apply to all other

17 citizens.

18

28. On election day, fifty-two percent of the ballots cast voted to amend the California

19 Constitution to add a new section 7.5 to Article I providing: "Only marriage between a man and a

20 woman is valid or recognized in California." The measure went into effect on November 5, 2008, the

21 day after the election.

22

29. Since November 5, 2008, same-sex couples have been denied marriage licenses on

23 account of Prop. 8.

24

30. Prop. 8 has created a legal system in which civil marriage is restricted solely and

25 exclusively to opposite-sex couples, and in which gay and lesbian individuals are denied the right to

26 enter into a civil marriage with the person of their choice. The inability to marry denies gay and

27 lesbian individuals and their children the personal and public affirmation that accompanies marriage.

28
Gibson Dunn & Crutcher LLP

6
COMPLAINT

Case3:09-cv-02292-VRW Document1-1 Filed05/22/09 Page8 of 11

1

31. Plaintiffs are gay and lesbian residents of California who are involved in long-term,

2 serious relationships with individuals of the same sex and desire to marry those individuals. They are

3 now prohibited from doing so as a direct result of Defendants' enforcement of Prop. 8.

4

32. On May 21, 2009, Plaintiffs Perry and Stier applied for a marriage license from

5 Defendant O'Connell, the Alameda County Clerk-Registrar, but were denied because they are a

6 same-sex couple.

7

33. On May 20, 2009, Plaintiffs Katami and Zarrillo applied for a marriage license from

8 Defendant Logan, the Los Angeles County Clerk, but were denied because they are a same-sex

9 couple.

10

34. As a result of Prop. 8, Plaintiffs are barred from marrying the individual they wish to

11 marry and are instead left only with the separate-but-unequal option of domestic partnership.

12

35. Plaintiffs' inability to have their relationship recognized by the State with the dignity

13 and respect accorded to married opposite-sex couples has caused them significant hardship, including

14 but not limited to the deprivation of rights guaranteed by the Fourteenth Amendment and severe

15 humiliation, emotional distress, pain, suffering, psychological harm, and stigma. Marriage is a

16 supremely important social institution, and the "freedom to marry has long been recognized as one of

17 the vital personal rights essential to the orderly pursuit of happiness by free men." Loving v. Virginia,

18 388 U.S. 1, 12 (1967). Each day that Plaintiffs are denied the freedom to marry, they suffer

19 irreparable harm as a direct result of Defendants' violation of their ~onstitutional rights.

20

36. If Prop. 8 is not enjoined, Defendants will continue to enforce this unconstitutional

21 law against Plaintiffs, thereby depriving them of their constitutional rights under the Fourteenth

22 Amendment. The declaratory and injunctive relief sought by Plaintiffs, on the other hand, will

23 require Defendants Horton and Scott to revise the official state forms for the application for license to

24 marry, the certificate of registry of marriage including the license to marry, and the marriage

25 certificate, and will require Defendants O'Connell and Logan to issue them a marriage license. The

26 relief sought also will require Defendants Schwarzenegger and Brown to recognize their marriage as

27 valid within the State of California.

28
Gibson Dunn & CrutCher lLP

7
COMPLAINT

. '

Case3:09-cv-02292-VRW Document1-1 Filed05/22/09 Page9 of 11

1

CLAIMS FOR RELIEF

2

CLAIM ONE: DUE PROCESS

3

37. Plaintiffs incorporate here by reference paragraphs 1 through 36, supra, as if fully set

4 forth herein.

5

38. Prop. 8 violates fundamental liberties that are protected by the Due Process Clause,

6 both on its face and as applied to Plaintiffs.

7

39. Prop. 8 impinges on fundamental liberties by denying gay and lesbian individuals the

8 opportunity to marry civilly and enter into the same officially sanctioned family relationship with

9 their loved ones as opposite-sex individuals. For example, by denying those individuals the same

10 "marriage" designation afforded to opposite-sex couples, and instead allowing them access only to the

11 separate and differently named "domestic partnership" relationship, the State is stigmatizing gays and

12 lesbians, as well as their children and families, and denying them the same dignity, respect, and

13 stature afforded officially recognized opposite-sex family relationships.

14

CLAIM TWO: EQUAL PROTECTION

15

40. Plaintiffs incorporate here by reference paragraphs 1 through 39, supra, as if fully set

16 forth herein.

17

41. Prop. 8 violates the Equal Protection Clause of the Fourteenth Amendment, both on its

18 face and as applied to Plaintiffs.

19

42. Prop. 8 restricts civil marriage to individuals of the opposite sex; gay and lesbian

20 individuals are therefore unable to marry the person of their choice. Thus, California law treats

21 similarly-situated people differently by providing civil marriage to heterosexual couples, but not to

22 gay and lesbian couples. Instead, California law affords them and their families only the separate-

23 but-unequal status of domestic partnership. Even if domestic partnership provided all of the tangible

24 benefits and privileges of marriage, it still would be unequal because of the intangible, symbolic

25 difference between the designation "marriage," which enjoys a long history and uniform recognition,

26 and the different and unequal institution of "domestic partnership," which is a recent and manifestly

27 unequal creation. Gays and lesbians are therefore unequal in the eyes of the law, and their families

28
Gibson Dunn & Crutcher llP

are denied the same respect as officially sanctioned families of opposite-sex individuals. By 8
COMPLAINT

Case3:09-cv-02292-VRW Document1-1 Filed05/22/09 Page10 of 11

purposefully denying civil marriage to gay and lesbian individuals, California's ban on same-sex

2 marriage discriminates on the basis of sexual orientation.

3

43. The disadvantage Prop. 8 imposes upon gays and lesbians is the result of disapproval

4 or animus against a politically unpopular group. The history of the enactment of Prop. 8 demonstrates

5 that it was a backlash that stripped gays and lesbians of the rights previously conferred upon them by

6 the California Supreme Court in In reMarriage Cases, 183 P.3d 384 (Cal. 2008). As such, Prop. 8

7 withdrew from gays and lesbians, but no others, specific legal protections afforded by the California

8 Supreme Court and the California Constitution, and imposed a special disability upon those persons

9 alone. Accordingly, Prop. 8 violates the Equal Protection Clause of the Fourteenth Amendment

10 because it singles out gays and lesbians for a disfavored legal status, thereby creating a category of

11 "second-class citizens."

12

44. Prop. 8 also violates the Equal Protection Clause because it discriminates on the basis

13 of sex. It distinguishes between couples consisting of a man and a woman and couples consisting of

14 individuals of the same sex. Thus, the limitation on civil marriage depends upon an individual

15 person's sex; a man who wishes to marry a man may not do so because he is a man, and a woman

16 may not marry a woman because she is a woman.

17

CLAIM THREE: VIOLATION OF 42 U.S.C. § 1983

18

45. Plaintiffs incorporate here by reference paragraphs 1 through 44, supra, as if fully set

19 forth herein.

20

46. Insofar as they are enforcing the terms of Prop. 8, Defendants, acting under color of

21 state law, are depriving and will continue to deprive Plaintiffs of numerous rights secured by the

22 Fourteenth Amendment to the United States Constitution in violation of 42 U.S.C. § 1983.

23

IRREPARABLEINJURY

24

47. Plaintiffs incorporate here by reference paragraphs 1 through 46, supra, as if fully set

25 forth herein.

26

48. Plaintiffs are now severely and irreparably injured by Prop. 8-a state law that

27 violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. By way of

28
Gibson Dunn & Crutcher llP

example only, Plaintiffs' injury as a result of Prop. 8 includes the deprivation of rights guaranteed by 9
COMPLAINT

Case3:09-cv-02292-VRW Document1-1 Filed05/22/09 Page11 of 11

1 the Fourteenth Amendment and the severe humiliation, emotional distress, pain, suffering,

2 psychological harm, and stigma caused by the inability to marry the ones they love and have society

3 accord their unions and their families the same respect and dignity enjoyed by opposite-sex unions

4 and families. Plaintiffs' injuries will be redressed only ifthis Court declares Prop. 8 unconstitutional

5 and enjoins Defendant from enforcing it.

6

49. An actual and judicially cognizable controversy exists between Plaintiffs and

7 Defendants regarding whether Prop. 8 violates the Due Process and Equal Protection Clauses of the

8 Fourteenth Amendment. Defendants are presently enforcing this state law to the detriment of

9 Plaintiffs.

10

PRAYERFORRELIEF

11

WHEREFORE, Plaintiffs pray for judgment as follows:

12

1. Plaintiffs respectfully request that this Court, pursuant to 28 U.S.C. § 2201, construe

13 Prop. 8 and enter a declaratory judgment stating that this law and any other California law that bars

14 same-sex marriage violate the Due Process and Equal Protection Clauses of the Fourteenth

15 Amendment and 42 U.S.C. § 1983.

16

2. Plaintiffs respectfully request that this Court enter a preliminary and a permanent

17 injunction enjoining enforcement or application of Prop. 8 and any other California law that bars

18 same-sex marriage.

19

3. Plaintiffs respectfully request costs of suit, including reasonable attorneys' fees under

20 42 U.S.C. § 1988, and all further relief to which they may be justly entitled.

21 Dated: May 22, 2009
22

GIBSON, DUNN & CRUTCHER LLP

23

24
25 26
27
28
Gibson Dunn & CruiC11erLLP

BOIES, SCHILLER & FLEXNER LLP David Boies (pro hac vice application pending)
Attorneys for Plaintiffs KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, AND JEFFREY J. ZARRILLO
10
COMPLAINT

 
 Case3:09-cv-02292-JW Document161 Filed08/20/09 Page1 of 13

1 DENNIS J. HERRERA, State Bar #139669 City Attorney
2 THERESE M. STEWART, State Bar #104930 Chief Deputy City Attorney
3 DANNY CHOU, State Bar #180240 Chief of Complex and Special Litigation
4 VINCE CHHABRIA, State Bar #208557 ERIN BERNSTEIN, State Bar #231539
5 CHRISTINE VAN AKEN, State Bar #241755 MOLLIE M. LEE, State Bar #251404
6 Deputy City Attorneys City Hall, Room 234
7 One Dr. Carlton B. Goodlett Place San Francisco, California 94102-4682
8 Telephone: (415) 554-4708 Facsimile: (415) 554-4699
9

10 Attorneys for Plaintiff-Intervenor CITY AND COUNTY OF SAN FRANCISCO
11

12

13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15 KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and JEFFREY J.
16 ZARRILLO,

17

Plaintiffs,

Case No. 09-CV-2292 VRW
COMPLAINT IN INTERVENTION FOR DECLARATORY, INJUNCTIVE OR OTHER RELIEF

18

vs.

Hearing Date: August 19, 2009

Time:

10:00 a.m.

19 ARNOLD SCHWARZENEGGER, in his official Place:

Courtroom 6, 17th Fl.,

capacity as Governor of California; EDMUND G.

450 Golden Gate Ave.

20 BROWN JR., in his official capacity as Attorney

General of California; MARK B. HORTON, in Trial Date: Not set

21 his official capacity as Director of the California

Department of Public Health and State Registrar

22 of Vital Statistics; LINETTE SCOTT, in her

official capacity as Deputy Director of Health

23 Information & Strategic Planning for the

California Department of Public Health;

24 PATRICK O'CONNELL, in his official capacity

as Clerk-Recorder for the County of Alameda;

25 and DEAN C. LOGAN, in his official capacity as

Registrar-Recorder/County Clerk for the County

26 of Los Angeles,

27

Defendants,

28

COMPLAINT

1

CASE NO. 09-CV-2292 VRW

Case3:09-cv-02292-JW Document161 Filed08/20/09 Page2 of 13

1 and

2 PROPOSITION 8 OFFICIAL PROPONENTS DENNIS HOLLINGSWORTH, GAIL J.
3 KNIGHT, MARTIN F. GUTIERREZ, HAKSHING WILLIAM TAM, and MARK A.
4 JANSSON; and PROTECTMARRIAGE.COM – YES ON 8, A PROJECT OF CALIFORNIA
5 RENEWAL,

6

Defendant-Intervenors.

7
CITY AND COUNTY OF SAN FRANCISCO, 8
Plaintiff-Intervenor 9
vs. 10
ARNOLD SCHWARZENEGGER, in his official 11 capacity as Governor of California; EDMUND G.
BROWN JR., in his official capacity as Attorney 12 General of California; MARK B. HORTON, in
his official capacity as Director of the California 13 Department of Public Health and State Registrar
of Vital Statistics; and LINETTE SCOTT, in her 14 official capacity as Deputy Director of Health
Information & Strategic Planning for the 15 California Department of Public Health,

16 Defendants.
17 Plaintiff-Intervenor the City and County of San Francisco complain of Defendants and allege:
18
INTRODUCTION 19

20

1. Proposition 8 requires San Francisco to violate the federal constitutional rights of its

21 lesbian and gay citizens by denying them marriage licenses on the basis of their sexual orientation and

22 gender. Before Proposition 8 was adopted, California granted same-sex couples the same right to

23 marry as heterosexual couples, as required by the California Supreme Court's decision in In re

24 Marriage Cases, 43 Cal. 4th 757 (2008). But in November 2008, Proposition 8 amended the

25 California Constitution to state that "[o]nly a marriage between a man and a woman is valid or

26 recognized in California." Cal. Const. Art. I § 7.5 ("Prop. 8"). By eliminating the right of same-sex

27 couples to marry, Prop. 8 denies lesbians and gay men the basic liberties and equal protection of the

28 law guaranteed by the Fourteenth Amendment to the United States Constitution.

COMPLAINT

2

CASE NO. 09-CV-2292 VRW

Case3:09-cv-02292-JW Document161 Filed08/20/09 Page3 of 13

1

2. For these reasons, Plaintiff-Intervenor seeks declaratory and injunctive relief against

2 Prop. 8. 3

JURISDICTION AND VENUE

4

3. Plaintiff-Intervenor adopts and incorporates by reference Plaintiffs' statement of

5 Jurisdiction and Venue, Docket 1-1 at ¶¶ 3-4.

6

4. This action arises under the Fourteenth Amendment to the United States Constitution

7 and Plaintiff-Intervenor seeks declaratory relief under 28 U.S.C. § 2201 and any further relief that may

8 be proper under 28 U.S.C § 2202.

9

NATURE OF DISPUTE

10 5. This action pursuant to 28 U.S.C. §§ 2201-02 and 42 U.S.C. § 1983 seeks: 1) a
11 declaration that Prop. 8, which denies gay and lesbian individuals the opportunity to marry civilly and
12 enter into the same officially sanctioned family relationship with their loved ones as heterosexual
13 individuals, is unconstitutional under the Due Process and Equal Protection Clauses of the Fourteenth
14 Amendment to the United States Constitution; and 2) a permanent injunction preventing Defendants
15 from enforcing Prop. 8.
16 6. Plaintiff-Intervenor believes it is clearly established that California Family Code §§ 300
17 and 308.5, which purport to restrict civil marriage in California to opposite-sex couples, and California
18 Family Code § 301, which also could be read to impose such a restriction, have no continuing legal
19 force after the California Supreme Court’s decision in In re Marriage Cases, 43 Cal. 4th 757 (2008).
20 But in an abundance of caution, Plaintiff-Intervenor seeks: 1) a declaration that California Family
21 Code §§ 300 and 308.5, which purport to restrict civil marriage in California to opposite-sex couples,
22 and California Family Code § 301, which also could be read to impose such a restriction, are
23 unconstitutional under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to
24 the United States Constitution; and 2) a permanent injunction preventing Defendants from enforcing
25 those provisions against Plaintiffs.
26 7. Plaintiff-Intervenor the City and County of San Francisco is a unit of local government
27 with the responsibility to issue civil marriage licenses and to solemnize and record marriages. Prop. 8
28

COMPLAINT

3

CASE NO. 09-CV-2292 VRW

Case3:09-cv-02292-JW Document161 Filed08/20/09 Page4 of 13

1 requires San Francisco to violate the federal constitutional rights of its gay and lesbian citizens – and

2 other gay and lesbian couples – by denying them the marriage licenses that it issues daily to

3 heterosexual couples. Because of Prop. 8, San Francisco must provide health care, welfare benefits,

4 and other social services to citizens whose mental and physical health suffers because of

5 discrimination and to citizens who become dependent on public resources when families disintegrate.

6 Prop. 8 also deprives San Francisco of revenue that would be generated by the weddings of same-sex

7 couples and associated tourism.

8

8. To enforce the rights afforded by the United States Constitution, Plaintiff-Intervenor

9 brings this suit under 28 U.S.C. §§ 2201-02 and 42 U.S.C. § 1983 for declaratory and injunctive relief

10 against the enforcement of Prop. 8. Plaintiff-Intervenor also seeks to recover all its attorneys' fees,

11 costs, and expenses incurred in this action and any other relief that this Court may order.

12

THE PARTIES

13

9. Defendant Arnold Schwarzenegger is the governor of the State of California. He is

14 sued in his official capacity. As the chief executive officer of the State, the Governor is responsible

15 for ensuring that the laws of the State are properly enforced, subject to any limits imposed by the

16 Constitution and laws of the United States. The Governor maintains an office in San Francisco.

17

10. Defendant Edmund G. Brown, Jr., is the Attorney General of the State of California.

18 He is sued in his official capacity. As the chief legal officer of the State, the Attorney General has the

19 duty to see that the laws of the State are uniformly and adequately enforced, subject to his duty to

20 uphold the Constitution and laws of the United States. The Attorney General maintains offices in

21 Oakland and San Francisco.

22

11. Defendant Mark B. Horton is the Director of the California Department of Public

23 Health and, as such, is the State Registrar of Vital Statistics of the State of California. He is sued in

24 his official capacity. The Director of the California Department of Public Health is responsible for

25 prescribing and furnishing the forms for the application for license to marry, the certificate of registry

26 of marriage including the license to marry, and the marriage certificate. He is also responsible for

27 instructing and supervising local registrars in the use of these forms.

28

COMPLAINT

4

CASE NO. 09-CV-2292 VRW

Case3:09-cv-02292-JW Document161 Filed08/20/09 Page5 of 13

1

12. Defendant Linette Scott is the Deputy Director of Health Information & Strategic

2 Planning for the California Department of Public Health. She is sued in her official capacity. On

3 information and belief, Scott reports to Defendant Horton and is the California Department of Public

4 Health official responsible for prescribing and furnishing the forms for the application for license to

5 marry, the certificate of registry of marriage, and the marriage certificate.

6

13. Plaintiff-Intervenor the City and County of San Francisco is a charter city and county

7 organized and existing under the Constitution and laws of the State of California. San Francisco is

8 responsible for issuing marriage licenses, performing civil marriage ceremonies, and maintaining vital

9 records of marriages.

10

14. Defendants-Intervenors Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez,

11 Hak-Shing William Tam, and Mark A. Jansson are the official proponents of Prop. 8 under California

12 law. Defendant-Intervenor ProtectMarriage.com – Yes on 8, a Project of California Renewal is a

13 "primarily formed ballot measure committee" under California law and was established to support

14 Proposition 8. The Court granted Defendants-Intervernors' motion to intervene in this action before

15 this Complaint was filed. 16

FACTS

17

15. Plaintiff-Intervenor adopts and incorporates by reference Plaintiffs' statement of facts,

18 Docket 1-1 at ¶¶ 20-36.

19

16. Prop. 8 requires San Francisco to violate the federal constitutional rights of lesbians and

20 gay men by denying them the marriage licenses that it daily issues to heterosexual couples. Under

21 California state law, city and county officials may not decline to enforce statutory restrictions on

22 marriage until a court holds them unconstitutional.

23

17. Denying same-sex couples the right to marry imposes significant harms on lesbian and

24 gay individuals, their families, and their communities. When the State excludes same-sex couples

25 from the institution of marriage, San Francisco must respond to the financial and public health

26 consequences of this discrimination.

27

18. San Francisco provides its neediest citizens with welfare benefits; shelters and

28 supportive housing for the homeless; primary, emergency, psychiatric and other kinds of public health

COMPLAINT

5

CASE NO. 09-CV-2292 VRW

Case3:09-cv-02292-JW Document161 Filed08/20/09 Page6 of 13

1 care; juvenile delinquency and dependency services including foster care; nursing home care and other

2 types of support. Discrimination, including sexual orientation discrimination, results in increased use

3 of many such services.

4

19. San Francisco bears the financial burden of providing health care, welfare benefits, and

5 other social services to adults and children who become dependent on public resources when a

6 relationship breaks down. By denying same-sex couples the right to marry, Prop. 8 makes it less

7 likely that such couples will formalize their relationships in a way that imposes obligations of support

8 upon which adults and children may rely. Studies show that same-sex couples are significantly less

9 likely to enter into domestic partnerships and civil unions, which lack the full social and governmental

10 sanction and status of marriage, than they are to enter into marriage. Notwithstanding California's

11 domestic partnership law, its denial of marriage to same-sex couples increases the likelihood that San

12 Francisco’s citizens will depend on local health and welfare programs.

13

20. The State's separate and unequal scheme for recognizing same-sex relationships also

14 sends a message to the world that in the State's eyes, lesbians and gay men are unequal to other

15 citizens. This message was evidenced by an increase in anti-gay violence during the Prop. 8 campaign

16 and after its passage.

17

21. San Francisco bears the financial burden of providing health care, welfare benefits and

18 other social services to adults and youth whose physical or mental health suffers because of

19 discrimination, bias, bullying, and violence targeted at lesbians and gay men. Negative health

20 consequences of discrimination – especially officially sanctioned discrimination like Prop. 8 and the

21 negative message it sends – include suicide, depression and substance abuse, injuries from hate crimes,

22 and homelessness. By denying same-sex couples the right to marry, Prop. 8 harms lesbian and gay

23 individuals by branding them with a mark of inferiority. This directly injures the mental health of

24 lesbian and gay individuals. State-sanctioned discrimination also encourages private discrimination

25 and increases the likelihood that lesbian and gay individuals will be subject to bias, bullying and

26 violence on the basis of their sexual orientation. This increases the likelihood that San Francisco will

27 be required to provide health care, welfare benefits and other social services to its citizens.

28

COMPLAINT

6

CASE NO. 09-CV-2292 VRW

Case3:09-cv-02292-JW Document161 Filed08/20/09 Page7 of 13

1

22. Between June 16, 2008, and November 4, 2008, San Francisco issued thousands of

2 marriage licenses to same-sex couples. San Francisco benefitted from fees, taxes and other revenue

3 generated by the weddings of same-sex couples and tourism associated with those weddings. This

4 revenue includes fees for issuing and recording licenses and solemnizing marriages, fees for rental of

5 public buildings, parking fees, sales tax, hotel tax, airport revenues, and payroll tax for hotel and

6 restaurant workers.

7

23. Prop. 8 deprives San Francisco of the revenue that would be generated by the weddings

8 of same-sex couples in San Francisco.

9

24. Prop. 8 stunts economic growth in San Francisco by making it more difficult for San

10 Francisco employers to recruit and retain talented employees, who may instead choose to live in states

11 that provide full marriage equality such as Maine, New Hampshire, Massachusetts, Vermont and Iowa.

12 This reduces San Francisco's tax base and deprives San Francisco of revenue.

13

25. There is a long history of public and private discrimination against lesbians and gay

14 men. This discrimination includes unconstitutional criminal penalties for private sexual conduct

15 between consenting adults, hate crimes and harassment, public and private discrimination in

16 employment, and laws stripping lesbians and gay men of rights afforded to all other citizens.

17

26. Sexual orientation bears no relation to an individual's ability to contribute to society.

18

27. The vast majority of people experience little or no choice about their sexual orientation,

19 which cannot be changed readily, if at all. Attempts to change sexual orientation often cause serious

20 harm.

21

28. Although lesbians and gay men have made significant advances, they lack the political

22 power to ensure protection of their rights through the political process. In 1999, the California

23 Legislature passed domestic partnership legislation, 1999 Cal. Stats. ch. 588, § 2, and subsequently

24 expanded the rights and responsibilities of domestic partnership, 2003 Cal. Stats. ch. 421, § 1. Despite

25 this progress in achieving a measure of formal recognition for same-sex relationships, the initiative

26 process has been used to deny same-sex couples the full rights and dignity of marriage. Voters

27 adopted Proposition 22 ("Prop. 22") in 2000, which stated that "[o]nly marriage between a man and a

28 woman is valid or recognized in California." Cal. Fam. Code § 308.5. In 2008 the California

COMPLAINT

7

CASE NO. 09-CV-2292 VRW

Case3:09-cv-02292-JW Document161 Filed08/20/09 Page8 of 13

1 Supreme Court held that Prop. 22 violated the privacy, due process, and equal protection guarantees of

2 the California Constitution. In re Marriage Cases, 43 Cal. 4th 757 (2008). But the voters responded

3 by adopting Prop. 8, which amended the California Constitution to selectively repeal – for lesbians and

4 gay men only – a portion of those rights protected by the privacy, due process and equal protection

5 guarantees of the state constitution.

6

29. The right of two consenting adults to marry is deeply rooted in the history and tradition

7 of this Nation.

8

30. The definition and understanding of marriage in California have evolved significantly

9 over time. These changes have not destroyed marriage but have allowed it to continue to be relevant

10 and remain an esteemed institution despite significant cultural change.

11

31. Excluding same-sex couples from marriage does not lead to increased stability in

12 marriages between opposite-sex couples. Permitting same-sex couples to marry does not destabilize

13 the marriages of opposite-sex couples.

14

32. Excluding same-sex couples from marriage does not optimize the child-rearing

15 environment of married opposite-sex couples.

16

33. California recognizes that lesbians and gay men have the right to form state-sanctioned

17 relationships of mutual caring and support and have the right and ability to raise children. In 1999, the

18 California Legislature created the status of registered domestic partnership and defined "domestic

19 partners" as "two adults who have chosen to share one another's lives in an intimate and committed

20 relationship of mutual caring." Cal. Fam. Code § 297(a). In 2003 the Legislature adopted AB 205,

21 which extended to registered domestic partners additional rights, benefits and responsibilities that are

22 given to married spouses under California law. The Legislature found that "[e]xpanding the rights and

23 creating responsibilities of registered domestic partners would further California's interests in

24 promoting family relationships and protecting family members during life crises." 2003 Cal. Stats. ch.

25 421, § 1(b). California also treats lesbian and gay men as capable parents equal to heterosexual

26 individuals. Cal. Welf. & Inst. Code §§ 16001.9(a)(23); 2003Cal. Stats. ch. 331; Cal. Fam. Code

27 §§ 8600, 9000(b).

28

COMPLAINT

8

CASE NO. 09-CV-2292 VRW

Case3:09-cv-02292-JW Document161 Filed08/20/09 Page9 of 13

1

34. The development of California's ban on permitting same-sex couples to marry reflects a

2 history of animus and continued animus towards lesbians and gay men.

3

35. Denying same-sex couples the right to marry meaningfully restricts options available to

4 lesbians and gay men. Marriage to opposite-sex partners is not a meaningful option for lesbians and

5 gay men.

6

36. Denying same-sex couples the right to marry does not meaningfully restrict options

7 available to heterosexuals.

8

37. Requiring one man and one woman in marriage promotes stereotypical gender roles.

9 The idea that men and women should or necessarily do fulfill distinct roles in marriage, based on their

10 gender, is premised on gender stereotypes that in other contexts have long been rejected as an

11 illegitimate basis for legal classifications.

12

38. Marriage is not now, and has never in this State been, limited to those who are capable

13 of procreating. The State has never established as a legal requirement for marriage that the members

14 of the couple be fertile, of child-bearing age, physically or mentally healthy or intent on having or

15 raising children.

16

39. Insofar as same-sex couples employ assisted reproduction or adoption or foster

17 parenting to bring children into their lives, the State freely permits and encourages them to do so in the

18 form of laws that allow such methods of reproduction and permit lesbians and gay men to be foster

19 parents and to adopt children. In these respects, same-sex couples are indistinguishable from the many

20 opposite-sex couples in California who use these same methods to bring children into their lives to

21 love and raise as their own. The only difference between these couples is that same-sex couples

22 cannot marry and they and their children therefore do not enjoy all the social and other benefits that

23 the title and stature of marriage bring, whereas opposite-sex couples can marry and they and their

24 children can enjoy these benefits.

25

40. Support for Prop. 8 was motivated by animus towards lesbians and gay men and moral

26 disapproval of same-sex relationships.

27

41. There are meaningful differences in the actual practice of registered domestic

28 partnerships, civil unions and marriage. Marriage is a valued social institution and married couples are

COMPLAINT

9

CASE NO. 09-CV-2292 VRW

Case3:09-cv-02292-JW Document161 Filed08/20/09 Page10 of 13

1 treated differently than unmarried couples. Creating a separate institution of domestic partnership

2 stigmatizes same-sex couples and sends a message of inferiority to these couples, their children, and

3 lesbians and gay men generally. This stigma increases the likelihood that lesbians and gay men will

4 experience discrimination and harassment in schools, employment and other settings.

5

42. The qualifications and requirements for entering into or dissolving domestic partnership

6 differ in certain respects from the qualifications and requirements for entering into or dissolving a

7 marriage. Certain rights and benefits associated with marriage do not attach to domestic partnership.

8

43. State Defendants either assert that Prop. 8 violates the federal constitution or take no

9 position on the matter. Attorney General Brown asserts that "[t]aking from same-sex couples the right

10 to civil marriage that they had previously possessed under California’s Constitution cannot be squared

11 with guarantees of the Fourteenth Amendment." (Docket 39 at 2). Governor Schwarzenegger,

12 Director of Public Health Horton, and Deputy Director Scott state that the federal challenge to Prop. 8

13 "presents important constitutional questions that require and warrant judicial determination." (Docket

14 46 at 2).

15

CLAIMS FOR RELIEF

16 CLAIM ONE: DEPRIVATION OF FUNDAMENTAL LIBERTIES AND DUE PROCESS BROUGHT PURSUANT TO 28 U.S.C. §§ 2201-02 and 42 U.S.C. § 1983
17 44. Plaintiff-Intervenor incorporates here by reference paragraphs 1 through 43, supra, as if
18 fully set forth herein.
19 45. Prop. 8 violates fundamental liberties that are protected by the Due Process Clause of
20 the Fourteenth Amendment.
21 46. Prop. 8 impinges on fundamental liberties by denying gay and lesbian individuals the
22 freedom to marry civilly and to enter into the same officially sanctioned family relationship as
23 individuals who desire to marry someone of a different sex. For example, by denying same-sex
24 couples the same designation of "marriage" that is afforded to opposite-sex couples, and instead
25 allowing them access only to the separate designation and status of "domestic partnership," the State
26 stigmatizes lesbians and gay men, as well as their children and families, and denies them the same
27 dignity, respect, and stature afforded to the family relationships of different-sex couples.
28

COMPLAINT

10

CASE NO. 09-CV-2292 VRW

Case3:09-cv-02292-JW Document161 Filed08/20/09 Page11 of 13

1

47. Prop. 8 substantially burdens lesbians' and gay men's fundamental right to autonomy

2 and privacy in establishing an intimate relationship with a chosen partner and their fundamental right

3 to marry and create a family with a chosen partner.

4 CLAIM TWO: DEPRIVATION OF EQUAL PROTECTION BROUGHT PURSUANT TO
28 U.S.C. §§ 2201-02 AND 42 U.S.C. § 1983 5
48. Plaintiffs incorporate here by reference paragraphs 1 through 47, as if fully set forth 6
herein. 7
49. Prop. 8 violates the Equal Protection Clause of the Fourteenth Amendment. 8
50. Prop. 8 arbitrarily excludes otherwise qualified lesbian and gay individuals from the 9
legal institution and status of civil marriage and thereby prohibits lesbians and gay men from marrying 10
the person of their choice, both because of their sexual orientation and because of their sex. Thus, 11
California law treats similarly-situated people differently by providing civil marriage to heterosexual 12
couples, but not to lesbian and gay couples. Instead, California law affords same-sex couples and their 13
families only the separate and unequal status of domestic partnership. Even if domestic partnership 14
provided all of the tangible benefits and privileges of marriage, it would remain unequal because of the 15
social, psychological, expressive, and symbolic difference between the designation "marriage," which 16
enjoys a long history and uniform recognition, and the different and unequal institution of "domestic 17
partnership," which is a recent and manifestly unequal creation. Lesbians and gay men are therefore 18
unequal in the eyes of the law, and their families are denied the same respect as officially sanctioned 19
families of opposite-sex couples. By purposefully denying civil marriage to lesbians and gay men, 20
Prop. 8 discriminates on the basis of sexual orientation and sex. 21
51. The disadvantage Prop. 8 imposes upon gays and lesbians is the result of moral 22
disapproval and animus against a politically unpopular group. The history of Prop. 8 demonstrates 23
that it was adopted as backlash to strip lesbians and gay men of rights previously conferred upon them 24
by the California Constitution, as interpreted by the California Supreme Court in In re Marriage 25
Cases, 43 Cal. 4th 757 (2008). As such, Prop. 8 withdrew from lesbians and gay men, but not others, 26
specific legal protections afforded by the California Constitution, and imposed a special disability 27
upon those persons alone. Accordingly, Prop. 8 violates the Equal Protection Clause of the Fourteenth 28

COMPLAINT

11

CASE NO. 09-CV-2292 VRW

Case3:09-cv-02292-JW Document161 Filed08/20/09 Page12 of 13

1 Amendment because it singles out lesbians and gay men for a disfavored legal status, thereby creating

2 a category of second-class citizens.

3

PRAYER FOR RELIEF

4

WHEREFORE, Plaintiff-Intervenor pray for judgment as follows:

5

1. Plaintiff-Intervenor respectfully requests that this Court, pursuant to 28 U.S.C. § 2201,

6 enter a declaratory judgment stating that Prop. 8 and any other California law that excludes same-sex

7 couples from marriage violates the Due Process and Equal Protection Clauses of the Fourteenth

8 Amendment and 42 U.S.C. § 1983.

9

2. Plaintiff-Intervenor respectfully requests that this Court enter a permanent injunction

10 enjoining enforcement or application of Prop. 8 and any other California law that excludes same-sex

11 couples from marriage.

12

3. Plaintiff-Intervenor respectfully requests costs of suit, including reasonable attorney

13 fees under 42 U.S.C. § 1988, and all further relief to which it may be justly entitled.

14 Dated: August 20, 2009
15

16

17

18

VINCE

19

20

DENNIS J. HERRERA City Attorney THERESE M. STEWART Chief Deputy City Attorney DANNY CHOU Chief of Complex & Special Litigation
CHHABRIA ERIN BERNSTEIN CHRISTINE VAN AKEN MOLLIE M. LEE Deputy City Attorneys

21

By:

/s/

22

THERESE M. STEWART

23

Attorneys for Plaintiff-Intervenor

24

CITY AND COUNTY OF SAN FRANCISCO

25

26

27

28

COMPLAINT

12

CASE NO. 09-CV-2292 VRW

Case3:09-cv-02292-JW Document161 Filed08/20/09 Page13 of 13

1

Pursuant to General Order 45, § X(B), I hereby attest that the concurrence in the filing of

2

this document has been obtained from single signatory, Therese M. Stewart.

3 Dated: August 20, 2009
4

5

By:

/s/

6

RONALD P. FLYNN, SBN 184186

7

Attorneys for Plaintiff-Intervenor

CITY AND COUNTY OF SAN FRANCISCO

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

COMPLAINT

13

CASE NO. 09-CV-2292 VRW

 
 Case:C1a0s-1e636:0996-cv-0062/20952/2-J0W12 DoIDcu: m82e0n2t804607 FiDlekdt0E6n/t2ry5:/14225-P1ageP1aogfe4: 1 of 4
FILED

FOR PUBLICATION UNITED STATES COURT OF APPEALS

JUN 05 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KRISTIN M. PERRY; SANDRA B. STIER; PAUL T. KATAMI; JEFFREY J. ZARRILLO,

No. 10-16696 D.C. No. 3:09-cv-02292-VRW

Plaintiffs - Appellees,
CITY AND COUNTY OF SAN FRANCISCO,

ORDER

Intervenor-Plaintiff Appellee,

v.

EDMUND G. BROWN, Jr., in his official capacity as Governor of California; KAMALA D. HARRIS, in her official capacity as Attorney General of California; MARK B. HORTON, in his official capacity as Director of the California Department of Public Health & State Registrar of Vital Statistics; LINETTE SCOTT, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health; PATRICK O’CONNELL, in his official capacity as Clerk-Recorder for the County of Alameda; DEAN C. LOGAN, in his official capacity as Registrar-Recorder/County Clerk for the County of Los Angeles,

Defendants,

Case:C1a0s-1e636:0996-cv-0062/20952/2-J0W12 DoIDcu: m82e0n2t804607 FiDlekdt0E6n/t2ry5:/14225-P1ageP2aogfe4: 2 of 4

HAK-SHING WILLIAM TAM,
Intervenor-Defendant,
and
DENNIS HOLLINGSWORTH; GAIL J. KNIGHT; MARTIN F. GUTIERREZ; MARK A. JANSSON; PROTECTMARRIAGE.COM - YES ON 8, A PROJECT OF CALIFORNIA RENEWAL, as official proponents of Proposition 8,
Intervenor-Defendants Appellants.

KRISTIN M. PERRY; SANDRA B. STIER; PAUL T. KATAMI; JEFFREY J. ZARRILLO,

No. 11-16577 D.C. No. 3:09-cv-02292-JW

Plaintiffs - Appellees,

CITY AND COUNTY OF SAN FRANCISCO,

Intervenor-Plaintiff Appellee,

v.

EDMUND G. BROWN, Jr., in his official capacity as Governor of California; KAMALA D. HARRIS, in her official capacity as Attorney General of California; MARK B. HORTON, in his official capacity as Director of the California

Case:C1a0s-1e636:0996-cv-0062/20952/2-J0W12 DoIDcu: m82e0n2t804607 FiDlekdt0E6n/t2ry5:/14225-P1ageP3aogfe4: 3 of 4
Department of Public Health & State Registrar of Vital Statistics; LINETTE SCOTT, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health; PATRICK O’CONNELL, in his official capacity as Clerk-Recorder for the County of Alameda; DEAN C. LOGAN, in his official capacity as Registrar-Recorder/County Clerk for the County of Los Angeles,
Defendants,
HAK-SHING WILLIAM TAM,
Intervenor-Defendant,
and
DENNIS HOLLINGSWORTH; GAIL J. KNIGHT; MARTIN F. GUTIERREZ; MARK A. JANSSON; PROTECTMARRIAGE.COM - YES ON 8, A PROJECT OF CALIFORNIA RENEWAL, as official proponents of Proposition 8,
Intervenor-Defendants Appellants.
Before: REINHARDT, HAWKINS, and N.R. SMITH, Circuit Judges.
A majority of the panel has voted to deny the petition for rehearing en banc.
Judge N.R. Smith would grant the petition.

Case:C1a0s-1e636:0996-cv-0062/20952/2-J0W12 DoIDcu: m82e0n2t804607 FiDlekdt0E6n/t2ry5:/14225-P1ageP4aogfe4: 4 of 4 The full court was advised of the petition for rehearing en banc. A judge
requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. Fed. R. App. P. 35. The petition for rehearing en banc is DENIED.
The mandate is stayed for ninety days pending the filing of a petition for writ of certiorari in the Supreme Court. If such a petition is filed, the stay shall continue until final disposition by the Supreme Court.
-4-

 
 671 F.3d 1052 United States Court of Appeals,
Ninth Circuit.
Kristin M. PERRY; Sandra B. Stier; Paul T. Katami; Jeffrey J. Zarrillo, Plaintiffs–Appellees, City and County of San Francisco, Intervenor–Plaintiff–Appellee, v.
Edmund G. BROWN, Jr., in his official capacity as Governor of California; Kamala D. Harris, in her official capacity as Attorney General of California; Mark B. Horton, in his official capacity as Director of the California Department of Public Health & State Registrar of Vital Statistics; Linette Scott, in her official capacity as Deputy Director of Health
Information & Strategic Planning for the California Department of Public Health; Patrick
O’Connell, in his official capacity as Clerk–Recorder for the County of Alameda; Dean
C. Logan, in his official capacity as Registrar–Recorder/County Clerk for the County
of Los Angeles, Defendants, Hak–Shing William Tam, Intervenor–Defendant,
and Dennis Hollingsworth; Gail J. Knight; Martin F.
Gutierrez; Mark A. Jansson; ProtectMarriage.com–Yes On 8, a Project of California Renewal, as official proponents of
Proposition 8, Intervenor–Defendants–Appellants. Kristin M. Perry; Sandra B. Stier; Paul T. Katami; Jeffrey J. Zarrillo, Plaintiffs–Appellees,
City and County of San Francisco, Intervenor–Plaintiff–Appellee, v.
Edmund G. Brown, Jr., in his official capacity as Governor of California; Kamala D. Harris, in her official capacity as Attorney General of California; Mark B. Horton, in his official capacity as Director of the California Department of Public Health & State Registrar of Vital Statistics; Linette Scott, in her official capacity as Deputy Director of Health
Information & Strategic Planning for the California Department of Public Health; Patrick
O’Connell, in his official capacity as Clerk–Recorder for the County of Alameda; Dean
C. Logan, in his official capacity as Registrar–Recorder/County Clerk for the County
of Los Angeles, Defendants, Hak–Shing William Tam, Intervenor–Defendant,
and Dennis Hollingsworth; Gail J. Knight; Martin F.
Gutierrez; Mark A. Jansson;

ProtectMarriage.com–Yes On 8, a Project of California Renewal, as official proponents of
Proposition 8, Intervenor–Defendants–Appellants.
Nos. 10–16696, 11–16577. | Argued and Submitted Dec. 6, 2010. | Submission Withdrawn Jan. 4, 2011. |
Resubmitted Feb. 7, 2012. | Argued and Submitted Dec. 8, 2011. | Filed Feb. 7, 2012.
Synopsis Background: Same-sex couples brought civil rights action against Governor of California, Attorney General, Director and Deputy Director of Public Health, and county clerks, challenging California voter-enacted constitutional amendment restricting valid marriage as one between a man and a woman, and alleging violation of due process and equal protection under Fourteenth Amendment. Proponents of amendment intervened on behalf of defendants, and municipality and county intervened on behalf of plaintiffs. The United States District Court for the Northern District of California, Vaughn R. Walker, then Chief Judge, granted judgment for plaintiffs. Proponents appealed. Subsequently, proponents moved to vacate that judgment, and James Ware, Chief Judge, denied that motion. Proponents appealed. The Court of Appeals, 628 F.3d 1191, certified question, and the California Supreme Court, 265 P.3d 1002, answered that question.
Holdings: The Court of Appeals, Reinhardt, Circuit Judge, held that:
[1] people of California, through proponents of ballot measure, had to be allowed under Article III to defend validity of their use of initiative power in federal courts, including on appeal;
[2] messages in support of proposition that proponents communicated to voters to encourage their approval of measure were “adjudicative facts” to which Court had to give deferential weight;
[3] amendment was not rationally related to California’s interest in childrearing and responsible procreation;
[4] amendment was not rationally related to California’s interest in “proceed[ing] with caution” when considering changes to the definition of marriage;
[5] amendment was not rationally related to California’s interest in protecting religious liberty;

[6] amendment was not rationally related to California’s interest in preventing children from being taught about same-sex marriage in schools;
[7] tradition alone could not serve as justification for taking away right from gays and lesbians to use designation of “marriage” that already had been granted; and
[8] judge did not abuse his discretion in denying motion to vacate judgment.

Affirmed.
N.R. Smith, Circuit Judge, filed opinion concurring in part and dissenting in part.

West Codenotes

Held Unconstitutional West’s Ann.Cal. Const. Art. 1, § 7.5

Recognized as Invalid West’s Ann.Cal.Fam.Code §§ 300(a), 308.5

Attorneys and Law Firms

*1058 Theodore J. Boutrous, Jr., Christopher D. Dusseault, Theane Evangelis Kapur, Sarah E. Piepmeier, Enrique A. Monagas, and Joshua S. Lipshutz, Gibson, Dunn & Crutcher LLP, Los Angeles, CA; Theodore B. Olson (argued), Matthew D. McGill, and Amir C. Tayrani, Gibson, Dunn & Crutcher LLP, Washington, D.C.; David Boies (argued), Jeremy M. Goldman, and Theodore H. Uno, Boies, Schiller & Flexner LLP, Armonk, NY; for plaintiffs-appellees Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo.

Dennis J. Herrera, City Attorney; Therese M. Stewart (argued), Chief Deputy City Attorney; Christine Van Aken and Mollie M. Lee, Deputy City Attorneys; San Francisco, CA; for intervenor-plaintiff-appellee City and County of San Francisco.

Andrew P. Pugno, Law Offices of Andrew P. Pugno,

Folsom, CA; Charles J. Cooper (argued), David H.

Thompson, Howard C. Nielson, Jr., and Peter A.

Patterson, Cooper and Kirk, PLLC, Washington, D.C.;

Brian W. Raum and James A. Campbell, Alliance

Defense

Fund,

Scottsdale,

AZ;

for

intervenor-defendants-appellants Dennis Hollingsworth,

Gail J. Knight, Martin F. Gutierrez, Mark A. Jansson, and

ProtectMarriage.com.

James Joseph Lynch, Jr., Sacramento, CA; for amicus curiae Margie Reilly.
Paul Benjamin Linton, Thomas More Society, Northbrook, IL; Christopher M. Gacek, Family Research Council, Washington, D.C.; Thomas Brejcha, Thomas More Society, Chicago, IL; for amicus curiae the Family Research Council.
Kelly J. Shackelford, Jeffrey C. Mateer, Hiriam S. Sasser, III, and Justin E. Butterfield, Liberty Institute, Plano, TX; for amici curiae Liberty Institute, Association of Maryland Families, California Family Council, Center for Arizona Policy, Citizens for Community Values, Cornerstone Action, Cornerstone Family Council, Delaware Family Policy Council, Family Action Council of Tennessee, the Family Foundation, the Family Policy Council of West Virginia, Family Policy Institute of Washington, Florida Family Policy Council, Georgia Family Council, Illinois Family Institute, Independence Law Center, Iowa Family Policy Center, Louisiana Family Forum Action, Massachusetts Family Institute, Michigan Family Forum, Minnesota Family Council, Missouri Family Policy Council, Montana Family Foundation, New Jersey Family First, New Jersey Family Policy Council, North Carolina Family Policy Council, Oklahoma Family Policy Council, Oregon Family Council, Palmetto Family Council, Pennsylvania Family Institute, Wisconsin Family Action, and Wywatch Family Action.
Lynn D. Wardle, Marriage Law Project, J. Reuben Clark Law School, Provo, UT; Stephen Kent Ehat, Lindon, UT; Lincoln C. Oliphant, Columbus School of Law, the Catholic University of America, Washington, D.C.; for amici curiae High Impact Leadership Coalition, the Center for Urban Renewal and Education, and the Frederick Douglass Foundation, Inc.
Dean R. Broyles and James M. Griffiths, the Western Center for Law & Policy, Escondido, CA; for amici curiae Parents and Friends of Ex–Gays and Desert Stream Ministries.
M. Edward Whelan III, Ethics and Public Policy Center, Washington, D.C.; for amicus curiae the Ethics and Public Policy Center.
Mary E. McAlister, Stephen M. Crampton, and Rena M. Lindevaldsen, Liberty Counsel, Lynchburg, VA; Matthew D. Staver and Anita L. Staver, Liberty Counsel, *1059 Orlando, FL; for amici curiae Liberty Counsel, Campaign for Children and Families, and JONAH Inc.
Jay Alan Sekulow, Stuart J. Roth, and Walter M. Weber, American Center for Law & Justice, Washington, D.C.; for amicus curiae the American Center for Law and

Justice.
Donald W. MacPherson, the MacPherson Group, Phoenix, AZ; for amicus curiae the Hausvater Project.
Matthew B. McReynolds and Kevin T. Snider, Pacific Justice Institute, Sacramento, CA; for amicus curiae Pacific Justice Institute.
Von G. Keetch, Alexander Dushku, and R. Shawn Gunnarson, Kirton & McConkie, Salt Lake City, UT; Anthony R. Picarello, Jr., Jeffrey Hunter Moon, and Michael F. Moses, U.S. Conference of Catholic Bishops, Washington, D.C.; Carl H. Esbeck, National Association of Evangelicals, Washington, D.C.; James F. Sweeney, Sweeney & Greene LLP, Elk Grove, CA; for amici curiae United States Conference of Catholic Bishops, California Catholic Conference, National Association of Evangelicals, the Church of Jesus Christ of Latter-day Saints, the Ethics & Religious Liberty Commission, Lutheran Church—Missouri Synod, Calvary Chapel Fellowship of Ministries of California, the Christian and Missionary Alliance, Coral Ridge Ministries, the Council of Korean Churches in Southern California, Southern California Korean Ministers Association, and Holy Movement for America.
Kristen K. Waggoner and Steven T. O’Ban, Ellis, Li & McKinstry PLLC, Seattle, WA; for amici curiae Robert P. George, Sherif Girgis, and Ryan T. Anderson.
Gary G. Kreep, United States Justice Foundation, Ramona, CA; for amicus curiae National Association for Research & Therapy of Homosexuality (NARTH).
Abram J. Pafford, Pafford, Lawrence & Ross, PLLC, Washington, D.C.; for amicus curiae American College of Pediatricians.
John C. Eastman, Anthony T. Caso, and Karen J. Lugo, Center for Constitutional Jurisprudence, Orange, CA; for amicus curiae Center for Constitutional Jurisprudence.
Kevin J. Hasson and Lori H. Windham, the Becket Fund for Religious Liberty, Washington, D.C.; for amicus curiae the Becket Fund for Religious Liberty.
Steven W. Fitschen, the National Legal Foundation, Virginia Beach, VA; for amicus curiae National Legal Foundation.
Lawrence J. Joseph, Washington, D.C.; for amicus curiae Eagle Forum Education & Legal Defense Fund.
Holly L. Carmichael, Los Gatos, CA; for amicus curiae Concerned Women of America.

William C. Duncan, Marriage Law Foundation, Lehi, UT; Joshua K. Baker, National Organization for Marriage, Washington, D.C.; for amici curiae National Organization for Marriage, National Organization for Marriage Rhode Island, and Family Leader.
Herbert G. Grey, Beaverton, OR; for amicus curiae Paul McHugh.
Eugene Dong, Palo Alto, CA; for amicus curiae Eugene Dong.
Gregory F. Zoeller, Attorney General; Thomas M. Fischer, Solicitor General; and Ellen H. Meilaender, Deputy Attorney General, State of Indiana; Kenneth T. Cuccinelli, II, Attorney General; E. Duncan Getchell, Solicitor General; and Stephen McCullough, Deputy Solicitor General, State of Virginia; Michael A. Cox, Attorney General and *1060 Eric Restuccia, Solicitor General, State of Michigan; James D. Caldwell, Attorney General and Kyle Duncan, Appellate Chief, State of Louisiana; Troy King, Attorney General, State of Alabama; Daniel S. Sullivan, Attorney General, State of Alaska; Bill McCollum, Attorney General, State of Florida; Lawrence G. Wasden, Attorney General, State of Idaho; Jon Bruning, Attorney General, State of Nebraska; Thomas W. Corbett, Jr., Attorney General, Commonwealth of Pennsylvania; Henry McMaster, Attorney General, State of South Carolina; Mark L. Shurtleff, Attorney General, State of Utah; Bruce A. Salzburg, Attorney General, State of Wyoming; for amici curiae States of Indiana, Virginia, Louisiana, Michigan, Alabama, Alaska, Florida, Idaho, Nebraska, Pennsylvania, South Carolina, Utah, and Wyoming.
Kenneth A. Klukowski, American Civil Rights Union, Alexandria, VA; for amicus curiae American Civil Rights Union.
Richard G. Katerndahl, San Rafael, CA; for amicus curiae Catholics for the Common Good.
Jerome C. Roth, Michelle Friedland, Mark R. Conrad, and Miriam L. Seifter, Munger, Tolles & Olson LLP, San Francisco, CA; for amici curiae Bay Area Lawyers for Individual Freedom, Alameda County Bar Association, Bar Association of San Francisco, Los Angeles County Bar Association, Marin County Bar Association, Santa Clara County Bar Association, AIDS Legal Referral Panel, API Equality—LA, Asian American Bar Association of the Greater Bay Area, Asian Pacific American Bar Association of Los Angeles County, Asian Pacific Bar Association of Silicon Valley, Asian Pacific Islander Legal Outreach, Bay Area Association of Muslim Lawyers, California Employment Lawyers Association, California Women’s Law Center, East Bay La Raza Lawyers Association, Equal Justice Society, Family

Equality Council, Filipino Bar Association of Northern California, Freedom to Marry, Impact Fund, Japanese American Bar Association of Greater Los Angeles, Korean American Bar Association of Northern California, Latina and Latino Critical Legal Theory, Inc., Law Foundation of Silicon Valley, Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, Legal Aid Society–Employment Law Center, Lesbian and Gay Lawyers Association of Los Angeles, Marriage Equality USA, Mexican American Bar Association, National Asian Pacific American Bar Association, National Lawyers Guild San Francisco Bay Area Chapter, People for the American Way Foundation, Queen’s Bench Bar Association, San Francisco Chamber of Commerce, San Francisco La Raza Lawyers Association, San Francisco Trial Lawyers Association, Santa Clara County Black Lawyers Association, Society of American Law Teachers, South Asian Bar Association of Northern California, Transgender Law Center, and Women Lawyers of Alameda County.
Elizabeth B. Wydra, David H. Gans, Douglas T. Kendall, and Judith E. Schaeffer, Constitutional Accountability Center, Washington, D.C.; for amicus curiae Constitutional Accountability Center.
Daniel H. Squire, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.; Alan E. Schoenfeld, David Sapir Lesser, and Erin G.H. Sloane, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY; for amici curiae Legislators from United States Jurisdictions That Have Legalized Same–Sex Marriage.
Nathalie F.P. Gilfoyle, American Psychological Association, Washington, D.C.; Paul M. Smith, William M. Hohengarten, and Julia K. Martinez, Jenner & Block LLP, Washington, D.C.; for amici curiae American Psychological Association, the *1061 California Psychological Association, the American Psychiatric Association, and the American Association for Marriage and Family Therapy.
Laura W. Brill, Nicholas F. Daum, and Richard M. Simon, Kendall Brill & Klieger LLP, Los Angeles, CA; for amicus curiae Jon B. Eisenberg.
Herma Hill Kay, University of California—Berkeley School of Law, Berkeley, CA; Michael S. Wald, Stanford Law School, Stanford, CA; for amici curiae California Professors of Family Law.
Aderson François, Howard University School of Law Civil Rights Clinic, Washington, D.C.; Ayesha N. Khan, Americans United for Separation of Church and State, Washington D.C.; Brad W. Seiling, Kathryn A.B. Bartow, and Benjamin G. Shatz, Manatt, Phelps & Phillips, LLP, Los Angeles, CA; Jon B. Streeter, Susan J. Harriman, and

Jo W. Golub, Keker & Van Nest, LLP, San Francisco, CA; for amici curiae Howard University School of Law Civil Rights Clinic and Americans United for Separation of Church and State.
Justin Ford, O’Melveny & Myers LLP, Los Angeles, CA; Walter Dellinger, Jonathan D. Hacker, Sarah Goldfrank, and Anton Metlitsky, O’Melveny & Myers LLP, Washington, D.C.; for amicus curiae National LGBT Bar Association.
Martha Coakley, Attorney General; Maura T. Healey, Jonathan B. Miller, and Christopher K. Barry–Smith, Assistant Attorneys General, Boston, MA; for amicus curiae the Commonwealth of Massachusetts.
Christopher L. Lebsock and Arthur N. Bailey, Jr., Hausfeld LLP, San Francisco, CA; for amicus curiae the California Teachers Association.
Steven M. Freeman, Steven C. Sheinberg, Deborah Besinger, and Michelle Deutchman, Anti–Defamation League, New York, NY; Victoria F. Maroulis, Anna T. Neill, and Brett J. Arnold, Quinn Emanuel Urquhart & Sullivan, LLP, Redwood Shores, CA; for amicus curiae Anti–Defamation League.
John Payton, Debo P. Adegbile, and Dale E. Ho, NAACP Legal Defense & Educational Fund, Inc., New York, NY; for amicus curiae NAACP Legal Defense & Educational Fund, Inc.
Kathleen M. O’Sullivan and Abha Khanna, Perkins Coie LLP, Seattle, WA; for amici curiae Professors William N. Eskridge, Jr., Bruce A. Ackerman, Rebecca L. Brown, Daniel A. Farber, Kenneth L. Karst, and Andrew Koppelman.
Sonya D. Winner, Bruce R. Deming, David M. Jolley, and John D. Freed, Covington & Burling LLP, San Francisco, CA; for amici curiae American Anthropological Association, American Psychoanalytic Association, National Association of Social Workers, National Association of Social Workers, California Chapter, American Sociological Association, and American Academy of Pediatrics, California.
Jon W. Davidson, Jennifer C. Pizer, and Tara L. Borelli, Lambda Legal Defense and Education Fund, Inc., Los Angeles, CA; Alan L. Schlosser and Elizabeth O. Gill, ACLU Foundation of Northern California, San Francisco, CA; Shannon P. Minter, Christopher F. Stoll, and Ilona M. Turner, National Center for Lesbian Rights, San Francisco, CA; for amici curiae ACLU Foundation of Northern California, Gay and Lesbian Advocates and Defenders, Lambda Legal Defense and Education Fund, Inc., and National Center for Lesbian Rights.

Eric Alan Isaacson, San Diego, CA; Stacey M. Kaplan, San Francisco, CA; for amici curiae California Faith for Equality, California Council of Churches, *1062 General Synod of the United Church of Christ, Universal Fellowship of Metropolitan Community Churches, the Episcopal Bishops of California and Los Angeles, Progressive Jewish Alliance, Pacific Association of Reform Rabbis, Unitarian Universalist Association, and Unitarian Universalist Legislative Ministry California.
David C. Codell, Linda M. Burrow, Albert Giang, and Benjamin A. Au, Caldwell Leslie & Proctor, PC, Los Angeles, CA; for amicus curiae Equality California.
Diana E. Richmond and Louis P. Feuchtbaum, Sideman & Bancroft LLP, San Francisco, CA; Richard B. Rosenthal, the Law Offices of Richard B. Rosenthal, P.A., San Rafael, CA; for amici curiae Donald B. King, Justice (Ret.) and the American Academy of Matrimonial Lawyers (Northern California Chapter).
Elizabeth J. Cabraser, Kelly M. Dermody, Brendan P. Glackin, Anne Shaver, and Alison Stocking, Lieff, Cabraser, Heimann & Bernstein, LLP, San Francisco, CA; Rachel Geman, Lieff, Cabraser, Heimann & Bernstein, LLP, New York, NY; for amici curiae Professors Bryan Adamson, Janet Cooper Alexander, Barbara A. Atwood, Barbara Babcock, Erwin Chemerinsky, Joshua P. Davis, David L. Faigman, Pamela S. Karlan, Toni M. Massaro, Arthur Miller, David Oppenheimer, Judith Resnik, Fred Smith, and Larry Yackle.
Scott Wm. Davenport, Jason J. Molnar, Darin L. Wessel, and Peter C. Catalanotti, Manning & Marder, Kass, Ellrod, Ramirez LLP, Irvine, CA; for amicus curiae the Southern Poverty Law Center.
Peter Obstler, Jee Young You, Suneeta D. Fernandes, and Doug Karpa, Bingham McCutchen LLP, San Francisco, CA; for amici curiae Asian American Justice Center, Asian Law Caucus, Asian American Institute, Asian Pacific American Legal Center, Asian Pacific American Women Lawyers Alliance, Asian Pacific Islander Legal Outreach, API Equality, California Conference of the NAACP, Chinese for Affirmative Action, Coalition for Humane Immigrant Rights of Los Angeles, Korematsu Center at Seattle University, Mexican American Legal Defense and Education Fund, and Zuna Institute.
Susan M. Popik and Merri A. Baldwin, Chapman, Popik & White LLP, San Francisco, CA; Suzanne B. Goldberg, Clinical Professor of Law and Director, Sexuality & Gender Law Clinic, Columbia Law School, New York, NY; for amici curiae National Gay and Lesbian Task Force Foundation, Human Rights Campaign, American Humanist Association, and Courage Campaign Institute.

David Boies (argued), Jeremy M. Goldman, and Theodore H. Uno, Boies, Schiller & Flexner LLP, Armonk, NY; Theodore B. Olson, Matthew D. McGill, and Amir C. Tayrani, Gibson, Dunn & Crutcher LLP, Washington, D.C.; Theodore J. Boutrous, Jr., Christopher D. Dusseault, Theane Evangelis Kapur, Enrique A. Monagas, and Joshua S. Lipshutz, Gibson, Dunn & Crutcher LLP, Los Angeles, CA; for plaintiffs-appellees Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo.

Dennis J. Herrera, Therese M. Stewart (argued), and Christine Van Aken, City and County of San Francisco, San Francisco, CA; for intervenor-plaintiff-appellee City and County of San Francisco.

Andrew P. Pugno, Law Offices of Andrew P. Pugno,

Folsom, CA; Charles J. Cooper (argued), David H.

Thompson, Howard C. Nielson, Jr., and Peter A.

Patterson, Cooper and Kirk, PLLC, Washington, D.C.;

Brian W. Raum and James A. Campbell, Alliance

Defense

Fund,

Scottsdale,

AZ;

for

intervenor-defendants-appellants Dennis Hollingsworth,

Gail J. Knight, *1063 Martin F. Gutierrez, Mark A.

Jansson, and ProtectMarriage.com.

Jon W. Davidson, Tara L. Borelli, and Peter C. Renn, Lambda Legal Defense and Education Fund, Los Angeles, CA; Shannon P. Minter, Christopher F. Stoll, and Ilona M. Turner, National Center for Lesbian Rights, San Francisco, CA; Alan L. Schlosser and Elizabeth O. Gill, ACLU Foundation of Northern California, San Francisco, CA; for amici curiae Lambda Legal Defense and Education Fund, National Center for Lesbian Rights, ACLU Foundation of Northern California, and Equality California.

David M. Balabanian, Frank Busch, Elizabeth Benson, and Kathryn Conrad, Bingham McCutchen LLP, San Francisco, CA; for amicus curiae the Bar Association of San Francisco.

Appeal from the United States District Court for the Northern District of California, Vaughn R. Walker, Chief District Judge, Presiding (No. 10–16696), James Ware, Chief District Judge, Presiding (No. 11–16577). D.C. Nos. 3:09–cv–02292–VRW, 3:09–cv–02292–JW.

Before: STEPHEN REINHARDT, MICHAEL DALY HAWKINS, and N. RANDY SMITH, Circuit Judges.

Opinion

Opinion by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge N.R. SMITH.

OPINION
REINHARDT, Circuit Judge:
Prior to November 4, 2008, the California Constitution guaranteed the right to marry to opposite-sex couples and same-sex couples alike. On that day, the People of California adopted Proposition 8, which amended the state constitution to eliminate the right of same-sex couples to marry. We consider whether that amendment violates the Fourteenth Amendment to the United States Constitution. We conclude that it does.
Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted. Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status, all parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed to obtain from the State, or any other authorized party, an important right—the right to obtain and use the designation of ‘marriage’ to describe their relationships. Nothing more, nothing less. Proposition 8 therefore could not have been enacted to advance California’s interests in childrearing or responsible procreation, for it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples. Nor did Proposition 8 have any effect on religious freedom or on parents’ rights to control their children’s education; it could not have been enacted to safeguard these liberties.
All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not *1064 allow for “laws of this sort.” Romer v. Evans, 517 U.S. 620, 633, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996).
[1] “Broader issues have been urged for our consideration, but we adhere to the principle of deciding constitutional questions only in the context of the particular case before the Court.” Sweatt v. Painter, 339 U.S. 629, 631, 70 S.Ct.

848, 94 L.Ed. 1114 (1950). Whether under the Constitution same-sex couples may ever be denied the right to marry, a right that has long been enjoyed by opposite-sex couples, is an important and highly controversial question. It is currently a matter of great debate in our nation, and an issue over which people of good will may disagree, sometimes strongly. Of course, when questions of constitutional law are necessary to the resolution of a case, courts may not and should not abstain from deciding them simply because they are controversial. We need not and do not answer the broader question in this case, however, because California had already extended to committed same-sex couples both the incidents of marriage and the official designation of ‘marriage,’ and Proposition 8’s only effect was to take away that important and legally significant designation, while leaving in place all of its incidents. This unique and strictly limited effect of Proposition 8 allows us to address the amendment’s constitutionality on narrow grounds.
Thus, as a result of our “traditional reluctance to extend constitutional interpretations to situations or facts which are not before the Court, much of the excellent research and detailed argument presented in th[is] case[ ] is unnecessary to [its] disposition.” Id. Were we unable, however, to resolve the matter on the basis we do, we would not hesitate to proceed to the broader question—the constitutionality of denying same-sex couples the right to marry.
Before considering the constitutional question of the validity of Proposition 8’s elimination of the rights of same-sex couples to marry, we first decide that the official sponsors of Proposition 8 are entitled to appeal the decision below, which declared the measure unconstitutional and enjoined its enforcement. The California Constitution and Elections Code endow the official sponsors of an initiative measure with the authority to represent the State’s interest in establishing the validity of a measure enacted by the voters, when the State’s elected leaders refuse to do so. See Perry v. Brown, 52 Cal.4th 1116, 134 Cal.Rptr.3d 499, 265 P.3d 1002 (2011). It is for the State of California to decide who may assert its interests in litigation, and we respect its decision by holding that Proposition 8’s proponents have standing to bring this appeal on behalf of the State. We therefore conclude that, through the proponents of ballot measures, the People of California must be allowed to defend in federal courts, including on appeal, the validity of their use of the initiative power. Here, however, their defense fails on the merits. The People may not employ the initiative power to single out a disfavored group for unequal treatment and strip them, without a legitimate justification, of a right as important as the right to marry. Accordingly, we affirm the judgment of the district court.

We also affirm—for substantially the reasons set forth in the district court’s opinion—the denial of the motion by the official sponsors of Proposition 8 to vacate the judgment entered by former Chief Judge Walker, on the basis of his purported interest in being allowed to marry his same-sex partner.
I
A
Upon its founding, the State of California recognized the legal institution of civil *1065 marriage for its residents. See, e.g., Cal. Const. of 1849, art. XI, §§ 12, 14 (discussing marriage contracts and marital property); Cal. Stats. 1850, ch. 140 (“An Act regulating Marriages”). Marriage in California was understood, at the time and well into the twentieth century, to be limited to relationships between a man and a woman. See In re Marriage Cases, 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384, 407–09 (2008). In 1977, that much was made explicit by the California Legislature, which amended the marriage statute to read, “Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary.” Cal. Stats.1977, ch. 339, § 1. The 1977 provision remains codified in California statute. See Cal. Fam.Code § 300(a).
Following the enactment of the Defense of Marriage Act of 1996, Pub.L. 104–199, 110 Stat. 2419 (codified in relevant part at 1 U.S.C. § 7), which expressly limited the federal definition of marriage to relationships between one man and one woman, dozens of states enacted similar provisions into state law. See Andrew Koppelman, The Difference the Mini–DOMAs Make, 38 Loy. U. Chi. L.J. 265, 265–66 (2007). California did so in 2000 by adopting Proposition 22, an initiative statute, which provided, “Only marriage between a man and a woman is valid or recognized in California.” Cal. Fam.Code § 308.5. The proposition ensured that same-sex marriages performed in any state that might permit such marriages in the future would not be recognized in California, and it guaranteed that any legislative repeal of the 1977 statute would not allow same-sex couples to marry within the State, because the Legislature may not amend or repeal an initiative statute enacted by the People. See Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at 409–10.
Meanwhile, however, California had created the designation “domestic partnership” for “two adults who have chosen to share one another’s lives in an intimate

and committed relationship of mutual caring.” Cal. Stats.1999, ch. 588, § 2 (codified at Cal. Fam.Code § 297(a)). At first, California gave registered domestic partners only limited rights, such as hospital visitation privileges, id. § 4, and health benefits for the domestic partners of certain state employees, id. § 3. Over the next several years, however, the State substantially expanded the rights of domestic partners. By 2008, “California statutory provisions generally afford[ed] same-sex couples the opportunity to ... obtain virtually all of the benefits and responsibilities afforded by California law to married opposite-sex couples.” Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at 417–18. The 2003 Domestic Partner Act provided broadly: “Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.” Cal. Stats.2003, ch. 421, § 4 (codified at Cal. Fam.Code § 297.5(a)). It withheld only the official designation of marriage and thus the officially conferred and societally recognized status that accompanies that designation.
B
In 2004, same-sex couples and the City and County of San Francisco filed actions in California state courts alleging that the State’s marriage statutes violated the California Constitution. Proposition 22 was among the statutes challenged, because as *1066 an initiative statutory enactment, it was equal in dignity to an enactment by the Legislature and thus subject to the restrictions of the state constitution.1 The consolidated cases were eventually decided by the California Supreme Court, which held the statutes to be unconstitutional, for two independent reasons.
First, the court held that the fundamental right to marry provided by the California Constitution could not be denied to same-sex couples, who are guaranteed “the same substantive constitutional rights as opposite-sex couples to choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage.” Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at 433–34. The court began by reaffirming that “the right to marry is an integral component of an individual’s interest in personal autonomy protected by the privacy provision of article I, section 1 [of the California Constitution], and of the

liberty interest protected by the due process clause of article I, section 7.” Id., 76 Cal.Rptr.3d 683, 183 P.3d at 426 (emphasis omitted). It then held “that an individual’s homosexual orientation is not a constitutionally legitimate basis for withholding or restricting the individual’s legal rights.” Id., 76 Cal.Rptr.3d 683, 183 P.3d at 429. The court acknowledged that although such an inclusive understanding of the right to marry was one that had developed only “in recent decades,” as the State extended greater recognition to same-sex couples and households, it was “apparent that history alone does not provide a justification for interpreting the constitutional right to marry as protecting only one’s ability to enter into an officially recognized family relationship with a person of the opposite sex,” because “ ‘[f]undamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights.’ ” Id., 76 Cal.Rptr.3d 683, 183 P.3d at 428–30 (quoting Hernandez v. Robles, 7 N.Y.3d 338, 381, 821 N.Y.S.2d 770, 855 N.E.2d 1 (2006) (Kaye, C.J., dissenting)).
The court concluded its due process analysis by rejecting the argument that the availability of domestic partnerships satisfied “all of the personal and dignity interests that have traditionally informed the right to marry,” because “[t]he current statutes—by drawing a distinction between the name assigned to the family relationship available to opposite-sex couples and the name assigned to the family relationship available to same-sex couples, and by reserving the historic and highly respected designation of ‘marriage’ exclusively to opposite-sex couples while offering same-sex couples only the new and unfamiliar designation of domestic partnership—pose a serious risk of denying the official family relationship of same-sex couples the equal dignity and respect that is a core element of the constitutional right to marry.” Id., 76 Cal.Rptr.3d 683, 183 P.3d at 434–35.
Second, the court held that “[t]he current statutory assignment of different names for the official family relationships of opposite-sex couples on the one hand, *1067 and of same-sex couples on the other” violated the equal protection clause in article I, section 7 of the California Constitution. Id., 76 Cal.Rptr.3d 683, 183 P.3d at 435, 452–53. The court determined that the State had no interest in reserving the name ‘marriage’ for opposite-sex couples; “the historic and well-established nature of this limitation” could not itself justify the differential treatment, and the court found no reason that restricting the designation of ‘marriage’ to opposite-sex couples was necessary to preserve the benefits of marriage enjoyed by opposite-sex couples or their children. Id., 76 Cal.Rptr.3d 683, 183 P.3d at 450–52. The court noted specifically that “the distinction in nomenclature between marriage and domestic partnership

cannot be defended on the basis of an asserted difference in the effect on children of being raised by an opposite-sex couple instead of by a same-sex couple,” because “the governing California statutes permit same-sex couples to adopt and raise children and additionally draw no distinction between married couples and domestic partners with regard to the legal rights and responsibilities relating to children raised within each of these family relationships.” Id., 76 Cal.Rptr.3d 683, 183 P.3d at 452 n. 72. Restricting access to the designation of ‘marriage’ did, however, “work[ ] a real and appreciable harm upon same-sex couples and their children,” because “providing only a novel, alternative institution for same-sex couples” constituted “an official statement that the family relationship of same-sex couples is not of comparable stature or equal dignity to the family relationship of opposite-sex couples.” Id., 76 Cal.Rptr.3d 683, 183 P.3d at 452. Consequently, the court determined that withholding only the name ‘marriage’ from same-sex couples violated the California Constitution’s guarantee of equal protection.
The court remedied these constitutional violations by striking the language from the marriage statutes “limiting the designation of marriage to a union ‘between a man and a woman,’ ” invalidating Proposition 22, and ordering that the designation of ‘marriage’ be made available to both opposite-sex and same-sex couples. Id., 76 Cal.Rptr.3d 683, 183 P.3d at 453. Following the court’s decision, California counties issued more than 18,000 marriage licenses to same-sex couples.

C

Five

California

residents—defendants-intervenors-appellants Dennis

Hollingsworth, Gail J. Knight, Martin F. Gutierrez,

Hak–Shing William Tam, and Mark A. Jansson

(collectively, “Proponents”)—collected voter signatures

and filed petitions with the state government to place an

initiative on the November 4, 2008, ballot. Unlike

Proposition 22, this was an initiative constitutional

amendment, which would be equal in effect to any other

provision of the California Constitution, rather than

subordinate to it. The Proponents’ measure, designated

Proposition 8, proposed to add a new provision to the

California Constitution’s Declaration of Rights,

immediately following the Constitution’s due process and

equal protection clauses. The provision states, “Only

marriage between a man and a woman is valid or

recognized in California.” According to the official voter

information guide, Proposition 8 “[c]hanges the

California Constitution to eliminate the right of same-sex

couples to marry in California.” Official Voter Information Guide, California General Election (Nov. 4, 2008), at 54. Following a contentious campaign, a slim majority of California voters (52.3 percent) approved Proposition 8. Pursuant to the state constitution, Proposition 8 took effect the next day, as article I, section 7.5 of the California Constitution.
*1068 Opponents of Proposition 8 then brought an original action for a writ of mandate in the California Supreme Court. They contended that Proposition 8 exceeded the scope of the People’s initiative power because it revised, rather than amended, the California Constitution. The opponents did not raise any federal constitutional challenge to Proposition 8 in the state court. The state officials named as respondents refused to defend the measure’s validity, but Proponents were permitted to intervene and do so. Following argument, the court upheld Proposition 8 as a valid initiative but construed the measure as not nullifying the 18,000–plus marriages of same-sex couples that had already been performed in the State. Strauss v. Horton, 46 Cal.4th 364, 93 Cal.Rptr.3d 591, 207 P.3d 48, 98–110, 119–22 (2009).
The court also explained Proposition 8’s precise effect on California law: “[T]he measure carves out a narrow and limited exception to the[ ] state constitutional rights [articulated in the Marriage Cases ], reserving the official designation of the term ‘marriage’ for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.” Id., 93 Cal.Rptr.3d 591, 207 P.3d at 61; see also id., 93 Cal.Rptr.3d 591, 207 P.3d at 75. In other words, after Proposition 8, “[s]ame-sex couples retain all of the fundamental substantive components encompassed within the constitutional rights of privacy and due process, with the sole (albeit significant) exception of the right to equal access to the designation ‘marriage.’ ” Id., 93 Cal.Rptr.3d 591, 207 P.3d at 116. Proposition 8 accomplished this result not by “declar[ing] the state of the law as it existed when the Marriage Cases decision was rendered, but instead [by] establish [ing] a new substantive state constitutional rule that became effective once Proposition 8 was approved by the voters.” Id., 93 Cal.Rptr.3d 591, 207 P.3d at 115; see also id., 93 Cal.Rptr.3d 591, 207 P.3d at 63.
II

A
Two same-sex couples—plaintiffs Kristin Perry and Sandra Stier, and Paul Katami and Jeffrey Zarrillo—filed this action under 42 U.S.C. § 1983 in May 2009, after being denied marriage licenses by the County Clerks of Alameda County and Los Angeles County, respectively. Alleging that Proposition 8 violates the Fourteenth Amendment to the United States Constitution, they sought a declaration of its unconstitutionality and an injunction barring its enforcement. The City and County of San Francisco (“San Francisco”) was later permitted to intervene as a plaintiff to present evidence of the amendment’s effects on its governmental interests. The defendants—the two county clerks and four state officers, including the Governor and Attorney General—filed answers to the complaint but once again refused to argue in favor of Proposition 8’s constitutionality. As a result, the district court granted Proponents’ motion to intervene as of right under Federal Rule of Civil Procedure 24(a) to defend the validity of the proposition they had sponsored.2
*1069 The district court held a twelve-day bench trial, during which it heard testimony from nineteen witnesses and, after giving the parties a full and fair opportunity to present evidence and argument, built an extensive evidentiary record.3 In a thorough opinion in August 2010, the court made eighty findings of fact and adopted the relevant conclusions of law. Perry v. Schwarzenegger (Perry IV ), 704 F.Supp.2d 921 (N.D.Cal.2010).4 The court held Proposition 8 unconstitutional under the Due Process Clause because no compelling state interest justifies denying same-sex couples the fundamental right to marry. Id. at 991–95. The court also determined that Proposition 8 violated the Equal Protection Clause, because there is no rational basis for limiting the designation of ‘marriage’ to opposite-sex couples. Id. at 997–1003. The court therefore entered the following injunction: “Defendants in their official capacities, and all persons under the control or supervision of defendants, are permanently enjoined from applying or enforcing Article I, § 7.5 of the California Constitution.”5 Doc. 728 (Permanent Injunction), Perry v. Schwarzenegger, No. 09–cv–02292 (N.D.Cal. Aug. 12, 2010).6
*1070 B
Proponents appealed immediately, and a motions panel of this court stayed the district court’s injunction pending appeal. The motions panel asked the parties to discuss in their briefs, as a preliminary matter, whether the Proponents had standing to seek review of the district

court order. After considering the parties’ arguments, we concluded that Proponents’ standing to appeal depended on the precise rights and interests given to official sponsors of an initiative under California law, which had never been clearly defined by the State’s highest court. We therefore certified the following question to the California Supreme Court:
Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so. Perry v. Schwarzenegger (Perry V ), 628 F.3d 1191, 1193 (9th Cir.2011). The state court granted our request for certification in February 2011, and in November 2011 rendered its decision. See Perry v. Brown (Perry VII ), 52 Cal.4th 1116, 134 Cal.Rptr.3d 499, 265 P.3d 1002 (2011). We now resume consideration of this appeal.7
III
[2] We begin, as we must, with the issue that has prolonged our consideration of this case: whether we have jurisdiction over an appeal brought by the defendant-intervenor Proponents, rather than the defendant state and local officers who were directly enjoined by the district court order.8 In view of Proponents’ authority under California law, we conclude that they do have standing to appeal.
[3] [4] For purposes of Article III standing, we start with the premise that “a State has standing to defend the constitutionality of its [laws].” Diamond v. Charles, 476 U.S. 54, 62, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986). When a state law is ruled unconstitutional, either the state or a state officer charged with the law’s enforcement may appeal that determination. Typically, the named defendant in an action challenging the constitutionality of a state law is a state officer, because sovereign immunity protects the state from being sued directly. See Ex parte Young, 209 U.S. 123, 157–58, 28 S.Ct. 441, 52 L.Ed. 714 (1908); L.A. County Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir.1992).

In such cases, if a court invalidates the state law and enjoins its enforcement, there is *1071 no question that the state officer is entitled to appeal that determination. See, e.g., Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 129 S.Ct. 1093, 172 L.Ed.2d 770 (2009) (Idaho Secretary of State and Attorney General appealed decision striking down an Idaho law on First Amendment grounds); Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000) (Nebraska Attorney General appealed decision holding unconstitutional a Nebraska abortion law). Moreover, there is no reason that a state itself may not also choose to intervene as a defendant, and indeed a state must be permitted to intervene if a state officer is not already party to an action in which the constitutionality of a state law is challenged. See 28 U.S.C. § 2403(b); Fed.R.Civ.P. 5.1; cf. Fed. R.App. P. 44(b). When a state does elect to become a defendant itself, the state may appeal an adverse decision about the constitutionality of one of its laws, just as a state officer may. See, e.g., Caruso v. Yamhill County ex rel. County Comm’r, 422 F.3d 848, 852–53 & n. 2 (9th Cir.2005) (sole appellant was the State of Oregon, which had intervened as a defendant in the district court). In other words, in a suit for an injunction against enforcement of an allegedly unconstitutional state law, it makes no practical difference whether the formal party before the court is the state itself or a state officer in his official capacity. Cf. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 114 n. 25, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (discussing the “fiction” of Ex parte Young ); see also Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 269–70, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997) (same).
Whether the defendant is the state or a state officer, the decision to assert the state’s own interest in the constitutionality of its laws is most commonly made by the state’s executive branch—the part of state government that is usually charged with enforcing and defending state law. See, e.g., Ysursa, 555 U.S. at 354, 129 S.Ct. 1093 (Idaho state officers represented by state Attorney General); Caruso, 422 F.3d at 851 (State of Oregon represented by Oregon Department of Justice). Some sovereigns vest the authority to assert their interest in litigation exclusively in certain executive officers. See, e.g., 28 U.S.C. §§ 516–19; 28 C.F.R. § 0.20.
[5] The states need not follow that approach, however. It is their prerogative, as independent sovereigns, to decide for themselves who may assert their interests and under what circumstances, and to bestow that authority accordingly. In Karcher v. May, 484 U.S. 72, 108 S.Ct. 388, 98 L.Ed.2d 327 (1987), for example, the Supreme Court held that the State of New Jersey was properly represented in litigation by the Speaker of the General Assembly and the President of the Senate, appearing on behalf of the Legislature, because “the New Jersey Legislature had

authority under state law to represent the State’s interests.” Id. at 82, 108 S.Ct. 388 (citing In re Forsythe, 91 N.J. 141, 450 A.2d 499, 500 (1982)).9 Principles of federalism require that federal courts respect such decisions by the states as to who may speak for them: “there are limits on the Federal Government’s power to affect the internal operations of a State.” *1072 Va. Office for Protection & Advocacy v. Stewart, ––– U.S. ––––, 131 S.Ct. 1632, 1641, 179 L.Ed.2d 675 (2011). It is not for a federal court to tell a state who may appear on its behalf any more than it is for Congress to direct state law-enforcement officers to administer a federal regulatory scheme, see Printz v. United States, 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997), to command a state to take ownership of waste generated within its borders, see New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992), or to dictate where a state shall locate its capital, see Coyle v. Smith, 221 U.S. 559, 31 S.Ct. 688, 55 L.Ed. 853 (1911). Who may speak for the state is, necessarily, a question of state law. All a federal court need determine is that the state has suffered a harm sufficient to confer standing and that the party seeking to invoke the jurisdiction of the court is authorized by the state to represent its interest in remedying that harm.
Proponents claim to assert the interest of the People of California in the constitutionality of Proposition 8, which the People themselves enacted. When faced with a case arising in a similar posture, in which an Arizona initiative constitutional amendment was defended only by its sponsors, the Supreme Court expressed “grave doubts” about the sponsors’ standing given that the Court was “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.” Arizonans for Official English v. Arizona (Arizonans ), 520 U.S. 43, 65–66, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). Absent some conferral of authority by state law, akin to the authority that the New Jersey legislators in Karcher had as “elected representatives,” the Court suggested that proponents of a ballot measure would not be able to appeal a decision striking down the initiative they sponsored. Id. at 65, 117 S.Ct. 1055.
Here, unlike in Arizonans, we do know that California law confers on “initiative sponsors” the authority “to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.” The California Supreme Court has told us, in a published opinion containing an exhaustive review of the California Constitution and statutes, that it does. In answering our certified question, the court held
that when the public officials who

ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.
Perry VII, 134 Cal.Rptr.3d at 536–37, 265 P.3d 1002. “[T]he role played by the proponents in such litigation,” the court explained, “is comparable to the role ordinarily played by the Attorney General or other public officials in vigorously defending a duly enacted state law and raising all arguable legal theories upon which a challenged provision may be sustained.” Id. at 525, 265 P.3d 1002. The State’s highest court thus held that California law provides precisely what the Arizonans Court found lacking in Arizona law: it confers on the official proponents of an initiative the authority to assert the State’s interests in defending the constitutionality of that initiative, where the state officials who would ordinarily assume that responsibility choose not to do so.
We are bound to accept the California court’s determination. Although other states may act differently, California’s conferral *1073 upon proponents of the authority to represent the People’s interest in the initiative measure they sponsored is consistent with that state’s unparalleled commitment to the authority of the electorate: “No other state in the nation carries the concept of initiatives as ‘written in stone’ to such lengths as” does California. People v. Kelly, 47 Cal.4th 1008, 103 Cal.Rptr.3d 733, 222 P.3d 186, 200 (2010) (internal quotation marks omitted). Indeed, California defines the initiative power as “one of the most precious rights of our democratic process,” and considers “the sovereign people’s initiative power” to be a “fundamental right” under the state constitution. Assoc. Home Builders v. City of Livermore, 18 Cal.3d 582, 135 Cal.Rptr. 41, 557 P.2d 473, 477 (1976); Brosnahan v. Brown, 32 Cal.3d 236, 186 Cal.Rptr. 30, 651 P.2d 274, 277 (1982); Costa v.Super. Ct., 37 Cal.4th 986, 39 Cal.Rptr.3d 470, 128 P.3d 675, 686 (2006). As the California Supreme Court explained in answering our certified question, “[t]he initiative power would be significantly impaired if there were no one to assert the state’s interest in the validity of the measure when elected officials decline to defend it in court or to appeal a judgment invalidating the measure.” Perry VII, 134 Cal.Rptr.3d at 523, 265 P.3d 1002. The authority of

official proponents to “assert[ ] the state’s interest in the validity of an initiative measure” thus “serves to safeguard the unique elements and integrity of the initiative process.” Id. at 533., 265 P.3d 1002
It matters not whether federal courts think it wise or desirable for California to afford proponents this authority to speak for the State, just as it makes no difference whether federal courts think it a good idea that California allows its constitution to be amended by a majority vote through a ballot measure in the first place. Cf. Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118, 32 S.Ct. 224, 56 L.Ed. 377 (1912) (holding nonjusticiable a Guaranty Clause challenge to Oregon’s initiative system). The People of California are largely free to structure their system of governance as they choose, and we respect their choice. All that matters, for federal standing purposes, is that the People have an interest in the validity of Proposition 8 and that, under California law, Proponents are authorized to represent the People’s interest. That is the case here.
[6] In their supplemental brief on the issue of standing, Plaintiffs argue for the first time that Proponents must satisfy the requirements of third-party standing in order to assert the interests of the State of California in this litigation. Litigants who wish “to bring actions on behalf of third parties” must satisfy three requirements. Powers v. Ohio, 499 U.S. 400, 410–11, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). First, they “must have suffered an ‘injury in fact,’ thus giving [them] a ‘sufficiently concrete interest’ in the outcome of the issue in dispute.” Id. at 411, 111 S.Ct. 1364. Second, they “must have a close relation to the third party.” Id. Third, “there must exist some hindrance to the third party’s ability to protect his or her own interests.” Id. Plaintiffs contend that Proponents cannot satisfy these requirements with respect to the State of California as a third party.
The requirements of third-party standing, however, are beside the point: the State of California is no more a “third party” relative to Proponents than it is to the executive officers of the State who ordinarily assert the State’s interest in litigation. As the California Supreme Court has explained, “the role played by the proponents” in litigation “regarding the validity or proper interpretation of a voter-approved initiative measure ... is comparable to the role ordinarily played *1074 by the Attorney General or other public officials in vigorously defending a duly enacted state law.” Perry VII, 134 Cal.Rptr.3d at 525, 265 P.3d 1002. When the Attorney General of California appears in federal court to defend the validity of a state statute, she obviously need not satisfy the requirements of third-party standing; she stands in the shoes of the State to assert its interests in litigation. For the purposes of the litigation, she speaks to

the court as the State, not as a third party. The same is true of Proponents here, just as it was true of the presiding legislative officers in Karcher, 484 U.S. at 82, 108 S.Ct. 388. The requirements of third-party standing are therefore not relevant.
Nor is it relevant whether Proponents have suffered a personal injury, in their capacities as private individuals. Although we asked the California Supreme Court whether “the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity,” Perry V, 628 F.3d at 1193 (emphasis added), the Court chose to address only the latter type of interest. Perry VII, 134 Cal.Rptr.3d at 515, 265 P.3d 1002 (“Because [our] conclusion [that proponents are authorized to assert the State’s interest] is sufficient to support an affirmative response to the question posed by the Ninth Circuit, we need not decide whether, under California law, the official proponents also possess a particularized interest in a voter-approved initiative’s validity.”). The exclusive basis of our holding that Proponents possess Article III standing is their authority to assert the interests of the State of California, rather than any authority that they might have to assert particularized interests of their own. Just as the Attorney General of California need not satisfy the requirements of third-party standing when she appears in federal court to defend the validity of a state statute, she obviously need not show that she would suffer any personal injury as a result of the statute’s invalidity. The injury of which she complains is the State’s, not her own. The same is true here. Because “a State has standing to defend the constitutionality of its [laws],” Diamond, 476 U.S. at 62, 106 S.Ct. 1697, Proponents need not show that they would suffer any personal injury from the invalidation of Proposition 8. That the State would suffer an injury, id., is enough for Proponents to have Article III standing when state law authorizes them to assert the State’s interests.
[7] To be clear, we do not suggest that state law has any “power directly to enlarge or contract federal jurisdiction.” Duchek v. Jacobi, 646 F.2d 415, 419 (9th Cir.1981). “Standing to sue in any Article III court is, of course, a federal question which does not depend on the party’s ... standing in state court.” Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985). State courts may afford litigants standing to appear where federal courts would not,10 but whether they do so has no bearing on the parties’ Article III standing in federal court.
State law does have the power, however, to answer questions antecedent to determining federal standing, such as the one here: who is authorized to assert the People’s interest in the constitutionality of an *1075

initiative measure? Because the State of California has Article III standing to defend the constitutionality of Proposition 8, and because both the California Constitution and California law authorize “the official proponents of [an] initiative ... to appear and assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so,” Perry VII, 134 Cal.Rptr.3d at 505, 265 P.3d 1002, we conclude that Proponents are proper appellants here. They possess Article III standing to prosecute this appeal from the district court’s judgment invalidating Proposition 8.
IV
[8] [9] We review the district court’s decision to grant a permanent injunction for abuse of discretion, but we review the determinations underlying that decision by the standard that applies to each determination. Accordingly, we review the court’s conclusions of law de novo and its findings of fact for clear error. See Ting v. AT&T, 319 F.3d 1126, 1134–35 (9th Cir.2003); Fed.R.Civ.P. 52(a).
[10] [11] [12] Plaintiffs and Proponents dispute whether the district court’s findings of fact concern the types of “facts”—so-called “adjudicative facts”—that are capable of being “found” by a court through the clash of proofs presented in adjudication, as opposed to “legislative facts,” which are generally not capable of being found in that fashion. “Adjudicative facts are facts about the parties and their activities ..., usually answering the questions of who did what, where, when, how, why, with what motive or intent”—the types of “facts that go to a jury in a jury case,” or to the factfinder in a bench trial. Marshall v. Sawyer, 365 F.2d 105, 111 (9th Cir.1966) (quoting Kenneth Culp Davis, The Requirement of a Trial–Type Hearing, 70 Harv. L.Rev. 193, 199 (1956)) (internal quotation marks omitted). “Legislative facts,” by contrast, “do not usually concern [only] the immediate parties but are general facts which help the tribunal decide questions of law, policy, and discretion.” Id.
It is debatable whether some of the district court’s findings of fact concerning matters of history or social science are more appropriately characterized as “legislative facts” or as “adjudicative facts.” We need not resolve what standard of review should apply to any such findings, however, because the only findings to which we give any deferential weight—those concerning the messages in support of Proposition 8 that Proponents communicated to the voters to encourage their approval of the measure, Perry IV, 704 F.Supp.2d at 990–91—are

clearly “adjudicative facts” concerning the parties and “ ‘who did what, where, when, how, why, with what motive or intent.’ ” Marshall, 365 F.2d at 111. Aside from these findings, the only fact found by the district court that matters to our analysis is that “[d]omestic partnerships lack the social meaning associated with marriage”—that the difference between the designation of ‘marriage’ and the designation of ‘domestic partnership’ is meaningful. Perry IV, 704 F.Supp.2d at 970. This fact was conceded by Proponents during discovery. Defendant–Intervenors’ Response to Plaintiffs’ First Set of Requests for Admission, Exhibit No. PX 0707, at 2 (“Proponents admit that the word ‘marriage’ has a unique meaning.”); id. at 11 (Proponents “[a]dmit that there is a significant symbolic disparity between domestic partnership and marriage”). Our analysis therefore does not hinge on what standard we use to review the district court’s findings of fact. Cf. Lockhart v. *1076 McCree, 476 U.S. 162, 168 n. 3, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986) (“Because we do not ultimately base our decision today on the [validity or] invalidity of the lower courts’ ‘factual’ findings, we need not decide the ‘standard of review’ issue”—whether “the ‘clearly erroneous’ standard of Rule 52(a) applies to the kind of ‘legislative’ facts at issue here.”).
V
We now turn to the merits of Proposition 8’s constitutionality.
A
[13] The district court held Proposition 8 unconstitutional for two reasons: first, it deprives same-sex couples of the fundamental right to marry, which is guaranteed by the Due Process Clause, see Perry IV, 704 F.Supp.2d at 991–95; and second, it excludes same-sex couples from state-sponsored marriage while allowing opposite-sex couples access to that honored status, in violation of the Equal Protection Clause, see id. at 997–1003. Plaintiffs elaborate upon those arguments on appeal.
[14] Plaintiffs and Plaintiff–Intervenor San Francisco also offer a third argument: Proposition 8 singles out same-sex couples for unequal treatment by taking away from them alone the right to marry, and this action amounts to a distinct constitutional violation because the Equal Protection Clause protects minority groups from being targeted for the deprivation of an existing right without a legitimate reason. Romer, 517 U.S. at 634–35, 116 S.Ct.

1620. Because this third argument applies to the specific history of same-sex marriage in California, it is the narrowest ground for adjudicating the constitutional questions before us, while the first two theories, if correct, would apply on a broader basis. Because courts generally decide constitutional questions on the narrowest ground available, we consider the third argument first. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 217, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995) (citing Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring)).
B
Proposition 8 worked a singular and limited change to the California Constitution: it stripped same-sex couples of the right to have their committed relationships recognized by the State with the designation of ‘marriage,’ which the state constitution had previously guaranteed them, while leaving in place all of their other rights and responsibilities as partners—rights and responsibilities that are identical to those of married spouses and form an integral part of the marriage relationship. In determining that the law had this effect, “[w]e rely not upon our own interpretation of the amendment but upon the authoritative construction of [California’s] Supreme Court.” Romer, 517 U.S. at 626, 116 S.Ct. 1620. The state high court held in Strauss that “Proposition 8 reasonably must be interpreted in a limited fashion as eliminating only the right of same-sex couples to equal access to the designation of marriage, and as not otherwise affecting the constitutional right of those couples to establish an officially recognized family relationship,” which California calls a ‘domestic partnership.’ 93 Cal.Rptr.3d 591, 207 P.3d at 76. Proposition 8 “leaves intact all of the other very significant constitutional protections afforded same-sex couples,” including “the constitutional right to enter into an officially recognized and protected family relationship with the person of one’s choice and to raise children in that family if the couple so chooses.” Id., 93 Cal.Rptr.3d 591, 207 P.3d at 102. Thus, the *1077 extent of the amendment’s effect was to “establish[ ] a new substantive state constitutional rule,” id., 93 Cal.Rptr.3d 591, 207 P.3d at 63, which “carves out a narrow and limited exception to these state constitutional rights,” by “reserving the official designation of the term ‘marriage’ for the union of opposite-sex couples as a matter of state constitutional law,” id., 93 Cal.Rptr.3d 591, 207 P.3d at 61.11
Both before and after Proposition 8, same-sex partners could enter into an official, state-recognized relationship that affords them “the same rights, protections, and

benefits” as an opposite-sex union and subjects them “to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.” Cal. Fam.Code § 297.5(a). Now as before, same-sex partners may:
• Raise children together, and have the same rights and obligations as to their children as spouses have, see Cal. Fam.Code § 297.5(d);
• Enjoy the presumption of parentage as to a child born to either partner, see Elisa B. v. Super. Ct. [37 Cal.4th 108, 33 Cal.Rptr.3d 46], 117 P.3d 660, 670 (Cal.2005); Kristine M. v. David P., 135 Cal.App.4th 783 [37 Cal.Rptr.3d 748] (2006); or adopted by one partner and raised jointly by both, S.Y. v. S.B., 201 Cal.App.4th 1023 [134 Cal.Rptr.3d 1] (2011);
• Adopt each other’s children, see Cal. Fam.Code § 9000(g);
• Become foster parents, see Cal. Welf. & Inst.Code § 16013(a);
• Share community property, see Cal. Fam.Code § 297.5(k);
• File state taxes jointly, see Cal. Rev. & Tax.Code § 18521(d);
• Participate in a partner’s group health insurance policy on the same terms as a spouse, see Cal. Ins.Code § 10121.7;
• Enjoy hospital visitation privileges, see Cal. Health & Safety Code § 1261;
• Make medical decisions on behalf of an incapacitated partner, see Cal. Prob.Code § 4716;
• Be treated in a manner equal to that of a widow or widower with respect to a deceased partner, see Cal. Fam.Code § 297.5(c);
• Serve as the conservator of a partner’s estate, see Cal. Prob.Code §§ 1811–1813.1; and
• Sue for the wrongful death of a partner, see Cal.Civ.Proc.Code § 377.60—among many other things.
Proposition 8 did not affect these rights or any of the other “ ‘constitutionally based incidents of marriage’ ” guaranteed to same-sex couples and their families. Strauss, 93 Cal.Rptr.3d 591, 207 P.3d at 61 (quoting Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at 434). In adopting

the amendment, the People simply took the designation of ‘marriage’ away from lifelong same-sex partnerships, and with it the State’s authorization of that official status *1078 and the societal approval that comes with it.
By emphasizing Proposition 8’s limited effect, we do not mean to minimize the harm that this change in the law caused to same-sex couples and their families. To the contrary, we emphasize the extraordinary significance of the official designation of ‘marriage.’ That designation is important because ‘marriage’ is the name that society gives to the relationship that matters most between two adults. A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of ‘registered domestic partnership’ does not. The word ‘marriage’ is singular in connoting “a harmony in living,” “a bilateral loyalty,” and “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). As Proponents have admitted, “the word ‘marriage’ has a unique meaning,” and “there is a significant symbolic disparity between domestic partnership and marriage.” It is the designation of ‘marriage’ itself that expresses validation, by the state and the community, and that serves as a symbol, like a wedding ceremony or a wedding ring, of something profoundly important. See id. at 971.
We need consider only the many ways in which we encounter the word ‘marriage’ in our daily lives and understand it, consciously or not, to convey a sense of significance. We are regularly given forms to complete that ask us whether we are “single” or “married.” Newspapers run announcements of births, deaths, and marriages. We are excited to see someone ask, “Will you marry me?”, whether on bended knee in a restaurant or in text splashed across a stadium Jumbotron. Certainly it would not have the same effect to see “Will you enter into a registered domestic partnership with me?”. Groucho Marx’s one-liner, “Marriage is a wonderful institution ... but who wants to live in an institution?” would lack its punch if the word ‘marriage’ were replaced with the alternative phrase. So too with Shakespeare’s “A young man married is a man that’s marr’d,” Lincoln’s “Marriage is neither heaven nor hell, it is simply purgatory,” and Sinatra’s “A man doesn’t know what happiness is until he’s married. By then it’s too late.” We see tropes like “marrying for love” versus “marrying for money” played out again and again in our films and literature because of the recognized importance and permanence of the marriage relationship. Had Marilyn Monroe’s film been called How to Register a Domestic Partnership with a Millionaire, it would not have conveyed the same meaning as did her famous movie, even though the underlying drama for same-sex couples is no different.

The name ‘marriage’ signifies the unique recognition that society gives to harmonious, loyal, enduring, and intimate relationships. See Knight v.Super. Ct., 128 Cal.App.4th 14, 31, 26 Cal.Rptr.3d 687 (2005) ( “[M]arriage is considered a more substantial relationship and is accorded a greater stature than a domestic partnership.”); cf. Griswold, 381 U.S. at 486.
The official, cherished status of ‘marriage’ is distinct from the incidents of marriage, such as those listed in the California Family Code. The incidents are both elements of the institution and manifestations of the recognition that the State affords to those who are in stable and committed lifelong relationships. We allow spouses but not siblings or roommates to file taxes jointly, for example, because we acknowledge the financial interdependence of those who have entered into an “enduring” relationship. The incidents of marriage, standing alone, do not, however, convey *1079 the same governmental and societal recognition as does the designation of ‘marriage’ itself. We do not celebrate when two people merge their bank accounts; we celebrate when a couple marries. The designation of ‘marriage’ is the status that we recognize. It is the principal manner in which the State attaches respect and dignity to the highest form of a committed relationship and to the individuals who have entered into it.12
We set this forth because we must evaluate Proposition 8’s constitutionality in light of its actual and specific effects on committed same-sex couples desiring to enter into an officially recognized lifelong relationship. Before Proposition 8, California guaranteed gays and lesbians both the incidents and the status and dignity of marriage. Proposition 8 left the incidents but took away the status and the dignity. It did so by superseding the Marriage Cases and thus endorsing the “official statement that the family relationship of same-sex couples is not of comparable stature or equal dignity to the family relationship of opposite-sex couples.” Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at 452. The question we therefore consider is this: did the People of California have legitimate reasons for enacting a constitutional amendment that serves only to take away from same-sex couples the right to have their lifelong relationships dignified by the official status of ‘marriage,’ and to compel the State and its officials and all others authorized to perform marriage ceremonies to substitute the label of ‘domestic partnership’ for their relationships?
Proponents resist this framing of the question. They deem it irrelevant to our inquiry that the California Constitution, as interpreted by the Marriage Cases, had previously guaranteed same-sex couples the right to use the designation of ‘marriage,’ because In re Marriage Cases was a “short-lived decision,” and same-sex couples were

allowed to marry only during a “143–day hiatus” between the effective date of the Marriage Cases decision and the enactment of Proposition 8. Proponents’ Reply Br. 75, 79–80. According to Proponents, a decision to “restore” the “traditional definition of marriage” is indistinguishable from a decision to “adhere” to that definition in the first place. Id. at 79–80. We are bound, however, by the California Supreme Court’s authoritative interpretation of Proposition 8’s effect on California law, see Romer, 517 U.S. at 626, 116 S.Ct. 1620: Proposition 8 “eliminat [ed] ... the right of same-sex couples to equal access to the designation of marriage” by “carv[ing] out a narrow and limited exception to these state constitutional rights” that had previously guaranteed the designation of ‘marriage’ to all couples, opposite-sex and same-sex alike. Strauss, 93 Cal.Rptr.3d 591, 207 P.3d at 61, 76.
Even were we not bound by the state court’s explanation, we would be obligated to consider Proposition 8 in light of its actual effect, which was, as the voters were told, to “eliminate the right of same-sex couples to marry in California.” Voter Information Guide at 54. The context matters. Withdrawing from a disfavored group the right to obtain a designation *1080 with significant societal consequences is different from declining to extend that designation in the first place, regardless of whether the right was withdrawn after a week, a year, or a decade. The action of changing something suggests a more deliberate purpose than does the inaction of leaving it as it is. As the California Supreme Court held, “Proposition 8 [did] not ‘readjudicate’ the issue that was litigated and resolved in the Marriage Cases.” Strauss, 93 Cal.Rptr.3d 591, 207 P.3d at 63. Rather than “declar[ing] the state of the law as it existed under the California Constitution at the time of the Marriage Cases,” Proposition 8 “establishe[d] a new substantive state constitutional rule that took effect upon” its adoption by the electorate. Id. (emphasis added). Whether or not it is a historical accident, as Proponents argue, that Proposition 8 postdated the Marriage Cases rather than predating and thus preempting that decision, the relative timing of the two events is a fact, and we must decide this case on its facts.
C
1
This is not the first time the voters of a state have enacted an initiative constitutional amendment that reduces the rights of gays and lesbians under state law. In 1992, Colorado adopted Amendment 2 to its state constitution, which prohibited the state and its political subdivisions

from providing any protection against discrimination on the basis of sexual orientation. See Colo. Const. art. II, § 30b. Amendment 2 was proposed in response to a number of local ordinances that had banned sexual-orientation discrimination in such areas as housing, employment, education, public accommodations, and health and welfare services. The effect of Amendment 2 was “to repeal” those local laws and “to prohibit any governmental entity from adopting similar, or more protective statutes, regulations, ordinances, or policies in the future.” Evans v. Romer, 854 P.2d 1270, 1284–85 (Colo.1993). The law thus “withdr [ew] from homosexuals, but no others, specific legal protection ..., and it forb[ade] reinstatement of these laws and policies.” Romer, 517 U.S. at 627, 116 S.Ct. 1620.
The Supreme Court held that Amendment 2 violated the Equal Protection Clause because “[i]t is not within our constitutional tradition to enact laws of this sort”—laws that “singl[e] out a certain class of citizens for disfavored legal status,” which “raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” Id. at 633–34, 116 S.Ct. 1620. The Court considered possible justifications for Amendment 2 that might have overcome the “inference” of animus, but it found them all lacking. It therefore concluded that the law “classifie[d] homosexuals not to further a proper legislative end but to make them unequal to everyone else.” Id. at 635, 116 S.Ct. 1620.13
Proposition 8 is remarkably similar to Amendment 2. Like Amendment 2, Proposition *1081 8 “single[s] out a certain class of citizens for disfavored legal status....” Id. at 633, 116 S.Ct. 1620. Like Amendment 2, Proposition 8 has the “peculiar property,” id. at 632, 116 S.Ct. 1620, of “withdraw[ing] from homosexuals, but no others,” an existing legal right—here, access to the official designation of ‘marriage’—that had been broadly available, notwithstanding the fact that the Constitution did not compel the state to confer it in the first place. Id. at 627, 116 S.Ct. 1620. Like Amendment 2, Proposition 8 denies “equal protection of the laws in the most literal sense,” id. at 633, 116 S.Ct. 1620, because it “carves out” an “exception” to California’s equal protection clause, by removing equal access to marriage, which gays and lesbians had previously enjoyed, from the scope of that constitutional guarantee. Strauss, 93 Cal.Rptr.3d 591, 207 P.3d at 61. Like Amendment 2, Proposition 8 “by state decree ... put[s] [homosexuals] in a solitary class with respect to” an important aspect of human relations, and accordingly “imposes a special disability upon [homosexuals] alone.” Romer, 517 U.S. at 627, 631, 116 S.Ct. 1620. And like Amendment 2, Proposition 8 constitutionalizes that disability, meaning that gays and lesbians may overcome it “only by enlisting the citizenry of [the state] to amend the State Constitution” for a

second time. Id. at 631, 116 S.Ct. 1620. As we explain below, Romer compels that we affirm the judgment of the district court.
To be sure, there are some differences between Amendment 2 and Proposition 8. Amendment 2 “impos[ed] a broad and undifferentiated disability on a single named group” by “identif[ying] persons by a single trait and then den[ying] them protection across the board.” Romer, 517 U.S. at 632–33, 116 S.Ct. 1620. Proposition 8, by contrast, excises with surgical precision one specific right: the right to use the designation of ‘marriage’ to describe a couple’s officially recognized relationship. Proponents argue that Proposition 8 thus merely “restor[es] the traditional definition of marriage while otherwise leaving undisturbed the manifold rights and protections California law provides gays and lesbians,” making it unlike Amendment 2, which eliminated various substantive rights. Proponents’ Reply Br. 77.
These differences, however, do not render Romer less applicable. It is no doubt true that the “special disability” that Proposition 8 “imposes upon” gays and lesbians has a less sweeping effect on their public and private transactions than did Amendment 2. Nevertheless, Proposition 8 works a meaningful harm to gays and lesbians, by denying to their committed lifelong relationships the societal status conveyed by the designation of ‘marriage,’ and this harm must be justified by some legitimate state interest. Romer, 517 U.S. at 631, 116 S.Ct. 1620. Proposition 8 is no less problematic than Amendment 2 merely because its effect is narrower; to the contrary, the surgical precision with which it excises a right belonging to gay and lesbian couples makes it even more suspect. A law that has no practical effect except to strip one group of the right to use a state-authorized and socially meaningful designation is all the more “unprecedented” and “unusual” than a law that imposes broader changes, and raises an even stronger “inference that the disadvantage imposed is born of animosity toward the class of persons affected,” id. at 633–34, 116 S.Ct. 1620. In short, Romer governs our analysis notwithstanding the differences between Amendment 2 and Proposition 8.
There is one further important similarity between this case and Romer. Neither case requires that the voters have stripped the state’s gay and lesbian citizens of any federal constitutional right. In Romer, Amendment 2 deprived gays and lesbians *1082 of statutory protections against discrimination; here, Proposition 8 deprived same-sex partners of the right to use the designation of ‘marriage.’ There is no necessity in either case that the privilege, benefit, or protection at issue be a constitutional right. We therefore need not and do not consider whether same-sex

couples have a fundamental right to marry, or whether states that fail to afford the right to marry to gays and lesbians must do so. Further, we express no view on those questions.14
[15] Ordinarily, “if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.” Romer, 517 U.S. at 631, 116 S.Ct. 1620. Such was the case in Romer, and it is the case here as well. The end must be one that is legitimate for the government to pursue, not just one that would be legitimate for a private actor. See id. at 632, 635, 116 S.Ct. 1620. The question here, then, is whether California had any more legitimate justification for withdrawing from gays and lesbians its constitutional protection with respect to the official designation of ‘marriage’ than Colorado did for withdrawing from that group all protection against discrimination generally.
Proposition 8, like Amendment 2, enacts a “ ‘[d]iscrimination[ ] of an unusual character,’ ” which requires “ ‘careful consideration to determine whether [it] [is] obnoxious to the’ ” Constitution. Id. at 633, 116 S.Ct. 1620 (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37–38, 48 S.Ct. 423, 72 L.Ed. 770 (1928)). As in Romer, therefore, we must consider whether any legitimate state interest constitutes a rational basis for Proposition 8; otherwise, we must infer that it was enacted with only the constitutionally illegitimate basis of “animus toward the class it affects.” Romer, 517 U.S. at 632, 116 S.Ct. 1620.
2
Before doing so, we briefly consider one other objection that Proponents raise to this analysis: the argument that because the Constitution “is not simply a one-way ratchet that forever binds a State to laws and policies that go beyond what the Fourteenth *1083 Amendment would otherwise require,” the State of California—“ ‘having gone beyond the requirements of the Federal Constitution’ ” in extending the right to marry to same-sex couples—“ ‘was free to return ... to the standard prevailing generally throughout the United States.’ ” Proponents’ Reply Br. 76 (quoting Crawford v. Bd. of Educ., 458 U.S. 527, 542, 102 S.Ct. 3211, 73 L.Ed.2d 948 (1982)). Proponents appear to suggest that unless the Fourteenth Amendment actually requires that the designation of ‘marriage’ be given to same-sex couples in the first place, there can be no constitutional infirmity in taking the designation away from that group of citizens, whatever the People’s reason for doing so.

Romer forecloses this argument. The rights that were repealed by Amendment 2 included protections against discrimination on the basis of sexual orientation in the private sphere. Those protections, like any protections against private discrimination, were not compelled by the Fourteenth Amendment.15 Rather, “[s]tates ha[d] chosen to counter discrimination by enacting detailed statutory schemes” prohibiting discrimination in employment and public accommodations, among other contexts, and certain Colorado jurisdictions had chosen to extend those protections to gays and lesbians. Romer, 517 U.S. at 628, 116 S.Ct. 1620 (emphasis added). It was these elective protections that Amendment 2 withdrew and forbade.16 The relevant inquiry in Romer was not whether the state of the law after Amendment 2 was constitutional; there was no doubt that the Fourteenth Amendment did not require antidiscrimination protections to be afforded to gays and lesbians. The question, instead, was whether the change in the law that Amendment 2 effected could be justified by some legitimate purpose.
The Supreme Court’s answer was “no”—there was no legitimate reason to take away broad legal protections from gays and lesbians alone, and to inscribe that deprivation of equality into the state constitution, once those protections had already been provided. We therefore need not decide whether a state may decline to provide the right to marry to same-sex couples. To determine the validity of Proposition 8, we must consider only whether the change in the law that it effected—eliminating by constitutional amendment the right of same-sex couples to have the official designation and status of ‘marriage’ bestowed upon their relationships, while maintaining that right for opposite-sex couples—was justified by a legitimate reason.
[16] This does not mean that the Constitution is a “one-way ratchet,” as Proponents suggest. It means only that the Equal Protection Clause requires the state to have a legitimate reason for withdrawing *1084 a right or benefit from one group but not others, whether or not it was required to confer that right or benefit in the first place. Thus, when Congress, having chosen to provide food stamps to the poor in the Food Stamp Act of 1964, amended the Act to exclude households of unrelated individuals, such as “hippies” living in “hippie communes,” the Supreme Court held the amendment unconstitutional because “a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973). In both Romer and Moreno, the constitutional violation that the Supreme Court identified was not the failure to confer a right or benefit in the first place; Congress was no more obligated to provide food stamps

than Colorado was to enact antidiscrimination laws. Rather, what the Supreme Court forbade in each case was the targeted exclusion of a group of citizens from a right or benefit that they had enjoyed on equal terms with all other citizens. The constitutional injury that Romer and Moreno identified—and that serves as a basis of our decision to strike down Proposition 8—has little to do with the substance of the right or benefit from which a group is excluded, and much to do with the act of exclusion itself. Proponents’ reliance on Crawford v. Board of Education, 458 U.S. 527, 102 S.Ct. 3211, 73 L.Ed.2d 948 (1982), is therefore misplaced. In Crawford, the Court affirmed Proposition 1, a California initiative constitutional amendment that barred state courts from ordering school busing or pupil-assignment plans except when necessary to remedy a federal constitutional violation. Id. at 531–32, 102 S.Ct. 3211. Like Proposition 8, Proposition 1 was adopted in response to a decision of the California Supreme Court under the state constitution, which had held that state schools were obligated to take “reasonably feasible steps,” including busing and pupil-assignment plans, “to alleviate school segregation.” Crawford v. Bd. of Educ., 17 Cal.3d 280, 130 Cal.Rptr. 724, 551 P.2d 28, 45 (1976). The Supreme Court “reject[ed] the contention that once a State chooses to do ‘more’ than the Fourteenth Amendment requires, it may never recede.”17 *1085 Crawford, 458 U.S. at 535, 102 S.Ct. 3211. That conclusion was consistent with the principle that states should be free “to experiment” with social policy, without fear of being locked in to “legislation that has proved unworkable or harmful when the State was under no obligation to adopt the legislation in the first place.” Id. at 535, 539–40, 102 S.Ct. 3211.
Critically, however, the Court noted that Proposition 1 did not itself draw any classification; “[i]t simply forb[ade] state courts” from ordering specific remedies under state law “in the absence of a Fourteenth Amendment violation,” while maintaining the state constitution’s more robust “right to desegregation than exists under the Federal Constitution.” Id. at 537, 542, 102 S.Ct. 3211 (emphasis added); see also id. at 544, 102 S.Ct. 3211 (noting that other remedies remained available). Most important, the proposition’s purported benefit, “neighborhood schooling,” was “made available regardless of race.” Id. There was no evidence that the “purpose of [the] repealing legislation [was] to disadvantage a racial minority,” which would have made the proposition unconstitutional. Id. at 539 n. 21, 543–45, 102 S.Ct. 3211 (citing Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967)). Because Proposition 1 did not establish any classification, and because it was supported by permissible policy preferences against specific court remedies, the Supreme Court held that it was valid. On the same day, by contrast, the Court struck down a similar Washington initiative,

because it had been “drawn for racial purposes” in a manner that “impose[d] substantial and unique burdens on racial minorities” and accordingly violated the Fourteenth Amendment. Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 470–71, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982).
Romer, not Crawford, controls where a privilege or protection is withdrawn without a legitimate reason from a class of disfavored individuals, even if that right may not have been required by the Constitution in the first place. Although Colorado presented before the Supreme Court an argument regarding Crawford identical to the one that Proponents present here, that argument did not persuade the Court.18 Neither Proposition 8 nor Amendment 2 was a law of general applicability that merely curtailed state courts’ remedial powers, as opposed to a single group’s rights. Rather, both Proposition 8 and Amendment 2 “carve[d] out” rights from gays and lesbians alone. Unlike the measure in Crawford, Proposition 8 is a “discrimination of an unusual character” that requires “careful consideration” of its purposes and effects, whether or not the Fourteenth Amendment required the right to be provided ab initio. Following Romer, we must therefore decide whether a legitimate interest exists that justifies the People of California’s action in taking away from same-sex couples the right to use the official designation and enjoy the status of ‘marriage’—a legitimate interest that suffices to overcome the “inevitable inference” of animus to which Proposition 8’s discriminatory effects otherwise give rise.
*1086 D
We first consider four possible reasons offered by Proponents or amici to explain why Proposition 8 might have been enacted: (1) furthering California’s interest in childrearing and responsible procreation, (2) proceeding with caution before making significant changes to marriage, (3) protecting religious freedom, and (4) preventing children from being taught about same-sex marriage in schools. To be credited, these rationales “must find some footing in the realities of the subject addressed by the legislation.” Heller v. Doe, 509 U.S. 312, 321, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). They are, conversely, not to be credited if they “could not reasonably be conceived to be true by the governmental decisionmaker.” Vance v. Bradley, 440 U.S. 93, 111, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979).19 Because Proposition 8 did not further any of these interests, we conclude that they cannot have been rational bases for this measure, whether or not they are legitimate state interests.

1
The primary rationale Proponents offer for Proposition 8 is that it advances California’s interest in responsible procreation and childrearing. Proponents’ Br. 77–93. This rationale appears to comprise two distinct elements. The first is that children are better off when raised by two biological parents and that society can increase the likelihood of that family structure by allowing only potential biological parents—one man and one woman—to marry. The second is that marriage reduces the threat of “irresponsible procreation”—that is, unintended pregnancies out of wedlock—by providing an incentive for couples engaged in potentially procreative sexual activity to form stable family units. Because same-sex couples are not at risk of “irresponsible procreation” as a matter of biology, Proponents argue, there is simply no need to offer such couples the same incentives. Proposition 8 is not rationally related, however, to either of these purported interests, whether or not the interests would be legitimate under other circumstances.
We need not decide whether there is any merit to the sociological premise of Proponents’ first argument—that families headed by two biological parents are the best environments in which to raise children—because even if Proponents are correct, Proposition 8 had absolutely no effect on the ability of same-sex couples to become parents or the manner in which children are raised in California. As we have explained, Proposition 8 in no way modified the state’s laws governing parentage, which are distinct from its laws governing marriage. See Strauss, 93 Cal.Rptr.3d 591, 207 P.3d at 61. Both before and after Proposition 8, committed opposite-sex couples (“spouses”) and same-sex couples (“domestic partners”) had identical rights with regard to forming families and raising children. See Cal. Fam.Code § 297.5(d) (“The rights and obligations of registered domestic partners with respect to a child of either of them shall be the same as those of spouses.”). Similarly, Proposition 8 did not alter the California adoption or presumed-parentage laws, which continue to apply equally to same-sex couples. Cf. Elisa B., 33 Cal.Rptr.3d 46, 117 P.3d at 667–71 (applying the presumed parentage statutes to a lesbian couple); Sharon S. v. Super. Ct., 31 Cal.4th 417, 2 Cal.Rptr.3d 699, 73 P.3d 554, 570 (2003) (applying the adoption laws to a lesbian couple). In order to be rationally related to the purpose *1087 of funneling more childrearing into families led by two biological parents, Proposition 8 would have had to modify these laws in some way. It did not do so.20
Moreover, California’s “current policies and conduct ...

recognize that gay individuals are fully capable of ... responsibly caring for and raising children.” Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at 428. And California law actually prefers a non-biological parent who has a parental relationship with a child to a biological parent who does not; in California, the parentage statutes place a premium on the “social relationship,” not the “biological relationship,” between a parent and a child. See, e.g., Susan H. v. Jack S., 30 Cal.App.4th 1435, 1442–43, 37 Cal.Rptr.2d 120 (1994). California thus has demonstrated through its laws that Proponents’ first rationale cannot “reasonably be conceived to be true by the governmental decisionmaker,” Vance, 440 U.S. at 111, 99 S.Ct. 939. We will not credit a justification for Proposition 8 that is totally inconsistent with the measure’s actual effect and with the operation of California’s family laws both before and after its enactment.
Proponents’ second argument is that there is no need to hold out the designation of ‘marriage’ as an encouragement for same-sex couples to engage in responsible procreation, because unlike opposite-sex couples, same-sex couples pose no risk of procreating accidentally. Proponents contend that California need not extend marriage to same-sex couples when the State’s interest in responsible procreation would not be advanced by doing so, even if the interest would not be harmed, either. See Johnson v. Robison, 415 U.S. 361, 383, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974) (“When ... the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not, we cannot say that the statute’s classification of beneficiaries and nonbeneficiaries is invidiously discriminatory.”). But Plaintiffs do not ask that marriage be extended to anyone. As we have by now made clear, the question is whether there is a legitimate governmental interest in withdrawing access to marriage from same-sex couples. We therefore need not decide whether, under Johnson, California would be justified in not extending the designation of ‘marriage’ to same-sex couples; that is not what Proposition 8 did. Johnson concerns decisions not to add to a legislative scheme a group that is unnecessary to the purposes of that scheme, but Proposition 8 subtracted a disfavored group from a scheme of which it already was a part.21
*1088 Under Romer, it is no justification for taking something away to say that there was no need to provide it in the first place; instead, there must be some legitimate reason for the act of taking it away, a reason that overcomes the “inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” Romer, 517 U.S. at 634, 116 S.Ct. 1620. In order to explain how rescinding access to the designation of ‘marriage’ is rationally related to the State’s interest in

responsible procreation, Proponents would have had to argue that opposite-sex couples were more likely to procreate accidentally or irresponsibly when same-sex couples were allowed access to the designation of ‘marriage.’ We are aware of no basis on which this argument would be even conceivably plausible. There is no rational reason to think that taking away the designation of ‘marriage’ from same-sex couples would advance the goal of encouraging California’s opposite-sex couples to procreate more responsibly. The Johnson argument, to put it mildly, does not help Proponents’ cause.
Given the realities of California law, and of human nature, both parts of Proponents’ primary rationale simply “find [no] footing in the realities of the subject addressed by the legislation,” and thus cannot be credited as rational. Heller, 509 U.S. at 321, 113 S.Ct. 2637. Whatever sense there may be in preferring biological parents over other couples—and we need not decide whether there is any—California law clearly does not recognize such a preference, and Proposition 8 did nothing to change that circumstance. The same is true for Proponents’ argument that it is unnecessary to extend the right to use the designation of ‘marriage’ to couples who cannot procreate, because the purpose of the designation is to reward couples who procreate responsibly or to encourage couples who wish to procreate to marry first. Whatever merit this argument may have—and again, we need not decide whether it has any—the argument is addressed to a failure to afford the use of the designation of ‘marriage’ to same-sex couples in the first place; it is irrelevant to a measure withdrawing from them, and only them, use of that designation.
The same analysis applies to the arguments of some amici curiae that Proposition 8 not only promotes responsible procreation and childrearing as a general matter but promotes the single best family structure for such activities. See, e.g., Br. Amicus Curiae of High Impact Leadership Coalition, et al. 14 (“Society has a compelling interest in preserving the institution that best advances the social interests in responsible procreation, and that connects procreation to responsible child-rearing.”); Br. Amicus Curiae of Am. Coll. of Pediatricians 15 (“[T]he State has a legitimate interest in promoting the family structure that has proven most likely to foster an optimal environment for the rearing of children.”). As discussed above, Proposition 8 in no way alters the state laws that govern childrearing and procreation. It makes no change with respect to the laws regarding family structure. As before Proposition 8, those laws apply in the same way to same-sex couples in domestic partnerships and to married couples. Only the designation of ‘marriage’ is withdrawn and only from one group of individuals.

We in no way mean to suggest that Proposition 8 would be constitutional if only it had gone further—for example, by also repealing same-sex couples’ equal parental rights or their rights to share community property or enjoy hospital visitation *1089 privileges. Only if Proposition 8 had actually had any effect on childrearing or “responsible procreation” would it be necessary or appropriate for us to consider the legitimacy of Proponents’ primary rationale for the measure.22 Here, given all other pertinent aspects of California law, Proposition 8 simply could not have the effect on procreation or childbearing that Proponents claim it might have been intended to have. Accordingly, an interest in responsible procreation and childbearing cannot provide a rational basis for the measure.
[17] We add one final note. To the extent that it has been argued that withdrawing from same-sex couples access to the designation of ‘marriage’—without in any way altering the substantive laws concerning their rights regarding childrearing or family formation—will encourage heterosexual couples to enter into matrimony, or will strengthen their matrimonial bonds, we believe that the People of California “could not reasonably” have “conceived” such an argument “to be true.” Vance, 440 U.S. at 111, 99 S.Ct. 939. It is implausible to think that denying two men or two women the right to call themselves married could somehow bolster the stability of families headed by one man and one woman. While deferential, the rational-basis standard “is not a toothless one.” Mathews v. Lucas, 427 U.S. 495, 510, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976). “[E]ven the standard of rationality ... must find some footing in the realities of the subject addressed by the legislation.” Heller, 509 U.S. at 321, 113 S.Ct. 2637. Here, the argument that withdrawing the designation of ‘marriage’ from same-sex couples could on its own promote the strength or stability of opposite-sex marital relationships lacks any such footing in reality.
2
[18] Proponents offer an alternative justification for Proposition 8: that it advances California’s interest in “proceed[ing] with caution” when considering changes to the definition of marriage. Proponents’ Br. 93. But this rationale, too, bears no connection to the reality of Proposition 8. The amendment was enacted after the State had provided same-sex couples the right to marry and after more than 18,000 couples had married (and remain married even after Proposition 8, Strauss, 93 Cal.Rptr.3d 591, 207 P.3d at 122).23

*1090 Perhaps what Proponents mean is that California had an interest in pausing at 18,000 married same-sex couples to evaluate whether same-sex couples should continue to be allowed to marry, or whether the same-sex marriages that had already occurred were having any adverse impact on society. Even if that were so, there could be no rational connection between the asserted purpose of “proceeding with caution” and the enactment of an absolute ban, unlimited in time, on same-sex marriage in the state constitution.24 To enact a constitutional prohibition is to adopt a fundamental barrier: it means that the legislative process, by which incremental policymaking would normally proceed, is completely foreclosed. Cf. Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 489, 75 S.Ct. 461, 99 L.Ed. 563 (1955) (observing that legislatures may rationally reform policy “one step at a time”). Once Proposition 8 was enacted, any future steps forward, however cautious, would require “enlisting the citizenry of [California] to amend the State Constitution” once again. Romer, 517 U.S. at 631, 116 S.Ct. 1620.
Had Proposition 8 imposed not a total ban but a time-specific moratorium on same-sex marriages, during which the Legislature would have been authorized to consider the question in detail or at the end of which the People would have had to vote again to renew the ban, the amendment might plausibly have been designed to “proceed with caution.” In that case, we would have had to consider whether the objective of “proceed[ing] with caution” was a legitimate one. But that is not what Proposition 8 did. The amendment superseded the Marriage Cases and then went further, by prohibiting the Legislature or even the People (except by constitutional amendment) from choosing to make the designation of ‘marriage’ available to same-sex couples in the future. Such a permanent ban cannot be rationally related to an interest in proceeding with caution.
[19] In any event, in light of the express purpose of Proposition 8 and the campaign to enact it, it is not credible to suggest that “proceed[ing] with caution” was the reason the voters adopted the measure. The purpose and effect of Proposition 8 was “to eliminate the right of same-sex couples to marry in California”—not to “suspend” or “study” that right. Voter Information Guide at 54 (Proposition 8, Official Title and Summary) (emphasis added).25 The voters were told that Proposition 8 would “overturn [ ]” the Marriage Cases “to RESTORE the meaning of marriage.” Id. at 56 (Argument in Favor of Proposition 8). The avowed purpose of Proposition 8 was to return with haste to a time when same-sex couples were barred from using the official designation of ‘marriage,’ not to study the matter further before deciding whether to make the designation more equally available.

*1091 3
[20] We briefly consider two other potential rationales for Proposition 8, not raised by Proponents but offered by amici curiae. First is the argument that Proposition 8 advanced the State’s interest in protecting religious liberty. See, e.g., Br. Amicus Curiae of the Becket Fund for Religious Liberty (Becket Br.) 2. There is no dispute that even before Proposition 8, “no religion [was] required to change its religious policies or practices with regard to same-sex couples, and no religious officiant [was] required to solemnize a marriage in contravention of his or her religious beliefs.” Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at 451–52; see Becket Br. 4–5 (acknowledging this point). Rather, the religious-liberty interest that Proposition 8 supposedly promoted was to decrease the likelihood that religious organizations would be penalized, under California’s antidiscrimination laws and other government policies concerning sexual orientation, for refusing to provide services to families headed by same-sex spouses. But Proposition 8 did nothing to affect those laws. To the extent that California’s antidiscrimination laws apply to various activities of religious organizations, their protections apply in the same way as before. Amicus’s argument is thus more properly read as an appeal to the Legislature, seeking reform of the State’s antidiscrimination laws to include greater accommodations for religious organizations. See, e.g., Becket Br. 8 n. 6 (“Unlike many other states, California has no religious exemptions to its statutory bans on gender, marital status, and sexual orientation discrimination in public accommodations.”). This argument is in no way addressed by Proposition 8 and could not have been the reason for Proposition 8.
[21] Second is the argument, prominent during the campaign to pass Proposition 8, that it would “protect[ ] our children from being taught in public schools that ‘same-sex marriage’ is the same as traditional marriage.” Perry IV, 704 F.Supp.2d at 930, 989–90 (quoting the Voter Information Guide at 56) (emphasis omitted); see Br. Amicus Curiae for the Hausvater Project 13–15. Yet again, California law belies the premise of this justification. Both before and after Proposition 8, schools have not been required to teach anything about same-sex marriage. They “may ... elect[ ] to offer comprehensive sexual health education”; only then might they be required to “teach respect for marriage and committed relationships.” Cal. Educ.Code § 51933(a)–(b), (b)(7). Both before and after Proposition 8, schools have retained control over the content of such lessons. And both before and after Proposition 8, schools and individual teachers have been prohibited from giving any instruction that

discriminates on the basis of sexual orientation; now as before, students could not be taught the superiority or inferiority of either same- or opposite-sex marriage or other “committed relationships.” Cal. Educ.Code §§ 51500, 51933(b)(4). The Marriage Cases therefore did not weaken, and Proposition 8 did not strengthen, the rights of schools to control their curricula and of parents to control their children’s education.
There is a limited sense in which the extension of the designation ‘marriage’ to same-sex partnerships might alter the content of the lessons that schools choose to teach. Schools teach about the world as it is; when the world changes, lessons change. A shift in the State’s marriage law may therefore affect the content of classroom instruction just as would the election of a new governor, the discovery of a new chemical element, or the adoption of a new law permitting no-fault divorce: students learn about these as empirical *1092 facts of the world around them. But to protest the teaching of these facts is little different from protesting their very existence; it is like opposing the election of a particular governor on the ground that students would learn about his holding office, or opposing the legitimation of no-fault divorce because a teacher might allude to that fact if a course in societal structure were taught to graduating seniors. The prospect of children learning about the laws of the State and society’s assessment of the legal rights of its members does not provide an independent reason for stripping members of a disfavored group of those rights they presently enjoy.
4
Proposition 8’s only effect, we have explained, was to withdraw from gays and lesbians the right to employ the designation of ‘marriage’ to describe their committed relationships and thus to deprive them of a societal status that affords dignity to those relationships. Proposition 8 could not have reasonably been enacted to promote childrearing by biological parents, to encourage responsible procreation, to proceed with caution in social change, to protect religious liberty, or to control the education of schoolchildren. Simply taking away the designation of ‘marriage,’ while leaving in place all the substantive rights and responsibilities of same-sex partners, did not do any of the things its Proponents now suggest were its purposes. Proposition 8 “is so far removed from these particular justifications that we find it impossible to credit them.” Romer, 517 U.S. at 635, 116 S.Ct. 1620. We therefore need not, and do not, decide whether any of these purported rationales for the law would be “legitimate,” id. at 632, 116 S.Ct. 1620, or

would suffice to justify Proposition 8 if the amendment actually served to further them.
E
1
[22] We are left to consider why else the People of California might have enacted a constitutional amendment that takes away from gays and lesbians the right to use the designation of ‘marriage.’ One explanation is the desire to revert to the way things were prior to the Marriage Cases, when ‘marriage’ was available only to opposite-sex couples, as had been the case since the founding of the State and in other jurisdictions long before that. This purpose is one that Proposition 8 actually did accomplish: it “restore[d] the traditional definition of marriage as referring to a union between a man and a woman.” Strauss, 93 Cal.Rptr.3d 591, 207 P.3d at 76. But tradition alone is not a justification for taking away a right that had already been granted, even though that grant was in derogation of tradition. In Romer, it did not matter that at common law, gays and lesbians were afforded no protection from discrimination in the private sphere; Amendment 2 could not be justified on the basis that it simply repealed positive law and restored the “traditional” state of affairs. 517 U.S. at 627–29, 116 S.Ct. 1620. Precisely the same is true here.
[23] Laws may be repealed and new rights taken away if they have had unintended consequences or if there is some conceivable affirmative good that revocation would produce, cf. Crawford, 458 U.S. at 539–40, 102 S.Ct. 3211, but new rights may not be stripped away solely because they are new. Tradition is a legitimate consideration in policymaking, of course, but it cannot be an end unto itself. Cf. Williams v. Illinois, 399 U.S. 235, 239–40, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970). “[T]he fact that the governing majority in *1093 a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.” Lawrence v. Texas, 539 U.S. 558, 577–78, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003); see Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (noting the historical pedigree of bans on interracial marriage but not even considering tradition as a possible justification for Virginia’s law). If tradition alone is insufficient to justify maintaining a prohibition with a discriminatory effect, then it is necessarily insufficient to justify changing the law to revert to a previous state. A preference for the way

things were before same-sex couples were allowed to marry, without any identifiable good that a return to the past would produce, amounts to an impermissible preference against same-sex couples themselves, as well as their families.
Absent any legitimate purpose for Proposition 8, we are left with “the inevitable inference that the disadvantage imposed is born of animosity toward,” or, as is more likely with respect to Californians who voted for the Proposition, mere disapproval of, “the class of persons affected.” Romer, 517 U.S. at 634, 116 S.Ct. 1620. We do not mean to suggest that Proposition 8 is the result of ill will on the part of the voters of California. “Prejudice, we are beginning to understand, rises not from malice or hostile animus alone.” Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 374, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) (Kennedy, J., concurring). Disapproval may also be the product of longstanding, sincerely held private beliefs. Still, while “[p]rivate biases may be outside the reach of the law, ... the law cannot, directly or indirectly, give them effect.” Palmore v. Sidoti, 466 U.S. 429, 433, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984). Ultimately, the “inevitable inference” we must draw in this circumstance is not one of ill will, but rather one of disapproval of gays and lesbians as a class. “[L]aws singling out a certain class of citizens for disfavored legal status or general hardships are rare.” Romer, 517 U.S. at 633, 116 S.Ct. 1620. Under Romer, we must infer from Proposition 8’s effect on California law that the People took away from gays and lesbians the right to use the official designation of ‘marriage’—and the societal status that accompanies it—because they disapproved of these individuals as a class and did not wish them to receive the same official recognition and societal approval of their committed relationships that the State makes available to opposite-sex couples.
It will not do to say that Proposition 8 was intended only to disapprove of same-sex marriage, rather than to pass judgment on same-sex couples as people. Just as the criminalization of “homosexual conduct ... is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres,” Lawrence, 539 U.S. at 575, 123 S.Ct. 2472, so too does the elimination of the right to use the official designation of ‘marriage’ for the relationships of committed same-sex couples send a message that gays and lesbians are of lesser worth as a class—that they enjoy a lesser societal status. Indeed, because laws affecting gays and lesbians’ rights often regulate individual conduct—what sexual activity people may undertake in the privacy of their own homes, or who is permitted to marry whom—as much as they regulate status, the Supreme Court has “declined to distinguish between status and conduct in [the] context” of sexual orientation. Christian Legal Soc’y v. Martinez, ––– U.S.

––––, 130 S.Ct. 2971, 2990, 177 L.Ed.2d 838 (2010). By withdrawing the availability of the recognized designation of ‘marriage,’ *1094 Proposition 8 enacts nothing more or less than a judgment about the worth and dignity of gays and lesbians as a class.
[24] [25] Just as a “desire to harm ... cannot constitute a legitimate governmental interest,” Moreno, 413 U.S. at 534, 93 S.Ct. 2821, neither can a more basic disapproval of a class of people. Romer, 517 U.S. at 633–35, 116 S.Ct. 1620. “The issue is whether the majority may use the power of the State to enforce these views on the whole society” through a law that abridges minority individuals’ rights. Lawrence, 539 U.S. at 571, 123 S.Ct. 2472. It may not. Without more, “[m]oral disapproval of [a] group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.” Id. at 582, 123 S.Ct. 2472 (O’Connor, J., concurring). Society does sometimes draw classifications that likely are rooted partially in disapproval, such as a law that grants educational benefits to veterans but denies them to conscientious objectors who engaged in alternative civilian service. See Johnson, 415 U.S. at 362–64, 94 S.Ct. 1160. Those classifications will not be invalidated so long as they can be justified by reference to some independent purpose they serve; in Johnson, they could provide an incentive for military service and direct assistance to those who needed the most help in readjusting to post-war life, see id. at 376–83, 94 S.Ct. 1160. Enacting a rule into law based solely on the disapproval of a group, however, “is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit.” Romer, 517 U.S. at 635, 116 S.Ct. 1620. Like Amendment 2, Proposition 8 is a classification of gays and lesbians undertaken for its own sake.
2
[26] The “inference” that Proposition 8 was born of disapproval of gays and lesbians is heightened by evidence of the context in which the measure was passed.26 The district court found that “[t]he campaign to pass Proposition 8 relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships.” Perry IV, 704 F.Supp.2d at 990. Television and print advertisements “focused on ... the concern that people of faith and religious groups would somehow be harmed by the recognition of gay marriage” and “conveyed a message that gay people and relationships are inferior, that homosexuality is undesirable and that children need to be protected from exposure to gay people and their relationships.” Id. These messages were not

crafted accidentally. The strategists responsible for the campaign in favor of Proposition 8 later explained their approach: “ ‘[T]here were limits to the degree of tolerance Californians would afford the gay community. They would entertain allowing gay marriage, but not if doing so had significant implications for the rest of society,’ ” such as what children would be taught in school. Id. at 988 (quoting Frank Schubert & Jeff Flint, Passing Prop 8, Politics, Feb. 2009, at 45–47). Nor were these messages new; for decades, ballot measures *1095 regarding homosexuality have been presented to voters in terms designed to appeal to stereotypes of gays and lesbians as predators, threats to children, and practitioners of a deviant “lifestyle.” See Br. Amicus Curiae of Constitutional Law Professors at 2–8. The messages presented here mimic those presented to Colorado voters in support of Amendment 2, such as, “Homosexual indoctrination in the schools? IT’S HAPPENING IN COLORADO!” Colorado for Family Values, Equal Rights—Not Special Rights, at 2 (1992), reprinted in Robert Nagel, Playing Defense, 6 Wm. & Mary Bill Rts. J. 167, 193 (1997).
[27] When directly enacted legislation “singl[es] out a certain class of citizens for disfavored legal status,” we must “insist on knowing the relation between the classification adopted and the object to be attained,” so that we may ensure that the law exists “to further a proper legislative end” rather than “to make the[ ] [class] unequal to everyone else.” Romer, 517 U.S. at 632–33, 635, 116 S.Ct. 1620. Proposition 8 fails this test. Its sole purpose and effect is “to eliminate the right of same-sex couples to marry in California”—to dishonor a disfavored group by taking away the official designation of approval of their committed relationships and the accompanying societal status, and nothing more. Voter Information Guide at 54. “It is at once too narrow and too broad,” for it changes the law far too little to have any of the effects it purportedly was intended to yield, yet it dramatically reduces the societal standing of gays and lesbians and diminishes their dignity. Romer, 517 U.S. at 633, 116 S.Ct. 1620. Proposition 8 did not result from a legitimate “Kulturkampf” concerning the structure of families in California, because it had no effect on family structure, but in order to strike it down, we need not go so far as to find that it was enacted in “a fit of spite.” Id. at 636, 116 S.Ct. 1620 (Scalia, J., dissenting). It is enough to say that Proposition 8 operates with no apparent purpose but to impose on gays and lesbians, through the public law, a majority’s private disapproval of them and their relationships, by taking away from them the official designation of ‘marriage,’ with its societally recognized status. Proposition 8 therefore violates the Equal Protection Clause.

VI
[28] Finally, we address Proponents’ motion to vacate the district court’s judgment. On April 6, 2011, after resigning from the bench, former Chief Judge Walker disclosed that he was gay and that he had for the past ten years been in a relationship with another man. Proponents moved shortly thereafter to vacate the judgment on the basis that 28 U.S.C. § 455(b)(4) obligated Chief Judge Walker to recuse himself, because he had an “interest that could be substantially affected by the outcome of the proceeding,” and that 28 U.S.C. § 455(a) obligated him either to recuse himself or to disclose his potential conflict, because “his impartiality might reasonably be questioned.” Chief Judge Ware, to whom this case was assigned after Chief Judge Walker’s retirement, denied the motion after receiving briefs and hearing argument.
The district court properly held that it had jurisdiction to hear and deny the motion under Fed.R.Civ.P. 62.1(a), that the motion was timely, and that Chief Judge Walker had no obligation to recuse himself under either § 455(b)(4) or § 455(a) or to disclose any potential conflict. As Chief Judge Ware explained, the fact that a judge “could be affected by the outcome of a proceeding[,] in the same way that other members of the general public would be affected, is not a basis for either recusal or *1096 disqualification under Section 455(b)(4).” Perry v. Schwarzenegger, 790 F.Supp.2d 1119, 1122 (N.D.Cal.2011); see In re City of Houston, 745 F.2d 925, 929–30 (5th Cir.1984) (“We recognize that ‘an interest which a judge has in common with many others in a public matter is not sufficient to disqualify him.’ ”). Nor could it possibly be “reasonable to presume,” for the purposes of § 455(a), “that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by the proceeding.” 790 F.Supp.2d at 1122; see United States v. Alabama, 828 F.2d 1532, 1541–42 (11th Cir.1987). To hold otherwise would demonstrate a lack of respect for the integrity of our federal courts.
[29] [30] The denial of the motion to vacate was premised on Chief Judge Ware’s finding that Chief Judge Walker was not obligated to recuse himself. “We review the district court’s denial of a motion to vacate the judgment for an abuse of discretion.” Jeff D. v. Kempthorne, 365 F.3d 844, 850 (9th Cir.2004). Our standard for abuse of discretion requires us to (1) “look to whether the trial court identified and applied the correct legal rule to the relief requested”; and, if the trial court applied the correct legal rule, to (2) “look to whether the trial court’s resolution ... resulted from a factual finding that was illogical, implausible, or without support in inferences that may be drawn from the facts in the record.” United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir.2009) (en banc).

Here, Chief Judge Ware did not incorrectly apply the law. He identified and applied § 455(b)(4) and § 455(a), the correct legal rules, as well as the relevant precedents. His application of the law, determining whether Chief Judge Walker was obligated to recuse himself, was discretionary. See United States v. Johnson, 610 F.3d 1138, 1147–48 (9th Cir.2010). His resolution of the issue on the basis of the facts was not illogical, implausible, or without support in inferences that may be drawn from the facts in the record. Thus, we affirm Chief Judge Ware’s decision not to grant the motion to vacate.
VII
By using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the People of California violated the Equal Protection Clause. We hold Proposition 8 to be unconstitutional on this ground. We do not doubt the importance of the more general questions presented to us concerning the rights of same-sex couples to marry, nor do we doubt that these questions will likely be resolved in other states, and for the nation as a whole, by other courts. For now, it suffices to conclude that the People of California may not, consistent with the Federal Constitution, add to their state constitution a provision that has no more practical effect than to strip gays and lesbians of their right to use the official designation that the State and society give to committed relationships, thereby adversely affecting the status and dignity of the members of a disfavored class. The judgment of the district court is
AFFIRMED.27
N.R. SMITH, Circuit Judge, concurring in part and dissenting in part.
I agree with the majority’s analysis and decisions in parts III and VI of its opinion, *1097 determining that (1) the Proponents have standing to bring this appeal; and (2) the Motion to Vacate the Judgment should be denied. Because I do not agree with the majority’s analysis of other topics regarding the constitutionality of Proposition 8, I have chosen to write separately. Ultimately, I am not convinced that Proposition 8 is not rationally related to a legitimate governmental interest. I must therefore respectfully dissent.
Before addressing the issues now presented before our panel, I want to emphasize a distinguishing point in my analysis from what may be anticipated by the reader.

Similar to the California Supreme Court in its prior opinion concerning Proposition 8, our panel was not tasked with determining whether this constitutional amendment “is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution.” Strauss v. Horton, 46 Cal.4th 364, 93 Cal.Rptr.3d 591, 207 P.3d 48, 59 (2009). Our personal views regarding the political and sociological debate on marriage equality are irrelevant to our task. Instead, we are only asked to consider the constitutional validity of Proposition 8 under the federal Constitution. The California Supreme Court has already interpreted and applied “the principles and rules embodied in the California Constitution” to Proposition 8 and found it valid. Strauss, 93 Cal.Rptr.3d 591, 207 P.3d 48.
I.
Proponents and their supporting amici (hereinafter Proponents) argue that the United States Supreme Court’s summary dismissal in Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972) (mem.), “mandates reversal of the district court’s ruling.” According to Proponents, the claims raised here are the same as those rejected in Baker, and the claims are therefore foreclosed by that decision. The majority dispenses with Baker in a footnote. However, other federal courts have indicated that Baker, if it is not controlling, at least stands for exercising “restraint” when it comes to addressing due process and equal protection challenges against laws prohibiting marriage by same-sex couples. Citizens for Equal Protection v. Bruning, 455 F.3d 859, 870 (8th Cir.2006); see also Wilson v. Ake, 354 F.Supp.2d 1298, 1305 (M.D.Fla.2005) (“Baker v. Nelson is binding precedent upon this Court....”). But see In re Kandu, 315 B.R. 123, 138 (Bankr.W.D.Wash.2004) (concluding that “Baker is not binding precedent on the issues presented” because the case centered on federal Defense of Marriage Act and because “doctrinal developments” indicated Baker was no longer binding). Because Baker is binding United States Supreme Court precedent and may foreclose Plaintiffs’ claims, one must follow it or distinguish it.
A.
In Baker v. Nelson, two men were denied a marriage license by a Minnesota county clerk. 291 Minn. 310, 191 N.W.2d 185, 185 (1971). Because they were denied the license, the two men filed suit asking that the court force the clerk to grant the license. Id. In Minnesota Statutes c.

517, the Minnesota state legislature had codified that the state “d[id] not authorize marriage between persons of the same sex....” Id. at 186. On appeal, the Minnesota Supreme Court addressed several issues, including whether the Minnesota statutes prohibiting marriage by same-sex couples denied the petitioners “the equal protection of the laws” as guaranteed by the Fourteenth Amendment. Id. The Minnesota Supreme Court held that “[t]he equal protection clause of the Fourteenth Amendment ... is not offended *1098 by the state’s classification of persons authorized to marry.” Id. at 187. On appeal to the United States Supreme Court, the Court summarily dismissed the appeal “for want of a substantial federal question.” Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37.
Though not stated in the summary dismissal in Baker, the Supreme Court decision has long standing precedent supporting it. Throughout our nation’s history, the States have had “the absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be credited....” Pennoyer v. Neff, 95 U.S. 714, 734–35, 24 L.Ed. 565 (1878), reaffirmed in Sosna v. Iowa, 419 U.S. 393, 404, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975).
Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature. That body prescribes the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it creates, its effects upon the property rights of both, present and prospective, and the acts which may constitute grounds for its dissolution.
Maynard v. Hill, 125 U.S. 190, 205, 8 S.Ct. 723, 31 L.Ed. 654 (1888).
As Justice Stewart opined in his concurrence in Zablocki v. Redhail, a State
may in many circumstances absolutely prohibit [marriage]. Surely, for example, a State may legitimately say that no one can marry his or her sibling, that no one can marry who is not at least 14 years old, that no one can marry without first passing an

examination for venereal disease, or that no one can marry who has a living husband or wife.
434 U.S. 374, 392, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978) (Stewart, J., concurring).
The summary dismissal of an appeal for want of a substantial federal question is a decision on the merits. Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). “[U]nless and until the Supreme Court should instruct otherwise, inferior federal courts had best adhere to the view that if the Court has branded a question as unsubstantial, it remains so except when doctrinal developments indicate otherwise....” Id. (internal quotation marks omitted). “[L]ower courts are bound by summary decisions by [the Supreme] Court until such time as the Court informs (them) that (they) are not.” Id. at 344–45, 95 S.Ct. 2281 (internal quotation marks omitted). “Summary ... dismissals for want of a substantial federal question ... reject the specific challenges presented in the statement of jurisdiction and do leave undisturbed the judgment appealed from. They do prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.” Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977) (per curiam). Thus, “[a] summary disposition affirms only the judgment of the court below, and no more may be read into [the] action than was essential to sustain that judgment.” Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 182–83, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979) (citation omitted). “Questions which ‘merely lurk in the record’ are not resolved, and no resolution of them may be inferred.” Id. at 183, 99 S.Ct. 983 (citation omitted).
The jurisdictional statements presented to the United States Supreme Court in Baker v. Nelson were as follows:
1. Whether appellee’s refusal to sanctify appellants’ marriage deprives appellants of their liberty to marry and of their property without due process of law under the Fourteenth Amendment.
*1099 2. Whether appellee’s refusal, pursuant to Minnesota marriage statutes, to sanctify appellants’ marriage because both are of the male sex violates their rights under the equal protection clause of the Fourteenth Amendment.
3. Whether appellee’s refusal to sanctify appellants’ marriage deprives appellants of their right to privacy under the Ninth and Fourteenth Amendments.
See In re Kandu, 315 B.R. at 137.

B.
Here, we must address whether the question before us involves “the precise issues presented and necessarily decided by” Baker v. Nelson, such that the Supreme Court’s summary dismissal would have precedential effect here. Alternatively, the question before us could be one that “merely lurk[ed] in the record” of Baker, and the present case would not be resolved by the Supreme Court’s summary dismissal.
In this case, the following issues were presented for review:
1. Whether [Proponents] have standing to appeal the district court’s judgment.
2. Whether Proposition 8 violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
3. Whether Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
Plaintiff–Intervenor City and County of San Francisco (hereinafter San Francisco) presented the following additional issue for review:
1. Whether Proposition 8, a constitutional amendment adopted after a plebiscite campaign that played on fears and prejudices about lesbians and gay men, violates the Equal Protection Clause of the federal Constitution where its effect is to remove the honored title “marriage” but not the incidents of marriage from same-sex couples, and its purpose is to remove the taint that its supporters believed the inclusion of lesbian and gay couples worked on the institution of marriage.
The equal protection question raised in this case seems to be distinguishable from the precise issues presented and necessarily decided in Baker, especially when the equal protection issue is framed as San Francisco advocates.1 The equal protection issue decided in Baker rested on whether Minnesota’s “refusal, pursuant to Minnesota marriage statutes, to sanctify appellants’ marriage ...

violates their rights under the equal protection *1100 clause....” In re Kandu, 315 B.R. at 137. Here, San Francisco presents the issue of whether Proposition 8’s effect of “remov[ing] the honored title ‘marriage’ but not the incident of marriage from same-sex couples” violates equal protection. This Proposition 8 issue may have “merely lurk[ed] in the record” of Baker. Unlike Minnesota, California granted same-sex couples rights to both the designation and the incidents of marriage, before withdrawing the right of access to the designation through Proposition 8. Therefore, the constitutionality of withdrawing from same-sex couples the right of access to the designation of marriage does not seem to be among the “specific challenges” raised in Baker. If so, though the precedential effect of Baker v. Nelson is not challenged by this decision, such precedent is distinguishable from the decision of the district court here.
II.
In deciding this case, one should be mindful that generally state governance over marriage is not challenged easily. However, while “marriage is a social relation subject to the State’s police power,” this does not mean that the State’s “powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment.” Loving v. Virginia, 388 U.S. 1, 7, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). A marriage regulation “containing racial classifications,” such as the one at issue in Loving, is subject to “the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race.” Id. at 9, 87 S.Ct. 1817. However, not “every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny.” Zablocki, 434 U.S. at 386, 98 S.Ct. 673 (majority opinion). Proposition 8 does not involve such a suspect classification and therefore should not be analyzed under any heightened scrutiny, but we must still ask “whether there is any rational foundation for the discrimination[ ]....” See Loving, 388 U.S. at 9, 87 S.Ct. 1817.
A.
The Plaintiffs, San Francisco, and their supporting amici (hereinafter Plaintiffs) challenge Proposition 8 under the Equal Protection Clause of the Fourteenth Amendment. However, because Proposition 8 is “a classification neither involving fundamental rights nor proceeding along suspect lines,” Heller v. Doe, 509 U.S. 312, 319, 113 S.Ct.

2637, 125 L.Ed.2d 257 (1993), I do not address the application of strict scrutiny review to Proposition 8. Under strict scrutiny review, the government would need to establish that the classification is necessary to achieve a compelling governmental interest, and there must not be a less onerous available alternative. The United States Supreme Court has not recognized that the fundamental right to marry includes a fundamental right to gay marriage. See Lawrence, 539 U.S. at 578, 123 S.Ct. 2472. Gays and lesbians are not a suspect or quasi-suspect class. High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 573 (9th Cir.1990).
I also do not address intermediate scrutiny because Supreme Court precedent thus far has never held that sexual orientation is a “quasi-suspect classification.” See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441–42, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Under that standard of review, generally applied in illegitimacy and gender cases, the government would need to establish that the classification is substantially related to an important governmental interest. See id. at 441, 105 S.Ct. 3249.
*1101 Thus, Proposition 8 is subject to rational basis review rather than to any heightened scrutiny. See id. at 440–42, 105 S.Ct. 3249.
B.
“The Fourteenth Amendment’s promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.” Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). Thus, when assessing the constitutionality of most government measures, we use rational basis review in an attempt “to reconcile the principle with the reality.” Id. Under rational basis review, “we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.” Id.
In equal protection analysis, rational basis review “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” Heller, 509 U.S. at 319, 113 S.Ct. 2637 (internal quotation marks omitted). A classification “neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity.” Id. “Such a classification cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.” Id. at 320, 113 S.Ct. 2637. The

government is not required to “actually articulate at any time the purpose or rationale supporting its classification”; rather, a classification “must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Id. (internal quotation marks omitted).
Additionally, the government “has no obligation to provide evidence to sustain the rationality of a statutory classification.” Id. The measure at issue “is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” Id. (internal quotation marks omitted). “[T]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it....” Id. (internal quotation marks omitted). Further, a legislature’s generalizations may pass rational basis review “even when there is an imperfect fit between means and ends.” Id. at 321, 113 S.Ct. 2637. In sum, the measure need only have “arguable” assumptions underlying its “plausible rationales” to survive constitutional challenge. Id. at 333, 113 S.Ct. 2637.
However, “even the standard of rationality ... must find some footing in the realities of the subject addressed by the legislation.” Id. at 321, 113 S.Ct. 2637. Also, some interests are not legitimate governmental interests. E.g., Romer, 517 U.S. at 634, 116 S.Ct. 1620 (stating that “animosity toward the class of persons affected” is not a legitimate governmental interest); Cleburne, 473 U.S. at 448, 105 S.Ct. 3249 (stating that “mere negative attitudes, or fear” are not legitimate governmental interests); U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973) (stating that a “bare ... desire to harm a politically unpopular group” is not a legitimate governmental interest).
As a general rule, states may use their police power to regulate the “morals” of their population. See, e.g., Berman v. Parker, 348 U.S. 26, 32, 75 S.Ct. 98, 99 L.Ed. 27 (1954). In his dissent in Lawrence, 539 U.S. at 589–91, 123 S.Ct. 2472 (Scalia, J., dissenting), Justice Scalia argued that “[c]ountless judicial decisions and legislative enactments have relied on the ancient *1102 proposition that a governing majority’s belief that certain sexual behavior is ‘immoral and unacceptable’ constitutes a rational basis for regulation.” Id. at 589, 123 S.Ct. 2472. He then suggested that the Supreme Court has relied on morality as the basis for its decision making and states, “[s]tate laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of validation of laws based on moral choices.” Id. at 590, 123 S.Ct. 2472.

However, Justice O’Connor articulated a different perspective in determining whether moral disapproval may serve as a rational basis for equal protection. She outlined that moral disapproval is not a legitimate state interest to justify, by itself, a statute that bans homosexual conduct. She stated that “[m]oral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.” Id. at 582, 123 S.Ct. 2472 (O’Connor, J., concurring). She continued: “Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons.” Id. The Lawrence majority opinion seems to have implicitly agreed with Justice O’Connor, when it stated that a court’s “obligation is to define the liberty of all, not to mandate its own moral code.” Id. at 559, 123 S.Ct. 2472 (majority opinion) (internal quotation mark omitted).
Therefore, such interests (e.g., animus, negative attitudes, fear, a bare desire to harm, and moral disapproval) alone will not support the constitutionality of a measure, because the Equal Protection Clause does not permit a “status-based enactment divorced from any factual context from which [the courts] could discern a relationship to legitimate state interests,” or a “classification of persons undertaken for its own sake....” Romer, 517 U.S. at 635, 116 S.Ct. 1620.
III.
The majority concludes that “Romer governs our analysis notwithstanding the differences between Amendment 2 and Proposition 8,” because of the similarities between the measures at issue in Romer and in the present case. However, the differences between Amendment 2 and Proposition 8 indicate that Romer does not directly control our analysis of the constitutionality of Proposition 8.
Before comparing Amendment 2 to Proposition 8, I want to attempt to clarify the extent of the Plaintiffs’ interest asserted here. One must understand the unique manner in which California defines this interest. Because the California Supreme Court defined and clarified that interest in its Strauss v. Horton opinion, I quote liberally from it.
Proposition 8 “properly must be understood as having a considerably narrower scope and more limited effect” than what might be the case in other states. Strauss, 93 Cal.Rptr.3d 591, 207 P.3d at 61. “Proposition 8 does not

entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right to ... choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage.” Id. (internal quotation marks omitted).
Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles.... Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving *1103 the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.
Id.
Further, the California Supreme Court continued, “as a qualitative matter, the act of limiting access to the designation of marriage to opposite-sex couples [through Proposition 8] does not have a substantial or, indeed, even a minimal effect on the governmental plan or framework of California that existed prior to the amendment.” Id., 93 Cal.Rptr.3d 591, 207 P.3d at 62.
However, the California Supreme Court was also quick to point out that this differentiation did not diminish or minimize “the significance of the official designation of ‘marriage,’ ” which they characterized as “a vital factor” in their prior decision holding that failing to provide access to this designation to same-sex couples “impinged upon the privacy and due process rights of same-sex couples and violated those couples’ right to the equal protection of the laws guaranteed by the California Constitution.” Id., 93 Cal.Rptr.3d 591, 207 P.3d at 59, 61.
Therefore, “Proposition 8 reasonably must be interpreted in a limited fashion as eliminating only the right of same-sex couples to equal access to the designation of marriage, and as not otherwise affecting the constitutional right of those couples to establish an officially recognized family relationship.” Id., 93 Cal.Rptr.3d 591, 207 P.3d at 76.

Accordingly, although Proposition 8 eliminates the ability of same-sex couples to enter into an official relationship designated “marriage,” in all other respects those couples continue to possess, under the state constitutional privacy and due process clauses, “the core set of basic substantive legal rights and attributes traditionally associated with marriage,” including, “most fundamentally, the opportunity of an individual to establish—with the person with whom the individual has chose to share his or her life—an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.” Like opposite-sex couples, same-sex couples enjoy this protection not as a matter of legislative grace, but of constitutional right.
Id., 93 Cal.Rptr.3d 591, 207 P.3d at 77 (citation omitted).
A.
In Romer, Colorado voters adopted Amendment 2 to the State Constitution, which “prohibits all legislative, executive, or judicial action at any level of state or local government designed to protect ... gays and lesbians.” 517 U.S. at 624, 116 S.Ct. 1620. Amendment 2 was passed in response to municipal ordinances enacted in various Colorado cities that protected “persons discriminated against by reason of their sexual orientation.” Id. The Supreme Court examined Amendment 2 under rational basis review, where “if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.” Id. at 631, 116 S.Ct. 1620. The Supreme Court held that Amendment 2 failed rational basis review for two reasons. Id. at 632, 116 S.Ct. 1620. “First, the amendment has the peculiar property of imposing *1104 a broad and undifferentiated disability on a single named group, an exceptional and ... invalid form of legislation.” Id. “Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class if affects; it lacks a rational relationship to legitimate state interests.” Id.
B.
There are several ways to distinguish Romer from the present case. First, in Romer, the Supreme Court stated that “[t]he change Amendment 2 works in the legal status of gays and lesbians in the private sphere is far reaching,

both on its own terms and when considered in light of the structure and operation of modern anti-discrimination laws.” Id. at 627, 116 S.Ct. 1620. Here, “Proposition 8 reasonably must be interpreted in a limited fashion as eliminating only the right of same-sex couples to equal access to the designation of marriage, and as not otherwise affecting the constitutional right of those couples to establish an officially recognized family relationship.” Strauss, 93 Cal.Rptr.3d 591, 207 P.3d at 76. Thus, Romer is inapposite, because Proposition 8 eliminates the right of access to the designation of marriage from same-sex couples, rather than working a far reaching change in their legal status.
Second, Amendment 2’s “sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects.” Romer, 517 U.S. at 632, 116 S.Ct. 1620. Again, Proposition 8 “carves out a narrow and limited exception to [the] state constitutional rights” of privacy and due process. Strauss, 93 Cal.Rptr.3d 591, 207 P.3d at 61. Proposition 8 therefore lacks the “sheer breadth” that prompted the Supreme Court to raise the inference of animus in Romer.
The effect of animus is also unclear. In Romer, the Supreme Court stated that “laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity towards the class of persons affected.” 517 U.S. at 634, 116 S.Ct. 1620. The Supreme Court indicated that Amendment 2 was constitutionally invalid, because its only purpose was animus; Amendment 2 was not “directed to any identifiable legitimate purpose or discrete objective.” Id. at 635, 116 S.Ct. 1620. In short, Romer was a case where the only basis for the measure at issue was animus. However, in a case where the measure at issue was prompted both by animus and by some independent legitimate purpose, the measure may still be constitutionally valid. The Supreme Court has stated that while “negative attitudes,” “fear” or other biases “may often accompany irrational (and therefore unconstitutional) discrimination, their presence alone does not a constitutional violation make.” Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 367, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) (discussing Cleburne, 473 U.S. at 448, 105 S.Ct. 3249). If “animus” is one such bias, its presence alone may not make Proposition 8 invalid if the measure also rationally relates to a legitimate governmental interest.
Finally, gays and lesbians were burdened by Amendment 2, because it “operate[d] to repeal and forbid all laws or policies providing specific protection for gays or lesbians from discrimination by every level of Colorado government.” Romer, 517 U.S. at 629, 116 S.Ct. 1620. In contrast, “although Proposition 8 eliminates the ability of

same-sex couples to enter into an official relationship designated ‘marriage,’ in all other respects those couples continue to possess, under the *1105 state constitutional privacy and due process clauses, the core set of basic substantive legal rights and attributes traditionally associated with marriage....” Strauss, 93 Cal.Rptr.3d 591, 207 P.3d at 77 (internal quotation marks omitted). Put otherwise, Proposition 8 does not burden gays and lesbians to the same extent Amendment 2 burdened gays and lesbians in Colorado.
C.
Proponents argue that the fact that Proposition 8 withdrew from same-sex couples the existing right of access to the designation of marriage should be significant in our constitutional analysis. However, Supreme Court equal protection cases involving challenges to measures withdrawing an existing right do not indicate that the withdrawal should affect our analysis. Instead, it seems that the court has upheld legislation that withdraws, rather than reserves, some legal right. E.g., U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 176–77, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980) (applying “traditional” principles of rational basis review to Congress’s determination “that some of those who in the past received full windfall benefits would not continue to do so”); City of New Orleans v. Dukes, 427 U.S. 297, 303–05, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976) (per curiam) (concluding that city’s elimination of rights of some pushcart food vendors, but not others, was “not constitutionally impermissible”). In fact, in its decision in Romer, the Supreme Court does not base its decision on this contention. Rather, it mentioned withdrawing specific legal protections from gays and lesbians only in the context of referring to the irrational targeting of that group when compared to the sweeping change Amendment 2 created in the law.2 Romer, 517 U.S. at 627, 116 S.Ct. 1620.
D.
The above differences between Amendment 2 and Proposition 8 indicate that Romer does not directly control here. In Romer, the Supreme Court found that animus alone was the purpose behind Amendment 2. Here, the majority backs into its inference of animus, first determining that all other bases for Proposition 8 are constitutionally invalid. Assuming animus or moral disapproval were one of the purposes of Proposition 8, the measure would still survive rational basis review if there were also a valid rational basis behind Proposition 8. Only

if there were no other basis would Proposition 8 fail rational basis review. Thus, our task is to determine whether Proposition 8 rationally relates to any independent legitimate governmental interest.
IV.
In our case, Proponents argue that Proposition 8, defining marriage as the union of one man and one woman, is rationally *1106 related to a legitimate governmental interest for several reasons. Some of those reasons have already been discussed in the majority opinion and need no further discussion here. However, two of those reasons deserve more discussion, because they have been credited by other courts: (1) a responsible procreation theory, justifying the inducement of marital recognition only for opposite-sex couples, because it “steers procreation into marriage” because opposite-sex couples are the only couples who can procreate children accidentally or irresponsibly; and (2) an optimal parenting theory, justifying the inducement of marital recognition only for opposite-sex couples, because the family structure of two committed biological parents—one man and one woman—is the optimal partnership for raising children. See, e.g., Citizens for Equal Protection, 455 F.3d at 867–68.
A.
Proponents argue that Proposition 8, defining marriage as the union of one man and one woman, preserves the fundamental and historical purposes of marriage. They argue that, if the definition of marriage between a man and a woman is changed, it would fundamentally redefine the term from its original and historical procreative purpose. This shift in purpose would weaken society’s perception of the importance of entering into marriage to have children, which would increase the likelihood that couples would choose to cohabitate rather than to get married. They also argue that irresponsible procreation, by accident or willfully in a cohabitation relationship, will result in less stable circumstances for children and that same-sex couples do not present this threat of irresponsible procreation. They argue that, in the case of unintended pregnancies, the question is not whether the child will be raised by two opposite-sex parents, but rather whether it will be raised, on the one hand by two parents, or on the other hand by its mother alone (often with the assistance of the state). “Proposition 8 seeks to channel potentially procreative conduct into relationships where that conduct is likely to further, rather than harm,

society’s interest in responsible procreation and childrearing.”
Proponents also argue the “optimal parenting” rationale serves as a rational basis for Proposition 8. The optimal parenting rationale posits that Proposition 8 promotes the optimal setting for the responsible raising and care of children-by their biological parents in a stable marriage relationship. Proponents offer many judicial decisions and secondary authorities supporting both rationales.
In sum, Proponents argue that Proposition 8 is rationally related to legitimate governmental interests.
B.
The first requirement of rational basis review is that there must be some conceivable legitimate governmental interest for the measure at issue.3
1.
The California Supreme Court indicated that responsible procreation is a legitimate governmental interest:
Whether or not the state’s interest in encouraging responsible procreation properly can be viewed as a reasonably conceivable justification for the statutory limitation of marriage to a man and a *1107 woman for purposes of the rational basis equal protection standard, this interest clearly does not provide an appropriate basis for defining or limiting the scope of the constitutional right to marry.... [A]lthough the state undeniably has a legitimate interest in promoting “responsible procreation,” that interest cannot be viewed as a valid basis for defining or limiting the class of persons who may claim the protection of the fundamental constitutional right to marry.
In re Marriage Cases, 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384, 432 (2008) (emphasis added), superseded by constitutional amendment as stated in Strauss, 93 Cal.Rptr.3d 591, 207 P.3d 48.

2.
With regard to the optimal parenting rationale, the California Supreme Court stated the following about “the state’s interest in fostering a favorable environment for the procreation and raising of children”:

[A]lthough promoting and

facilitating a stable environment for

the procreation and raising of

children is unquestionably one of

the vitally important purposes

underlying the institution of

marriage and the constitutional

right to marry, past cases make

clear that this right is not confined

to, or restrictively defined by, that

purpose alone. As noted above, our

past cases have recognized that the

right to marry is the right to enter

into a relationship that is the center

of the personal affections that

ennoble and enrich human life—a

relationship that is at once the most

socially

productive

and

individually fulfilling relationship

that one can enjoy in the course of

a lifetime. The personal enrichment

afforded by the right to marry may

be obtained by a couple whether or

not they choose to have children,

and the right to marry never has

been limited to those who plan or

desire to have children.... [T]he

state constitutional right to marry ...

cannot properly be defined by or

limited to the state’s interest in

fostering a favorable environment

for the procreation and raising of

children.

Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at 432 (citations and internal quotation marks omitted). Thus, the California Supreme Court discussed “the state’s interest in fostering a favorable environment for the protection and raising of children” without using the “legitimate interest” and “for the purposes of the rational basis equal protection standard” language used to discuss “responsible procreation.” See id.

a.
Plaintiffs argue that the optimal parenting rationale cannot be a legitimate governmental interest because same-sex couples in domestic partnerships have all the substantive parenting rights opposite-sex couples in marriages enjoy. Additionally, California family law does not give any official preferences to opposite-sex parents.4 Proposition 8 did not change this *1108 factual situation, because it “leav[es] undisturbed ... a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.” Strauss, 93 Cal.Rptr.3d 591, 207 P.3d at 61. “This state’s current policies and conduct regarding homosexuality ... recognize that gay individuals are fully capable of entering into the kind of loving and enduring committed relationships that may serve as the foundation of a family and of responsibly caring for and raising children.” Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at 428.
The parties argue about whether this analysis subjects Proposition 8 to heightened scrutiny rather than rational basis review. In my view, while Plaintiffs may give a correct accounting of California law, it does not necessarily follow that the optimal parenting rationale is an illegitimate governmental interest, because it contradicts existing laws on parenting and the family. For example, a posited reason offered by one lawmaking body after being rejected by another lawmaking body can “provide[ ] a conceivable basis” for a measure. FCC v. Beach Comm’ns, Inc., 508 U.S. 307, 318, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). In Beach Communications, the Supreme Court accepted a posited reason for a federal agency regulation, even though Congress had previously rejected that purpose and the regulation presented a conflict in the statutory scheme.5 Id. Thus, even if California’s legislature previously rejected the optimal parenting rationale in its parenting laws (and Proposition 8 is inconsistent with its statutory scheme), that does not prevent the people of California from adopting Proposition 8 under that rationale.
b.
In Heller, the Supreme Court stated that “legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” 509 U.S. at 320, 113 S.Ct. 2637 (citations omitted). However, the Supreme Court went on to state that “even the standard of rationality as we so often have defined it must find some footing in the realities of the subject addressed by the legislation.” Id. at 321, 113 S.Ct.

2637.
Under rational basis review, the challenger has the burden to “negative every conceivable basis which might support” the measure. Id. at 320, 113 S.Ct. 2637. In light of this burden, Plaintiffs have offered many secondary authorities to support their argument that the optimal parenting rationale cannot be a legitimate governmental interest. “Against [a] background of more than 100 peer-reviewed studies, the State of California could not reasonably accept as a true—or even debatable—statement of fact Proponents’ view that only opposite-sex couples can create an ‘ideal’ childrearing environment.” Thus, “[i]t is not an end that the State rationally *1109 could adopt as its own and therefore cannot sustain Proposition 8.”
Although Proponents were not required to put on any evidence under rational basis review, they also produced evidence. They argue that their evidence shows that married biological parents are the optimal parenting structure. Further, they argue “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 raising children.”
After review, both sides offer evidence in support of their views on whether the optimal parenting rationale is a legitimate governmental interest. Both sides also offer evidence to undermine the evidence presented by their opponents. However, the standard only requires that the optimal parenting rationale be based on “rational speculation” about married biological parents being the best for children. Heller, 509 U.S. at 320, 113 S.Ct. 2637. Considering “the question is at least debatable,” id. at 326, 113 S.Ct. 2637 (internal quotation marks omitted), the optimal parenting rationale could conceivably be a legitimate governmental interest.6
C.
Having a conceivable legitimate governmental interest is, alone, not sufficient for rational basis review. To survive rational basis review, a measure must also have a rational relationship to the posited legitimate governmental interest. In determining whether there is a rational relationship, one should bear in mind “the nature of rational-basis scrutiny, which is the most relaxed and tolerant form of judicial scrutiny under the Equal Protection Clause.”7 Dallas, 490 U.S. at 26, 109 S.Ct.

1591.
1.
The Eighth Circuit credited the responsible procreation and optimal parenting rationales in Citizens for Equal Protection, where Nebraska had enacted a constitutional amendment prohibiting recognition of marriages by same-sex couples and other official same-sex relationships:
The State argues that the many laws defining marriage as the union of one man and one woman and extending a variety of benefits to married couples are rationally related to the government interest in “steering procreation into marriage.” By affording legal recognition and a basket of rights and benefits *1110 to married heterosexual couples, such laws “encourage procreation to take place within the socially recognized unit that is best situated for raising children.” ... The argument is based in part on the traditional notion that two committed heterosexuals are the optimal partnership for raising children, which modern-day homosexual parents understandably decry. But it is also based on a “responsible procreation” theory that justifies conferring the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on same-sex couples, who cannot. Whatever our personal views regarding this political and sociological debate, we cannot conclude that the State’s justification “lacks a rational relationship to legitimate state interests.”
455 F.3d at 867–68 (citations omitted).
The factual context in California is distinguishable from the one the Eighth Circuit faced in Nebraska. Unlike the Nebraska constitutional amendment, which prohibited the recognition of both marriages by same-sex couples and other same-sex relationships, Proposition 8 left California’s existing domestic partnership laws intact. In California, same-sex couples in domestic partnerships still enjoy the same substantive rights and benefits as opposite-sex couples in marriages. Thus, it cannot be said that Proposition 8 “confer [s] the inducements of marital ... benefits on opposite-sex couples ..., but not on same-sex couples....” See id. at 867. However, this distinction may not be dispositive, because the Eighth Circuit was considering both the substantive legal benefits as well as the designation of marriage.

2.
That leaves the question of whether withdrawing from same-sex couples the right to access the designation of marriage, alone, rationally relates to the responsible procreation and optimal parenting rationales.

a.
Regarding the responsible procreation rationale, Plaintiffs argue that Proponents suggest no reason to believe prohibiting same-sex couples from entering relationships designated “marriage” will make it more likely that opposite-sex couples in California will marry. Put differently, Plaintiffs argue that, because Proposition 8 does not bestow an honor on opposite-sex couples but instead withdraws an honor from same-sex couples, the responsible procreation rationale could be credited only if it is rational to believe that opposite-sex couples will be less likely to raise children in a marital family if the stature of marriage is also available to same-sex couples. Further, Plaintiffs argue that Proponents’ failure to describe how Proposition 8 rationally relates to the responsible procreation rationale indicates that the rationale lacks the required “footing in the realities of the subject addressed by the legislation.” Heller, 509 U.S. at 321, 113 S.Ct. 2637.

In response, Proponents argue that, “[b]ecause only sexual relationships between men and woman can produce children, such relationships have the potential to further—or harm—this interest in a way that other types of relationships do not.” Thus, “it follows that the commonsense distinction 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.”

*1111 However, Proposition 8 is not a “distinction that [California] law has always drawn,” because it “establishes a new substantive state constitutional rule that became effective once Proposition 8 was approved by the voters.” Strauss, 93 Cal.Rptr.3d 591, 207 P.3d at 115. Also,

[n]one of the past cases discussing

the right to marry—and identifying

this right as one of the fundamental

elements of personal autonomy and

liberty protected by our

Constitution—contains

any

suggestion that the constitutional right to marry is possessed only by individuals who are at risk of producing children accidentally, or implies that this constitutional right is not equally important for and guaranteed to responsible individuals who can be counted upon to take appropriate precautions in planning for parenthood.
Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at 432. In this particular context, the fact that Proposition 8 established a new rule, instead of continuing a “distinction that [California] law has always drawn,” weakens Proponents’ argument that Proposition 8 “plainly bears a rational relationship” to the responsible procreation rationale.
b.
Regarding the optimal parenting rationale, Plaintiffs argue that, because Proposition 8 does not change California’s substantive laws governing childraising, procreation, or the family structure, Proposition 8 cannot be rationally related to the optimal parenting rationale. To channel more childrearing into families led by married biological parents, they argue that Proposition 8 would have had to change those laws somehow. Rather, Proposition 8 only singles out gays and lesbians, as a group, as inferior.
Proponents contend that this argument subjects Proposition 8 to heightened scrutiny review, and that the standard for rational basis review does not require the classification be substantially related to an important governmental interest. Instead, for rational basis review, the classification must only (1) serve some conceivable governmental interest; (2) have a plausible reason for the enactment; (3) remain debatable; and (4) not be totally arbitrary. Their argument continues that, in California’s unique context, Proposition 8 only deals with the designation of the term “marriage” but leaves undisturbed all of the other significant substantive aspects of recognized and protected family relationships. Proponents’ theory only increases the likelihood that children are born and raised in a family structure of biological parents by encouraging such parents to marry; the designation of marriage for only that union would make it more likely that opposite-sex couples will want to enter into marriage and then subsequently raise their own biological offspring, rather than implying that any other union could not be good parents. Proponents claim this

interest does not depend on any judgment about the relative parenting capabilities of opposite-sex and same-sex couples; it only confirms the instinctive, commonsense belief that married biological parents provide the optimal environment for raising children. Lastly, they argue there can be no requirement of narrow tailoring where there would be a perfect fit with the governmental interest and the law. If the state denied same-sex couples significant benefits under the law, the law would be more likely to fail equal protection by denying important government rights, thus increasing the burden of the test.
3.
“[C]ourts are compelled under rational-basis review to accept a legislature’s generalizations *1112 even when there is an imperfect fit between means and ends.” Heller, 509 U.S. at 321, 113 S.Ct. 2637. Here, the people of California might have believed that withdrawing from same-sex couples the right to access the designation of marriage would, arguably, further the interests in promoting responsible procreation and optimal parenting. “The assumptions underlying these rationales may be erroneous, but the very fact that they are ‘arguable’ is sufficient, on rational-basis review, to ‘immuniz[e]’ the congressional choice from constitutional challenge.” Beach Commc’ns, 508 U.S. at 320, 113 S.Ct. 2096 (alteration in original).
Plaintiffs argue that Proposition 8 could only advance the offered rationales through encouraging opposite-sex couples to marry, who otherwise would not marry because they disapprove of same-sex couples having the right of access to the designation of marriage and the stature that comes with the designation. Therefore, Proposition 8 impermissibly gives effect to those “private biases.” See Palmore v. Sidoti, 466 U.S. 429, 433, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984). However, Supreme Court precedent does not suggest that a measure is invalid under rational basis review simply because the means by which its purpose is accomplished rest on such biases.8 Rather, precedent indicates that such biases invalidate a measure if they are the only conceivable ends for the measure. See, e.g., Romer, 517 U.S. at 635, 116 S.Ct. 1620. Again, in determining whether there is a rational relationship, one must bear in mind that rational basis review “is the most relaxed and tolerant form of judicial scrutiny under the Equal Protection Clause.” Dallas, 490 U.S. at 26, 109 S.Ct. 1591. Thus, I cannot conclude that Proposition 8 is “wholly irrelevant” to any legitimate governmental interests. Heller, 509 U.S. at 324, 113 S.Ct. 2637 (internal quotation marks omitted).

V.
Given the presumption of validity accorded Proposition 8 for rational basis review, I am not convinced that Proposition 8 lacks a rational relationship to legitimate state interests. Precedent evidences extreme judicial restraint in applying rational basis review to equal protection cases.
Only by faithful adherence to this guiding principle of judicial review of legislation is it possible to preserve to the legislative branch its rightful independence and its ability to function.... [R]estraints on judicial review have added force where the legislature must necessarily engage in a process of line-drawing. Defining the class of persons subject ... inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line, and the fact that the line might have been drawn differently at some points is a *1113 matter for legislative, rather than judicial, consideration.
Beach Commc’ns, 508 U.S. at 315–16, 113 S.Ct. 2096 (alteration, citations, and internal quotation marks omitted). Thus, the judiciary faces a conspicuous limit on our judicial role in applying equal protection to legislative enactments, because
[t]he Court has held that the Fourteenth Amendment permits States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if classification rests on grounds wholly irrelevant to the achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts

reasonably may be conceived to justify it.
McGowan v. Maryland, 366 U.S. 420, 425–26, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). A law must be upheld unless the government’s judgment “is ‘clearly wrong, a display of arbitrary power, [or] not an exercise of judgment.’ ” Mathews v. DeCastro, 429 U.S. 181, 185, 97 S.Ct. 431, 50 L.Ed.2d 389 (1976).

traditional definition of marriage violates the Equal Protection Clause or any other provision of the United States Constitution. Indeed, in Baker v. Nelson, ... when faced with a Fourteenth Amendment challenge to a decision by the Supreme Court of Minnesota denying a marriage license to a same-sex couple, the United States Supreme Court dismissed “for want of a substantial federal question.” There is good reason for this restraint.

Applying rational basis review in these circumstances also requires such restraint. As the Eighth Circuit said, in Citizens for Equal Protection, 455 F.3d at 870:
In the nearly one hundred and fifty years since the Fourteenth Amendment was adopted, to our knowledge no Justice of the Supreme Court has suggested that a state statute or constitutional provision codifying the

Parallel Citations
12 Cal. Daily Op. Serv. 1550, 2012 Daily Journal D.A.R. 1705

Footnotes

1

The California Constitution differentiates between initiative statutes, which require petitions signed by five percent of electors, and

initiative constitutional amendments, which require petitions signed by eight percent of electors. Cal. Const. art. 2, § 8(b). An

initiative statutory enactment has somewhat greater status than a statute adopted by the Legislature, in that the Legislature may not

amend or repeal the initiative statute without submitting the change to approval by the electors (unless the initiative statute

provides otherwise). Id. § 10(c). Yet, like a statutory enactment by the Legislature, and unlike an initiative constitutional

amendment, it is subject to the terms of the state constitution.

2

The district court subsequently denied the motion to intervene brought by the Campaign for California Families, a public interest

organization that supported Proposition 8 but was not the measure’s official sponsor. We affirmed that decision in Perry v.

Proposition 8 Official Proponents (Perry I ), 587 F.3d 947 (9th Cir.2009). The district court also denied leave to intervene to a

coalition of civil rights advocacy organizations. Id. at 950 n. 1.

3

A number of ancillary matters, none of which we need revisit here, were presented to this court immediately prior to and during the

trial. First, we granted Proponents’ petition for a writ of mandamus to protect their First Amendment interests in campaign

communications against intrusion by Plaintiffs’ discovery requests. Perry v. Schwarzenegger (Perry II ), 591 F.3d 1147 (9th

Cir.2010), amending and denying reh’g en banc of 591 F.3d 1126 (9th Cir.2009). Second, we denied a similar mandamus petition

brought by three non-party organizations that had campaigned against Proposition 8. Perry v. Schwarzenegger (Perry III ), 602

F.3d 976 (9th Cir.2010). Finally, a motions panel of this court denied Proponents’ emergency petition for a writ of mandamus,

filed on the eve of trial, to prohibit the district court from broadcasting the trial via streaming video and audio to a few federal

courthouses around the country. The Supreme Court then granted Proponents’ application for a temporary and eventually

permanent stay of the broadcast. Hollingsworth v. Perry, –––U.S. ––––, 130 S.Ct. 1132, 175 L.Ed.2d 878 (2010) (mem.);

Hollingsworth v. Perry, 558 U.S. 183, 130 S.Ct. 705, 175 L.Ed.2d 657 (2010).

4

The court found, among other things, that (1) marriage benefits society by organizing individuals into cohesive family units,

developing a realm of liberty for intimacy and free decision making, creating stable households, legitimating children, assigning

individuals to care for one another, and facilitating property ownership, id. at 961; (2) marriage benefits spouses and their children

physically, psychologically, and economically, id. at 962–63, whether the spouses are of the same or opposite sexes, id. at 969–70;

(3) domestic partnerships lack the social meaning associated with marriage, id. at 970, 973–75; (4) permitting same-sex couples to

marry would not affect the number or stability of opposite-sex marriages, id. at 972–73; (5) the children of same-sex couples

benefit when their parents marry, and they fare just as well as children raised by opposite-sex parents, id. at 973, 980–81; (6)

Proposition 8 stigmatizes same-sex couples as having relationships inferior to those of opposite-sex couples, id. at 973–74, 979–80;

(7) Proposition 8 eliminated same-sex couples’ right to marry but did not affect any other substantive right they enjoyed, id. at 977;

and (8) the campaign in favor of Proposition 8 relied upon stereotypes and unfounded fears about gays and lesbians, id. at 988–91.

5

Without explanation, the district court failed to enter a separate declaratory judgment as Plaintiffs had requested. The court’s

opinion made clear its holding “that Proposition 8 is unconstitutional.” 704 F.Supp.2d at 1003. But the clerk apparently never

issued this declaratory judgment as a separate document, as Fed.R.Civ.P. 58 requires.

6

Concurrently with its decision on the merits of Plaintiffs’ claim, the district court denied a motion to intervene as a defendant

brought by Imperial County, its board of supervisors, and one of its Deputy County Clerks. We affirmed the district court’s denial

of the motion, on alternative grounds, in Perry v. Schwarzenegger (Perry VI ), 630 F.3d 898 (9th Cir.2011). The newly elected County Clerk of Imperial County subsequently moved to intervene in this court in the companion appeal, No. 10–16751. In light of the fact that Proponents have standing to appeal, we deny the motion as untimely but have considered the Clerk’s filings as briefs amici curiae.

7

We vacated submission of this case upon ordering that our question be certified to the California Supreme Court. Perry V, 628 F.3d

at 1200. The case is now ordered resubmitted.

8

Although we regret the delay that our need to resolve this issue has caused, we note that this delay was not of our own making. See

Perry V, 628 F.3d at 1200–02 (Reinhardt, J., concurring). We are grateful to the California Supreme Court for the thoughtful and

full consideration it gave our question.

9

See also Richardson v. Ramirez, 418 U.S. 24, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974), in which a county clerk was not barred from

appealing a judgment invalidating California’s felon disenfranchisement law, even though the only state officer who had been

sued, then-California Secretary of State Edmund G. Brown, Jr., refused to pursue the appeal. Id. at 26 n. 1, 36–38, 94 S.Ct. 2655.

10 Cf. City of Los Angeles v. Lyons, 461 U.S. 95, 113, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (“[T]he state courts need not impose the same standing or remedial requirements that govern federal-court proceedings. The individual States may permit their courts to use injunctions to oversee the conduct of law enforcement authorities on a continuing basis. But this is not the role of a federal court....”).

11 In rejecting the argument that Proposition 8 had impermissibly revised, rather than amended, the state constitution, Strauss explained that it “drastically overstates the effect of Proposition 8 on the fundamental state constitutional rights of same-sex couples” to suggest that the proposition “ ‘eliminat[ed]’ or ‘stripp[ed]’ same-sex couples of a fundamental constitutional right,” because the substantive protections of the state equal protection clause and due process and privacy provisions remained intact—with the “sole, albeit significant, exception” of the right to use the designation of ‘marriage,’ which was eliminated for same-sex couples. 93 Cal.Rptr.3d 591, 207 P.3d at 102.

12 Cf. Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at 434–35 (“[D]rawing a distinction between the name assigned to the family relationship available to opposite-sex couples and the name assigned to the family relationship available to same-sex couples, and ... reserving the historic and highly respected designation of marriage exclusively to opposite-sex couples while offering same-sex couples only the new and unfamiliar designation of domestic partnership[,] pose[s] a serious risk of denying the official family relationship of same-sex couples the equal dignity and respect that is a core element of the constitutional right to marry.”).

13 Romer did not apply heightened scrutiny to Amendment 2, even though the amendment targeted gays and lesbians. Instead, Romer found that Amendment 2 “fail[ed], indeed defie[d], even [the] conventional inquiry” for non-suspect classes, concerning whether a “legislative classification ... bears a rational relation to some legitimate end.” Romer, 517 U.S. at 631–32, 116 S.Ct. 1620. Amendment 2 amounted to “a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit.” Id. at 635, 116 S.Ct. 1620. We follow this approach and reach the same conclusion as to Proposition 8. See also High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir.1990) (declining to apply heightened scrutiny).

14 Because we do not address the question of the constitutionality of a state’s ban on same-sex marriage, the Supreme Court’s summary dismissal of Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972) (mem.), is not pertinent here. In Baker, the Court “dismissed for want of a substantial federal question” an appeal from the Minnesota Supreme Court’s decision to uphold a state statute that did not permit marriage between two people of the same sex. Id. Such dismissals “prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by” them, Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977) (per curiam), “ ‘except when doctrinal developments indicate otherwise,’ ” Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975) (quoting Port Authority Bondholders Protective Committee v. Port of New York Authority, 387 F.2d 259, 263 n. 3 (2d Cir.1967)). “[N]o more may be read into” them, however, “than was essential to sustain th[e] judgment. Questions which ‘merely lurk in the record’ are not resolved, and no resolution of them may be inferred.” Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 183, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979) (citations omitted). Whether or not the constitutionality of any ban on same-sex marriage was “presented and necessarily decided” in Baker, and whether or not Baker would govern that question in light of subsequent “doctrinal developments,” we address no such question here. We address a wholly different question: whether the people of a state may by plebiscite strip a group of a right or benefit, constitutional or otherwise, that they had previously enjoyed on terms of equality with all others in the state. That question was not present in Baker and is squarely controlled by Romer, which postdates Baker by more than two decades.

15 Indeed, as the Court observed, not only does the Fourteenth Amendment not prohibit private discrimination; it does not even “give Congress a general power to prohibit discrimination in public accommodations” by statute. Romer, 517 U.S. at 628, 116 S.Ct. 1620 (emphasis added) (citing Civil Rights Cases, 109 U.S. 3, 25, 3 S.Ct. 18, 27 L.Ed. 835 (1883)). Congress has passed antidiscrimination laws regulating private conduct only under its Article I powers. See, e.g., Heart of Atlanta Motel, Inc. v. United

States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) (upholding the Civil Rights Act of 1964 under the Commerce Clause).
16 The protections at issue in Romer were not of substantially more distant provenance than the protection at issue here. While Aspen and Boulder had enacted their ordinances somewhat earlier, Denver’s ordinance—which covered a far greater population—had taken effect only the year before Colorado voters adopted Amendment 2. Evans, 854 P.2d at 1284.
17 Additionally, the Court stated that it “would not interpret the Fourteenth Amendment to 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, 102 S.Ct. 3211. In enacting Proposition 8, the People did not “declare the state of the law as it existed when the Marriage Cases decision was rendered, but instead establishe[d] a new substantive state constitutional rule” that amended the charter’s text to supersede the previous California Declaration of Rights. Strauss, 93 Cal.Rptr.3d 591, 207 P.3d at 115. The People thus acted as Congress does when it disapproves of a statutory interpretation by a federal court and enacts a new statute to produce its preferred result. See, e.g., Religious Freedom Restoration Act of 1993, Pub.L. No. 103–141 (enacted in response to the Supreme Court’s decision in Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990)). Of course, Crawford did not suggest that it ends the inquiry to note that the Fourteenth Amendment generally allows the People to exercise their state constitutional right to supersede a decision of the state supreme court by an initiative constitutional amendment. A federal court must still determine whether the constitutional amendment enacted by the People is otherwise valid under the Federal Constitution; sometimes laws passed because of disagreement with judicial decisions are not. Cf. City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) (holding the Religious Freedom Restoration Act unconstitutional in part). Proposition 1 was valid because, in superseding a decision of the California Supreme Court, it did not draw an improper classification among groups. Proposition 8 is invalid because it does.
18 See Petitioners’ Br. 32–33, 48, Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (No. 94–1039) (“Crawford controls this case. Through Amendment 2, Colorado has simply defined the package of civil rights available to homosexuals and bisexuals under the Colorado Constitution as no larger than that provided by the Constitution and laws of the United States.... While a state or local government can grant more protection than that required by the United States Constitution, a state or local government can also rescind that additional protection—and prohibit its subsequent reextension—without committing a federal constitutional violation. [Crawford, 458 U.S. at 538–39, 102 S.Ct. 3211.] Amendment 2 does nothing more.”).
19 As we have noted, we need not consider whether any form of heightened scrutiny is necessary or appropriate in order to reach the result we do. See supra note 13.
20 For the reasons explained above, Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir.2006), is not applicable here. As our dissenting colleague states, the fact that Proposition 8 left intact California’s laws concerning family formation and childrearing by same-sex couples distinguishes this case from Citizens. See Dissent at 1110 (“Unlike the Nebraska constitutional amendment, which prohibited the recognition of both marriages by same-sex couples and other same-sex relationships, Proposition 8 left California’s existing domestic partnership laws intact.... Thus, it cannot be said that Proposition 8 ‘confer[s] the inducements of marital ... benefits on opposite-sex couples ..., but not on same-sex couples....’ ” (all but first alteration in original)). We also note that the Nebraska constitutional amendment at issue in Citizens did not withdraw an existing right from same-sex couples as did Proposition 8. Cf. Dissent at 1105 n. 2. (“[W]hile the withdrawal of a right may not be analytically significant for rational basis review, it may still be factually significant.”).
21 Moreover, Johnson did not involve a dignitary benefit that was withdrawn from one group, such as an official and meaningful state designation that established the societal status of the members of the group; it concerned only a specific form of government assistance.
22 The difference between what Proposition 8 did take away—only the name ‘marriage’—and what it might also have taken away—any of the substantive “incidents of marriage” that same-sex couples still enjoy—influenced the underlying politics of Proposition 8 and shapes the basic issues in this case. The official argument in favor of Proposition 8, published in the Voter Information Guide, emphasized this distinction: “Proposition 8 doesn’t take away any rights or benefits of gay or lesbian domestic partnerships. Under California law, ‘domestic partners shall have the same rights, protections, and benefits’ as married spouses. (Family Code § 297.5.) There are NO exceptions. Proposition 8 WILL NOT change this.” Voter Information Guide at 56. Moreover, Strauss observed “that an alternative, much more sweeping initiative measure—proposing the addition of a new constitutional section that would have provided not only that ‘[o]nly marriage between one man and one woman is valid or recognized in California,’ but also that ‘[n]either the Legislature nor any court, government institution, government agency, initiative statute, local government, or government official shall ... bestow statutory rights, incidents, or employee benefits of marriage on unmarried individuals’—was circulated for signature at the same time as Proposition 8, but did not obtain sufficient signatures to qualify for the ballot.” 93 Cal.Rptr.3d 591, 207 P.3d at 76 n. 8.
23 The over 18,000 couples that did marry represented more than one-third of all couples that had entered into registered domestic partnerships in California at the time. See Gary J. Gates et al., The Williams Institute, Marriage, Registration and Dissolution by Same–Sex Couples in the U.S. 5 (July 2008) (noting that there were 48,157 registered domestic partnerships in California as of

Spring 2008).

24 When the Eighteenth Amendment was ratified, the Nation was similarly not interested in “proceeding with caution” in reallocating grain from wartime rations to alcohol production. It meant, instead, to effect a permanent ban on alcohol.

25 In California, “[b]allot summaries ... in the ‘Voter Information Guide’ are recognized sources for determining the voters’ intent.” People v. Garrett, 92 Cal.App.4th 1417, 1426, 112 Cal.Rptr.2d 643 (2001) (citing Hodges v. Super. Ct., 21 Cal.4th 109, 86 Cal.Rptr.2d 884, 980 P.2d 433, 438–39 (1999)).

26 A contextual evaluation is both useful and appropriate as part of the “careful consideration” in which courts must engage when faced with “[d]iscriminations of an unusual character.” Romer, 517 U.S. at 633, 116 S.Ct. 1620 (internal quotation marks omitted); see Moreno, 413 U.S. at 533–38, 93 S.Ct. 2821. When a law is enacted by ballot initiative, we look to objective indicators of the voters’ motivations, such as campaign materials, to shed light on the “historical context.” S. Alameda Spanish Speaking Org. v. Union City, 424 F.2d 291, 295 (9th Cir.1970); see, e.g., Washington, 458 U.S. at 463, 102 S.Ct. 3187.

27 The stay pending appeal issued by this court on August 16, 2010 remains in effect pending issuance of the mandate.

1

Whether prohibiting marriage by same-sex couples violates due process was an issue presented and decided in Baker v. Nelson. In

this case, the district court determined that “plaintiffs seek to exercise their fundamental right to marry under the Due Process

Clause,” Perry v. Schwarzenegger, 704 F.Supp.2d 921, 993 (N.D.Cal.2010), and that Proposition 8 violated the Due Process

Clause, because it denied Plaintiffs this fundamental right and did not withstand strict scrutiny. Id. at 994–95. But in Baker, the

Minnesota Supreme Court determined that prohibiting marriage by same-sex couples did not offend the Due Process Clause. 191

N.W.2d at 186–87. Because the United States Supreme Court “branded [that] question as unsubstantial” in its summary dismissal,

the due process issue “remains so except when doctrinal developments indicate otherwise.” Hicks v. Miranda, 422 U.S. at 344, 95

S.Ct. 2281 (internal quotation marks omitted). The United States Supreme Court cases following Baker do not suggest any such

doctrinal developments have occurred. See, e.g., Lawrence v. Texas, 539 U.S. 558, 578, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003)

(“[This case] does not involve whether the government must give formal recognition to any relationship that homosexual persons

seek to enter.” (internal quotation marks omitted)).

2

However, while the withdrawal of a right may not be analytically significant for rational basis review, it may still be factually

significant. For example, the fact that Proposition 8 involves the withdrawal of an existing right and not the extension of a

previously reserved right suggests that Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974), is inapposite to

the present case. In Johnson, the Supreme Court declared that “[w]hen ... the inclusion of one group promotes a legitimate

governmental purpose, and the addition of other groups would not, we cannot say that the statute’s classification of beneficiaries

and nonbeneficiaries is invidiously discriminatory.” Id. at 383, 94 S.Ct. 1160. As the majority argues, the rule from Johnson

appears to be inapplicable here, because Proposition 8 involves the withdrawal from same-sex couples of the existing right to

access the designation of marriage, and not the addition of same-sex couples to the group previously reserved the right.

3

This requirement is easily met, because “[v]irtually any goal that is not forbidden by the Constitution will be deemed sufficient to

meet the rational basis test.” Erwin Chemerinsky, Constitutional Law: Principles and Policies 698 (4th ed.2011).

4

For example, “[t]he rights and obligations of registered domestic partners with respect to a child of either of them shall be the same

as those of spouses.” Cal. Fam.Code § 297.5(d). Also, “[i]t is the policy of this state that all persons engaged in providing care and

services to foster children ... shall not be subjected to discrimination or harassment on the basis of their clients’ or their own actual

or perceived ... sexual orientation....” Cal. Welf. & Inst.Code § 16013(a). Further, “[t]he parent and child relationship extends

equally to every child and to every parent, regardless of the marital status of the parents.” Cal. Fam.Code § 7602. This legal

structure is reinforced by the equal status of gays and lesbians in other areas of California’s laws, such as in antidiscrimination

protections regarding business establishments. E.g., Cal. Civ.Code § 51(b) (“All persons within the jurisdiction of this state are free

and equal, and no matter what their ... sexual orientation are entitled to the full and equal accommodations, advantages, facilities,

privileges, or services in all business establishments of every kind whatsoever.”).

5

See also City of Dallas v. Stanglin, 490 U.S. 19, 26–28, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989) (stating that a city could rationally

impose an age and time restriction on dance halls, even if it had not imposed similar restrictions on other premises where teenagers

and adults congregated together; arguments focusing on the inconsistency between the classification and the “interests and

objectives” of the city “misapprehend [ed] the nature of rational-basis scrutiny”).

6

In Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, Justice O’Connor relied on the Fourteenth Amendment’s Equal Protection

Clause to invalidate a state law criminalizing homosexual sodomy. In her concurring opinion, she stated:

That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean

that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas

cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage.

Unlike the moral disapproval of same-sex relations—the asserted state interest in this case—other reasons exist to promote the

institution of marriage beyond mere moral disapproval of an excluded group. Id. at 585, 123 S.Ct. 2472 (O’Connor, J., concurring).

7

As explained above, this requirement is not a high bar. Indeed, “the classification at issue need not be correlated in fact, even in

relation to an assumed purpose for which there need not be any evidence.” Robert C. Farrell, The Two Versions of Rational–Basis

Review and Same–Sex Relationships, 86 Wash. L.Rev. 281, 290 (2011).

8

In Palmore, the Supreme Court stated that “[p]rivate biases may be outside the reach of the law, but the law cannot, directly or

indirectly, give them effect.” 466 U.S. at 433, 104 S.Ct. 1879. Even if Palmore indicates that giving effect to private biases through

means is illegitimate, it is a case where “acknowledged racial prejudice [was] invoked to justify [a] racial classification[ ].” Id.

Thus, the classification came under strict scrutiny. Id. at 432–33, 104 S.Ct. 1879; see also City of Richmond v. J.A. Croson Co.,

488 U.S. 469, 520, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (Scalia, J., concurring in the judgment) (“The benign purpose of

compensating for social disadvantages ... can no more be pursued by the illegitimate means of racial discrimination than can other

assertedly benign purposes we have repeatedly rejected.”).

While the Supreme Court quoted Palmore in Cleburne, it did so in the context of rejecting “mere negative attitudes” or “fear” as

ends. 473 U.S. at 448, 105 S.Ct. 3249.

 
 Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 1 of 90
ADRMOP,CLOSED,E−Filing,PROTO,ProSe,REFDIS
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:09−cv−02292−JW

Perry et al v. Schwarzenegger et al Assigned to: Hon. James Ware Referred to: Magistrate Judge Joseph C. Spero Demand: $0 Case in other court: 9th Circuit, 09−16959
9th Circuit, 09−17241
9th Circuit, 09−17551 Cause: 42:1983 Civil Rights Act
Plaintiff
Kristin M. Perry

Date Filed: 05/22/2009 Date Terminated: 08/27/2012 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by David Boies , Boies Schiller and Flexner 333 Main Street Armonk, NY 10504 914−749−8201 Fax: 914−749−8300 Email: dboies@bsfllp.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Theodore B Olson Gibson Dunn & Crutcher LLP 1050 Connecticut Ave, N.W. Washington, DC 20036−5306 202−955−8668 Fax: 202−467−0539 Email: tolson@gibsondunn.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Amir Cameron Tayrani Gibson Dunn & Crutcher LLP 1050 Connecticut Ave NW, Ste 900 Washington, DC 20036 202−887−3692 Email: ATayrani@gibsondunn.com PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Dean Dusseault Gibson Dunn & Crutcher LLP 333 S Grand Ave Los Angeles, CA 90071 213−229−7855 Email: cdusseault@gibsondunn.com ATTORNEY TO BE NOTICED
Enrique Antonio Monagas Gibson Dunn & Crutcher LLP 333 South Grand Avenue Los Angeles, CA 90071 213−229−7804 Email: emonagas@gibsondunn.com ATTORNEY TO BE NOTICED

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 2 of 90
Ethan D. Dettmer Gibson Dunn & Crutcher LLP 333 South Grand Avenue Los Angeles, CA 90071 213−229−7804 Email: edettmer@gibsondunn.com ATTORNEY TO BE NOTICED
Jeremy Michael Goldman Boies, Schiller & Flexner LLP 1999 Harrison Street, Ste 900 Oakland, CA 94612 510−874−1000 Email: jgoldman@bsfllp.com ATTORNEY TO BE NOTICED
Matthew Dempsey McGill Gibson Dunn & Crutcher LLP 1050 Connecticut Ave., NW Washington, DC 20036−5306 202−955−8668 Email: mmcgill@gibsondunn.com PRO HAC VICE ATTORNEY TO BE NOTICED
Rosanne C. Baxter Boies Schiller & Flexner LLP 333 Main Street Armonk, NY 10504 914−749−8200 Email: rbaxter@bsfllp.com PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Elizabeth Piepmeier Kirkland & Ellis LLP 555 California Street San Francisco, CA 94104 (415) 439−1976 Fax: (415) 439−1500 Email: sarah.piepmeier@kirkland.com TERMINATED: 07/18/2011
Theane Evangelis Kapur Gibson, Dunn & Crutcher LLP 333 South Grand Avenue Los Angeles, CA 90071 213−229−7726 Fax: Email: tkapur@gibsondunn.com ATTORNEY TO BE NOTICED
Theodore J. Boutrous , Jr. Gibson Dunn & Crutcher LLP 333 South Grand Avenue Los Angeles, CA 90071−3197 213−229−7804 Fax: 213−229−7520 Email: tboutrous@gibsondunn.com ATTORNEY TO BE NOTICED
Theodore Hideyuki Uno Boies Schiller & Flexner LLP 1999 Harrison St, Ste 900 Oakland, CA 94612

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 3 of 90

510−874−1000 Email: tuno@bsfllp.com PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Sandra B. Stier

represented by Theodore B Olson Gibson Dunn & Crutcher LLP 1050 Connecticut Avenue, N.W. Washington, DC 20036−5306 202−955−8668 Fax: 202−467−0539 Email: tolson@gibsondunn.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amir Cameron Tayrani (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher Dean Dusseault (See above for address) ATTORNEY TO BE NOTICED

David Boies , (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Enrique Antonio Monagas (See above for address) ATTORNEY TO BE NOTICED

Ethan D. Dettmer (See above for address) ATTORNEY TO BE NOTICED

Jeremy Michael Goldman (See above for address) ATTORNEY TO BE NOTICED

Josh Schiller Boies Schiller & Flexner LLP 575 Lexington Avenue , 7th floor New York, NY 10022 212−446−2300 Email: jischiller@bsfllp.com PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew Dempsey McGill (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Richard J. Bettan Boies Schiller & Flexner LLP 575 Lexington Avenue, 7th floor New York, NY 10022 212−446−2300 Email: rbettan@bsfllp.com PRO HAC VICE

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 4 of 90

ATTORNEY TO BE NOTICED

Sarah Elizabeth Piepmeier (See above for address) TERMINATED: 07/18/2011

Theane Evangelis Kapur (See above for address) ATTORNEY TO BE NOTICED

Theodore J. Boutrous , Jr. Gibson Dunn & Crutcher LLP 333 South Grand Avenue Los Angeles, CA 90071−3197 213−229−7804 Email: tboutrous@gibsondunn.com ATTORNEY TO BE NOTICED

Theodore Hideyuki Uno Boies, Schiller & Flexner LLP 1999 Harrison Street Oakland, CA 94612 510−874−1000 Email: tuno@bsfllp.com PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Paul T. Katami

represented by David Boies , (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Theodore B Olson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amir Cameron Tayrani (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher Dean Dusseault (See above for address) ATTORNEY TO BE NOTICED

Enrique Antonio Monagas Gibson Dunn & Crutcher LLP 555 Mission St, Ste 3000 San Francisco, CA 94105 415−393−8353 Email: emonagas@gibsondunn.com ATTORNEY TO BE NOTICED

Ethan D. Dettmer Gibson Dunn & Crutcher LLP 333 South Grand Avenue Los Angeles, CA 90071 415−393−8292 Email: edettmer@gibsondunn.com ATTORNEY TO BE NOTICED

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 5 of 90

Plaintiff Jeffrey J. Zarrillo

Jeremy Michael Goldman Boies, Schiller & Flexner LLP 1999 Harrison Street, Stre 900 Oakland, CA 94612 510−874−1000 Email: jgoldman@bsfllp.com ATTORNEY TO BE NOTICED
Josh Schiller Boies Schiller & Flexner LLP 575 Lexington Avenue, 7th floor New York, NY 10022 212−446−2300 Email: jischiller@bsfllp.com PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Dempsey McGill (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Richard J. Bettan Boies Schiller & Flexner LLP 575 Lexington Avenue 7th Floor New York, NY 10022 212−446−2300 Email: rbettan@bsfllp.com PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Elizabeth Piepmeier (See above for address) TERMINATED: 07/18/2011
Theane Evangelis Kapur (See above for address) ATTORNEY TO BE NOTICED
Theodore J. Boutrous , Jr. (See above for address) ATTORNEY TO BE NOTICED
Theodore Hideyuki Uno (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by David Boies , (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Theodore B Olson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Amir Cameron Tayrani

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 6 of 90

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher Dean Dusseault (See above for address) ATTORNEY TO BE NOTICED

Enrique Antonio Monagas (See above for address) ATTORNEY TO BE NOTICED

Ethan D. Dettmer (See above for address) ATTORNEY TO BE NOTICED

Jeremy Michael Goldman (See above for address) ATTORNEY TO BE NOTICED

Josh Schiller (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew Dempsey McGill (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Richard J. Bettan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Sarah Elizabeth Piepmeier (See above for address) TERMINATED: 07/18/2011

Theane Evangelis Kapur (See above for address) ATTORNEY TO BE NOTICED

Theodore J. Boutrous , Jr. (See above for address) ATTORNEY TO BE NOTICED

Theodore Hideyuki Uno (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Attorney Charles S LiMandri

represented by Charles Salvatore LiMandri Law Offices of Charles S. LiMandri P.O. Box 9120 Rancho Santa Fe, CA 92067 (858) 759−9930 Email: cslimandri@limandri.com ATTORNEY TO BE NOTICED

V. Intervenor Pla

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 7 of 90

Our Family Coalition

represented by Alan Lawrence Schlosser ACLU Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 415−621−2493 Email: aschlosser@aclunc.org ATTORNEY TO BE NOTICED

Christopher Francis Stoll National Center for Lesbian Rights 870 Market Street, Suite 370 San Francisco, CA 94102 415−392−6257 Email: cstoll@nclrights.org ATTORNEY TO BE NOTICED

Ilona Margaret Turner National Ctr for Lesbian Rights 870 Market St Suite 370 San Francisco, CA 94102 415−392−6257 Email: iturner@nclrights.org ATTORNEY TO BE NOTICED

James Dixon Esseks ACLU Foundation 2 Charlton St #14H New York, NY 10014 212−549−2623 Email: jesseks@aclu.org ATTORNEY TO BE NOTICED

Jennifer Carol Pizer Lambda Legal Defense and Education Fund, Inc. 3325 Wilshire Blvd.Ste 1300 Los Angeles, CA 90010−1729 213−382−7600 Email: jpizer@lambdalegal.org ATTORNEY TO BE NOTICED

Jon Warren Davidson Lambda Legal Defense and Education Fund 3325 Wilshire Blvd Ste 1300 Los Angeles, CA 90010 (213) 382−7600, ext. 229 Email: jdavidson@lambdalegal.org ATTORNEY TO BE NOTICED

Matthew Albert Coles ACLU LGBT & AIDS Project 125 Broad St. New York, NY 10004 212−549−2624 Email: mcoles@aclu.org ATTORNEY TO BE NOTICED

Shannon Minter National Center For Lesbian Rights 870 Market Street Suite 370 San Francisco, CA 94102

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 8 of 90

415−392−6257 Email: sminter@nclrights.org ATTORNEY TO BE NOTICED

Tara Lynn Borelli Lambda Legal Defense & Education Fund 3325 Wilshire Blvd #1300 Los Angeles, CA 90010 213−382−7600 Email: tborelli@lambdalegal.org ATTORNEY TO BE NOTICED

Intervenor Pla Lavender Seniors of the East Bay

represented by Alan Lawrence Schlosser (See above for address) ATTORNEY TO BE NOTICED

Christopher Francis Stoll National Center for Lesbian Rights 870 Market St, Ste 370 San Francisco, CA 94102 415−392−6257 Email: cstoll@nclrights.org ATTORNEY TO BE NOTICED

Ilona Margaret Turner (See above for address) ATTORNEY TO BE NOTICED

James Dixon Esseks (See above for address) ATTORNEY TO BE NOTICED

Jennifer Carol Pizer (See above for address) ATTORNEY TO BE NOTICED

Jon Warren Davidson Lambda Legal Defense and Education Fund 3325 Wilshire Blvd, Ste 1300 Los Angeles, CA 90010 (213) 382−7600, ext. 229 Email: jdavidson@lambdalegal.org ATTORNEY TO BE NOTICED

Matthew Albert Coles (See above for address) ATTORNEY TO BE NOTICED

Shannon Minter (See above for address) ATTORNEY TO BE NOTICED

Tara Lynn Borelli (See above for address) ATTORNEY TO BE NOTICED

Intervenor Pla
Parents, Families, and Friends of Lesbians and Gays

represented by Alan Lawrence Schlosser (See above for address) ATTORNEY TO BE NOTICED

Christopher Francis Stoll

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 9 of 90
National Center for Lesbian Rights 870 Market St Suite 370 San Francisco, CA 94102 415−392−6257 Email: cstoll@nclrights.org ATTORNEY TO BE NOTICED
Ilona Margaret Turner (See above for address) ATTORNEY TO BE NOTICED
James Dixon Esseks (See above for address) ATTORNEY TO BE NOTICED
Jennifer Carol Pizer Lambda Legal Defense and Education Fund, Inc. 3325 Wilshire Blvd. Suite 1300 Los Angeles, CA 90010−1729 213−382−7600 Email: jpizer@lambdalegal.org ATTORNEY TO BE NOTICED
Jon Warren Davidson Lambda Legal Defense and Education Fund 3325 Wilshire Blvd Suite 1300 Los Angeles, CA 90010 (213) 382−7600, ext. 229 Email: jdavidson@lambdalegal.org ATTORNEY TO BE NOTICED
Matthew Albert Coles (See above for address) ATTORNEY TO BE NOTICED
Shannon Minter (See above for address) ATTORNEY TO BE NOTICED
Tara Lynn Borelli (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Arnold Schwarzenegger in his official capacity as Governor of California

represented by Kenneth C. Mennemeier Mennemeier Glassman & Stroud LLP 980 9th St, Ste 1700 Sacramento, CA 95814 916−553−4000 Email: kcm@mgslaw.com TERMINATED: 05/16/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Walter Stroud Hanson Bridgett LLP 500 Capital Mall Suite 1500 Sacramento, CA 95814 (916) 442−3333

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 10 of 90

Fax: (916) 442−2348 Email: astroud@hansonbridgett.com ATTORNEY TO BE NOTICED

Defendant
Edmund G. Brown, Jr. in his official capacity as Attorney General of California

represented by Gordon Bruce Burns Attorney Generals Office, Dept. of Justice 1300 I Street, 17th Floor Sacramento, CA 95814 916−324−3081 Email: Gordon.Burns@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel J. Powell Department of Justice, Attorney General's Office 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102 (415)703−5830 Fax: 415−703−1234 Email: Daniel.Powell@doj.ca.gov ATTORNEY TO BE NOTICED

Tamar Pachter Office of the California Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102−7004 415−703−5970 Fax: 415−703−1234 Email: Tamar.Pachter@doj.ca.gov ATTORNEY TO BE NOTICED

Defendant
Mark B. Horton in his official capacity as Director of the California Department of Public Health & State Registrar of Vital Statistics

represented by Kenneth C. Mennemeier Mennemeier, Glassman & Stroud LLP 980 9th Street, Ste 1700 Sacramento, CA 95814 916−553−4000 Email: kcm@mgslaw.com TERMINATED: 05/16/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew Walter Stroud (See above for address) ATTORNEY TO BE NOTICED

Tamar Pachter (See above for address) ATTORNEY TO BE NOTICED

Defendant
Linette Scott in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health

represented by Daniel J. Powell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kenneth C. Mennemeier Mennemeier Glassman & Stroud LLP 980 9th St, Suite 1700 Sacramento, CA 95814 916−553−4000

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 11 of 90

Email: kcm@mgslaw.com TERMINATED: 05/16/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew Walter Stroud (See above for address) TERMINATED: 05/16/2011 ATTORNEY TO BE NOTICED

Tamar Pachter (See above for address) ATTORNEY TO BE NOTICED

Defendant
Patrick O'Connell in his official capacity as Clerk−Recorder for the County of Alameda

represented by John Thomas Seyman Office of the County Counsel County of Alameda 1221 Oak Street, Suite 450 Oakland, CA 94612 510−272−6710 Fax: 510−272−5020 Email: john.seyman@acgov.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Claude Franklin Kolm County of Alameda 1221 Oak Street, Suite 450 Oakland, CA 94612−4296 510−272−6710 TERMINATED: 08/03/2012

Manuel Francisco Martinez Office of the County Counsel, County of Alameda 1221 Oak Street, Suite 450 Oakland, CA 94612 510−891−3306 Email: manuel.martinez@acgov.org TERMINATED: 08/03/2012

Defendant
Dean C. Logan in his official capacity as Registrar−Recorder/County Clerk for the County of Los Angeles

represented by Patrice Jeanine Salseda Los Angeles County Counsel 648 Kenneth Hahn Hall of Admin 500 W Temple St Los Angeles, CA 90012 213−974−1895 Fax: 213−617−7182 Email: psalseda@counsel.lacounty.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judy Whitehurst Office of County Counsel − County of Los Angeles 500 West Temple St Los Angeles, CA 90012 (213) 974−1845 TERMINATED: 06/29/2011

Defendant

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 12 of 90

Kamala D. Harris

represented by Daniel J. Powell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Howard Backer

represented by Daniel J. Powell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Respondent William T. Criswell

represented by David E. Bunim Haas & Najarian 58 Maiden Lane Second Floor San Francisco, CA 94108 415−788−6330 Email: DBunim@haasnaja.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Intervenor Dft Proposition 8 Official Proponents

represented by Charles J. Cooper Cooper & Kirk 1523 New Hampshire Avenue, N.W. Washington, DC 20036 202−220−9600 Fax: 202−220−9601 Email: ccooper@cooperkirk.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Austin R. Nimocks Alliance Defense Fund 801 G Street NW, Ste 509 Washington, DC 20001 (202) 393−8690 Email: animocks@telladf.org ATTORNEY TO BE NOTICED
Brian W Raum Alliance Defense Fund 15100 N. 90th Street Scottsdale, AZ 85260 480−444−0020 Email: braum@telladf.org ATTORNEY TO BE NOTICED
David H. Thompson Cooper & Kirk PLLC 1523 New Hampshire Ave NW Washington, DC 20036 (202) 220−9600 Email: dthompson@cooperkirk.com ATTORNEY TO BE NOTICED
Howard C. Nielson , Jr.

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 13 of 90

Cooper & Kirk PLLC 1523 New Hampshire Ave NW Washington, DC 20036 202−220−9600 Email: hnielson@cooperkirk.com PRO HAC VICE ATTORNEY TO BE NOTICED

James A Campbell 15100 N. 90th Street Scottsdale, AZ 85260 (480)444−0020 Email: jcampbell@telladf.org PRO HAC VICE ATTORNEY TO BE NOTICED

Jesse Michael Panuccio Cooper & Kirk PLLC 1523 New Hampshire Avenue, N.W. Washington, DC 20036 202−220−9600 Email: jpanuccio@cooperkirk.com PRO HAC VICE ATTORNEY TO BE NOTICED

Jordan W. Lorence Alliance Defense Fund 801 G Street NW, Ste 509 Washington, DC 20001 (202) 393−8690 Email: jlorence@telladf.org ATTORNEY TO BE NOTICED

Michael W. Kirk Cooper & Kirk, PLLC 1523 New Hampshire Avenue, NW Washington, DC 2003 202.220.9600 PRO HAC VICE ATTORNEY TO BE NOTICED

Peter A. Patterson Cooper & Kirk PLLC 1523 New Hampshire Avenue NW Washington, DC 20036 202−220−9600 Fax: 202−220−9601 Email: ppatterson@cooperkirk.com ATTORNEY TO BE NOTICED

Intervenor Dft Dennis Hollingsworth

represented by Charles J. Cooper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew Perry Pugno Law Offices of Andrew P Pugno 101 Parkshore Dr #100 Folsom, CA 95630−4726 Email: andrew@pugnolaw.com ATTORNEY TO BE NOTICED

Austin R. Nimocks

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 14 of 90

Alliance Defense Fund 801 G Street NW, Suite 509 Washington, DC 20001 (202) 393−8690 Email: animocks@telladf.org ATTORNEY TO BE NOTICED

Brian W Raum (See above for address) ATTORNEY TO BE NOTICED

David H. Thompson (See above for address) ATTORNEY TO BE NOTICED

Howard C. Nielson , Jr. (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

James A Campbell (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jesse Michael Panuccio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jordan W. Lorence Alliance Defense Fund 801 G Street NW, Suite 509 Washington, DC 20001 (202) 393−8690 Email: jlorence@telladf.org ATTORNEY TO BE NOTICED

Peter A. Patterson (See above for address) ATTORNEY TO BE NOTICED

Timothy D Chandler Alliance Defense Fund 101 Parkshore Dr., Suite 100 Folsom, CA 95630 916−932−2850 Email: tchandler@telladf.org ATTORNEY TO BE NOTICED

Intervenor Dft Gail J. Knight

represented by Charles J. Cooper (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Andrew Perry Pugno (See above for address) ATTORNEY TO BE NOTICED

Austin R. Nimocks (See above for address) ATTORNEY TO BE NOTICED

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 15 of 90

Intervenor Dft Martin F. Gutierrez

Brian W Raum (See above for address) ATTORNEY TO BE NOTICED
David H. Thompson (See above for address) ATTORNEY TO BE NOTICED
Howard C. Nielson , Jr. (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
James A Campbell (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jesse Michael Panuccio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jordan W. Lorence (See above for address) ATTORNEY TO BE NOTICED
Peter A. Patterson (See above for address) ATTORNEY TO BE NOTICED
Timothy D Chandler (See above for address) ATTORNEY TO BE NOTICED
represented by Charles J. Cooper (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew Perry Pugno (See above for address) ATTORNEY TO BE NOTICED
Austin R. Nimocks (See above for address) ATTORNEY TO BE NOTICED
Brian W Raum (See above for address) ATTORNEY TO BE NOTICED
David H. Thompson (See above for address) ATTORNEY TO BE NOTICED
Howard C. Nielson , Jr. (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 16 of 90

James A Campbell (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jesse Michael Panuccio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jordan W. Lorence (See above for address) ATTORNEY TO BE NOTICED

Peter A. Patterson (See above for address) ATTORNEY TO BE NOTICED

Timothy D Chandler (See above for address) ATTORNEY TO BE NOTICED

Intervenor Dft Hak−Shing William Tam

represented by Charles J. Cooper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew Perry Pugno (See above for address) ATTORNEY TO BE NOTICED

Austin R. Nimocks Alliance Defense Fund 801 G Street NW Washington, DC 20001 (202) 393−8690 Email: animocks@telladf.org ATTORNEY TO BE NOTICED

Brian W Raum (See above for address) ATTORNEY TO BE NOTICED

David H. Thompson (See above for address) ATTORNEY TO BE NOTICED

Howard C. Nielson , Jr. (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

James A Campbell (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jesse Michael Panuccio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jordan W. Lorence

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 17 of 90

Alliance Defense Fund 801 G Street NW Washington, DC 20001 (202) 393−8690 Email: jlorence@telladf.org ATTORNEY TO BE NOTICED

Peter A. Patterson (See above for address) ATTORNEY TO BE NOTICED

Terry Lee Thompson Terry L. Thompson, Attorney at Law P.O. Box 1346 Alamo, CA 94507 925/855−1507 Email: tl_thompson@earthlink.net ATTORNEY TO BE NOTICED

Timothy D Chandler (See above for address) ATTORNEY TO BE NOTICED

Intervenor Dft Mark A. Jansson

represented by Charles J. Cooper (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Andrew Perry Pugno (See above for address) ATTORNEY TO BE NOTICED

Austin R. Nimocks (See above for address) ATTORNEY TO BE NOTICED

Brian W Raum (See above for address) ATTORNEY TO BE NOTICED

David H. Thompson (See above for address) ATTORNEY TO BE NOTICED

Howard C. Nielson , Jr. (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

James A Campbell (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jesse Michael Panuccio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jordan W. Lorence (See above for address) ATTORNEY TO BE NOTICED

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 18 of 90

Intervenor Dft ProtectMarriage.com − Yes on 8, A Project of California Renewal
Intervenor Dft Campaign for California Families

Peter A. Patterson (See above for address) ATTORNEY TO BE NOTICED
Timothy D Chandler (See above for address) ATTORNEY TO BE NOTICED
represented by Charles J. Cooper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Perry Pugno (See above for address) ATTORNEY TO BE NOTICED
Austin R. Nimocks (See above for address) ATTORNEY TO BE NOTICED
Brian W Raum (See above for address) ATTORNEY TO BE NOTICED
David H. Thompson (See above for address) ATTORNEY TO BE NOTICED
Howard C. Nielson , Jr. (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
James A Campbell (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jordan W. Lorence (See above for address) ATTORNEY TO BE NOTICED
Lauren Estelle Whittemore Fenwick & West LLP 801 California Street Mountain View, CA 94041 650−988−8500 Email: lwhittemore@fenwick.com ATTORNEY TO BE NOTICED
Peter A. Patterson (See above for address) ATTORNEY TO BE NOTICED
Timothy D Chandler (See above for address) ATTORNEY TO BE NOTICED
represented by Jesse Michael Panuccio (See above for address)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 19 of 90

PRO HAC VICE ATTORNEY TO BE NOTICED

Mary Elizabeth McAlister Liberty Counsel 100 Mountain View Rd Ste 2775 Lynchburg, VA 24502 434−592−7000 Email: court@lc.org ATTORNEY TO BE NOTICED

Rena M Lindevaldsen Liberty Counsel 100 Mountainview Rd, Ste 2775 Lynchberg, VA 24502 434−592−7000 PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Dft
County of Imperial of the State of California

represented by Jennifer Lynn Bursch 951−304−7583 Fax: 951−600−4996 Email: jmonk@faith−freedom.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Henry Tyler Advocates for Faith & Freedom 24910 Las Brisas Road Suite 110 Murrieta, CA 92562 951−304−7583 Fax: 951−600−4996 Email: rtyler@tylerbursch.com ATTORNEY TO BE NOTICED

Intervenor Dft
Board of Supervisors of Imperial County

represented by Jennifer Lynn Bursch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Henry Tyler (See above for address) ATTORNEY TO BE NOTICED

Intervenor Dft Isabel Vargas

represented by Jennifer Lynn Bursch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Henry Tyler (See above for address) ATTORNEY TO BE NOTICED

3rd party defendant
Californians Against Eliminating Basic Rights

represented by James C. Harrison Remcho, Johansen & Purcell, LLP 201 Dolores Avenue San Leandro, CA 94577

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 20 of 90

510/346−6200 Email: jharrison@rjp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kari Lynn Krogseng Attorney General of California 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244−2550 (916) 322−1067 Fax: (916) 324−8835 Email: Kari.Krogseng@doj.ca.gov ATTORNEY TO BE NOTICED

Interested Party Media Coalition

represented by Thomas R. Burke Davis Wright Tremaine LLP 505 Montgomery Street, Suite 800 San Francisco, CA 94111−6533 415/276−6500 Email: thomasburke@dwt.com ATTORNEY TO BE NOTICED

Interested Party Media Coalition

represented by Thomas R. Burke Davis Wright Tremaine LLP 505 Montgomery Street, Suite 800 San Francisco, CA 94111−6533 415/276−6500 Fax: 415/276−6599 Email: thomasburke@dwt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus City and County of San Francisco

represented by Christine Van Aken Office of the City Attorney 1 Dr. Carlton B. Goodlett Place City Hall, Room 234 San Francisco, CA 94102 415−554−4633 Fax: 415−554−4699 Email: christine.van.aken@sfgov.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danny Yeh Chou City Attorney's Office City & County of San Francisco Fox Plaza 1390 Market Street 7th Floor San Francisco, CA 94102−5408 415−554−3807 Fax: 415−554−3985 Email: danny.chou@sfgov.org ATTORNEY TO BE NOTICED

Erin Brianna Bernstein Office of the City Attorney of San Francisco 1390 Market Street, 7th Floor

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 21 of 90

San Francisco, CA 94102 (415) 554−3975 Email: Erin.Bernstein@sfgov.org ATTORNEY TO BE NOTICED

Ronald P. Flynn Office of the City Attorney 1390 Market Street, Seventh Floor San Francisco, CA 94102 415 554−3901 Email: ronald.flynn@sfgov.org ATTORNEY TO BE NOTICED

Amicus
ACLU Foundation of Northern California

represented by Stephen V. Bomse Orrick Herrington & Sutcliffe The Orrick Building 405 Howard Street San Francisco, CA 94105 (415)773−5700 Fax: 415 −773−5759 Email: sbomse@orrick.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan Lawrence Schlosser (See above for address) ATTORNEY TO BE NOTICED

Elizabeth O. Gill American Civil Liberties Union of No. Calif. 39 Drumm Street San Francisco, CA 94111 415−621−2493 Email: egill@aclunc.org ATTORNEY TO BE NOTICED

Lauren Estelle Whittemore (See above for address) ATTORNEY TO BE NOTICED

Amicus Equality California

represented by Stephen V. Bomse Orrick Herrington & Sutcliffe The Orrick Building 405 Howard Street San Francisco, CA 94105 (415)773−5700 Email: sbomse@orrick.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

James J. Brosnahan Morrison & Foerster LLP 425 Market Street San Francisco, CA 94105 415−268−7000 Email: jbrosnahan@mofo.com ATTORNEY TO BE NOTICED

Lauren Estelle Whittemore (See above for address) ATTORNEY TO BE NOTICED

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 22 of 90

Amicus National Center for Lesbian Rights
Amicus Most Rev. Dr. Mark S. Shirlau Amicus The Family Research Council

Leslie A Kramer Fenwick & West LLP 555 California Street, 12th Floor San Francisco, CA 94104 415−875−2300 Fax: 415−281−1350 Email: lesliekramer2233@gmail.com ATTORNEY TO BE NOTICED
Tobias Barrington Wolff University of Pennsylvania Law School 3400 Chestnut Street Philadelphia, PA 19104−6204 (215) 898−7471 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Shannon Minter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Francis Stoll National Center for Lesbian Rights 870 Market St, Suite 370 San Francisco, CA 94102 415−392−6257 Email: cstoll@nclrights.org ATTORNEY TO BE NOTICED
Ilona Margaret Turner National Ctr for Lesbian Rights 870 Market St, Ste 370 San Francisco, CA 94102 415−392−6257 Email: iturner@nclrights.org ATTORNEY TO BE NOTICED
represented by Christopher M. Gacek Family Research Council 801 G Street NW Washington, DC 20001 (202) 393−2100 PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick John Gorman Wild, Carter & Tipton 246 West Shaw Avenue Fresno, CA 93704 559−224−2131 Email: pgorman@wctlaw.com ATTORNEY TO BE NOTICED
Paul Benjamin Linton 921 Keystone Avenue Northbrook, IL 60062

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 23 of 90

(847) 291−3848 PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas Brejcha Thomas More Society 29 S. La Salle, Ste 440 Chicago, IL 60603 (312) 782−1680 PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus
American College of Pediatricians 212 9th Street, Suite 208 Oakland, CA 94607 510−834−7232

represented by Kevin Trent Snider Pacific Justice Institute P.O. Box 276600 Sacramento, CA 95827 916−857−6900 Fax: 916−857−6902 Email: kevinsnider@pacificjustice.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus The Becket Fund for Religious Liberty

represented by Angela Christine Thompson P.O. Box 163461 Sacramento, CA 95816−9461 916−642−6534 Email: angelathompsonesq@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin James Hasson 1350 Connecticut Ave, Ste 605 NW Washington, DC 20036−1735 (202) 955−0095 PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus M.D. Paul R. McHugh

represented by Christopher James Schweickert 1470 Maria Lane, Suite 300 Walnut Creek, CA 94596 925−788−1672 Email: cjs@wcjuris.com ATTORNEY TO BE NOTICED

Amicus National Legal Foundation

represented by Holly L Carmichael 5096 Selinda Way Los Gatos, CA 95032 408−838−1212 Email: holly.l.carmichael@gmail.com ATTORNEY TO BE NOTICED

Amicus
Ethics and Religious Liberty Commission of the Southern Baptist Convention

represented by David L. Llewellyn , Jr. Llewellyn Spann, Attorneys at Law 5530 Birdcage Street, Ste 210 Citrus Heights, CA 95610 916−966−9036 Email: DLlewellyn@LS4law.com

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 24 of 90

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Institute for Marriage and Public Policy J. Hector Moreno, Jr. 51 E. Campbell Avenue, Suite 128 Campbell, CA

represented by Jose Hector Moreno , Jr. The Law Firm of J. Hector Moreno, Jr. & Associates 51 E. Campbell Ave, Ste 128 Campbell, CA 95008 408−370−6160 Email: jhmoreno@jhmlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Bay Area Lawyers for Individual Freedom

represented by Jerome Cary Roth Munger Tolles & Olson LLP 560 Mission Street 27th Floor San Francisco, CA 94105−2907 415−512−4000 Fax: 415−512−4077 Email: Jerome.Roth@mto.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joren Surya Bass Perkins Coie LLP 4 Embarcadero Center Ste. 2400 San Francisco, CA 94111 415−344−7120 Fax: 415−344−7320 Email: jbass@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark R. Conrad Munger Tolles & Olson LLP 560 Mission Street, 27th Floor San Francisco, CA 94105−2907 415−512−4064 Email: Mark.Conrad@mto.com ATTORNEY TO BE NOTICED

Amicus Mr. Michael James McDermott

represented by Michael James McDermott 7172 Regional #329 Dublin, CA 94568 PRO SE

Michael James McDermott 7172 Regional St #329 Dublin, CA 94568 925−548−3446 Email: mjm1usa@aol.com ATTORNEY TO BE NOTICED

Amicus The Progressive Project

represented by Steven Edward Mitchel Attorney at Law 912 Cole Street

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 25 of 90

#320 San Francisco, CA 94117 415−350−1676 Email: stemitchel@gmail.com ATTORNEY TO BE NOTICED

Amicus American Anthropological Association

represented by John Douglas Freed Covington & Burling LLP One Front St 35th Floor San Francisco, CA 94111 415−591−6000 Fax: 415−591−6091 Email: jakefreed@dwt.com ATTORNEY TO BE NOTICED

Amicus American Psychoanalytic Association

represented by John Douglas Freed (See above for address) ATTORNEY TO BE NOTICED

Amicus
The National Association of Social Workers

represented by John Douglas Freed (See above for address) ATTORNEY TO BE NOTICED

Amicus
National Association of Social Workers, California

represented by John Douglas Freed (See above for address) ATTORNEY TO BE NOTICED

Amicus
American Academy of Pediatrics, California

represented by John Douglas Freed (See above for address) ATTORNEY TO BE NOTICED

Amicus
Donald B. King Amicus Curiae for Plaintiffs

represented by Diana E Richmond Sideman & Bancroft LLP 1 Embarcadero Ctr 8FL San Francisco, CA 94111 415−392−1960 Email: drichmond@sideman.com ATTORNEY TO BE NOTICED

Louis P. Feuchtbaum Sideman & Bancroft One Embarcadero Center 8th Floor San Francisco, CA 94131 415−392−1960 Fax: 415−392−0827 Email: lfeuchtbaum@sideman.com ATTORNEY TO BE NOTICED

Amicus
Unitarian Universalist Legislative Ministry California, et al.

represented by Eric Alan Isaacson Robbins Geller Rudman & Dowd LLP 655 West Broadway Suite 1900

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 26 of 90

San Diego, CA 92101 (619) 231−1058 Email: erici@rgrdlaw.com ATTORNEY TO BE NOTICED

Amicus
American Association for Marriage & Family Therapy, California Division

represented by Kelly Wayne Kay Law Offices of W. Ruel Walker 6116 Taft St. Oakland, CA 94618 510−543−3022 Email: oakkelly@yahoo.com ATTORNEY TO BE NOTICED

Amicus
National Gay and Lesbian Task Force Foundation

represented by Susan Marie Popik Chapman Popik & White LLP 650 California Street, 19th floor San Francisco, CA 94108 415−352−3000 Email: spopik@chapop.com ATTORNEY TO BE NOTICED

Suzanne B. Goldberg Sexuality & Gender Law Clinic 435 W. 116th Street New York, NY 10025 (212) 854−0411 PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Asian Law Caucus

represented by Peter Obstler Arnold & Porter LLP Three Embarcadero Center, 10th Floor San Francisco, CA 94111 415−471−3100 Fax: 415−471−3400 Email: peter.obstler@aporter.com ATTORNEY TO BE NOTICED

Amicus
ASIAN AMERICAN JUSTICE CENTER

represented by Peter Obstler (See above for address) ATTORNEY TO BE NOTICED

Amicus
ASIAN PACIFIC AMERICAN BAR ASSOCIATION OF LOS ANGELES COUNTY

represented by Peter Obstler (See above for address) ATTORNEY TO BE NOTICED

Amicus
ASIAN PACIFIC AMERICAN LEGAL CENTER

represented by Peter Obstler (See above for address) ATTORNEY TO BE NOTICED

Amicus
ASIAN PACIFIC BAR ASSOCIATION OF SILICON VALLEY

represented by Peter Obstler (See above for address) ATTORNEY TO BE NOTICED

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 27 of 90

Amicus Asian Pacific Islander Legal Outreach
Amicus Bienestar Human Services
Amicus California State Conference of the NAACP
Amicus Coalition for Humane Immigrant Rights
Amicus Japanese American Bar Association
Amicus La Raza Centro Legal
Amicus Mexican American Legal Defense And Education Fund
Amicus National Black Justice Coalition
Amicus South Asian Bar Association of Northern California
Amicus Zuna Institute
Amicus Michael Wolf

represented by Peter Obstler (See above for address) ATTORNEY TO BE NOTICED
represented by Peter Obstler (See above for address) ATTORNEY TO BE NOTICED
represented by Peter Obstler (See above for address) ATTORNEY TO BE NOTICED
represented by Peter Obstler (See above for address) ATTORNEY TO BE NOTICED
represented by Peter Obstler (See above for address) ATTORNEY TO BE NOTICED
represented by Peter Obstler (See above for address) ATTORNEY TO BE NOTICED
represented by Peter Obstler (See above for address) ATTORNEY TO BE NOTICED
represented by Peter Obstler (See above for address) ATTORNEY TO BE NOTICED
represented by Peter Obstler (See above for address) ATTORNEY TO BE NOTICED
represented by Peter Obstler (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Wolf P.O. Box 52 Colfax, WA 99111−0052 208−596−8401 Email: mwolf@nethere.com PRO SE

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 28 of 90

Amicus California Professors of Family Law
Amicus Lambda Legal Defense and Education Fund, Inc.
Amicus The Bar Association of San Francisco

represented by Herma Hill Kay Berkeley School of Law University of California Berkeley, CA 94720 510−643−2671 Email: hkay@law.berkeley.edu ATTORNEY TO BE NOTICED
Michael Stuart Wald Stanford Law School 559 Nathan Abbott Way Stanford, CA 94305 650−723−0322 Email: mwald@stanford.edu ATTORNEY TO BE NOTICED
represented by Peter C Renn Lambda Legal Defense and Education Fund 3255 Wilshire Boulevard, Suite 1300 Los Angeles, CA 90010 213−382−7600 Fax: 213−351−6050 Email: prenn@lambdalegal.org ATTORNEY TO BE NOTICED
represented by David M. Balabanian Bingham McCutchen LLP Three Embarcadero Center San Francisco, CA 94111−4067 (415) 393−2000 Fax: (415) 393−2286 Email: david.balabanian@bingham.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Miscellaneous Honorable Vaughn R. Walker

represented by Ephraim Margolin Law Offices of Ephraim Margolin 240 Stockton Street 4th Floor San Francisco, CA 94108 415−421−4347 Fax: 415−397−9801 Email: ephraim_margolin@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Witness
James L Garlow Non−Party James L. Garlow

represented by Brian Ricardo Chavez−Ochoa Attorney at Law 4 Jean St #4 Valley Springs, CA 95252

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 29 of 90

(209) 772−3013 Fax: (209) 772−3090 Email: chavezochoa@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vincent P. McCarthy W. Chestnut Hill Road Lichfield, CT 06759 (860) 567−9485 PRO HAC VICE ATTORNEY TO BE NOTICED

Witness
Miles McPherson Non−Party Miles McPherson

represented by Brian Ricardo Chavez−Ochoa 4 Jean St #4 Valley Springs, CA 95252 (209) 772−3013 Email: chavezochoa@yahoo.com ATTORNEY TO BE NOTICED

Vincent P. McCarthy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 05/22/2009
05/22/2009 05/22/2009 05/22/2009 05/22/2009 05/22/2009 05/22/2009 05/26/2009

# Docket Text
1 COMPLAINT for Declaratory, Injunctive or other Relief − [Summons Issued] against Arnold Schwarzenegger, Edmund G. Brown, Jr, Mark B. Horton, Linette Scott, Patrick O'Connell & Dean C. Logan, [Filing Fee: $350.00, Receipt Number 34611032459] Filed by Plaintiffs Sandra B. Stier, Kristin M. Perry, Paul T. Katami & Jeffrey J. Zarrillo. (tn, COURT STAFF) (Filed on 5/22/2009) (tn, COURT STAFF). (Additional attachment(s) added on 5/26/2009: # 1 Complaint) (tn, COURT STAFF). (Entered: 05/26/2009)
2 SUMMONS Issued as to Defendants Arnold Schwarzenegger, Edmund G. Brown, Jr, Mark B. Horton, Linette Scott, Patrick O'Connell & Dean C. Logan. (tn, COURT STAFF) (Filed on 5/22/2009) (tn, COURT STAFF). (Entered: 05/26/2009)
3 ADR SCHEDULING ORDER: Joint Case Management Statement due 8/27/2009 & InitialCase Management Conference set for 9/3/2009 at 3:30 PM.. (tn, COURT STAFF) (Filed on 5/22/2009) (tn, COURT STAFF). (Entered: 05/26/2009)
4 CERTIFICATION of Interested Entities or Persons Filed by Plaintiffs Sandra B. Stier, Kristin M. Perry, Paul T. Katami & Jeffrey J. Zarrillo. (tn, COURT STAFF) (Filed on 5/22/2009) (tn, COURT STAFF). (Entered: 05/26/2009)
5 APPLICATION of Attorney Matthew D. McGill for Leave to Appear in Pro Hac Vice −[Filing Fee: $210.00, Receipt Number 34611032460] Filed by Plaintiffs Sandra B. Stier, Kristin M. Perry, Paul T. Katami & Jeffrey J. Zarrillo. (tn, COURT STAFF) (Filed on 5/22/2009) (tn, COURT STAFF). (Entered: 05/26/2009)
6 [Proposed] Order Granting re 5 Application for Admission of AttorneyPro Hac Vice Submitted by Plaintiffs Sandra B. Stier, Kristin M. Perry, Paul T. Katami & Jeffrey J. Zarrillo. (tn, COURT STAFF) (Filed on 5/22/2009) (tn, COURT STAFF). (Entered: 05/26/2009)
CASE DESIGNATED for Electronic Filing. (tn, COURT STAFF) (Entered: 05/26/2009)
18 MOTION of David Boies for leave to appear in Pro Hac Vice ( Filing fee $ 210, receipt number 34611032473.) filed by Sandra B. Stier, Kristin M. Perry, Paul T. Katami, Jeffrey J. Zarrillo. (rcs, COURT STAFF) (Filed on 5/26/2009) (gsa, COURT STAFF). (Entered: 05/29/2009)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 30 of 90

05/27/2009
05/28/2009
05/28/2009 05/28/2009 05/29/2009 05/29/2009 05/29/2009 05/29/2009 05/29/2009 05/29/2009 05/29/2009 06/01/2009 06/01/2009

7 MOTION for Preliminary Injunction filed by Sandra B. Stier, Kristin M. Perry, Paul T. Katami, Jeffrey J. Zarrillo. Motion Hearing set for 7/2/2009 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Attachments: # 1 Affidavit Katami Declaration, # 2 Affidavit Perry Declaration, # 3 Affidavit Stier Declaration, # 4 Affidavit Zarrillo Declaration, # 5 Proposed Order Granting Preliminary Injunction)(Boutrous, Theodore) (Filed on 5/27/2009) (Entered: 05/27/2009)
8 MOTION to Intervene filed by Proposition 8 Official Proponents, Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Hak−Shing William Tam, Mark A. Jansson, ProtectMarriage.com − Yes on 8, A Project of California Renewal. Motion Hearing set for 7/2/2009 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Proposed Order, # 16 Certificate of Service)(Chandler, Timothy) (Filed on 5/28/2009) (Entered: 05/28/2009)
9 Proposed Intervenors' ANSWER to Complaint byDennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Hak−Shing William Tam, Mark A. Jansson, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Attachments: # 1 Certificate of Service)(Chandler, Timothy) (Filed on 5/28/2009) (Entered: 05/28/2009)
10 Certificate of Interested Entities by Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Hak−Shing William Tam, Mark A. Jansson, ProtectMarriage.com − Yes on 8, A Project of California Renewal (Attachments: # 1 Certificate of Service)(Chandler, Timothy) (Filed on 5/28/2009) (Entered: 05/28/2009)
11 CERTIFICATE OF SERVICE by Sandra B. Stier, Kristin M. Perry, Paul T. Katami, Jeffrey J. Zarrillo OF SUMMONS, COMPLAINT, MOTION FOR PRELIMINARY INJUNCTION, etc., ON EDMUND G. BROWN (Dettmer, Ethan) (Filed on 5/29/2009) (Entered: 05/29/2009)
12 CERTIFICATE OF SERVICE by Sandra B. Stier, Kristin M. Perry, Paul T. Katami, Jeffrey J. Zarrillo OF SUMMONS, COMPLAINT, MOTION FOR PRELIMINARY INJUNCTION, etc., ON PATRICK O'CONNELL (Dettmer, Ethan) (Filed on 5/29/2009) (Entered: 05/29/2009)
13 CERTIFICATE OF SERVICE by Sandra B. Stier, Kristin M. Perry, Paul T. Katami, Jeffrey J. Zarrillo OF SUMMONS, COMPLAINT, MOTION FOR PRELIMINARY INJUNCTION, etc., ON ARNOLD SCHWARZENEGGER (Dettmer, Ethan) (Filed on 5/29/2009) (Entered: 05/29/2009)
14 CERTIFICATE OF SERVICE by Sandra B. Stier, Kristin M. Perry, Paul T. Katami, Jeffrey J. Zarrillo OF SUMMONS, COMPLAINT, MOTION FOR PRELIMINARY INJUNCTION, etc., ON MARK B. HORTON (Dettmer, Ethan) (Filed on 5/29/2009) (Entered: 05/29/2009)
15 CERTIFICATE OF SERVICE by Sandra B. Stier, Kristin M. Perry, Paul T. Katami, Jeffrey J. Zarrillo OF SUMMONS, COMPLAINT, MOTION FOR PRELIMINARY INJUNCTION, etc., ON LINETTE SCOTT (Dettmer, Ethan) (Filed on 5/29/2009) (Entered: 05/29/2009)
16 CERTIFICATE OF SERVICE by Sandra B. Stier, Kristin M. Perry, Paul T. Katami, Jeffrey J. Zarrillo OF SUMMONS, COMPLAINT, MOTION FOR PRELIMINARY INJUNCTION, etc., ON DEAN C. LOGAN (Dettmer, Ethan) (Filed on 5/29/2009) (Entered: 05/29/2009)
17 ORDER by Chief Judge Vaughn R Walker granting doc 5 Motion Application for Admission of Attorney Matthew McGill Pro Hac Vice representing the Plaintiffs. (cgk, COURT STAFF) (Filed on 5/29/2009) (Entered: 05/29/2009)
19 ORDER by Judge Vaughn R Walker granting 18 Motion Application for Admission of Attorney David Boies Pro Hac Vice representing Plaintiffs. (cgk, COURT STAFF) (Filed on 6/1/2009) (Entered: 06/01/2009)
20 MOTION for leave to appear in Pro Hac Vice − James A. Campbell ( Filing fee $ 210, receipt number 34611032700.). (gsa, COURT STAFF) (Filed on 6/1/2009) (Entered: 06/05/2009)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 31 of 90

06/01/2009 06/01/2009 06/01/2009 06/09/2009 06/09/2009 06/09/2009 06/11/2009 06/11/2009 06/11/2009 06/11/2009
06/11/2009
06/11/2009 06/11/2009 06/11/2009 06/11/2009
06/11/2009

21 Proposed Order re 20 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 210, receipt number 34611032700.). (gsa, COURT STAFF) (Filed on 6/1/2009) (Entered: 06/05/2009)
22 MOTION for leave to appear in Pro Hac Vice − Brian W. Raum ( Filing fee $ 210, receipt number 34611032701.). (gsa, COURT STAFF) (Filed on 6/1/2009) (Entered: 06/05/2009)
23 Proposed Order re 22 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 210, receipt number 34611032701.). (gsa, COURT STAFF) (Filed on 6/1/2009) (Entered: 06/05/2009)
24 ORDER by Chief Judge Vaughn R Walker granting 20 Motion Application for Admission of Attorney James A Campbell Pro Hac Vice representing Proposed Intervenors. (cgk, COURT STAFF) (Filed on 6/9/2009) (Entered: 06/09/2009)
25 ORDER by Chief Judge Vaughn R Walker granting 22 Motion Application for Admission of Attorney Brian W Raum Pro Hac Vice representing Proposed Intervenors. (cgk, COURT STAFF) (Filed on 6/9/2009) (Entered: 06/09/2009)
26 Letter from Bill Plummer to the Honorable Judge Walker regarding Alliance Defense Fund hearing 7/2/2009. (gsa, COURT STAFF) (Filed on 6/9/2009) (Entered: 06/10/2009)
27 Statement of No Position to the 7 Motion for Preliminary Injunction by Dean C. Logan. (Whitehurst, Judy) (Filed on 6/11/2009) Modified on 6/15/2009 (slh, COURT STAFF). (Entered: 06/11/2009)
28 Statement of No Position to 8 Motion to Intervene by Dean C. Logan. (Whitehurst, Judy) (Filed on 6/11/2009) Modified on 6/15/2009 (slh, COURT STAFF). (Entered: 06/11/2009)
29 Certificate of Interested Entities by Dean C. Logan (Whitehurst, Judy) (Filed on 6/11/2009) (Entered: 06/11/2009)
30 RESPONSE in Support re 7 MOTION for Preliminary Injunction Defendant Patrick O'Connell's Statement of Non−Opposition to Plaintiffs' Motion for a Preliminary Injunction and Certificate of Service filed byPatrick O'Connell. (Attachments: # 1 Certificate of Service)(Kolm, Claude) (Filed on 6/11/2009) (Entered: 06/11/2009)
31 Statement of Non−Opposition to Proposed Intervenors' 8 Motion to Intervene by Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Olson, Theodore) (Filed on 6/11/2009) Modified on 6/15/2009 (slh, COURT STAFF). (Entered: 06/11/2009)
32 Statement of Non−Opposition re 8 MOTION to Intervene filed byMark B. Horton, Arnold Schwarzenegger, Linette Scott. (Related document(s) 8 ) (Mennemeier, Kenneth) (Filed on 6/11/2009) (Entered: 06/11/2009)
33 Memorandum in Opposition re 7 MOTION for Preliminary Injunction filed byMark B. Horton, Arnold Schwarzenegger, Linette Scott. (Mennemeier, Kenneth) (Filed on 6/11/2009) (Entered: 06/11/2009)
34 MEMORANDUM in Opposition Attorney General's Opposition to Plaintiffs' 7 Motion for Preliminary Injunction filed by Edmund G. Brown, Jr. (Pachter, Tamar) (Filed on 6/11/2009) Modified on 6/15/2009 (slh, COURT STAFF). (Entered: 06/11/2009)
35 Statement of Non−Opposition Defendant's Notice of Non−Opposition to Proposed Intervenors' 8 Motion to Intervene filed by Edmund G. Brown, Jr. (Pachter, Tamar) (Filed on 6/11/2009) Modified on 6/15/2009 (slh, COURT STAFF). (Entered: 06/11/2009)
36 Memorandum in Opposition re 7 MOTION for Preliminary Injunction filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Proposed Order, # 8 Certificate of Service)(Raum, Brian) (Filed on 6/11/2009) (Entered: 06/11/2009)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 32 of 90

06/12/2009 06/12/2009 06/12/2009 06/15/2009 06/15/2009 06/15/2009
06/15/2009
06/16/2009 06/16/2009 06/16/2009 06/17/2009 06/17/2009 06/17/2009 06/18/2009 06/18/2009 06/18/2009 06/18/2009 06/18/2009

37 Statement of Non−Opposition To 8 Proposed Intervenors' Motion to Intervene filed byPatrick O'Connell. (Kolm, Claude) (Filed on 6/12/2009) Modified on 6/15/2009 (gsa, COURT STAFF). (Entered: 06/12/2009)
38 CERTIFICATE OF SERVICE by Patrick O'Connell re 37 Statement of Non−Opposition To Proposed Intervenors' Motion to Intervene (Kolm, Claude) (Filed on 6/12/2009) (Entered: 06/12/2009)
39 ANSWER to Complaint of California Attorney General byEdmund G. Brown, Jr. (Pachter, Tamar) (Filed on 6/12/2009) (Entered: 06/12/2009)
40 CERTIFICATE OF SERVICE by Edmund G. Brown, Jr (Pachter, Tamar) (Filed on 6/15/2009) (Entered: 06/15/2009)
41 ANSWER to Complaint byDean C. Logan. (Whitehurst, Judy) (Filed on 6/15/2009) (Entered: 06/15/2009)
44 MOTION of Austin R. Nimocks for leave to appear in Pro Hac Vice (Filing fee $ 210, receipt number 34611033246) filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, Proposition 8 Official Proponents, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. (Attachments: # 1 Proposed Order)(slh, COURT STAFF) (Filed on 6/15/2009) (Entered: 06/16/2009)
45 MOTION of Jordan W. Lorence for leave to appear in Pro Hac Vice (Filing fee $ 210, receipt number 34611033245) filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, Proposition 8 Official Proponents, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. (Attachments: # 1 Proposed Order)(slh, COURT STAFF) (Filed on 6/15/2009) (Entered: 06/16/2009)
42 ANSWER to Complaint byPatrick O'Connell. (Attachments: # 1 Certificate of Service)(Kolm, Claude) (Filed on 6/16/2009) (Entered: 06/16/2009)
43 CERTIFICATE OF SERVICE by Patrick O'Connell re 30 Response in Support, (Kolm, Claude) (Filed on 6/16/2009) (Entered: 06/16/2009)
46 The Administration's ANSWER to Complaint for Declaratory, Injunctive, or Other Relief byMark B. Horton, Arnold Schwarzenegger, Linette Scott. (Mennemeier, Kenneth) (Filed on 6/16/2009) (Entered: 06/16/2009)
47 Statement of Non−Opposition re Plantiff's 7 MOTION for Preliminary Injunction filed by Patrick O'Connell. (Related document(s) 7 ) (slh, COURT STAFF) (Filed on 6/17/2009) (Entered: 06/17/2009)
48 CERTIFICATE OF SERVICE by Patrick O'Connell re 47 Statement of Non−Opposition. (slh, COURT STAFF) (Filed on 6/17/2009) (Entered: 06/17/2009)
49 CLERKS NOTICE re: Failure to E−File and/or Failure to Register as an E−Filer re 47 , 48 . (slh, COURT STAFF) (Filed on 6/17/2009) (Entered: 06/17/2009)
50 MOTION to File Amicus Curiae Brief filed by City and County of San Francisco. Motion Hearing set for 7/2/2009 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Van Aken, Christine) (Filed on 6/18/2009) (Entered: 06/18/2009)
51 Proposed Order re 50 MOTION to File Amicus Curiae Brief by City and County of San Francisco. (Van Aken, Christine) (Filed on 6/18/2009) (Entered: 06/18/2009)
52 Reply Memorandum re 7 MOTION for Preliminary Injunction filed byPaul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Olson, Theodore) (Filed on 6/18/2009) (Entered: 06/18/2009)
53 Amicus Curiae APPEARANCE entered by Christine Van Aken on behalf of City and County of San Francisco. (Van Aken, Christine) (Filed on 6/18/2009) (Entered: 06/18/2009)
54 Declaration of Mollie M. Lee in Support of 53 Amicus Curiae Appearance filed byCity and County of San Francisco. (Attachments: # 1 Exhibit A − J)(Related document(s) 53 ) (Van Aken, Christine) (Filed on 6/18/2009) (Entered: 06/18/2009)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 33 of 90

06/19/2009
06/19/2009
06/19/2009
06/19/2009
06/23/2009 06/25/2009 06/25/2009 06/25/2009 06/25/2009 06/26/2009 06/26/2009 06/26/2009 06/26/2009 06/26/2009

55 MOTION of Howard C. Nielson, Jr. for leave to appear in Pro Hac Vice (Filing fee $ 210, receipt number 34611033459) filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, Proposition 8 Official Proponents, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. (Attachments: # 1 Proposed Order)(slh, COURT STAFF) (Filed on 6/19/2009) (Entered: 06/22/2009)
56 MOTION of Charles J. Cooper for leave to appear in Pro Hac Vice (Filing fee $ 210, receipt number 34611033456) filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, Proposition 8 Official Proponents, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. (Attachments: # 1 Proposed Order)(slh, COURT STAFF) (Filed on 6/19/2009) (Entered: 06/22/2009)
57 MOTION of David H. Thompson for leave to appear in Pro Hac Vice (Filing fee $ 210, receipt number 34611033457) filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, Proposition 8 Official Proponents, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. (Attachments: # 1 Proposed Order)(slh, COURT STAFF) (Filed on 6/19/2009) (Entered: 06/22/2009)
58 MOTION of Peter A. Patterson for leave to appear in Pro Hac Vice (Filing fee $ 210, receipt number 34611033458) filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, Proposition 8 Official Proponents, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. (Attachments: # 1 Proposed Order)(slh, COURT STAFF) (Filed on 6/19/2009) (Entered: 06/22/2009)
59 MOTION to Appear by Telephone filed by Dean C. Logan. Motion Hearing set for 7/2/2009 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Attachments: # 1 Proposed Order)(Whitehurst, Judy) (Filed on 6/23/2009) (Entered: 06/23/2009)
60 Amicus Curiae APPEARANCE entered by Elizabeth O. Gill on behalf of ACLU Foundation of Northern California. (Attachments: # 1 Proposed Order)(Gill, Elizabeth) (Filed on 6/25/2009) (Entered: 06/25/2009)
61 MOTION to File Amicus Curiae Brief filed by ACLU Foundation of Northern California. Motion Hearing set for 7/2/2009 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Gill, Elizabeth) (Filed on 6/25/2009) (Entered: 06/25/2009)
62 Brief re 61 MOTION to File Amicus Curiae Brief filed byACLU Foundation of Northern California. (Related document(s) 61 ) (Gill, Elizabeth) (Filed on 6/25/2009) (Entered: 06/25/2009)
63 MOTION of Tobias Barrington Wolff for leave to appear in Pro Hac Vice (Filing fee $ 210, receipt number 34611033644) filed by Equality California. (Attachments: # 1 Proposed Order)(slh, COURT STAFF) (Filed on 6/25/2009) (Entered: 06/26/2009)
64 MOTION for Leave to File Brief of Amicus Curiae Equality California filed by Equality California. Motion Hearing set for 7/2/2009 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Brosnahan, James) (Filed on 6/26/2009) (Entered: 06/26/2009)
65 Brief re 64 MOTION for Leave to File Brief of Amicus Curiae Equality California Brief of Amicus Curiae Equality California filed byEquality California. (Related document(s) 64 ) (Brosnahan, James) (Filed on 6/26/2009) (Entered: 06/26/2009)
66 Proposed Order re 64 MOTION for Leave to File Brief of Amicus Curiae Equality California [Proposed] Order Granting Motion for Leave to File Brief of Amicus Curiae Equality California by Equality California. (Brosnahan, James) (Filed on 6/26/2009) (Entered: 06/26/2009)
91 MOTION to Intervene filed by Campaign for California Families. Motion Hearing set for 9/3/2009 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (gsa, COURT STAFF) (Filed on 6/26/2009) (Entered: 07/10/2009)
92 Declaration of Randy Thomasson in Support of 91 MOTION to Intervene filed byCampaign for California Families. (Related document(s) 91 ) (gsa, COURT STAFF) (Filed on 6/26/2009) (Entered: 07/10/2009)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 34 of 90

06/26/2009 06/27/2009 06/27/2009 06/27/2009 06/30/2009 06/30/2009 06/30/2009 06/30/2009 06/30/2009 06/30/2009 06/30/2009 07/02/2009
07/02/2009 07/02/2009 07/08/2009
07/08/2009

93 Proposed Order re 91 MOTION to Intervene by Campaign for California Families. (gsa, COURT STAFF) (Filed on 6/26/2009) (Entered: 07/10/2009)
67 ORDER by Judge Vaughn R Walker granting 50 motion to File Amicus Curiae Brief (vrwlc3, COURT STAFF) (Filed on 6/27/2009) (Entered: 06/27/2009)
68 ORDER by Judge Vaughn R Walker granting 61 motion to File Amicus Curiae Brief (vrwlc3, COURT STAFF) (Filed on 6/27/2009) (Entered: 06/27/2009)
69 ORDER by Judge Vaughn R Walker granting 64 motion for Leave to File (vrwlc3, COURT STAFF) (Filed on 6/27/2009) (Entered: 06/27/2009)
70 ORDER by Judge Vaughn R Walker granting doc 55 Motion Application for Admission of Attorney Howard C Nielson Jr. Pro Hac Vice representing Proposed Intervernors. (cgk, COURT STAFF) (Filed on 6/30/2009) (Entered: 06/30/2009)
71 ORDER by Judge Vaughn R Walker granting doc 56 Motion Application for Admission of Attorney Charles J Cooper Pro Hac Vice representing Proposed Intervenors. (cgk, COURT STAFF) (Filed on 6/30/2009) (Entered: 06/30/2009)
72 ORDER by Judge Vaughn R Walker granting doc 57 Motion Application for Admission of Attorney David H Thompson Pro Hac Vice representing Proposed Intervenors. (cgk, COURT STAFF) (Filed on 6/30/2009) (Entered: 06/30/2009)
73 ORDER by Judge Vaughn R Walker granting doc 58 Motion Application for Admission of Attorney Peter A Patterson Pro Hac Vice representing Proposed Intervenors. (cgk, COURT STAFF) (Filed on 6/30/2009) (Entered: 06/30/2009)
74 ORDER by Judge Vaughn R Walker granting doc 59 Motion to Appear by Telephone. Defendant's counsel may listen to the proceedings at the 7/2/09 hearing. (cgk, COURT STAFF) (Filed on 6/30/2009) (Entered: 06/30/2009)
75 ORDER by Judge Vaughn R Walker granting doc 63 Motion Application for Admission of Attorney Tobias Barrington Wolff Pro Hac Vice representing amicus curiae Equality California. (cgk, COURT STAFF) (Filed on 6/30/2009) (Entered: 06/30/2009)
76 ORDER granting 8 Motion to Intervene, continuing hearing on preliminary injunction in favor of a case management conference on 7/2/2009 at 10AM. (vrwlc1, COURT STAFF) (Filed on 6/30/2009) (Entered: 06/30/2009)
77 Minute Entry: Initial Case Management Conference held on 7/2/2009, Motion Hearing held on 7/2/2009 before Chief Judge Vaughn R Walker re 7 MOTION for Preliminary Injunction filed by Sandra B. Stier, Jeffrey J. Zarrillo, Paul T. Katami, Kristin M. Perry. The Court heard argument from counsel. The parties to submit joint case management statement no later than August 7, 2009.The matter is scheduled for further hearing on August 19, 2009 at 10:00 AM. (Court Reporter Sahar McVickar.) (cgk, COURT STAFF) (Date Filed: 7/2/2009) (Entered: 07/06/2009)
Set/Reset Hearings: Further Case Management Conference set for 8/19/2009 10:00 AM. (cgk, COURT STAFF) (Filed on 7/2/2009) (Entered: 07/06/2009)
101 Letter from Citizen X (anonymous voter) to Chief Judge Vaughn Walker dated 6/22/2009. (gsa, COURT STAFF) (Filed on 7/2/2009) (Entered: 07/13/2009)
78 Transcript of Proceedings held on 07/02/09, before Judge Vaughn R. Walker. Court Reporter/Transcriber Sahar McVickar, Telephone number (415) 626−6060/sahar_mcvickar@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 10/5/2009. (McVickar, Sahar) (Filed on 7/8/2009) (Entered: 07/08/2009)
79 MOTION to Intervene filed by ACLU Foundation of Northern California. Motion Hearing set for 9/3/2009 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Gill, Elizabeth) (Filed on 7/8/2009) (Entered: 07/08/2009)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 35 of 90

07/08/2009
07/08/2009 07/08/2009 07/08/2009 07/08/2009 07/08/2009 07/08/2009 07/09/2009 07/09/2009 07/10/2009
07/10/2009
07/10/2009 07/10/2009 07/10/2009 07/10/2009 07/10/2009 07/13/2009 07/13/2009

80 Declaration of Elizabeth Gill in Support of 79 MOTION to Intervene filed byACLU Foundation of Northern California. (Attachments: # 1 Exhibit Complaint in Intervention)(Related document(s) 79 ) (Gill, Elizabeth) (Filed on 7/8/2009) (Entered: 07/08/2009)
81 Declaration of Judith K. Appel in Support of 79 MOTION to Intervene filed byACLU Foundation of Northern California. (Related document(s) 79 ) (Gill, Elizabeth) (Filed on 7/8/2009) (Entered: 07/08/2009)
82 Declaration in Support of 79 MOTION to Intervene filed byACLU Foundation of Northern California. (Related document(s) 79 ) (Gill, Elizabeth) (Filed on 7/8/2009) (Entered: 07/08/2009)
83 Declaration of Jody Huckaby filed byACLU Foundation of Northern California. (Gill, Elizabeth) (Filed on 7/8/2009) (Entered: 07/08/2009)
84 Proposed Order re 79 MOTION to Intervene by ACLU Foundation of Northern California. (Gill, Elizabeth) (Filed on 7/8/2009) (Entered: 07/08/2009)
85 MOTION to Shorten Time filed by ACLU Foundation of Northern California. (Gill, Elizabeth) (Filed on 7/8/2009) (Entered: 07/08/2009)
86 Declaration of Elizabeth Gill filed byACLU Foundation of Northern California. (Gill, Elizabeth) (Filed on 7/8/2009) (Entered: 07/08/2009)
87 NOTICE of Appearance by Alan Lawrence Schlosser (Schlosser, Alan) (Filed on 7/9/2009) (Entered: 07/09/2009)
88 MEMORANDUM in Opposition re 85 MOTION to Shorten Time filed byPaul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Related document(s) 85 ) (Olson, Theodore) (Filed on 7/9/2009) (Entered: 07/09/2009)
89 Memorandum in Opposition re 85 MOTION to Shorten Time filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. (Cooper, Charles) (Filed on 7/10/2009) (Entered: 07/10/2009)
90 Declaration of Charles J. Cooper in Support of 89 Memorandum in Opposition, filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. (Related document(s) 89 ) (Cooper, Charles) (Filed on 7/10/2009) (Entered: 07/10/2009)
94 NOTICE of Appearance by Christopher Francis Stoll (Stoll, Christopher) (Filed on 7/10/2009) (Entered: 07/10/2009)
95 Statement of Non−Opposition to Proposed Intervenors Our Families Coalition, et al.'s Motion to Intervene and Motion to Shorten Time filed byEdmund G. Brown, Jr. (Pachter, Tamar) (Filed on 7/10/2009) (Entered: 07/10/2009)
96 NOTICE of Appearance by Shannon Minter (Minter, Shannon) (Filed on 7/10/2009) (Entered: 07/10/2009)
97 NOTICE of Appearance by Ilona Margaret Turner (Turner, Ilona) (Filed on 7/10/2009) (Entered: 07/10/2009)
98 NOTICE of Change In Counsel by Gordon Bruce Burns (Attachments: # 1 Certificate of Service)(Burns, Gordon) (Filed on 7/10/2009) (Entered: 07/10/2009)
99 NOTICE by Edmund G. Brown, Jr re 98 Notice of Change In Counsel Certificate of Service (Burns, Gordon) (Filed on 7/13/2009) (Entered: 07/13/2009)
100 Statement of Non−Opposition re 85 MOTION to Shorten Time Defendant Patrick O'Connell's Statement of Non−Opposition to Motion to Shorten Time and Motion to Intervene Filed by Our Family Coalition, Lavender Seniors of the East Bay, and Parents, Friends, and Families of Lesbians and Gays filed byPatrick O'Connell. (Attachments: # 1 Certificate of Service)(Related document(s) 85 ) (Kolm, Claude) (Filed on 7/13/2009) (Entered: 07/13/2009)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 36 of 90

07/13/2009 07/13/2009 07/13/2009 07/13/2009 07/14/2009 07/14/2009 07/21/2009 07/21/2009 07/23/2009 07/23/2009
07/23/2009
07/23/2009 07/24/2009 07/24/2009 07/28/2009 07/28/2009

102 NOTICE of Appearance by James Dixon Esseks (Esseks, James) (Filed on 7/13/2009) (Entered: 07/13/2009)
103 NOTICE of Appearance by Matthew Albert Coles (Coles, Matthew) (Filed on 7/13/2009) (Entered: 07/13/2009)
104 ORDER re motions to intervene. (vrwlc1, COURT STAFF) (Filed on 7/13/2009) (Entered: 07/13/2009)
NOTICE of Hearing on Motion. Motion Hearing re Docs #79 and 91 set for 8/19/2009 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (cgk, COURT STAFF) (Filed on 7/13/2009) (Entered: 07/14/2009)
105 ORDER by Judge Vaughn R Walker granting doc 44 Motion Application for Admission of Attorney Austin R. Nimocks Pro Hac Vice representing proposed intervenors. (cgk, COURT STAFF) (Filed on 7/14/2009) (Entered: 07/14/2009)
106 ORDER by Judge Vaughn R Walker granting doc 45 Motion Application for Admission of Attorney Jordan W. Lorence Pro Hac Vice representing proposed intervenors. (cgk, COURT STAFF) (Filed on 7/14/2009) (Entered: 07/14/2009)
107 NOTICE of Appearance by Jennifer Carol Pizer (Pizer, Jennifer) (Filed on 7/21/2009) (Entered: 07/21/2009)
108 NOTICE of Appearance by Jon Warren Davidson (Davidson, Jon) (Filed on 7/21/2009) (Entered: 07/21/2009)
109 MOTION to Intervene Notice of Motion and Motion to Intervene as Party Plaintiff; Memorandum of Points and Authorities filed by City and County of San Francisco. Motion Hearing set for 8/19/2009 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Bernstein, Erin) (Filed on 7/23/2009) (Entered: 07/23/2009)
110 Declaration of Erin Bernstein in Support of 109 MOTION to Intervene Notice of Motion and Motion to Intervene as Party Plaintiff; Memorandum of Points and Authorities Declaration of Erin Bernstein regarding Electronic Signatures on Documents Filed in Support of Motion to Intervene as Party Plaintiff filed byCity and County of San Francisco. (Related document(s) 109 ) (Bernstein, Erin) (Filed on 7/23/2009) (Entered: 07/23/2009)
111 Declaration of Therese M. Stewart in Support of 109 MOTION to Intervene Notice of Motion and Motion to Intervene as Party Plaintiff; Memorandum of Points and Authorities filed byCity and County of San Francisco. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6, # 7 Exhibit Exhibit 7, # 8 Exhibit Exhibit 8A, # 9 Exhibit Exhibit 8B, # 10 Exhibit Exhibit 9, # 11 Exhibit Exhibit 10A, # 12 Exhibit Exhibit 10B, # 13 Exhibit Exhibit 11, # 14 Exhibit Exhibit 12A, # 15 Exhibit Exhibit 12B, # 16 Exhibit Exhibit 13, # 17 Exhibit Exhibit 14A, # 18 Exhibit Exhibit 14B, # 19 Exhibit Exhibit 15, # 20 Exhibit Exhibit 16A, # 21 Exhibit Exhibit 16B, # 22 Exhibit Exhibit 17, # 23 Exhibit Exhibit 18)(Related document(s) 109 ) (Bernstein, Erin) (Filed on 7/23/2009) (Entered: 07/23/2009)
112 Proposed Order re 109 MOTION to Intervene Notice of Motion and Motion to Intervene as Party Plaintiff; Memorandum of Points and Authorities [Proposed] Order Granting Motion to Intervene by City and County of San Francisco. (Bernstein, Erin) (Filed on 7/23/2009) (Entered: 07/23/2009)
128 MOTION to File Amicus Curiae Brief filed by Mark S. Shirlau. (gsa, COURT STAFF) (Filed on 7/24/2009) (Entered: 08/07/2009)
129 Brief re 128 MOTION to File Amicus Curiae Brief filed byMark S. Shirlau. (Attachments: # 1 2nd half of brief)(Related document(s) 128 ) (gsa, COURT STAFF) (Filed on 7/24/2009) (Entered: 08/07/2009)
113 Statement of Non−Opposition re 79 MOTION to Intervene filed byMark B. Horton, Arnold Schwarzenegger, Linette Scott. (Related document(s) 79 ) (Mennemeier, Kenneth) (Filed on 7/28/2009) (Entered: 07/28/2009)
114 Statement of Non−Opposition re 91 MOTION to Intervene filed byMark B. Horton, Arnold Schwarzenegger, Linette Scott. (Related document(s) 91 ) (Mennemeier,

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 37 of 90

07/28/2009 07/28/2009
07/28/2009
07/29/2009
07/29/2009
07/29/2009 07/29/2009 07/29/2009 08/03/2009 08/03/2009 08/03/2009 08/03/2009 08/03/2009 08/07/2009

Kenneth) (Filed on 7/28/2009) (Entered: 07/28/2009)
115 Statement of Non−Opposition re 109 MOTION to Intervene Notice of Motion and Motion to Intervene as Party Plaintiff; Memorandum of Points and Authorities filed byMark B. Horton, Arnold Schwarzenegger, Linette Scott. (Related document(s) 109 ) (Mennemeier, Kenneth) (Filed on 7/28/2009) (Entered: 07/28/2009)
116 Statement of Non−Opposition re 91 MOTION to Intervene Defendant Patrick O'Connell's Statement of Non−Opposition to Motion to Intervene Filed by Campaign for California Families filed byPatrick O'Connell. (Attachments: # 1 Certificate of Service)(Related document(s) 91 ) (Kolm, Claude) (Filed on 7/28/2009) (Entered: 07/28/2009)
117 Statement of Non−Opposition re 109 MOTION to Intervene Notice of Motion and Motion to Intervene as Party Plaintiff; Memorandum of Points and Authorities Defendant Patrick O'Connell's Statement of Non−Opposition to Motion to Intervene Filed by the City and County of San Francisco filed byPatrick O'Connell. (Attachments: # 1 Certificate of Service)(Related document(s) 109 ) (Kolm, Claude) (Filed on 7/28/2009) (Entered: 07/28/2009)
118 *** FILED IN ERROR. PLEASE SEE DOCKET # 121 . *** MOTION to Intervene OF THE CITY AND COUNTY OF SAN FRANCISCO filed by Edmund G. Brown, Jr. Motion Hearing set for 8/19/2009 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Pachter, Tamar) (Filed on 7/29/2009) Modified on 7/29/2009 (feriab, COURT STAFF). Modified on 7/30/2009 (ewn, COURT STAFF). (Entered: 07/29/2009)
119 *** FILED IN ERROR. PLEASE SEE DOCKET # 122 . *** MOTION to Intervene OF CAMPAIGN FOR CALIFORNIA FAMILIES filed by Edmund G. Brown, Jr. Motion Hearing set for 8/19/2009 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Pachter, Tamar) (Filed on 7/29/2009) Modified on 7/29/2009 (feriab, COURT STAFF). Modified on 7/30/2009 (ewn, COURT STAFF). (Entered: 07/29/2009)
120 CERTIFICATE OF SERVICE by Edmund G. Brown, Jr (Pachter, Tamar) (Filed on 7/29/2009) (Entered: 07/29/2009)
121 Statement of Non−Opposition re 109 MOTION to Intervene Notice of Motion and Motion to Intervene as Party Plaintiff; Memorandum of Points and Authorities filed byEdmund G. Brown, Jr. (Related document(s) 109 ) (Pachter, Tamar) (Filed on 7/29/2009) (Entered: 07/29/2009)
122 Statement of Non−Opposition re 91 MOTION to Intervene filed byEdmund G. Brown, Jr. (Related document(s) 91 ) (Pachter, Tamar) (Filed on 7/29/2009) (Entered: 07/29/2009)
123 Statement re 79 MOTION to Intervene Statement of No Position by Dean C. Logan. (Whitehurst, Judy) (Filed on 8/3/2009) (Entered: 08/03/2009)
124 Statement re 109 MOTION to Intervene Notice of Motion and Motion to Intervene as Party Plaintiff; Memorandum of Points and Authorities − Statement of No Position by Dean C. Logan. (Whitehurst, Judy) (Filed on 8/3/2009) (Entered: 08/03/2009)
125 Statement re 91 MOTION to Intervene − Statement of No Position by Dean C. Logan. (Whitehurst, Judy) (Filed on 8/3/2009) (Entered: 08/03/2009)
130 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 210, receipt number 34611035060.) filed by Campaign for California Families. (gsa, COURT STAFF) (Filed on 8/3/2009) (Entered: 08/07/2009)
131 Proposed Order − Rena M. Lindecaldsen re 130 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 210, receipt number 34611035060.) by Campaign for California Families. (gsa, COURT STAFF) (Filed on 8/3/2009) (Entered: 08/07/2009)
126 CASE MANAGEMENT STATEMENT Joint Case Management Statement filed by Dean C. Logan and Patrick O'Connell filed by Dean C. Logan. (Whitehurst, Judy) (Filed on 8/7/2009) (Entered: 08/07/2009)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 38 of 90

08/07/2009 08/07/2009 08/07/2009 08/07/2009 08/07/2009 08/07/2009
08/07/2009
08/07/2009
08/07/2009 08/11/2009 08/12/2009 08/12/2009 08/12/2009 08/13/2009

127 CASE MANAGEMENT STATEMENT Case Management Statement of The Attorney General filed by Edmund G. Brown, Jr. (Pachter, Tamar) (Filed on 8/7/2009) (Entered: 08/07/2009)
132 CASE MANAGEMENT STATEMENT filed by Mark B. Horton, Arnold Schwarzenegger, Linette Scott. (Stroud, Andrew) (Filed on 8/7/2009) (Entered: 08/07/2009)
133 NOTICE of Appearance by Tara Lynn Borelli (Borelli, Tara) (Filed on 8/7/2009) (Entered: 08/07/2009)
134 CASE MANAGEMENT STATEMENT filed by Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Olson, Theodore) (Filed on 8/7/2009) (Entered: 08/07/2009)
135 Memorandum in Opposition re 79 MOTION to Intervene, 109 MOTION to Intervene Notice of Motion and Motion to Intervene as Party Plaintiff; Memorandum of Points and Authorities, 91 MOTION to Intervene filed byPaul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Attachments: # 1 Exhibit A)(Olson, Theodore) (Filed on 8/7/2009) (Entered: 08/07/2009)
136 Memorandum in Opposition re 91 MOTION to Intervene filed byEdmund G. Brown, Jr, Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, Proposition 8 Official Proponents, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. (Attachments: # 1 Exhibit Exh. A − Declaration of James A. Campbell, # 2 Exhibit Exh. B − VoteYesMarriage.com Amendment Comparison, # 3 Exhibit Exh. C − Bennet v. Brown, No. S164520, # 4 Exhibit Exh. D − 11/18/08 Letter Brief to the California Supreme Court)(Cooper, Charles) (Filed on 8/7/2009) Modified on 8/10/2009 (gsa, COURT STAFF). Modified on 8/10/2009 (gsa, COURT STAFF). (Entered: 08/07/2009)
137 Memorandum in Opposition re 109 MOTION to Intervene Notice of Motion and Motion to Intervene as Party Plaintiff; Memorandum of Points and Authorities filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, Proposition 8 Official Proponents, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. (Cooper, Charles) (Filed on 8/7/2009) Modified on 8/10/2009 (gsa, COURT STAFF). Modified on 8/10/2009 (gsa, COURT STAFF). (Entered: 08/07/2009)
138 Memorandum in Opposition re 79 MOTION to Intervene filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, Proposition 8 Official Proponents, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. (Cooper, Charles) (Filed on 8/7/2009) Modified on 8/10/2009 (gsa, COURT STAFF). Modified on 8/10/2009 (gsa, COURT STAFF). (Entered: 08/07/2009)
139 Statement of Case Management by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, Proposition 8 Official Proponents, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. (Cooper, Charles) (Filed on 8/7/2009) (Entered: 08/07/2009)
140 ORDER by Judge Vaughn R Walker granting doc 130 Motion Application for Admission of Attorney Rena M Lindevaldsen Pro Hac Vice representing proposed intervenor The Campaign. (cgk, COURT STAFF) (Filed on 8/11/2009) (Entered: 08/11/2009)
141 ORDER to submit joint or separate case management statements not later than August 17, 2009 at noon PDT. (vrwlc1, COURT STAFF) (Filed on 8/12/2009) (Entered: 08/12/2009)
142 NOTICE of Change of Address by Jordan W. Lorence (Lorence, Jordan) (Filed on 8/12/2009) (Entered: 08/12/2009)
143 NOTICE of Change of Address by Austin R. Nimocks (Nimocks, Austin) (Filed on 8/12/2009) (Entered: 08/12/2009)
144 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options and Certificate of Service (Kolm, Claude) (Filed on 8/13/2009) (Entered: 08/13/2009)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 39 of 90

08/13/2009 08/13/2009 08/14/2009 08/14/2009
08/14/2009 08/14/2009 08/17/2009 08/17/2009 08/17/2009 08/17/2009 08/17/2009 08/17/2009
08/17/2009 08/17/2009 08/17/2009
08/18/2009 08/19/2009

145 NOTICE of need for ADR Phone Conference (ADR L.R. 3−5 d) re 144 ADR Certification (ADR L.R. 3−5 b)of discussion of ADR options and Certificate of Service re document 144 ) (Kolm, Claude) (Filed on 8/13/2009) (Entered: 08/13/2009)
146 NOTICE of Appearance by Danny Yeh Chou (Chou, Danny) (Filed on 8/13/2009) (Entered: 08/13/2009)
147 Reply Memorandum re 91 MOTION to Intervene filed byCampaign for California Families. (McAlister, Mary) (Filed on 8/14/2009) (Entered: 08/14/2009)
148 RESPONSE in Support CITY AND COUNTY OF SAN FRANCISCO'S REPLY IN SUPPORT OF ITS MOTION TO INTERVENE AS PARTY PLAINTIFF filed byCity and County of San Francisco. (Chou, Danny) (Filed on 8/14/2009) (Entered: 08/14/2009)
149 RESPONSE in Support of Motion to Intervene filed byACLU Foundation of Northern California. (Gill, Elizabeth) (Filed on 8/14/2009) (Entered: 08/14/2009)
150 ASSOCIATION of Counsel Gary G. Kreep by Campaign for California Families. (McAlister, Mary) (Filed on 8/14/2009) (Entered: 08/14/2009)
151 CASE MANAGEMENT STATEMENT filed by Campaign for California Families. (McAlister, Mary) (Filed on 8/17/2009) (Entered: 08/17/2009)
152 CASE MANAGEMENT STATEMENT (Supplemental) filed by Mark B. Horton, Arnold Schwarzenegger, Linette Scott. (Mennemeier, Kenneth) (Filed on 8/17/2009) (Entered: 08/17/2009)
153 CASE MANAGEMENT STATEMENT ATTORNEY GENERAL'S SUPPLEMENTAL CASE MANAGEMENT STATEMENT filed by Edmund G. Brown, Jr. (Attachments: # 1 certificate of service)(Pachter, Tamar) (Filed on 8/17/2009) (Entered: 08/17/2009)
154 AMENDED 7/2/2009 CASE MANAGEMENT CIVIL MINUTE ORDER. (Court Reporter Sahar McVickar.) (cgk, COURT STAFF) (Date Filed: 8/17/2009) (Entered: 08/17/2009)
155 CASE MANAGEMENT STATEMENT (Supplemental) filed by Dean C. Logan. (Whitehurst, Judy) (Filed on 8/17/2009) (Entered: 08/17/2009)
156 CASE MANAGEMENT STATEMENT Supplemental Case Management Statement of Defendant PatrickO'Connell, Clerk−Recorder of Alameda County and Certificate of Service filed by Patrick O'Connell. (Kolm, Claude) (Filed on 8/17/2009) (Entered: 08/17/2009)
157 CASE MANAGEMENT STATEMENT (Supplemental) filed by Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Attachments: # 1 Exhibit A)(Olson, Theodore) (Filed on 8/17/2009) (Entered: 08/17/2009)
158 CASE MANAGEMENT STATEMENT filed by ACLU Foundation of Northern California. (Gill, Elizabeth) (Filed on 8/17/2009) (Entered: 08/17/2009)
159 CASE MANAGEMENT STATEMENT (Supplemental) filed by Dennis Hollingsworth. (Attachments: # 1 Exhibit A −− Proposed Stipulations, # 2 Exhibit B −− Responses to Proposed Stipulations)(Cooper, Charles) (Filed on 8/17/2009) (Entered: 08/17/2009)
163 MOTION for leave to appear in Pro Hac Vice, Mathew D. Staver, Esq., ( Filing fee $ 210, receipt number 346110035676.) filed by Campaign for California Families. (sis, COURT STAFF) (Filed on 8/18/2009) (Entered: 08/24/2009)
160 Minute Entry: Motion Hearing held on 8/19/2009 before Chief Judge Vaughn R Walker. PROCEEDINGS and RESULTS: The Court heard argument from counsels and ruled as follows: 1. Motion to intervene as party plaintiffs filed by the Our Family coalition, Doc #79 − denied. 2.Motion for intervention as intervenor−defendant filed by Campaign for California Families, Doc # 91 − denied. 3. Motion to intervene filed by City and County of San Francisco, Doc #109 − granted in part to allow San Francisco to present issue of alleged effect on governmental interests. 4.Trial setting and scheduling as follows:a). Designation of witnesses presenting evidence under FRE 702, 703 or 705 and production of written reports pursuant to FRCP 26(a)(2)(B):

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 40 of 90

08/19/2009 08/20/2009 08/21/2009
08/24/2009 08/26/2009 08/28/2009 08/28/2009 09/02/2009 09/02/2009
09/02/2009 09/04/2009

October 2, 2009; b). Dispositive motions to be served and filed so as to be heard on October 14, 2009 at 10 AM; c). Completion of all discovery, except for evidence intended solely to contradict or rebut evidence on the same subject matter identified by another party under FRCP 26(a)(2)(B): November 30, 2009; d). Completion of discovery on the same subject matter identified by another party under FRCP 26(a)(2)(B): December 31, 2009; see FRCP 26(a)(2)(C)(ii); e). Pretrial conference: December 16, 2009 at 10 AM; f). Trial: January 11, 2010 at 8:30 AM. 5. With respect to any disputes regarding discovery, counsel are directed to comply with Civ LR 37−1(b) and the court's standing order 1.5. 6. In the absence of the assigned judge, counsel are directed to bring any discovery disputes before Magistrate Judge Joseph C Spero. (Court Reporter Belle Ball.) (cgk, COURT STAFF) (Date Filed: 8/19/2009) (Entered: 08/19/2009)
Set/Reset Hearings: Motion Hearing set for 10/14/2009 10:00 AM in Courtroom 6, 17th Floor, San Francisco. Pretrial Conference set for 12/16/2009 10:00 AM. Trial set for 1/11/2010 08:30 AM in Courtroom 6, 17th Floor, San Francisco. (cgk, COURT STAFF) (Filed on 8/19/2009) (Entered: 08/19/2009)
161 COMPLAINT in Intervention for Declaratory, Injunctive or Other Relief against Edmund G. Brown, Jr, Mark B. Horton, Arnold Schwarzenegger, Linette Scott (Filing fee $ 350.). Filed byCity and County of San Francisco. (Flynn, Ronald) (Filed on 8/20/2009) (Entered: 08/20/2009)
162 Transcript of Proceedings held on August 19, 2009, before Judge Vaughn R. Walker. Court Reporter/Transcriber Belle Ball, CSR, RMR, CRR, Telephone number (415)373−2529, belle_ball@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 11/16/2009. (Ball, Belle) (Filed on 8/21/2009) (Entered: 08/21/2009)
164 PRETRIAL SCHEDULING ORDER. Signed by Judge Vaughn R Walker on 8/21/2009. (cgk, COURT STAFF) (Filed on 8/24/2009) (Entered: 08/24/2009)
168 NOTICE OF APPEAL re 160 Civil Minute Order by Campaign for California Families. Filing fee $ 455.00. Receipt Number 34611035917. (Attachments: # 1 Civil Appeals Docketing Statement, # 2 Representation Statement) (gba, COURT STAFF) (Filed on 8/26/2009) (Entered: 09/02/2009)
165 ANSWER to Complaint byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. (Cooper, Charles) (Filed on 8/28/2009) (Entered: 08/28/2009)
166 ANSWER to Complaint in intervention byEdmund G. Brown, Jr. (Pachter, Tamar) (Filed on 8/28/2009) (Entered: 08/28/2009)
167 STIPULATION to Extend Time for the Administration Defendants to File and Serve Answer to Complaint in Intervention by Mark B. Horton, Arnold Schwarzenegger, Linette Scott. (Mennemeier, Kenneth) (Filed on 9/2/2009) (Entered: 09/02/2009)
171 MOTION for Admission of Attorney Nicole J. Moss Pro Hac Vice (Filing fee $ 210.00, receipt number 34611036190) filed by Campaign for California Families, Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, Lavender Seniors of the East Bay, Our Family Coalition, Parents, Families, and Friends of Lesbians and Gays, Proposition 8 Official Proponents, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. (gba, COURT STAFF) (Filed on 9/2/2009) (Entered: 09/09/2009)
192 ORDER by Judge Vaughn R Walker granting doc 163 Motion Application for Admission of Attorney Mathew D. Staver Pro Hac Vice representing Proposed Intervenor. (cgk, COURT STAFF) (Filed on 9/2/2009) (Entered: 09/21/2009)
169 The Administration's ANSWER to Complaint in Intervention for Declaratory, Injunctive or Other Relief byMark B. Horton, Arnold Schwarzenegger, Linette Scott.

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 41 of 90

09/04/2009
09/09/2009
09/09/2009
09/10/2009 09/10/2009 09/10/2009 09/10/2009 09/10/2009 09/10/2009 09/10/2009
09/11/2009 09/11/2009 09/11/2009 09/11/2009

(Mennemeier, Kenneth) (Filed on 9/4/2009) (Entered: 09/04/2009)
170 STIPULATION AND ORDER granting a two−day extension of time in which to file its answer to the City's Complaint in intervention for declaratory, injunctive or other relief, re doc 167 filed by Mark B. Horton, Arnold Schwarzenegger, Linette Scott. Signed by Judge Vaughn R Walker on 9/4/2009. (cgk, COURT STAFF) (Filed on 9/4/2009) (Entered: 09/04/2009)
172 MOTION for Leave to File Excess Pages filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. Motion Hearing set for 10/14/2009 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Attachments: # 1 Attachment 1 − Defendant−Intervenors' Notice of Motion and Motion for Summary Judgment, and Memorandum of Points and Authorities in Support of Motion for Summary Judgment, # 2 Exhibit A −− D.C. Superior Court Opinion, # 3 Exhibit B −− California Laws, # 4 Exhibit C −− AG Brown Brief, # 5 Exhibit D −− AB 205 Legislative History, # 6 Proposed Order Granting Motion to Exceed Page Limit, # 7 Proposed Order Granting Motion for Summary Judgment)(Cooper, Charles) (Filed on 9/9/2009) (Entered: 09/09/2009)
173 Declaration of Nicole J. Moss in Support of 172 MOTION for Leave to File Excess Pages filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. (Related document(s) 172 ) (Cooper, Charles) (Filed on 9/9/2009) (Entered: 09/09/2009)
174 Memorandum in Opposition re 172 MOTION for Leave to File Excess Pages filed byPaul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Olson, Theodore) (Filed on 9/10/2009) (Entered: 09/10/2009)
175 Letter from Charles J. Cooper to Court re Request for Leave to File Mot. for Protective Order. (Attachments: # 1 Enclosure (RFPs), # 2 Enclosure (Ltr.), # 3 Enclosure (Ltr.))(Cooper, Charles) (Filed on 9/10/2009) (Entered: 09/10/2009)
176 Declaration of Matthew D. McGill in Support of 174 Memorandum in Opposition of Motion for Administrative Leave to Exceed Page Limitations filed byPaul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Related document(s) 174 ) (Olson, Theodore) (Filed on 9/10/2009) (Entered: 09/10/2009)
177 Proposed Order re 174 Memorandum in Opposition to Motion for Administrative Leave to Exceed Page Limitations by Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Olson, Theodore) (Filed on 9/10/2009) (Entered: 09/10/2009)
178 ORDER clarifying discovery dates. (vrwlc1, COURT STAFF) (Filed on 9/10/2009) (Entered: 09/10/2009)
179 Memorandum in Opposition City and County of San Francisco's Opposition to Defendant−Intervenors' Motion for Administrative Leave to Exceed Page Limitations filed byCity and County of San Francisco. (Flynn, Ronald) (Filed on 9/10/2009) (Entered: 09/10/2009)
180 Declaration of Therese M. Stewart in Support of 179 Memorandum in Opposition, Declaration of Therese M. Stewart re City and County of San Francisco's Opposition to Defendant−Intervenors' Motion for Administrative Leave to Exceed Page Limitations filed byCity and County of San Francisco. (Related document(s) 179 ) (Flynn, Ronald) (Filed on 9/10/2009) (Entered: 09/10/2009)
181 Letter from Ethan D. Dettmer re Request for Leave to File Mot. for Protective Order. (Dettmer, Ethan) (Filed on 9/11/2009) (Entered: 09/11/2009)
182 Letter from Therese M. Stewart. (Flynn, Ronald) (Filed on 9/11/2009) (Entered: 09/11/2009)
183 ORDER re 172 GRANTING defendant−intervenors' motion for leave to file their motion papers. (vrwlc1, COURT STAFF) (Filed on 9/11/2009) (Entered: 09/11/2009)
184 ORDER re 175 181 182 . Defendant−intervenors shall file motion for protective order not later than 9/15/09. Plaintiffs shall file their opposition not later than 9/18/09.

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 42 of 90

09/11/2009 09/11/2009 09/15/2009 09/15/2009
09/15/2009 09/16/2009 09/17/2009 09/18/2009 09/21/2009 09/21/2009 09/21/2009 09/22/2009

Defendant−intervenors may file a reply not later than 9/22/09. The court will hear the matter on 9/25/09 at 10AM. (vrwlc1, COURT STAFF) (Filed on 9/11/2009) (Entered: 09/11/2009)
185 MOTION for leave to appear in Pro Hac Vice of Richard J. Bettan ( Filing fee $ 210, receipt number 34611036579.) filed by Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Attachments: # 1 Proposed Order)(far, COURT STAFF) (Filed on 9/11/2009) (Entered: 09/14/2009)
186 MOTION for leave to appear in Pro Hac Vice of Joshua Schiller ( Filing fee $ 210, receipt number 34611036577.) filed by Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Attachments: # 1 Proposed Order)(far, COURT STAFF) (Filed on 9/11/2009) (Entered: 09/14/2009)
NOTICE of Hearing: Hearing on Defendant−Intervenors' motion for leave to file a motion for a protective order, doc #175, set for 9/25/2009 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (cgk, COURT STAFF) (Filed on 9/15/2009) (Entered: 09/15/2009)
187 MOTION for Protective Order filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. Motion Hearing set for 9/25/2009 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Attachments: # 1 Exhibit A −− Reply Br. for Aplt., Citizens United v. FEC, # 2 Exhibit B −− Prentice Declaration, # 3 Exhibit C −− Plaintiffs' First Set of Requests for Production, # 4 Exhibit D −− Defendant−Intervenors' Response to Plaintiffs' First Set of Requests for Production, # 5 Exhibit E −− Letter of August 27, 2009, # 6 Exhibit F −− Letter of August 31, 2009, # 7 Exhibit G −− Moss Declaration, # 8 Exhibit H −− Doe v. Reec Opinion, # 9 Exhibit I −− Schubert Declaration, # 10 Exhibit J −− Jannson Declaration, # 11 Exhibit K −− Articles Discussing Negative Effects of Public Disclosure, # 12 Exhibit L −− Tam Declaration, # 13 Exhibit M −− Toupis Declaration, # 14 Proposed Order)(Cooper, Charles) (Filed on 9/15/2009) (Entered: 09/15/2009)
188 MOTION for leave to appear in Pro Hac Vice of Rosanne C. Baxter ( Filing fee $ 210, receipt number 34611036688.) filed by Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Attachments: # 1 Proposed Order)(far, COURT STAFF) (Filed on 9/15/2009) (Entered: 09/16/2009)
189 USCA Case Number 09−16959 9th Circuit for 168 Notice of Appeal, filed by Campaign for California Families. (far, COURT STAFF) (Filed on 9/16/2009) (Entered: 09/16/2009)
190 STIPULATION AND [PROPOSED] ORDER RE DISCOVERY OF EXPERT WITNESSES by Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Monagas, Enrique) (Filed on 9/17/2009) (Entered: 09/17/2009)
191 Memorandum in Opposition re 187 MOTION for Protective Order filed byCity and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Olson, Theodore) (Filed on 9/18/2009) (Entered: 09/18/2009)
193 ORDER by Judge Vaughn R Walker granting doc 188 Motion Application for Admission of Attorney Rosanne C. Baxter Pro Hac Vice representing Plaintiffs. (cgk, COURT STAFF) (Filed on 9/21/2009) (Entered: 09/21/2009)
194 Statement of Non−Opposition to 187 Defendant−Intervenors' Motion for Protective Order filed byMark B. Horton, Arnold Schwarzenegger, Linette Scott. (Mennemeier, Kenneth) (Filed on 9/21/2009) Modified on 9/22/2009 (far, COURT STAFF). (Entered: 09/21/2009)
195 Letter from The Administration Formal Written Request to Appear by Telephone at the Hearing on Defendant−Intervenors' Motion for Protective Order. (Mennemeier, Kenneth) (Filed on 9/21/2009) (Entered: 09/21/2009)
196 STIPULATION AND ORDER REGARDING DISCOVERY OF EXPERT WITNESSES re doc 190 filed by Sandra B. Stier, Jeffrey J. Zarrillo, Paul T. Katami, Kristin M. Perry. Signed by Chief Judge Vaughn R Walker on 9/22/2009. (cgk, COURT STAFF) (Filed on 9/22/2009) (Entered: 09/22/2009)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 43 of 90

09/22/2009 09/22/2009
09/23/2009 09/23/2009 09/23/2009 09/23/2009 09/23/2009 09/23/2009
09/25/2009 09/25/2009 09/25/2009 09/25/2009
09/28/2009 09/29/2009

197 Reply Memorandum re 187 MOTION for Protective Order filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, Proposition 8 Official Proponents, Hak−Shing William Tam. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F)(Cooper, Charles) (Filed on 9/22/2009) (Entered: 09/22/2009)
198 MOTION for leave to appear in Pro Hac Vice of Jesse Panuccio ( Filing fee $ 210, receipt number 34611036917.) filed by Campaign for California Families, Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. (Attachments: # 1 Proposed Order)(far, COURT STAFF) (Filed on 9/22/2009) (Entered: 09/23/2009)
199 Statement in Response to Defendant−Intervenors' Motion for Summary Judgment by Mark B. Horton, Arnold Schwarzenegger, Linette Scott. (Mennemeier, Kenneth) (Filed on 9/23/2009) (Entered: 09/23/2009)
200 Joinder Defendant Attorney General's Joinder in Plaintiffs and Plaintiff−Intervenors Opposition to Motion for Summary Judgment by Edmund G. Brown, Jr. (Attachments: # 1 Certificate of Service)(Burns, Gordon) (Filed on 9/23/2009) (Entered: 09/23/2009)
201 AMENDED DOCUMENT by Edmund G. Brown, Jr. Amendment to 200 Joinder Amended Certificate of Service. (Burns, Gordon) (Filed on 9/23/2009) (Entered: 09/23/2009)
202 Memorandum in Opposition to Defendant−Intervenors' Motion for Summary Judgment filed byCity and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Olson, Theodore) (Filed on 9/23/2009) (Entered: 09/23/2009)
203 Declaration of Christopher D. Dusseault in Support of 202 Memorandum in Opposition to Defendant−Intervenors' Motion for Summary Judgment filed byCity and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Related document(s) 202 ) (Olson, Theodore) (Filed on 9/23/2009) (Entered: 09/23/2009)
204 Declaration of Enrique A. Monagas in Support of 202 Memorandum in Opposition filed byCity and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N)(Related document(s) 202 ) (Olson, Theodore) (Filed on 9/23/2009) (Entered: 09/24/2009)
205 ORDER by Judge Vaughn R Walker granting doc 171 Motion Application for Admission of Attorney Nicole J. Moss Pro Hac Vice representing Intervenor Defendants. (cgk, COURT STAFF) (Filed on 9/25/2009) (Entered: 09/25/2009)
206 ORDER by Judge Vaughn R Walker granting doc 185 Motion Application for Admission of Attorney Richard J. Bettan Pro Hac Vice representing Plaintiffs. (cgk, COURT STAFF) (Filed on 9/25/2009) (Entered: 09/25/2009)
207 ORDER by Judge Vaughn R Walker granting doc 186 Motion Application for Admission of Attorney Joshua Schiller Pro Hac Vice representing Plaintiffs. (cgk, COURT STAFF) (Filed on 9/25/2009) (Entered: 09/25/2009)
208 MOTION for Leave to File Excess Pages filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. Motion Hearing set for 10/14/2009 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Attachments: # 1 Declaration of Nicole Jo Moss)(Cooper, Charles) (Filed on 9/25/2009) (Entered: 09/25/2009)
209 ORDER granting 208 Motion for Leave to File Excess Pages. Proponents' reply shall not exceed 25 pages. (vrwlc1, COURT STAFF) (Filed on 9/28/2009) (Entered: 09/28/2009)
210 ORDER by Judge Vaughn R Walker granting doc 198 Motion Application for Admission of Attorney Jesse Panuccio Pro Hac Vice representing

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 44 of 90

09/29/2009 09/30/2009
09/30/2009
10/01/2009 10/02/2009 10/02/2009
10/02/2009
10/05/2009 10/05/2009 10/08/2009
10/09/2009
10/09/2009

Defendant−Intervenors. (cgk, COURT STAFF) (Filed on 9/29/2009) (Entered: 09/29/2009)
211 Minute Entry: Discovery Hearing re leave to file motion for protective order held on 9/25/2009 before Chief Judge Vaughn R Walker (Date Filed: 9/29/2009). (Court Reporter Kelly Bryce.) (cgk, COURT STAFF) (Date Filed: 9/29/2009) (Entered: 09/29/2009)
212 Transcript of Proceedings held on 09/25/09, before Judge Vaughn R. Walker. Court Reporter/Transcriber Kelly Bryce, E−mail courtreporter232@aol.com Telephone number (510)828−9404. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 12/28/2009. (Bryce, Kelly) (Filed on 9/30/2009) (Entered: 09/30/2009)
213 Reply Memorandum re 172 MOTION for Leave to File Excess Pages and Defendant−Intervenors' Notice of Motion and Motion for Summary Judgment, and Memorandum of Points and Authorities in Support of Motion for Summary Judgment filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. (Cooper, Charles) (Filed on 9/30/2009) (Entered: 09/30/2009)
214 ORDER granting in part and denying in part 187 Motion for Protective Order (vrwlc1, COURT STAFF) (Filed on 10/1/2009) (Entered: 10/01/2009)
215 Letter from Christopher Dusseault to the Honorable Chief Judge Walker. (Piepmeier, Sarah) (Filed on 10/2/2009) (Entered: 10/02/2009)
216 MOTION TO REALIGN DEFENDANT ATTORNEY GENERAL EDMUND G. BROWN filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. Motion Hearing set for 1/7/2010 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Attachments: # 1 Proposed Order)(Cooper, Charles) (Filed on 10/2/2009) (Entered: 10/02/2009)
217 Declaration of Jesse Panuccio in Support of 216 MOTION TO REALIGN DEFENDANT ATTORNEY GENERAL EDMUND G. BROWN filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Related document(s) 216 ) (Cooper, Charles) (Filed on 10/2/2009) (Entered: 10/02/2009)
218 Letter from Charles J. Cooper to The Honorable Chief Judge Walker. (Cooper, Charles) (Filed on 10/5/2009) (Entered: 10/05/2009)
219 ORDER of USCA as to 168 Notice of Appeal, filed by Campaign for California Families (far, COURT STAFF) (Filed on 10/5/2009) (Entered: 10/05/2009)
220 MOTION to Stay Pending Appeal and/or Petition for Writ of Mandamus filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, Proposition 8 Official Proponents, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. Motion Hearing set for 1/7/2010 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Attachments: # 1 Exhibit A − Declaration of Jesse Panuccio, # 2 Proposed Order)(Cooper, Charles) (Filed on 10/8/2009) Modified on 10/9/2009 (ewn, COURT STAFF). (Entered: 10/08/2009)
221 ERRONEOUSLY E−FILED, DISREGARD − SEE DOC 222 NOTICE by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, Proposition 8 Official Proponents, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam of Appeal (Cooper, Charles) (Filed on 10/9/2009) Modified on 10/9/2009 (ewn, COURT STAFF). Modified on 10/9/2009 (far, COURT STAFF). (Entered: 10/09/2009)
222 NOTICE OF APPEAL as to 214 Order on Motion for Protective Order by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight,

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 45 of 90

10/13/2009 10/13/2009 10/13/2009 10/14/2009
10/15/2009
10/15/2009
10/15/2009 10/15/2009 10/15/2009

ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. Filing fee $ 455, Receipt Number 34611037633.(far, COURT STAFF) (Filed on 10/9/2009) (Entered: 10/09/2009)
223 *** FILED IN ERROR. REFER TO DOCUMENT 225 . *** Memorandum in Opposition re 220 MOTION to Stay Pending Appeal and/or Petition for Writ of Mandamus filed byCity and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Olson, Theodore) (Filed on 10/13/2009) Modified on 10/14/2009 (feriab, COURT STAFF). (Entered: 10/13/2009)
224 Declaration of Christopher D. Dusseault in Support of 223 Memorandum in Opposition, TO DEFENDANT−INTERVENORS MOTION FOR A STAY PENDING APPEAL AND/OR PETITION FOR WRIT OF MANDAMUS filed byCity and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 223 ) (Olson, Theodore) (Filed on 10/13/2009) (Entered: 10/13/2009)
225 Memorandum in Opposition re 220 MOTION to Stay Pending Appeal and/or Petition for Writ of Mandamus CORRECTION OF DOCKET # 223 . filed byCity and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Olson, Theodore) (Filed on 10/13/2009) (Entered: 10/13/2009)
226 Minute Entry: Motion Hearing held on 10/14/2009 before Chief Judge Vaughn R Walker re doc 172 Defendant Intervenors' MOTION for summary judgment. PROCEEDINGS: 1. Defendant−intervenors' motion for summary judgment, Doc #172 − denied. 2. Defendant−intervenors shall file their reply memorandum in support of the motion to stay, Doc #220, not later than October 16, 2009. The court will submit the matter on the papers or hear argument by telephone as necessary. 3. Plaintiffs and the Attorney General shall file their oppositions to defendant−intervenors motion to realign the Attorney General, Doc #216, not later than October 28, 2009. Defendant−intervenors shall file their reply not later than November 4, 2009. The matter will be submitted on the papers. (Court Reporter Lydia Zinn.) (cgk, COURT STAFF) (Date Filed: 10/14/2009) (Entered: 10/14/2009)
227 *** FILED IN ERROR. REFER TO DOCUMENT 228 . *** Transcript of Proceedings held on 10/14/2009, before Judge Vaughn R. Walker. Court Reporter/Transcriber Lydia Zinn, Telephone number (415) 531−6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 1/11/2010. (Zinn, Lydia) (Filed on 10/15/2009) Modified on 10/15/2009 (feriab, COURT STAFF). (Entered: 10/15/2009)
228 Transcript of Proceedings held on 10/14/2009, before Judge Vaughn R. Walker. Court Reporter/Transcriber Lydia Zinn, Telephone number (415) 531−6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 1/11/2010. (Zinn, Lydia) (Filed on 10/15/2009) (Entered: 10/15/2009)
229 Copy of Notice of Appeal and Docket sheet mailed to all counsel (Attachments: # 1 docket sheet)(far, COURT STAFF) (Filed on 10/15/2009) (Entered: 10/15/2009)
230 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 222 Notice of Appeal, (Attachments: # 1 Docket Sheet, # 2 Cover Letter, # 3 USCA Appeal Notification Form)(far, COURT STAFF) (Filed on 10/15/2009) (Entered: 10/15/2009)
231 Certificate of Record forwarded to USCA re 222 Notice of Appeal (far, COURT STAFF) (Filed on 10/15/2009) (Entered: 10/15/2009)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 46 of 90

10/15/2009 10/16/2009
10/20/2009 10/21/2009
10/23/2009 10/23/2009 10/28/2009 10/28/2009 10/28/2009 10/28/2009 10/28/2009 10/29/2009 11/03/2009
11/03/2009

232 USCA Case Number 09−17241 9th Circuit for 222 Notice of Appeal, filed by Hak−Shing William Tam, Dennis Hollingsworth, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Mark A. Jansson, Martin F. Gutierrez, Gail J. Knight. (far, COURT STAFF) (Filed on 10/15/2009) (Entered: 10/15/2009)
233 REPLY to Response to Motion re 220 MOTION to Stay Pending Appeal and/or Petition for Writ of Mandamus filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. (Cooper, Charles) (Filed on 10/16/2009) (Entered: 10/16/2009)
234 USCA Case Number 09−17241 9th Circuit for 222 Notice of Appeal, filed by Hak−Shing William Tam, Dennis Hollingsworth, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Mark A. Jansson, Martin F. Gutierrez, Gail J. Knight. (far, COURT STAFF) (Filed on 10/20/2009) (Entered: 10/20/2009)
235 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7−3.d in support of Joint Opposition to Defendant−Intevenors Motion for a Stay Pending Appeal and/or Petition for Writ of Mandamus filed byCity and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Attachments: # 1 Exhibit A)(Related document(s) 225 ) (Olson, Theodore) (Filed on 10/21/2009) (Entered: 10/21/2009)
236 Letter from Plaintiffs per Paragraph 1.5 of the Court's Standing Orders. (Attachments: # 1 Attachment to Letter to The Hon. Vaughn R. Walker)(Dettmer, Ethan) (Filed on 10/23/2009) (Entered: 10/23/2009)
237 ORDER denying 220 Motion to Stay (vrwlc1, COURT STAFF) (Filed on 10/23/2009) (Entered: 10/23/2009)
238 Letter from Charles J. Cooper. (Attachments: # 1 Exhibit A)(Cooper, Charles) (Filed on 10/28/2009) (Entered: 10/28/2009)
239 Memorandum in Opposition re 216 MOTION TO REALIGN DEFENDANT ATTORNEY GENERAL EDMUND G. BROWN filed byEdmund G. Brown, Jr. (Attachments: # 1 DECLARATION OF TAMAR PACHTER)(Pachter, Tamar) (Filed on 10/28/2009) (Entered: 10/28/2009)
240 Memorandum in Opposition re 216 MOTION TO REALIGN DEFENDANT ATTORNEY GENERAL EDMUND G. BROWN filed byCity and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Olson, Theodore) (Filed on 10/28/2009) (Entered: 10/28/2009)
241 CLERKS NOTICE : Telephone conference re discovery scheduled for 11/2/2009 at 2:30 PM. (cgk, COURT STAFF) (Filed on 10/28/2009) (Entered: 10/28/2009)
Set/Reset Hearings: Telephonic Discovery Hearing set for 11/2/2009 02:30 PM. (cgk, COURT STAFF) (Filed on 10/28/2009) (Entered: 10/28/2009)
242 Letter from Ethan D. Dettmer. (Dettmer, Ethan) (Filed on 10/29/2009) (Entered: 10/29/2009)
243 *** FILED IN ERROR. PLEASE SEE DOCKET # 246 . *** Transcript of Proceedings held on 11/02/2009, before Judge Vaughn R. Walker. Court Reporter/Transcriber Lydia Zinn, Telephone number (415) 531−6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 1/29/2010. (Zinn, Lydia) (Filed on 11/3/2009) Modified on 11/3/2009 (ewn, COURT STAFF). (Entered: 11/03/2009)
244 *** FILED IN ERROR. PLEASE SEE DOCKET # 246 . *** Transcript of Proceedings held on 11/02/2009, before Judge Vaughn R. Walker. Court Reporter/Transcriber Lydia Zinn, Telephone number (415) 531−6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 47 of 90

11/03/2009
11/03/2009
11/03/2009 11/04/2009
11/06/2009 11/06/2009 11/06/2009 11/11/2009 11/13/2009 11/16/2009 11/16/2009 11/16/2009 11/17/2009

Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 11/23/2009. (Zinn, Lydia) (Filed on 11/3/2009) Modified on 11/3/2009 (ewn, COURT STAFF). (Entered: 11/03/2009)
245 *** FILED IN ERROR. PLEASE SEE DOCKET # 246 . *** Transcript of Proceedings held on 11/02/2209, before Judge Vaughn R. Walker. Court Reporter/Transcriber Lydia Zinn, Telephone number (415) 531−6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 1/29/2010. (Zinn, Lydia) (Filed on 11/3/2009) Modified on 11/3/2009 (ewn, COURT STAFF). (Entered: 11/03/2009)
246 Transcript of Proceedings held on 11/02/2009, before Judge Vaughn R. Walker. Court Reporter/Transcriber Lydia Zinn, Telephone number (415) 531−6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 1/29/2010. (Zinn, Lydia) (Filed on 11/3/2009) (Entered: 11/03/2009)
247 Minute Entry: TELEPHONIC Discovery Hearing held on 11/2/2009 before Chief Judge Vaughn R Walker (Date Filed: 11/3/2009). (Court Reporter Lydia Zinn.) (cgk, COURT STAFF) (Date Filed: 11/3/2009) (Entered: 11/03/2009)
248 Reply Memorandum re 216 MOTION TO REALIGN DEFENDANT ATTORNEY GENERAL EDMUND G. BROWN filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. (Cooper, Charles) (Filed on 11/4/2009) (Entered: 11/04/2009)
249 Letter from Nicole J. Moss. (Cooper, Charles) (Filed on 11/6/2009) (Entered: 11/06/2009)
250 Letter from Ethan D. Dettmer. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Dettmer, Ethan) (Filed on 11/6/2009) (Entered: 11/06/2009)
251 NOTICE OF FILING of Sealed Documents For In Camera Review by Dennis Hollingsworth (far, COURT STAFF) (Filed on 11/6/2009) (Entered: 11/09/2009)
252 ORDER re 251 in camera discovery review. (vrwlc1, COURT STAFF) (Filed on 11/11/2009) (Entered: 11/11/2009)
253 NOTICE OF APPEAL as to 252 Order, 237 Order on Motion to Stay, 214 Order on Motion for Protective Order by Dennis Hollingsworth. Filing fee $ 455, Receipt Number 34611038935 Appeal Record due by 12/14/2009. (far, COURT STAFF) (Filed on 11/13/2009) (Entered: 11/16/2009)
254 Copy of Notice of Appeal and Docket sheet mailed to all counsel (Attachments: # 1 docket sheet)(far, COURT STAFF) (Filed on 11/16/2009) (Entered: 11/16/2009)
255 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals by Dennis Hollingsworth re 253 Notice of Appeal, (Attachments: # 1 docket sheet, # 2 cover letter, # 3 USCA Appeal Notification Form)(far, COURT STAFF) (Filed on 11/16/2009) (Entered: 11/16/2009)
256 Letter from Ethan D. Dettmer. (Attachments: # 1 Exhibit A)(Dettmer, Ethan) (Filed on 11/16/2009) (Entered: 11/16/2009)
257 Letter from Nicole J. Moss. (Cooper, Charles) (Filed on 11/17/2009) (Entered: 11/17/2009)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 48 of 90

11/19/2009 11/19/2009 11/23/2009 11/23/2009
11/23/2009 11/23/2009 11/24/2009
11/25/2009 11/30/2009
11/30/2009 12/01/2009
12/01/2009 12/01/2009 12/02/2009 12/03/2009 12/03/2009 12/03/2009

258 Minute Entry: TelephonicDiscovery Hearing held on 11/19/2009 before Joseph C. Spero re: docket nos. 256 and 257. (Court Reporter Kathy Sullivan.) (klh, COURT STAFF) (Date Filed: 11/19/2009) (Entered: 11/19/2009)
259 ORDER re 256 , 257 . The parties are directed to proceed with discovery as described in the order to conclude not later than November 30, 2009. (vrwlc1, COURT STAFF) (Filed on 11/19/2009) (Entered: 11/19/2009)
260 Letter from Nicole J. Moss. (Cooper, Charles) (Filed on 11/23/2009) (Entered: 11/23/2009)
261 EXHIBITS re 260 Letter filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. (Related document(s) 260 ) (Cooper, Charles) (Filed on 11/23/2009) (Entered: 11/23/2009)
262 Letter from Counsel for Plaintiffs to The Honorable Joseph C. Spero. (Attachments: # 1 Exhibit Exhibit A)(Dettmer, Ethan) (Filed on 11/23/2009) (Entered: 11/23/2009)
263 Letter from Therese M. Stewart, City and County of San Francisco in response to the letter sent by Defendant−Intervenors Prop. 8 Proponents (Doc. #260). (Flynn, Ronald) (Filed on 11/23/2009) (Entered: 11/23/2009)
264 Transcript of Proceedings held on 11/19/09, before Judge Joseph C. Spero. Court Reporter/Transcriber Katherine Powell Sullivan, CRR, Telephone number 415−794−6659. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 2/19/2010. (Sullivan, Katherine) (Filed on 11/24/2009) (Entered: 11/24/2009)
265 STIPULATION AND [PROPOSED] ORDER REGARDING RULE 26 DISCLOSURES by Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Monagas, Enrique) (Filed on 11/25/2009) (Entered: 11/25/2009)
266 STIPULATION and [Proposed] Order To Extend Time Regarding Pretrial Filings by Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Attachments: # 1 Affidavit Declaration of Sarah E. Piepmeier)(Piepmeier, Sarah) (Filed on 11/30/2009) (Entered: 11/30/2009)
267 ORDER directing the parties to submit their respective versions of a protective order not later than Tuesday, December 1, 2009 at 5 PM PST. (vrwlc1, COURT STAFF) (Filed on 11/30/2009) (Entered: 11/30/2009)
268 Letter from Manuel F. Martinez Defendant Patrick O'Connell's, in his Official Capacity as Clerk−Recorder for the County of Alameda, Response to this Court's Order [Document 267] and Declaration of Service. (Attachments: # 1 Affidavit)(Martinez, Manuel) (Filed on 12/1/2009) (Entered: 12/01/2009)
269 Letter from Ethan D. Dettmer. (Attachments: # 1 Exhibit A)(Dettmer, Ethan) (Filed on 12/1/2009) (Entered: 12/01/2009)
270 Letter from Howard C. Nielson, Jr.. (Attachments: # 1 Proposed Order)(Cooper, Charles) (Filed on 12/1/2009) (Entered: 12/01/2009)
271 Letter from Ronald P. Flynn. (Flynn, Ronald) (Filed on 12/2/2009) (Entered: 12/02/2009)
272 Letter from Attorney General Edmund G. Brown Jr. re Proposed Protective Orders. (Pachter, Tamar) (Filed on 12/3/2009) (Entered: 12/03/2009)
273 Letter from Ronald P. Flynn. (Attachments: # 1 Proposed Order)(Flynn, Ronald) (Filed on 12/3/2009) (Entered: 12/03/2009)
274 CERTIFICATE OF SERVICE by Edmund G. Brown, Jr re 272 Letter dated December 3, 2009 (Pachter, Tamar) (Filed on 12/3/2009) (Entered: 12/03/2009)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 49 of 90

12/04/2009 12/04/2009 12/04/2009 12/04/2009 12/07/2009 12/07/2009
12/07/2009 12/07/2009 12/07/2009 12/07/2009 12/07/2009
12/07/2009
12/07/2009
12/07/2009 12/07/2009 12/07/2009

275 TRIAL BRIEF by Dean C. Logan. (Whitehurst, Judy) (Filed on 12/4/2009) (Entered: 12/04/2009)
276 CERTIFICATE OF SERVICE by Dean C. Logan re 275 Trial Brief (Service by Mail) (Whitehurst, Judy) (Filed on 12/4/2009) (Entered: 12/04/2009)
277 TRIAL BRIEF Trial Memorandum of Defendant Patrick O'Connell, Clerk−Recorder of the County of Alameda and Certificate of Service by Patrick O'Connell. (Kolm, Claude) (Filed on 12/4/2009) (Entered: 12/04/2009)
278 Letter from Edmund G. Brown Jr. material allegations. (Attachments: # 1 declaration of service)(Pachter, Tamar) (Filed on 12/4/2009) (Entered: 12/04/2009)
279 TRIAL BRIEF by Mark B. Horton, Arnold Schwarzenegger, Linette Scott. (Mennemeier, Kenneth) (Filed on 12/7/2009) (Entered: 12/07/2009)
280 MOTION in Limine filed by Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. Motion Hearing set for 12/16/2009 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Attachments: # 1 Affidavit Jeremy M. Goldman, # 2 Exhibit A to Declaration, # 3 Exhibit B to Declaration, # 4 Exhibit C to Declaration, # 5 Exhibit D to Declaration, # 6 Exhibit E to Declaration, # 7 Exhibit F to Declaration)(Goldman, Jeremy) (Filed on 12/7/2009) (Entered: 12/07/2009)
281 TRIAL BRIEF by City and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Olson, Theodore) (Filed on 12/7/2009) (Entered: 12/07/2009)
282 Proposed Findings of Fact by City and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Olson, Theodore) (Filed on 12/7/2009) (Entered: 12/07/2009)
283 Exhibit List by City and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo.. (Attachments: # 1 Exhibit A)(Olson, Theodore) (Filed on 12/7/2009) (Entered: 12/07/2009)
284 Witness List by Kristin M. Perry, Paul T. Katami, Sandra B. Stier, City and County of San Francisco, Jeffrey J. Zarrillo. (Olson, Theodore) (Filed on 12/7/2009) (Entered: 12/07/2009)
285 MOTION in Limine TO EXCLUDE THE EXPERT REPORTS, OPINIONS, AND TESTIMONY OF KATHERINE YOUNG, LOREN MARKS AND DAVID BLANKENHORN filed by City and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. Motion Hearing set for 12/16/2009 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Olson, Theodore) (Filed on 12/7/2009) (Entered: 12/07/2009)
286 Declaration of Rebecca Justice Lazarus in Support of 285 MOTION in Limine TO EXCLUDE THE EXPERT REPORTS, OPINIONS, AND TESTIMONY OF KATHERINE YOUNG, LOREN MARKS AND DAVID BLANKENHORN filed byCity and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Related document(s) 285 ) (Olson, Theodore) (Filed on 12/7/2009) (Entered: 12/07/2009)
287 Proposed Order re 285 MOTION in Limine TO EXCLUDE THE EXPERT REPORTS, OPINIONS, AND TESTIMONY OF KATHERINE YOUNG, LOREN MARKS AND DAVID BLANKENHORN by City and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Olson, Theodore) (Filed on 12/7/2009) (Entered: 12/07/2009)
288 Statement of Designation of Discovery Excerpts by City and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Olson, Theodore) (Filed on 12/7/2009) (Entered: 12/07/2009)
289 Letter from Ethan D. Dettmer. (Attachments: # 1 Exhibit A)(Dettmer, Ethan) (Filed on 12/7/2009) (Entered: 12/07/2009)
290 Proposed Findings of Fact by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 50 of 90

12/07/2009 12/07/2009 12/07/2009 12/07/2009 12/07/2009 12/08/2009 12/08/2009 12/08/2009 12/09/2009 12/11/2009 12/11/2009 12/11/2009
12/11/2009
12/11/2009

Renewal, Hak−Shing William Tam. (Cooper, Charles) (Filed on 12/7/2009) (Entered: 12/07/2009)
291 Exhibit List by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam.. (Attachments: # 1 Exhibit List)(Cooper, Charles) (Filed on 12/7/2009) (Entered: 12/07/2009)
292 Witness List by Dennis Hollingsworth, Gail J. Knight, Hak−Shing William Tam, Mark A. Jansson, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Cooper, Charles) (Filed on 12/7/2009) (Entered: 12/07/2009)
293 Statement of Designation of Discovery Excerpts by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. (Cooper, Charles) (Filed on 12/7/2009) (Entered: 12/07/2009)
294 Statement of Objections to Evidence by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. (Cooper, Charles) (Filed on 12/7/2009) (Entered: 12/07/2009)
295 TRIAL BRIEF by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. (Cooper, Charles) (Filed on 12/7/2009) (Entered: 12/07/2009)
296 Proposed Order re 280 MOTION in Limine to Exclude Portions of the Expert Report, Opinions, and Testimony of Kenneth P. Miller by Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Goldman, Jeremy) (Filed on 12/8/2009) (Entered: 12/08/2009)
297 Letter from Jesse Panuccio. (Attachments: # 1 Exhibit)(Cooper, Charles) (Filed on 12/8/2009) (Entered: 12/08/2009)
298 Letter from Ethan D. Dettmer. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Dettmer, Ethan) (Filed on 12/8/2009) (Entered: 12/08/2009)
299 STIPULATION AND ORDER REGARDING RULE 26 DISCLOSURES re doc 265 filed by Sandra B. Stier, Jeffrey J. Zarrillo, Paul T. Katami, Kristin M. Perry. Signed by Judge Vaughn R Walker on 12/8/2009. (cgk, COURT STAFF) (Filed on 12/9/2009) (Entered: 12/09/2009)
300 STIPULATION and [Proposed] Order re: Demonstrative Exhibits by Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Piepmeier, Sarah) (Filed on 12/11/2009) (Entered: 12/11/2009)
301 RESPONSE to re 294 Statement of Objections to Evidence by City and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Attachments: # 1 Exhibit A)(Olson, Theodore) (Filed on 12/11/2009) (Entered: 12/11/2009)
302 Memorandum in Opposition re 285 MOTION in Limine TO EXCLUDE THE EXPERT REPORTS, OPINIONS, AND TESTIMONY OF KATHERINE YOUNG, LOREN MARKS AND DAVID BLANKENHORN filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Cooper, Charles) (Filed on 12/11/2009) (Entered: 12/11/2009)
303 Declaration of Peter A. Patterson in Support of 302 Memorandum in Opposition, filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. (Related document(s) 302 ) (Cooper, Charles) (Filed on 12/11/2009) (Entered: 12/11/2009)
304 Memorandum in Opposition re 280 MOTION in Limine filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 51 of 90

12/11/2009 12/11/2009 12/11/2009 12/11/2009 12/11/2009 12/11/2009 12/15/2009
12/15/2009 12/16/2009
12/21/2009 12/21/2009
12/22/2009
12/23/2009 12/23/2009 12/23/2009 12/24/2009

on 8, A Project of California Renewal, Hak−Shing William Tam. (Cooper, Charles) (Filed on 12/11/2009) (Entered: 12/11/2009)
305 USCA Case Number 09−17551 9th Circuit for 253 Notice of Appeal, filed by Dennis Hollingsworth. (far, COURT STAFF) (Filed on 12/11/2009) (Entered: 12/13/2009)
306 USCA OPINION. (far, COURT STAFF) (Filed on 12/11/2009) (Entered: 12/13/2009)
307 ORDER of USCA as to 253 Notice of Appeal, filed by Dennis Hollingsworth (far, COURT STAFF) (Filed on 12/11/2009) (Entered: 12/13/2009)
308 ORDER of USCA (far, COURT STAFF) (Filed on 12/11/2009) (Entered: 12/13/2009)
309 ORDER of USCA (far, COURT STAFF) (Filed on 12/11/2009) (Entered: 12/13/2009)
310 ORDER of USCA (far, COURT STAFF) (Filed on 12/11/2009) (Entered: 12/13/2009)
311 MOTION to Intervene filed by County of Imperial of the State of California, Board of Supervisors of Imperial County, Isabel Vargas. Motion Hearing set for 1/21/2010 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Attachments: # 1 Declaration of W. Leimgruber, # 2 Declaration of I. Vargas, # 3 Proposed Answer to SF, # 4 Proposed Answer to Plaintiff, # 5 Proposed Order)(Tyler, Robert) (Filed on 12/15/2009) (Entered: 12/15/2009)
312 MOTION to Shorten Time filed by Board of Supervisors of Imperial County, County of Imperial of the State of California, Isabel Vargas. (Attachments: # 1 Declaration of J. Monk, # 2 Proposed Order)(Tyler, Robert) (Filed on 12/15/2009) (Entered: 12/15/2009)
317 Minute Entry: Hearing held on the Motion to Intervene filed by Imperial County, doc #311 and Motion to Realign the Attorney General on 12/16/2009 before Chief Judge Vaughn R Walker. Interim Pretrial Conference held on 12/16/2009 before Chief Judge Vaughn R Walker ; the court submitted the matter, the court to issue written ruling. (Date Filed: 12/16/2009). (Court Reporter Kathy Sullivan.) (cgk, COURT STAFF) (Date Filed: 12/16/2009) (Entered: 12/23/2009)
313 Letter from Thomas R. Burke for the Media Coalition as interested party to Chief Judge Hon. Vaughn R. Walker. (Burke, Thomas) (Filed on 12/21/2009) (Entered: 12/21/2009)
314 NOTICE by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam of Filing of Privilege Log (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Cooper, Charles) (Filed on 12/21/2009) (Entered: 12/21/2009)
315 Transcript of Proceedings held on 12/16/09, before Judge Vaughn R. Walker. Court Reporter/Transcriber Katherine Powell Sullivan, CRR, Telephone number 415−794−6659/Katherine_Sullivan@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 3/22/2010. (Sullivan, Katherine) (Filed on 12/22/2009) (Entered: 12/22/2009)
316 Statement of Non−Opposition re 311 MOTION to Intervene filed byMark B. Horton, Arnold Schwarzenegger, Linette Scott. (Related document(s) 311 ) (Stroud, Andrew) (Filed on 12/23/2009) (Entered: 12/23/2009)
318 Exhibit List (Supplemental) by City and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo.. (Attachments: # 1 Exhibit A)(Olson, Theodore) (Filed on 12/23/2009) (Entered: 12/23/2009)
319 ORDER by Judge Walker denying 216 Motion to Realign the Attorney General (vrwlc1, COURT STAFF) (Filed on 12/23/2009) (Entered: 12/23/2009)
320 Statement re 311 MOTION to Intervene ATTORNEY GENERAL'S STATEMENT OF NO OPPOSITION TO MOTION TO INTERVENE OF IMPERIAL COUNTY by

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 52 of 90

12/28/2009 12/28/2009 12/28/2009 12/28/2009 12/28/2009 12/29/2009 12/29/2009 12/30/2009 12/30/2009
12/30/2009 12/30/2009 12/30/2009 12/30/2009 12/31/2009 12/31/2009 12/31/2009

Edmund G. Brown, Jr. (Attachments: # 1 proof of service)(Pachter, Tamar) (Filed on 12/24/2009) (Entered: 12/24/2009)
321 Statement of Non−Opposition re 311 MOTION to Intervene filed byDean C. Logan. (Related document(s) 311 ) (Whitehurst, Judy) (Filed on 12/28/2009) (Entered: 12/28/2009)
322 ERRATA re 314 Notice (Other), Notice (Other) by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. (Attachments: # 1 Exhibit)(Cooper, Charles) (Filed on 12/28/2009) (Entered: 12/28/2009)
323 Statement of Non−Opposition Statement of No Opposition by Defendant Patrick O'Connell, Clerk−Recorder of the County of Alameda's Motion to Intervene of Imperial County and Certificate of Service filed byPatrick O'Connell. (Kolm, Claude) (Filed on 12/28/2009) (Entered: 12/28/2009)
324 Letter from Charles J. Cooper. (Attachments: # 1 Exhibit A − 2007 9th Cir. Resolution re Cameras, # 2 Exhibit B − 7−23−09 Duff Letter to Leahy & Sessions)(Cooper, Charles) (Filed on 12/28/2009) (Entered: 12/28/2009)
325 RESPONSE to re 314 Notice (Other), Notice (Other) by City and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Olson, Theodore) (Filed on 12/28/2009) (Entered: 12/28/2009)
326 Letter from Charles J. Cooper. (Cooper, Charles) (Filed on 12/29/2009) (Entered: 12/29/2009)
327 Letter from Theodore J. Boutrous, Jr.. (Boutrous, Theodore) (Filed on 12/29/2009) (Entered: 12/29/2009)
328 Memorandum in Opposition re 311 MOTION to Intervene filed byPaul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Olson, Theodore) (Filed on 12/30/2009) (Entered: 12/30/2009)
329 Declaration of Kaiponanea T. Matsumura in Support of 328 Memorandum in Opposition re Motion to Intervene filed byPaul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Related document(s) 328 ) (Olson, Theodore) (Filed on 12/30/2009) (Entered: 12/30/2009)
330 Exhibit List (Supplemental) by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam.. (Attachments: # 1 Exhibit A − Supplemental Exhibit List)(Cooper, Charles) (Filed on 12/30/2009) (Entered: 12/30/2009)
331 RESPONSE in Support re 311 MOTION to Intervene filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. (Cooper, Charles) (Filed on 12/30/2009) (Entered: 12/30/2009)
332 ORDER regarding the ongoing discovery dispute and potential recording of the January 6 hearing. (vrwlc1, COURT STAFF) (Filed on 12/30/2009) (Entered: 12/30/2009)
CASE REFERRED to Magistrate Judge Joseph C. Spero for Discovery (klh, COURT STAFF) (Filed on 12/30/2009) (Entered: 01/14/2010)
333 Letter from Ethan D. Dettmer re Motion to Compel the Deposition of Doug Swardstrom. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Dettmer, Ethan) (Filed on 12/31/2009) (Entered: 12/31/2009)
334 RESPONSE in Support of Request for Order Permitting Television Coverage of the Trial (Memorandum of Points and Authorities) filed byMedia Coalition. (Burke, Thomas) (Filed on 12/31/2009) (Entered: 12/31/2009)
335 Request for Judicial Notice re 334 Response in Support of Request for Order Permitting Television Coverage of The Trial and Declaration of Thomas R. Burke filed

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 53 of 90

01/04/2010 01/04/2010
01/04/2010 01/04/2010 01/04/2010
01/04/2010 01/04/2010 01/04/2010 01/05/2010
01/05/2010 01/05/2010 01/05/2010 01/05/2010
01/05/2010 01/05/2010 01/05/2010

byMedia Coalition. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, Part One, # 5 Exhibit D, Part Two, # 6 Exhibit E)(Related document(s) 334 ) (Burke, Thomas) (Filed on 12/31/2009) (Entered: 12/31/2009)
336 Letter from Charles J. Cooper. (Cooper, Charles) (Filed on 1/4/2010) (Entered: 01/04/2010)
337 ERRATA re 330 Exhibit List, by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Hak−Shing William Tam. (Cooper, Charles) (Filed on 1/4/2010) (Entered: 01/04/2010)
338 ORDER re 311 motion to intervene filed by Imperial County; granting leave to file motion to compel re 333 (vrwlc1, COURT STAFF) (Filed on 1/4/2010) (Entered: 01/04/2010)
339 First MOTION to Compel filed by Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. Motion Hearing set for 1/6/2010 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Boutrous, Theodore) (Filed on 1/4/2010) (Entered: 01/04/2010)
340 Declaration of Ethan D. Dettmer in Support of 339 First MOTION to Compel filed byPaul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Related document(s) 339 ) (Boutrous, Theodore) (Filed on 1/4/2010) (Entered: 01/04/2010)
341 Proposed Order re 339 First MOTION to Compel by Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Boutrous, Theodore) (Filed on 1/4/2010) (Entered: 01/04/2010)
342 CERTIFICATE OF SERVICE by Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo re 339 First MOTION to Compel (Monagas, Enrique) (Filed on 1/4/2010) (Entered: 01/04/2010)
344 MOTION for leave to appear in Pro Hac Vice of Dale M. Schowengerdt ( Filing fee $ 210, receipt number 34611040651.). (Attachments: # 1 Proposed Order)(fj, COURT STAFF) (Filed on 1/4/2010) (Entered: 01/05/2010)
343 NOTICE OF REFERENCE AND ORDER SETTING HEARING ON PLAINTIFFS' DOCUMENT REQUESTS re 325 Response ( Non Motion ) filed by Sandra B. Stier, Jeffrey J. Zarrillo, Paul T. Katami, Kristin M. Perry, City and County of San Francisco. Motion Hearing set for 1/6/2010 at 01:30 PM in Courtroom 2, 17th Floor, San Francisco. Signed by Judge Joseph C. Spero on 1/5/2010. (klh, COURT STAFF) (Filed on 1/5/2010) (Entered: 01/05/2010)
345 MOTION for leave to appear in Pro Hac Vice of Michael W. Kirk ( Filing fee $ 210, receipt number 34611040684.) (Attachments: # 1 Proposed Order)(fj, COURT STAFF) (Filed on 1/5/2010) (Entered: 01/05/2010)
346 ORDER by Judge Vaughn R. Walker granting 344 Motion for Pro Hac Vice of Dale M. Schowengerdt (fj, COURT STAFF) (Filed on 1/5/2010) (Entered: 01/05/2010)
347 ORDER by Judge Vaughn R. Walker granting 345 Motion for Pro Hac Vice of Michael W. Kirk (fj, COURT STAFF) (Filed on 1/5/2010) (Entered: 01/05/2010)
348 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7−3.d filed byPaul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Attachments: # 1 Exhibit A)(Related document(s) 314 ) (Dettmer, Ethan) (Filed on 1/5/2010) (Entered: 01/05/2010)
349 Memorandum in Opposition re 339 First MOTION to Compel filed byDoug Swardstrom. (Grant, Eric) (Filed on 1/5/2010) (Entered: 01/05/2010)
350 Reply Memorandum filed byBoard of Supervisors of Imperial County, County of Imperial of the State of California, Isabel Vargas. (Attachments: # 1 Declaration)(Monk, Jennifer) (Filed on 1/5/2010) (Entered: 01/05/2010)
351 Third Party MOTION to Quash Subpoena to Appear filed by William T. Criswell. Motion Hearing set for 2/11/2010 10:00 AM in Courtroom 6, 17th Floor, San

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 54 of 90

01/05/2010 01/06/2010 01/06/2010 01/06/2010
01/06/2010 01/06/2010 01/06/2010 01/06/2010 01/07/2010 01/07/2010 01/07/2010 01/07/2010 01/07/2010 01/07/2010
01/07/2010

Francisco. (Attachments: # 1 Declaration, # 2 Exhibit, # 3 Proposed Order)(Bunim, David) (Filed on 1/5/2010) (Entered: 01/05/2010)
352 MOTION to Appear by Telephone filed by Doug Swardstrom. Motion Hearing set for 1/6/2010 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Attachments: # 1 Declaration of Eric Grant, # 2 Declaration of James Bopp, Jr., # 3 Proposed Order)(Grant, Eric) (Filed on 1/5/2010) (Entered: 01/05/2010)
353 Letter from James Bopp, Jr. re Doug Swardstrom's Opposition to Recording Proceedings. (Grant, Eric) (Filed on 1/6/2010) (Entered: 01/06/2010)
354 Third Party MOTION to Shorten Time to Quash Subpoena filed by William T. Criswell. (Attachments: # 1 Declaration, # 2 Proposed Order)(Bunim, David) (Filed on 1/6/2010) (Entered: 01/06/2010)
355 Minute Entry: Motion Hearing held on 1/6/2010 before Chief Judge Vaughn R. Walker (Date Filed: 1/6/2010) re 339 First MOTION to Compel filed by Sandra B. Stier, Jeffrey J. Zarrillo, Paul T. Katami, Kristin M. Perry; 311 MOTION to Intervene filed by County of Imperial of the State of California, Isabel Vargas, Board of Supervisors of Imperial County. (Court Reporter Kathryn Sullivan) (ls, COURT STAFF) (Date Filed: 1/6/2010) (Entered: 01/06/2010)
356 NOTICE of Substitution of Counsel by Terry Lee Thompson (Attachments: # 1 Declaration of Service)(Thompson, Terry) (Filed on 1/6/2010) (Entered: 01/06/2010)
394 MOTION for leave to appear in Pro Hac Vice of James Bopp, Jr. ( Filing fee $ 210, receipt number 34611040770.) filed by Doug Swardstrom. (Attachments: # 1 Proposed Order)(far, COURT STAFF) (Filed on 1/6/2010) (Entered: 01/10/2010)
395 MOTION for leave to appear in Pro Hac Vice of Richard E. Coleson ( Filing fee $ 210, receipt number 34611040770.) filed by Doug Swardstrom. (Attachments: # 1 Proposed Order)(far, COURT STAFF) (Filed on 1/6/2010) (Entered: 01/10/2010)
396 MOTION for leave to appear in Pro Hac Vice of Kaylan L. Phillips ( Filing fee $ 210, receipt number 34611040770.) filed by Doug Swardstrom. (Attachments: # 1 Proposed Order)(far, COURT STAFF) (Filed on 1/6/2010) (Entered: 01/10/2010)
357 STIPULATION and [Proposed] Order Regarding Attendance of Trial by Dean C. Logan. (Whitehurst, Judy) (Filed on 1/7/2010) (Entered: 01/07/2010)
358 Notice to parties. Signed by Judge Walker on January 7, 2010. (vrwlc1, COURT STAFF) (Filed on 1/7/2010) (Entered: 01/07/2010)
359 NOTICE by Edmund G. Brown, Jr ATTORNEY GENERAL'S NOTICE OF NON−OPPOSITION TO APPLICATIONS TO FILE AMICUS CURIAE BRIEFS (Attachments: # 1 proof of service)(Pachter, Tamar) (Filed on 1/7/2010) (Entered: 01/07/2010)
360 STIPULATION and [Proposed] Order Regarding Attendance of Trial by Defendant Patrick O'Connell Clerk−Recorder of the County of Alameda by Patrick O'Connell. (Attachments: # 1 Certificate of Service)(Kolm, Claude) (Filed on 1/7/2010) (Entered: 01/07/2010)
361 PROTECTIVE ORDER. Signed by Judge Joseph C. Spero on 1/7/10. (ahy, COURT STAFF) (Filed on 1/7/2010) (Entered: 01/07/2010)
362 Transcript of Proceedings held on 1−6−2010, before Judge Joseph C. Spero. Court Reporter/Transcriber Debra L. Pas, CSR, Telephone number (415) 431−1477. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 4/7/2010. (Pas, Debra) (Filed on 1/7/2010) (Entered: 01/07/2010)
363 Transcript of Proceedings held on January 6, 2010, before Judge Vaughn R. Walker. Court Reporter/Transcriber Katherine Powell Sullivan, CRR, Telephone number 415−794−6659/Katherine_Sullivan@cand.uscourts.gov. Per General Order No. 59 and

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 55 of 90

01/07/2010 01/07/2010 01/07/2010 01/08/2010 01/08/2010 01/08/2010 01/08/2010
01/08/2010 01/08/2010
01/08/2010 01/08/2010 01/08/2010 01/08/2010 01/08/2010

Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 4/7/2010. (Sullivan, Katherine) (Filed on 1/7/2010) (Entered: 01/07/2010)
364 NOTICE by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal of Filing of Redacted Declaration (Attachments: # 1 Exhibit Declaration of Ronald Prentice)(Cooper, Charles) (Filed on 1/7/2010) (Entered: 01/07/2010)
365 Exhibit List (Second Supplemental) by City and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo.. (Attachments: # 1 Exhibit A)(Olson, Theodore) (Filed on 1/7/2010) (Entered: 01/07/2010)
703 FILED UNDER SEAL Portions of the Declaration identified as redacted in Doc [364−1] by Dennis Hollingsworth (far, COURT STAFF) (Filed on 1/7/2010) (Entered: 07/21/2010)
366 Minute Entry: Discovery Hearing held on 1/6/2010 before Joseph C. Spero re: Docket No. 325 Dft−Intervenor's Privilege Log. Court to issue written order. (Court Reporter Debra Pas.) (klh, COURT STAFF) (Date Filed: 1/8/2010) (Entered: 01/08/2010)
367 Letter from Theodore J. Boutrous, Jr., Counsel for Plaintiffs, to The Hon. Joseph C. Spero. (Boutrous, Theodore) (Filed on 1/8/2010) (Entered: 01/08/2010)
368 CERTIFICATE OF SERVICE by Patrick O'Connell re 360 Stipulation, and [Proposed] Order Attendance of Trial (Kolm, Claude) (Filed on 1/8/2010) (Entered: 01/08/2010)
369 MOTION to Withdraw filed by Hak−Shing William Tam. Motion Hearing set for 2/16/2010 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Attachments: # 1 Exhibit Ex. A Appellees' Oppositon to Appellants' Emergency Motion, # 2 Exhibit Declaration of Dr. Tam in Support of Motion, # 3 Proposed Order, # 4 Declaration of Service)(Thompson, Terry) (Filed on 1/8/2010) (Entered: 01/08/2010)
370 MOTION for Leave to File Pre−Trial Brief As Amicus Curiae filed by The Family Research Council. (Attachments: # 1 Pre−Trial Brief, # 2 Signature Page (Declarations/Stipulations) Decl. of Paul B. Linton, # 3 Proposed Order)(Gorman, Patrick) (Filed on 1/8/2010) (Entered: 01/08/2010)
371 MOTION to Stay Public Broadcast filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. Motion Hearing set for 1/11/2010 08:30 AM in Courtroom 6, 17th Floor, San Francisco. (Attachments: # 1 Exhibit Exhibit 1)(Cooper, Charles) (Filed on 1/8/2010) (Entered: 01/08/2010)
372 ORDER re 325 Response ( Non Motion ) filed by Sandra B. Stier, Jeffrey J. Zarrillo, Paul T. Katami, Kristin M. Perry, City and County of San Francisco. Signed by Judge Spero on January 8, 2010. (vrwlc1, COURT STAFF) (Filed on 1/8/2010) (Entered: 01/08/2010)
373 MOTION for Leave to File Brief of Amicus Curiae National Organization for Marriage, Inc. filed by Charles S LiMandri. (Attachments: # 1 Proposed Order, # 2 Pre−Trial Memorandum of Pionts & Authorities, # 3 Declaration of Service)(LiMandri, Charles) (Filed on 1/8/2010) (Entered: 01/08/2010)
374 MOTION to File Amicus Curiae Brief filed by American College of Pediatricians. (Attachments: # 1 Amicus Brief, # 2 Proposed Order, # 3 Proof of Service)(Snider, Kevin) (Filed on 1/8/2010) (Entered: 01/08/2010)
375 MOTION to File Amicus Curiae Brief in Support of Defendant−Intervenors filed by The Becket Fund for Religious Liberty. (Attachments: # 1 Proposed Order)(Thompson, Angela) (Filed on 1/8/2010) (Entered: 01/08/2010)
376 Brief re 375 MOTION to File Amicus Curiae Brief in Support of Defendant−Intervenors filed byThe Becket Fund for Religious Liberty. (Related

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 56 of 90

01/08/2010 01/08/2010
01/08/2010 01/08/2010 01/08/2010
01/08/2010 01/08/2010 01/08/2010 01/08/2010 01/08/2010 01/08/2010 01/08/2010 01/08/2010 01/08/2010 01/08/2010 01/08/2010

document(s) 375 ) (Thompson, Angela) (Filed on 1/8/2010) (Entered: 01/08/2010)
377 MOTION to File Amicus Curiae Brief filed by Paul R. McHugh. (Schweickert, Christopher) (Filed on 1/8/2010) (Entered: 01/08/2010)
378 *** FILED IN ERROR. REFER TO DOCUMENT 382 . *** MOTION to File Amicus Curiae Brief filed by National Legal Foundation. (Attachments: # 1 Proposed Order, # 2 Brief of Amicus Curiae in Support of Defendants)(Carmichael, Holly) (Filed on 1/8/2010) Modified on 1/8/2010 (feriab, COURT STAFF). (Entered: 01/08/2010)
379 Brief re 377 MOTION to File Amicus Curiae Brief filed byPaul R. McHugh. (Related document(s) 377 ) (Schweickert, Christopher) (Filed on 1/8/2010) (Entered: 01/08/2010)
380 Proposed Order re 377 MOTION to File Amicus Curiae Brief by Paul R. McHugh. (Schweickert, Christopher) (Filed on 1/8/2010) (Entered: 01/08/2010)
381 MOTION to Shorten Time filed by Hak−Shing William Tam. Motion Hearing set for 1/12/2010 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Attachments: # 1 Affidavit Declaration of Terry L. Thompson in Support of Motion, # 2 Proposed Order, # 3 Declaration of Service)(Thompson, Terry) (Filed on 1/8/2010) (Entered: 01/08/2010)
382 MOTION to File Amicus Curiae Brief CORRECTION OF DOCKET # 378 filed by National Legal Foundation. (Attachments: # 1 Brief of Amicus Curiae in Support of Defendants, # 2 Proposed Order)(Carmichael, Holly) (Filed on 1/8/2010) (Entered: 01/08/2010)
383 MOTION for Leave to File Brief Amicus Curiae filed by Ethics and Religious Liberty Commission of the Southern Baptist Convention. (Llewellyn, David) (Filed on 1/8/2010) (Entered: 01/08/2010)
384 Brief re 383 MOTION for Leave to File Brief Amicus Curiae filed byEthics and Religious Liberty Commission of the Southern Baptist Convention. (Related document(s) 383 ) (Llewellyn, David) (Filed on 1/8/2010) (Entered: 01/08/2010)
385 Proposed Order re 383 MOTION for Leave to File Brief Amicus Curiae by Ethics and Religious Liberty Commission of the Southern Baptist Convention. (Llewellyn, David) (Filed on 1/8/2010) (Entered: 01/08/2010)
386 MOTION for Leave to File BRIEF OF AMICUS CURIAE filed by Institute for Marriage and Public Policy. (Moreno, Jose) (Filed on 1/8/2010) (Entered: 01/08/2010)
387 Proposed Order re 386 MOTION for Leave to File BRIEF OF AMICUS CURIAE by Institute for Marriage and Public Policy. (Moreno, Jose) (Filed on 1/8/2010) (Entered: 01/08/2010)
388 Brief re 386 MOTION for Leave to File BRIEF OF AMICUS CURIAE, 387 Proposed Order BRIEF OF AMICUS CURIAE filed byInstitute for Marriage and Public Policy. (Related document(s) 386 , 387 ) (Moreno, Jose) (Filed on 1/8/2010) (Entered: 01/08/2010)
389 CERTIFICATE OF SERVICE by Institute for Marriage and Public Policy re 388 Brief, 386 MOTION for Leave to File BRIEF OF AMICUS CURIAE, 387 Proposed Order DECLARATION OF SERVICE (Moreno, Jose) (Filed on 1/8/2010) (Entered: 01/08/2010)
390 Letter from JEREMY M. GOLDMAN re Courtroom Internet Access. (Goldman, Jeremy) (Filed on 1/8/2010) (Entered: 01/08/2010)
391 ORDER re 390 . Counsel should consult the court's IT department; assuming its approval and the absence of objection by any party, the court will approve the request, subject to internet access being made available on an equal basis to all parties. (vrwlc1, COURT STAFF) (Filed on 1/8/2010) (Entered: 01/08/2010)
392 Statement of Supplemental Designation of Discovery Excerpts by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Cooper, Charles) (Filed on 1/8/2010) (Entered:

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 57 of 90

01/08/2010
01/08/2010 01/08/2010
01/08/2010
01/09/2010 01/11/2010 01/11/2010 01/11/2010 01/11/2010 01/11/2010 01/11/2010 01/11/2010 01/11/2010
01/11/2010 01/11/2010 01/11/2010

01/08/2010)
419 MOTION for leave to appear in Pro Hac Vice of Kevin James Hasson ( Filing fee $ 210, receipt number 34611040918.) filed by The Becket Fund for Religious Liberty. (Attachments: # 1 Proposed Order)(far, COURT STAFF) (Filed on 1/8/2010) (Entered: 01/12/2010)
420 MOTION for leave to appear in Pro Hac Vice of Thomas Brejcha ( Filing fee $ 210, receipt number 34611040919.) filed by The Family Research Council. (Attachments: # 1 Proposed Order)(far, COURT STAFF) (Filed on 1/8/2010) (Entered: 01/12/2010)
421 MOTION for leave to appear in Pro Hac Vice Christopher M. Gacek ( Filing fee $ 210, receipt number 34611040916.) filed by The Family Research Council. (Attachments: # 1 Proposed Order)(far, COURT STAFF) (Filed on 1/8/2010) (Entered: 01/12/2010)
422 MOTION for leave to appear in Pro Hac Vice of Paul Benjamin Linton ( Filing fee $ 210, receipt number 34611040920.) filed by The Family Research Council. (Attachments: # 1 Proposed Order)(far, COURT STAFF) (Filed on 1/8/2010) (Entered: 01/12/2010)
393 MOTION to Amend/Correct 361 Protective Order filed by City and County of San Francisco. (Attachments: # 1 Affidavit)(Flynn, Ronald) (Filed on 1/9/2010) (Entered: 01/09/2010)
397 Letter from Charles J. Cooper. (Cooper, Charles) (Filed on 1/11/2010) (Entered: 01/11/2010)
398 Witness List by Dennis Hollingsworth, Gail J. Knight, Mark A. Jansson, Martin F. Gutierrez, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Cooper, Charles) (Filed on 1/11/2010) (Entered: 01/11/2010)
399 Federal Bar Association comment re Civ LR 77−3 (vrwlc1, COURT STAFF) (Filed on 1/11/2010) (Entered: 01/11/2010)
400 Equal Justice Society comment re Civ LR 77−3 (vrwlc1, COURT STAFF) (Filed on 1/11/2010) (Entered: 01/11/2010)
401 The Bar Association of San Francisco comment re Civ LR 77−3 (vrwlc1, COURT STAFF) (Filed on 1/11/2010) (Entered: 01/11/2010)
402 Lawyers' Committee for Civil Rights of the San Francisco Bay Area comment re Civ LR 77−3 (vrwlc1, COURT STAFF) (Filed on 1/11/2010) (Entered: 01/11/2010)
403 ACLU comment re Civ LR 77−3 (vrwlc1, COURT STAFF) (Filed on 1/11/2010) (Entered: 01/11/2010)
404 MOTION to Quash Subpoena and for Protective Order filed by James L Garlow. Motion Hearing set for 1/14/2010 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Attachments: # 1 Affidavit Declaration of James L. Garlow in Support of Motion to Quash Subpoena, # 2 Supplement Memorandum of Law in Support of James L. Garlow's Motion to Quash Subpoena and For Protective Order, # 3 Affidavit Declaration of Brian R. Chavez−Ochoa in Support of Motion to Shorten Time, # 4 Proposed Order [Proposed] Order − Motion of James L. Garlow to Quash Subpoena to Appear and Testify and for Protective Order)(Chavez−Ochoa, Brian) (Filed on 1/11/2010) (Entered: 01/11/2010)
405 Letter from J Duff re Civ LR 77−3 (vrwlc1, COURT STAFF) (Filed on 1/11/2010) (Entered: 01/11/2010)
406 Letter from Judge Kozinski re 405 (vrwlc1, COURT STAFF) (Filed on 1/11/2010) (Entered: 01/11/2010)
407 MOTION to Quash Subpoena and for Protective Order filed by Miles McPherson. Motion Hearing set for 1/14/2010 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Attachments: # 1 Affidavit Declaration of Miles McPherson in Support of Motion to Quash Subpoena, # 2 Supplement Memorandum of Law in Support of Miles McPherson's Motion to Quash Subpoena and for Protective Order, # 3 Affidavit Declaration of Brian R. Chavez−Ochoa in Support of Motion to Shorten Time, # 4

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 58 of 90

01/11/2010 01/11/2010 01/11/2010
01/11/2010
01/11/2010 01/11/2010 01/11/2010 01/11/2010 01/12/2010 01/12/2010 01/12/2010 01/12/2010

Proposed Order [Proposed] Order − Motion of Miles McPherson to Quash Subpoena to Appear and Testify and for Protective Order)(Chavez−Ochoa, Brian) (Filed on 1/11/2010) (Entered: 01/11/2010)
408 Letter from Thomas R. Burke to Hon. Phyllis Hamilton and Hon. Vaughn Walker re Comments on Proposed Revision of Northern District of California Civil Local Rule 77−3 w/attachments A−D. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C Part 1 of 4, # 4 Exhibit C Part 2 of 4, # 5 Exhibit C Part 3 of 4, # 6 Exhibit C Part 4 of 4, # 7 Exhibit D)(Burke, Thomas) (Filed on 1/11/2010) (Entered: 01/11/2010)
409 ORDER directing plaintiffs to respond to Doc #369, Doc #354, Doc #404 and Doc #407 not later than January 13, 2010 at 9 AM (vrwlc1, COURT STAFF) (Filed on 1/11/2010) (Entered: 01/11/2010)
410 STIPULATION AND ORDER REGARDING ATTENDANCE OF TRIAL BY Defendant Dean C Logan, Registrar−Recorder/County Clerk re doc 357 Stipulation filed by Dean C. Logan. The attendance at trial by counsel of record for Defendant Dean C Logan, the Los Angeles County Clerk, will not be necessary, but Logan's counsel may attend the hearing for selected arguments. Defendant County Registrar will continue to be served in the normal practice throughout the proceedings. Defendant County Registrar will be bound by the final judgment of the Court in this matter. Signed by Judge Vaughn R Walker on 1/11/2010. (cgk, COURT STAFF) (Filed on 1/11/2010) (Entered: 01/11/2010)
411 *** FILED IN ERROR. PLEASE SEE DOCKET # 528 . *** Transcript of Proceedings held on January 11, 2010, before Judge Vaughn R. Walker. Court Reporter/Transcriber Katherine Powell Sullivan and Debra L. Pas, Official Reporters, Telephone number 415−794−6659. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 4/12/2010. (Sullivan, Katherine) (Filed on 1/11/2010) Modified on 1/28/2010 (ewn, COURT STAFF). (Entered: 01/11/2010)
412 Exhibit List (Third Supplemental) by City and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo.. (Attachments: # 1 Exhibit A)(Olson, Theodore) (Filed on 1/11/2010) (Entered: 01/11/2010)
418 Minute Entry: Bench Trial held on 1/11/2010 before Chief Judge Vaughn R Walker. Opening statements. Further bench trial set for 1/12/2010 at 8:30 AM. (Court Reporter Kathy Sullivan and Debra Pas.) (cgk, COURT STAFF) (Date Filed: 1/11/2010) (Entered: 01/12/2010)
Set/Reset Hearings: Further Bench Trial set for 1/12/2010 08:30 AM in Courtroom 6, 17th Floor, San Francisco. (cgk, COURT STAFF) (Filed on 1/11/2010) (Entered: 01/12/2010)
424 MOTION for leave to appear in Pro Hac Vice of Vincent P. McCarthy ( Filing fee $ 210, receipt number 34611040926.) filed by Miles McPherson. (Attachments: # 1 Proposed Order)(far, COURT STAFF) (Filed on 1/11/2010) (Entered: 01/12/2010)
413 ORDER directing the Attorney General to respond to the court's question not later than January 14, 2010 at 5 PM. (vrwlc1, COURT STAFF) (Filed on 1/12/2010) (Entered: 01/12/2010)
414 MOTION to Seal Document or for entry of document into public record filed by Kristin M. Perry. (Attachments: # 1 Proposed Order)(Boutrous, Theodore) (Filed on 1/12/2010) (Entered: 01/12/2010)
415 Declaration of Rebecca Justice Lazarus in Support of 414 MOTION to Seal Document or for entry of document into public record filed byKristin M. Perry. (Related document(s) 414 ) (Boutrous, Theodore) (Filed on 1/12/2010) (Entered: 01/12/2010)
416 MOTION to Shorten Time for Plaintiffs' Administrative Motion to Seal Documents filed by Kristin M. Perry. (Attachments: # 1 Proposed Order)(Boutrous, Theodore) (Filed on 1/12/2010) (Entered: 01/12/2010)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 59 of 90

01/12/2010
01/12/2010 01/12/2010 01/12/2010
01/12/2010 01/12/2010 01/12/2010 01/12/2010 01/12/2010 01/12/2010 01/12/2010 01/12/2010 01/12/2010 01/12/2010 01/12/2010
01/12/2010 01/12/2010 01/12/2010

417 Declaration of Rebecca Justice Lazarus in Support of 416 MOTION to Shorten Time for Plaintiffs' Administrative Motion to Seal Documents filed byKristin M. Perry. (Related document(s) 416 ) (Boutrous, Theodore) (Filed on 1/12/2010) (Entered: 01/12/2010)
423 Statement Supplemental Designation of Discovery Excerpts by City and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Olson, Theodore) (Filed on 1/12/2010) (Entered: 01/12/2010)
425 AMENDED PROTECTIVE ORDER. Signed by Judge Joseph C. Spero on 1/12/2010. **See page 8, line 15 for amendment**(klh, COURT STAFF) (Filed on 1/12/2010) (Entered: 01/12/2010)
426 MANDATE of USCA as to 168 Notice of Appeal, filed by Campaign for California Families, 253 Notice of Appeal, filed by Dennis Hollingsworth, 222 Notice of Appeal, filed by Hak−Shing William Tam, Dennis Hollingsworth, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Mark A. Jansson, Martin F. Gutierrez, Gail J. Knight (far, COURT STAFF) (Filed on 1/12/2010) (Entered: 01/12/2010)
427 CLERKS Letter Spreading Mandate to Counsel (far, COURT STAFF) (Filed on 1/12/2010) (Entered: 01/12/2010)
428 ORDER of USCA (far, COURT STAFF) (Filed on 1/12/2010) (Entered: 01/12/2010)
429 ORDER by Judge Vaughn R Walker granting doc 394 Motion Application for Admission of Attorney James Bopp, Jr. Pro Hac Vice representing Doug Swardstrom. (cgk, COURT STAFF) (Filed on 1/12/2010) (Entered: 01/12/2010)
430 ORDER of USCA (far, COURT STAFF) (Filed on 1/12/2010) (Entered: 01/12/2010)
431 ORDER by Judge Vaughn R Walker granting doc 395 Motion Application for Admission of Attorney Richard E Coleson Pro Hac Vice representing Doug Swardstrom. (cgk, COURT STAFF) (Filed on 1/12/2010) (Entered: 01/12/2010)
432 ORDER by Judge Vaughn R Walker granting doc 396 Motion Application for Admission of Attorney Kaylan L Phillips Pro Hac Vice representing Doug Swardstrom. (cgk, COURT STAFF) (Filed on 1/12/2010) (Entered: 01/12/2010)
433 ORDER of USCA (far, COURT STAFF) (Filed on 1/12/2010) (Entered: 01/12/2010)
434 AMENDED OPINION of USCA (far, COURT STAFF) (Filed on 1/12/2010) (Entered: 01/12/2010)
435 CERTIFICATE OF SERVICE by Miles McPherson re 407 MOTION to Quash Subpoena and for Protective Order (Chavez−Ochoa, Brian) (Filed on 1/12/2010) (Entered: 01/12/2010)
436 CERTIFICATE OF SERVICE by James L Garlow re 404 MOTION to Quash Subpoena and for Protective Order (Chavez−Ochoa, Brian) (Filed on 1/12/2010) (Entered: 01/12/2010)
437 *** FILED IN ERROR. DOCUMENT LOCKED. REFER TO DOCUMENT 440 . *** Exhibit List Second Supplemental by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal.. (Attachments: # 1 Exhibit A)(Cooper, Charles) (Filed on 1/12/2010) Modified on 1/12/2010 (feriab, COURT STAFF). (Entered: 01/12/2010)
438 ORDER by Judge Walker directing proponents to respond to Doc #414. (vrwlc1, COURT STAFF) (Filed on 1/12/2010) (Entered: 01/12/2010)
439 Alameda County Bar Association comment re Civ LR 77−3. (vrwlc1, COURT STAFF) (Filed on 1/12/2010) (Entered: 01/12/2010)
440 Exhibit List Second Supplemental by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal.. (Attachments: # 1 Exhibit A)(Cooper, Charles) (Filed on 1/12/2010) (Entered: 01/12/2010)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 60 of 90

01/12/2010 01/12/2010
01/12/2010 01/12/2010
01/12/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010

441 Memorandum in Opposition re 369 MOTION to Withdraw filed byPaul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Boutrous, Theodore) (Filed on 1/12/2010) (Entered: 01/12/2010)
442 Declaration of Rebecca Justice Lazarus in Support of 441 Memorandum in Opposition to Motion to Withdraw filed byPaul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O)(Related document(s) 441 ) (Boutrous, Theodore) (Filed on 1/12/2010) (Entered: 01/12/2010)
443 Memorandum in Opposition re 404 MOTION to Quash Subpoena and for Protective Order by Criswell (Doc 351), Garlow (Doc 404), McPherson (Doc 407) filed byPaul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Boutrous, Theodore) (Filed on 1/12/2010) (Entered: 01/12/2010)
444 Declaration of Kaiponanea T Matsumura in Support of 443 Memorandum in Opposition, to Motions to Quash filed byPaul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Related document(s) 443 ) (Boutrous, Theodore) (Filed on 1/12/2010) (Entered: 01/12/2010)
457 Minute Entry: Bench Trial held on 1/12/2010 before Chief Judge Vaughn R Walker ; Further trial set for 1/13/2010 at 8:30 AM. (Court Reporter Kathy Sullivan and Debra Pas.) (cgk, COURT STAFF) (Date Filed: 1/12/2010) (Entered: 01/14/2010)
445 MOTION to Seal Portions of Declaration of Ronald Prentice filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Attachments: # 1 Exhibit Declaration, # 2 Proposed Order)(Cooper, Charles) (Filed on 1/13/2010) (Entered: 01/13/2010)
446 OBJECTIONS to Discovery Orders of Magistrate Judge Spero by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Cooper, Charles) (Filed on 1/13/2010) (Entered: 01/13/2010)
447 Reply Memorandum re 414 MOTION to Seal Document or for entry of document into public record filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Attachments: # 1 Proposed Order)(Cooper, Charles) (Filed on 1/13/2010) (Entered: 01/13/2010)
448 MOTION to Seal Ronald Prentice Declaration of Jan. 13, 2010 filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Attachments: # 1 Declaration, # 2 Proposed Order)(Cooper, Charles) (Filed on 1/13/2010) (Entered: 01/13/2010)
449 Joint Reply of Non−Parties James L. Garlow and Miles McPherson to Plaintiff's Opposition to their 407 MOTIONS to Quash Subpoenas and for Protective Order filed by James L Garlow. (Chavez−Ochoa, Brian) (Filed on 1/13/2010) Modified on 1/14/2010 (slh, COURT STAFF). (Entered: 01/13/2010)
450 Reply to Opposition to 369 Motion to Withdraw filed by Hak−Shing William Tam. (Attachments: # 1 Affidavit Declaration of Terry L. Thompson, # 2 Exhibit e−mails, # 3 Exhibit Agreement to Appear, # 4 Exhibit e−mails)(Thompson, Terry) (Filed on 1/13/2010) Modified on 1/14/2010 (slh, COURT STAFF). (Entered: 01/13/2010)
451 Exhibit List (Fourth Supplemental) by City and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo.. (Attachments: # 1 Exhibit A)(Olson, Theodore) (Filed on 1/13/2010) (Entered: 01/13/2010)
458 Minute Entry: Bench Trial held on 1/13/2010 before Chief Judge Vaughn R Walker ; continued for further court trial on 1/14/2010 at 8:30 AM. (Court Reporter Kathy Sullivan and Debra Pas.) (cgk, COURT STAFF) (Date Filed: 1/13/2010) (Entered:

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 61 of 90

01/13/2010 01/14/2010 01/14/2010
01/14/2010
01/14/2010
01/14/2010 01/14/2010 01/14/2010 01/14/2010
01/14/2010

01/14/2010)
704 FILED UNDER SEAL Portions of the Declaration of Ronald Prentice by Dennis Hollingsworth (far, COURT STAFF) (Filed on 1/13/2010) (Entered: 07/21/2010)
452 Letter from Charles J. Cooper. (Attachments: # 1 Exhibit)(Cooper, Charles) (Filed on 1/14/2010) (Entered: 01/14/2010)
453 Transcript of Proceedings held on January 12, 2010, before Judge Vaughn R. Walker. Court Reporter/Transcriber Katherine Powell Sullivan and Debra L. Pas, Official Reporters, Telephone number 415−794−6659. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 4/14/2010. (Sullivan, Katherine) (Filed on 1/14/2010) (Entered: 01/14/2010)
454 Transcript of Proceedings held on January 13, 2010, before Judge Vaughn R. Walker. Court Reporter/Transcriber Katherine Powell Sullivan and Debra L. Pas, Official Reporters, Telephone number Y. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 4/14/2010. (Sullivan, Katherine) (Filed on 1/14/2010) (Entered: 01/14/2010)
455 STIPULATION AND ORDER REGARDING ATTENDANCE OF TRIAL by Defendant Patrick O'Connell, Clerk−Recorder of the County of Alameda re doc 360 filed by Patrick O'Connell. The attendance at trial by counsel of record for Defendant O'Connell Clerk−Recorder of the County of Alameda will not be necessary but may attend the hearing for selected arguments. Defendant O'Connell will continue to be served in the normal practice throughout the proceedings. Defendant O'Connell will be bound by the final judgment of the Court in this matter. Signed by Judge Vaughn R Walker on 1/13/2010. (cgk, COURT STAFF) (Filed on 1/14/2010) (Entered: 01/14/2010)
456 Response re 413 Order ATTORNEY'S GENERAL'S MEMORANDUM IN RESPONSE TO COURT'S INQUIRY [DOC #413] INTO THE ATTORNEY GENERAL'S ROLE IN THE INITIATIVE PROCESS byEdmund G. Brown, Jr. (Attachments: # 1 proof of service)(Pachter, Tamar) (Filed on 1/14/2010) (Entered: 01/14/2010)
459 ORDER, by Judge Joseph C. Spero, signed 1/14/2010,granting 445 Dft−Intervenors' Motion to Seal Portions of the Declaration of Ronald Prentice. (klh, COURT STAFF) (Filed on 1/14/2010) (Entered: 01/14/2010)
460 ORDER re 446 . Plaintiffs are directed to respond to proponents' objections in writing not later than 1/15 at 4 PM. (vrwlc1, COURT STAFF) (Filed on 1/14/2010) (Entered: 01/14/2010)
461 MOTION to Exclude Kendall filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. Motion Hearing set for 1/15/2010 08:30 AM in Courtroom 6, 17th Floor, San Francisco. (Attachments: # 1 Exhibit A −− Declaration, *** # 2 Exhibit B FILED IN ERROR. DOCUMENT LOCKED. DOCUMENT TO BE REFILED LATER. *** , # 3 Exhibit C, # 4 Proposed Order)(Cooper, Charles) (Filed on 1/14/2010) Modified on 1/15/2010 (ewn, COURT STAFF). (Entered: 01/14/2010)
462 MOTION to Shorten Time filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. Motion Hearing set for 1/15/2010 08:30 AM in Courtroom 6, 17th Floor, San Francisco. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Cooper, Charles) (Filed on 1/14/2010) (Entered: 01/14/2010)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 62 of 90

01/14/2010 01/15/2010 01/15/2010
01/15/2010 01/15/2010 01/15/2010 01/15/2010 01/15/2010 01/15/2010 01/15/2010 01/15/2010 01/15/2010 01/15/2010 01/15/2010 01/18/2010

489 Minute Entry: Bench Trial held on 1/14/2010 before Chief Judge Vaughn R Walker; Further court trial 1/15/2010 at 8:30 AM. (Date Filed: 1/14/2010). (Court Reporter Kathy Sullivan and Debra Pas.) (cgk, COURT STAFF) (Date Filed: 1/14/2010) (Entered: 01/19/2010)
463 Notice to parties. (vrwlc1, COURT STAFF) (Filed on 1/15/2010) (Entered: 01/15/2010)
464 Transcript of Proceedings held on January 14, 2010, before Judge Vaughn R. Walker. Court Reporter/Transcriber Katherine Powell Sullivan and Debra L. Pas, Official Reporters, Telephone number 415−794−6659. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 4/15/2010. (Sullivan, Katherine) (Filed on 1/15/2010) (Entered: 01/15/2010)
465 ORDER by Judge Vaughn R Walker granting doc 419 Motion Application for Admission of Attorney Kevin J. Hasson Pro Hac Vice representing Becket Fund for Religious Liberty. (cgk, COURT STAFF) (Filed on 1/15/2010) (Entered: 01/15/2010)
466 ORDER by Judge Vaughn R Walker granting doc 420 Motion Application for Admission of Attorney Thomas Brejcha Pro Hac Vice representing Family Research Council. (cgk, COURT STAFF) (Filed on 1/15/2010) (Entered: 01/15/2010)
467 ORDER by Judge Vaughn R Walker granting doc 421 Motion Application for Admission of Attorney Christopher M Gacek Pro Hac Vice representing Family Research Council. (cgk, COURT STAFF) (Filed on 1/15/2010) (Entered: 01/15/2010)
468 ORDER by Judge Vaughn R Walker granting doc 422 Motion Application for Admission of Attorney Paul Benjamin Linton Pro Hac Vice representing Family Research Council. (cgk, COURT STAFF) (Filed on 1/15/2010) (Entered: 01/15/2010)
469 ORDER by Judge Vaughn R Walker granting doc 424 Motion Application for Admission of Attorney Vincent P. McCarthy Pro Hac Vice representing non−party Dr Jim Garlow and Pastor Miles McPherson. (cgk, COURT STAFF) (Filed on 1/15/2010) (Entered: 01/15/2010)
470 Memorandum in Opposition Plaintiffs' Response to Proponents' Objections to Discovery Orders of Magistrate Judge Spero filed byKristin M. Perry. (Dettmer, Ethan) (Filed on 1/15/2010) (Entered: 01/15/2010)
471 Declaration of Rebecca Justice Lazarus in Support of 470 Memorandum in Opposition filed byKristin M. Perry. (Related document(s) 470 ) (Dettmer, Ethan) (Filed on 1/15/2010) (Entered: 01/15/2010)
472 MOTION to Compel filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit)(Cooper, Charles) (Filed on 1/15/2010) (Entered: 01/15/2010)
473 MOTION to Shorten Time re Motion to Compel filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Attachments: # 1 Declaration)(Cooper, Charles) (Filed on 1/15/2010) (Entered: 01/15/2010)
490 Minute Entry: Bench Trial held on 1/15/2010 before Chief Judge Vaughn R Walker. Further bench trial set for 1/19/2010 at 8:30 AM. (Date Filed: 1/15/2010). (Court Reporter Debra Pas and Kathy Sullivan.) (cgk, COURT STAFF) (Date Filed: 1/15/2010) . (Entered: 01/19/2010)
Set/Reset Hearings: Further Bench Trial set for 1/19/2010 08:30 AM in Courtroom 6, 17th Floor, San Francisco. (cgk, COURT STAFF) (Filed on 1/15/2010) (Entered: 01/19/2010)
474 MOTION to Amend/Correct Order of January 8, 2010 filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Attachments: # 1 Declaration of Ronald

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 63 of 90

01/18/2010 01/18/2010 01/19/2010 01/19/2010 01/19/2010 01/19/2010
01/19/2010
01/19/2010
01/19/2010

Prentice)(Cooper, Charles) (Filed on 1/18/2010) (Entered: 01/18/2010)
475 MOTION to Seal Declaration of Ronald Prentice (Jan. 16, 2010) filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Attachments: # 1 Declaration, # 2 Proposed Order)(Cooper, Charles) (Filed on 1/18/2010) (Entered: 01/18/2010)
476 MOTION to Shorten Time to respond to Motion to Amend Order of Jan. 8, 2010 filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Attachments: # 1 Declaration)(Cooper, Charles) (Filed on 1/18/2010) (Entered: 01/18/2010)
477 Memorandum in Opposition re 474 MOTION to Amend/Correct Order of January 8, 2010 filed byPaul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Boutrous, Theodore) (Filed on 1/19/2010) (Entered: 01/19/2010)
478 Declaration of Rebecca Justice Lazarus in Support of 477 Memorandum in Opposition to Proponents' Motion to Amend Discovery Order filed byPaul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Related document(s) 477 ) (Boutrous, Theodore) (Filed on 1/19/2010) (Entered: 01/19/2010)
479 MOTION for Discovery (REDACTED Motion for Leave to Reopen the Deposition of Ronald Prentice in His Personal Capacity and as the Rule 30(b)(6) Representative for ProtectMarriage.com) filed by Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. Motion Hearing set for 1/19/2010 09:00 AM in Courtroom 6, 17th Floor, San Francisco. (Dettmer, Ethan) (Filed on 1/19/2010) (Entered: 01/19/2010)
480 Declaration of Rebecca Justice Lazarus in Support of 479 MOTION for Discovery (REDACTED Motion for Leave to Reopen the Deposition of Ronald Prentice in His Personal Capacity and as the Rule 30(b)(6) Representative for ProtectMarriage.com) MOTION for Discovery (REDACTED Motion for Leave to Reopen the Deposition of Ronald Prentice in His Personal Capacity and as the Rule 30(b)(6) Representative for ProtectMarriage.com) (Public Version, Redacted Documents Not Included) filed byPaul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Related document(s) 479 ) (Dettmer, Ethan) (Filed on 1/19/2010) (Entered: 01/19/2010)
481 Proposed Order re 479 MOTION for Discovery (REDACTED Motion for Leave to Reopen the Deposition of Ronald Prentice in His Personal Capacity and as the Rule 30(b)(6) Representative for ProtectMarriage.com) MOTION for Discovery (REDACTED Motion for Leave to Reopen the Deposition of Ronald Prentice in His Personal Capacity and as the Rule 30(b)(6) Representative for ProtectMarriage.com) by Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Dettmer, Ethan) (Filed on 1/19/2010) (Entered: 01/19/2010)
482 MOTION to Seal Document 480 Declaration in Support,, 479 MOTION for Discovery (REDACTED Motion for Leave to Reopen the Deposition of Ronald Prentice in His Personal Capacity and as the Rule 30(b)(6) Representative for ProtectMarriage.com) MOTION for Discovery (REDACTED Motion for Leave to Reopen the Deposition of Ronald Prentice in His Personal Capacity and as the Rule 30(b)(6) Representative for ProtectMarriage.com) filed by Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. Motion Hearing set for 1/19/2010 09:00 AM in Courtroom 6, 17th Floor, San Francisco. (Dettmer, Ethan) (Filed on 1/19/2010) (Entered: 01/19/2010)
483 Declaration in Support of 482 MOTION to Seal Document 480 Declaration in Support,, 479 MOTION for Discovery (REDACTED Motion for Leave to Reopen the Deposition of Ronald Prentice in His Personal Capacity and as the Rule 30(b)(6) Representative for ProtectMarriage.com) MOTION to Seal Document 480 Declaration in Support,, 479 MOTION for Discovery (REDACTED Motion for Leave to Reopen the Deposition of Ronald Prentice in His Personal Capacity and as the Rule 30(b)(6) Representative for ProtectMarriage.com) MOTION to Seal Document 480 Declaration in Support,, 479 MOTION for Discovery (REDACTED Motion for Leave to Reopen the Deposition of Ronald Prentice in His Personal Capacity and as the Rule 30(b)(6) Representative for ProtectMarriage.com) filed byPaul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Related document(s) 482 ) (Dettmer, Ethan) (Filed on 1/19/2010) (Entered: 01/19/2010)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 64 of 90

01/19/2010
01/19/2010 01/19/2010 01/19/2010 01/19/2010 01/19/2010
01/19/2010 01/19/2010 01/20/2010 01/20/2010 01/20/2010 01/20/2010

484 Proposed Order re 482 MOTION to Seal Document 480 Declaration in Support,, 479 MOTION for Discovery (REDACTED Motion for Leave to Reopen the Deposition of Ronald Prentice in His Personal Capacity and as the Rule 30(b)(6) Representative for ProtectMarriage.com) MOTION to Seal Document 480 Declaration in Support,, 479 MOTION for Discovery (REDACTED Motion for Leave to Reopen the Deposition of Ronald Prentice in His Personal Capacity and as the Rule 30(b)(6) Representative for ProtectMarriage.com) MOTION to Seal Document 480 Declaration in Support,, 479 MOTION for Discovery (REDACTED Motion for Leave to Reopen the Deposition of Ronald Prentice in His Personal Capacity and as the Rule 30(b)(6) Representative for ProtectMarriage.com) by Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Dettmer, Ethan) (Filed on 1/19/2010) (Entered: 01/19/2010)
485 MOTION to Shorten Time filed by Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. Motion Hearing set for 1/19/2010 09:00 AM in Courtroom 6, 17th Floor, San Francisco. (Dettmer, Ethan) (Filed on 1/19/2010) (Entered: 01/19/2010)
486 Declaration of Rebecca Justice Lazarus in Support of 485 MOTION to Shorten Time filed byPaul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Related document(s) 485 ) (Dettmer, Ethan) (Filed on 1/19/2010) (Entered: 01/19/2010)
487 Proposed Order re 485 MOTION to Shorten Time by Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Dettmer, Ethan) (Filed on 1/19/2010) (Entered: 01/19/2010)
488 Memorandum in Opposition of No on Proposition 8, Campaign for Marriage Equality: A Project of the American Civil Liberties Union of Northern California to Defendant−Intervenors' Motion to Shorten Time for Motion to Compel Compliance with Nonparty Document Subpoenas filed byACLU Foundation of Northern California. (Bomse, Stephen) (Filed on 1/19/2010) (Entered: 01/19/2010)
491 Memorandum in Opposition re 473 MOTION to Shorten Time re Motion to Compel filed byEquality California. (Attachments: # 1 Affidavit Of Leslie Kramer ISO Third Party Equality California's Opposition to Defendant−Intervenors' Motin to Shorten Time, # 2 Exhibit A to Kramer Declaration, # 3 Exhibit B to Kramer Declaration, # 4 Exhibit C to Kramer Declaration, # 5 Exhibit D to Kramer Declaration, # 6 Exhibit E to Kramer Declaration, # 7 Exhibit F to Kramer Declaration)(Kramer, Leslie) (Filed on 1/19/2010) (Entered: 01/19/2010)
498 Minute Entry: Further Bench Trial held on 1/19/2010 before Chief Judge Vaughn R Walker; further bench trial set for 1/20/2010 at 8:30 AM. (Date Filed: 1/19/2010). (Court Reporter Kathy Sullivan and Debra Pas.) (cgk, COURT STAFF) (Date Filed: 1/19/2010) (Entered: 01/20/2010)
758 FILED UNDER SEAL Declaration of Ronald Prentice filed byDennis Hollingsworth. (far, COURT STAFF) (Filed on 1/19/2010) (Entered: 12/09/2010)
492 Exhibit List (Fifth Supplemental) by City and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo.. (Attachments: # 1 Exhibit A)(Olson, Theodore) (Filed on 1/20/2010) (Entered: 01/20/2010)
493 Memorandum in Opposition to Plaintiffs' Motion for Leave to Reopen the Deposition of Ronald Prentice filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Cooper, Charles) (Filed on 1/20/2010) (Entered: 01/20/2010)
494 Declaration of Nicole J. Moss in Support of Opposition to Plaintiffs' Motion for Leave to Reopen the Deposition of Ronald Prentice filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Cooper, Charles) (Filed on 1/20/2010) (Entered: 01/20/2010)
495 Declaration of Ronald Prentice in Support of Opposition to Plaintiffs' Motion for Leave to Reopen the Deposition of Ronald Prentice filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Cooper, Charles) (Filed on 1/20/2010) (Entered: 01/20/2010)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 65 of 90

01/20/2010 01/20/2010
01/20/2010 01/20/2010 01/20/2010 01/20/2010 01/20/2010 01/20/2010 01/21/2010 01/21/2010
01/21/2010

496 ORDER re 446 Objection filed by Dennis Hollingsworth, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Mark A. Jansson, Martin F. Gutierrez, Gail J. Knight (vrwlc1, COURT STAFF) (Filed on 1/20/2010) (Entered: 01/20/2010)
497 Minute Entry: Motion Hearing held on 1/20/2010 before Joseph C. Spero re 474 MOTION to Amend/Correct Order of January 8, 2010 filed by Dennis Hollingsworth, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Mark A. Jansson, Martin F. Gutierrez, Gail J. Knight. Motion granted in part, denied in part. Court to prepare Order.NOTE: Court construced Motion to Amend as a Motion for Reconsideration. (Court Reporter Jim Yeomans.) (klh, COURT STAFF) (Date Filed: 1/20/2010) (Entered: 01/20/2010)
499 ORDER, by Judge Joseph C. Spero, signed 1/20/2010,granting in part and denying in part 474 Motion to Amend/Correct January 8, 2010 Discovery Order. (klh, COURT STAFF) (Filed on 1/20/2010) (Entered: 01/20/2010)
500 AMENDED Minute Entry: Motion Hearing held on 1/20/2009 before Joseph C. Spero re: Dft−Intervenor's Motion to Amend/Correct January 8, 2010 Order [Docket No. 474]**Amended to correct clerical typing error from Plaintiff to Dft−Intervenor(Court Reporter Jim Yeomans.) (klh, COURT STAFF) (Date Filed: 1/20/2010) (Entered: 01/20/2010)
501 Minute Entry: Motion Hearing held on 1/20/2010 before Joseph C. Spero re 404 MOTION to Quash Subpoena and for Protective Order filed by James L Garlow, and 407 MOTION to Quash Subpoena and for Protective Order filed by Miles McPherson. Motions DENIED. Court to prepare Order. (Court Reporter Jim Yeomans.) (klh, COURT STAFF) (Date Filed: 1/20/2010) (Entered: 01/20/2010)
502 ORDER, by Judge Joseph C. Spero, signed 1/20/10,denying without prejudice 404 James Garlow's Motion to Quash; denying without prejudice 407 Miles McPherson's Motion to Quash (klh, COURT STAFF) (Filed on 1/20/2010) (Entered: 01/20/2010)
503 Exhibit List Third Supplemental by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal.. (Attachments: # 1 Exhibit A)(Cooper, Charles) (Filed on 1/20/2010) (Entered: 01/20/2010)
509 Minute Entry: Bench Trial held on 1/20/2010 before Chief Judge Vaughn R Walker. Further bench trial set for 1/21/2010 at 8:30 AM. (Date Filed: 1/20/2010). (Court Reporter Kathy Sullivan and Debra Pas.) (cgk, COURT STAFF) (Date Filed: 1/20/2010) (Entered: 01/21/2010)
504 Statement Second Supplemental Designation of Discovery Excerpts by City and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Olson, Theodore) (Filed on 1/21/2010) (Entered: 01/21/2010)
505 Transcript of Proceedings held on January 15, 2010, before Judge Vaughn R. Walker. Court Reporter/Transcriber Katherine Powell Sullivan and Debra L. Pas, Official Reporters, Telephone number 415−794−6659/Katherine_Sullivan@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 4/21/2010. (Sullivan, Katherine) (Filed on 1/21/2010) (Entered: 01/21/2010)
506 Transcript of Proceedings held on January 19, 2010, before Judge Vaughn R. Walker. Court Reporter/Transcriber Katherine Powell Sullivan and Debra L. Pas, Official Reporters, Telephone number 415−794−6659/Katherine_Sullivan@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 4/21/2010. (Sullivan, Katherine) (Filed on 1/21/2010) (Entered: 01/21/2010)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 66 of 90

01/21/2010
01/21/2010 01/21/2010 01/22/2010 01/22/2010 01/22/2010
01/22/2010
01/22/2010 01/22/2010 01/22/2010 01/22/2010 01/24/2010 01/24/2010 01/24/2010 01/24/2010

507 Transcript of Proceedings held on January 20, 2010, before Judge Vaughn R. Walker. Court Reporter/Transcriber Katherine Powell Sullivan and Debra L. Pas, Official Reporters, Telephone number 415−794−6659/Katherine_Sullivan@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 4/21/2010. (Sullivan, Katherine) (Filed on 1/21/2010) (Entered: 01/21/2010)
508 ORDER, by Judge Joseph C. Spero, signed on 1/21/10,granting 475 Dft−Intervenor's Motion to Seal Portions of the Declaration of Ronald Prentice, dated Jan. 16, 2010. (klh, COURT STAFF) (Filed on 1/21/2010) (Entered: 01/21/2010)
510 Minute Entry: Bench Trial held on 1/21/2010 before Chief Judge Vaughn R Walker. Further bench trial set for 1/22/2010 at 8:30 AM. (Date Filed: 1/21/2010). (Court Reporter Kathy Sullivan and Debra Pas.) (cgk, COURT STAFF) (Date Filed: 1/21/2010) (Entered: 01/21/2010)
511 ORDER of USCA (far, COURT STAFF) (Filed on 1/22/2010) (Entered: 01/22/2010)
512 ORDER of USCA (far, COURT STAFF) (Filed on 1/22/2010) (Entered: 01/22/2010)
513 MANDATE of USCA as to 253 Notice of Appeal, filed by Dennis Hollingsworth, 222 Notice of Appeal, filed by Hak−Shing William Tam, Dennis Hollingsworth, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Mark A. Jansson, Martin F. Gutierrez, Gail J. Knight (far, COURT STAFF) (Filed on 1/22/2010) (Entered: 01/22/2010)
514 MANDATE of USCA as to 253 Notice of Appeal, filed by Dennis Hollingsworth, 222 Notice of Appeal, filed by Hak−Shing William Tam, Dennis Hollingsworth, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Mark A. Jansson, Martin F. Gutierrez, Gail J. Knight (far, COURT STAFF) (Filed on 1/22/2010) (Entered: 01/22/2010)
515 CLERKS Letter Spreading Mandate to Counsel (far, COURT STAFF) (Filed on 1/22/2010) (Entered: 01/22/2010)
523 Minute Entry: Bench Trial held on 1/22/2010 before Chief Judge Vaughn R Walker. Further bench trial set for Monday, 1/25/2010 at 8:30 AM. (Date Filed: 1/22/2010). (Court Reporter Katherine Sullivan and Debra Pas.) (cgk, COURT STAFF) (Date Filed: 1/22/2010) (Entered: 01/25/2010)
568 MOTION for Leave to File as Amicus Curi filed by Michael Wolf. (far, COURT STAFF) (Filed on 1/22/2010) (Entered: 02/04/2010)
569 BRIEF filed byMichael Wolf. (far, COURT STAFF) (Filed on 1/22/2010) (Entered: 02/04/2010)
516 MOTION to Exclude Testimony of Frank Schubert filed by Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. Motion Hearing set for 1/25/2010 08:30 AM in Courtroom 6, 17th Floor, San Francisco. (Olson, Theodore) (Filed on 1/24/2010) (Entered: 01/24/2010)
517 Declaration of Amir C. Tayrani in Support of 516 MOTION to Exclude Testimony of Frank Schubert filed byPaul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 516 ) (Olson, Theodore) (Filed on 1/24/2010) (Entered: 01/24/2010)
518 Proposed Order re 516 MOTION to Exclude Testimony of Frank Schubert by Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Olson, Theodore) (Filed on 1/24/2010) (Entered: 01/24/2010)
519 MOTION to Shorten Time re Motion to Exclude Testimony of Frank Schubert filed by Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. Motion Hearing set for 1/25/2010 08:30 AM in Courtroom 6, 17th Floor, San Francisco. (Attachments: # 1 Affidavit of Amir C. Tayrani, # 2 Proposed Order)(Olson, Theodore) (Filed on 1/24/2010) (Entered: 01/24/2010)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 67 of 90

01/24/2010 01/24/2010 01/24/2010 01/25/2010 01/25/2010 01/25/2010 01/26/2010
01/26/2010
01/26/2010 01/26/2010 01/27/2010 01/27/2010

520 MOTION to Seal filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, Proposition 8 Official Proponents. (Attachments: # 1 Proposed Order)(Cooper, Charles) (Filed on 1/24/2010) (Entered: 01/24/2010)
521 Declaration of Nicole J. Moss in Support of 520 MOTION to Seal filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Related document(s) 520 ) (Cooper, Charles) (Filed on 1/24/2010) (Entered: 01/24/2010)
522 NOTICE by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal (Attachments: # 1 Exhibit A)(Cooper, Charles) (Filed on 1/24/2010) (Entered: 01/24/2010)
527 Minute Entry: Bench Trial held on 1/25/2010 before Chief Judge Vaughn R Walker. Further bench trial scheduled for 1/26/2010 at 8:30AM. (Court Reporter Katherine Sullivan and Debra Pas.) (cgk, COURT STAFF) (Date Filed: 1/25/2010) (Entered: 01/27/2010)
532 AMENDED Minute Entry: Bench Trial held on 1/25/2010 before Chief Judge Vaughn R Walker (Date Filed: 1/25/2010). (Court Reporter Katherine Sullivan and Debra Pas.) (cgk, COURT STAFF) (Date Filed: 1/25/2010) (Entered: 01/29/2010)
759 FILED UNDER SEAL REVISED PRIVILEGE LOG by Dennis Hollingsworth (far, COURT STAFF) (Filed on 1/25/2010) (Entered: 12/09/2010)
524 Transcript of Proceedings held on January 21, 2010, before Judge Vaughn R. Walker. Court Reporter/Transcriber Katherine Powell Sullivan and Debra L. Pas, Official Reporters, Telephone number 415−794−6659/Katherine_Sullivan@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 4/26/2010. (Sullivan, Katherine) (Filed on 1/26/2010) (Entered: 01/26/2010)
525 Transcript of Proceedings held on January 22, 2010, before Judge Vaughn R. Walker. Court Reporter/Transcriber Katherine Powell Sullivan and Debra L. Pas, Official Reporters, Telephone number 415−794−6659/Katherine_Sullivan@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 4/26/2010. (Sullivan, Katherine) (Filed on 1/26/2010) (Entered: 01/26/2010)
526 ORDER to non−parties CAEBR, Equality California and the ACLU to respond to Doc #472 not later than 2/2/10. Plaintiffs may also file a response. Proponents' reply, if any, shall be filed not later than 2/5/10. (vrwlc1, COURT STAFF) (Filed on 1/26/2010) (Entered: 01/26/2010)
533 Minute Entry: Bench Trial held on 1/26/2010 before Chief Judge Vaughn R Walker. Further bench trial set for 1/27/2010 at 8:30 AM. (Date Filed: 1/26/2010). (Court Reporter Kathy Sullivan and Debra Pas.) (cgk, COURT STAFF) (Date Filed: 1/26/2010) (Entered: 01/29/2010)
534 Minute Entry: Bench Trial completed on 1/27/2010 before Chief Judge Vaughn R Walker. Defense Rest. Post trial filings: Finding of Facts and Conclusions to be filed no later than 2/26/2010. Deadline to file amicus briefs: 2/3/2010. The court will set date for closing arguments. (Court Reporter Debra Pas, Katherine Sullivan.) (cgk, COURT STAFF) (Date Filed: 1/27/2010) (Entered: 01/29/2010)
536 Trial Log. (cgk, COURT STAFF) (Filed on 1/27/2010) (Entered: 01/29/2010)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 68 of 90

01/28/2010 01/28/2010 01/28/2010 01/28/2010 01/29/2010 01/29/2010

528 Transcript of Proceedings held on January 11, 2010, before Judge Vaughn R. Walker. Court Reporter/Transcriber Katherine Powell Sullivan and Debra L. Pas, Official Reporters, Telephone number 415−794−6659/Katherine_Sullivan@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 4/28/2010. (Sullivan, Katherine) (Filed on 1/28/2010) (Entered: 01/28/2010)
529 Transcript of Proceedings held on January 25, 2010, before Judge Vaughn R. Walker. Court Reporter/Transcriber Katherine Powell Sullivan and Debra L. Pas, Official Reporters, Telephone number 415−794−6659/Katherine_Sullivan@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 4/28/2010. (Sullivan, Katherine) (Filed on 1/28/2010) (Entered: 01/28/2010)
530 Transcript of Proceedings held on January 26, 2010, before Judge Vaughn R. Walker. Court Reporter/Transcriber Katherine Powell Sullivan and Debra L. Pas, Official Reporters, Telephone number 415−794−6659/Katherine_Sullivan@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 4/28/2010. (Sullivan, Katherine) (Filed on 1/28/2010) (Entered: 01/28/2010)
531 Transcript of Proceedings held on January 27, 2010, before Judge Vaughn R. Walker. Court Reporter/Transcriber Katherine Powell Sullivan and Debra L. Pas, Official Reporters, Telephone number 415−794−6659/Katherine_Sullivan@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 4/28/2010. (Sullivan, Katherine) (Filed on 1/28/2010) (Entered: 01/28/2010)
535 OBJECTIONS to Plaintiffs' Objections to Proponents' Deposition Counterdesignations of Daniel Robinson and Request for Additional Designations by Kristin M. Perry. (Dettmer, Ethan) (Filed on 1/29/2010) (Entered: 01/29/2010)
537 MOTION to File Amicus Curiae Brief filed by Bay Area Lawyers for Individual Freedom. (Attachments: # 1 Amicus Brief of Bay Area Lawyers for Individual Freedom; AIDS Legal Referral Panel; API Equality − Northern California; Asian American Bar Association of the Greater Bay Area; Asian Law Caucus; Bar Association of San Francisco; California Womens Law Center; Chinese for Affirmative Action; East Bay La Raza Lawyers Association; Equal Justice Society; Family Equality Council; Filipino Bar Association of Northern California; Freedom to Marry; Law Foundation of Silicon Valley; Lawyers Committee for Civil Rights of the San Francisco Bay Area; Legal Aid Society−Employment Law Center; Lesbian and Gay Lawyers Association of Los Angeles; Marriage Equality USA; National LGBT Bar Association; Parents, Families and Friends of Lesbians and Gays (PFLAG) National; People for the American Way Foundation; Pride at Work; Sacramento Lawyers for the Equality of Gays and Lesbians; San Francisco Chamber of Commerce; San Francisco La Raza Lawyers Association; San Francisco Trial Lawyers Association; Santa Clara County Bar Association; Transgender Law Center; and the Vietnamese American Bar Association of Northern California, # 2 [Proposed] Order Granting Motion for Leave to File Amicus Brief by BALIF et al.)(Conrad, Mark) (Filed on 1/29/2010) (Entered: 01/29/2010)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 69 of 90

02/01/2010 02/02/2010 02/02/2010 02/02/2010 02/02/2010 02/02/2010 02/02/2010
02/02/2010
02/02/2010
02/02/2010 02/02/2010 02/02/2010
02/02/2010 02/02/2010 02/02/2010 02/03/2010
02/03/2010

583 EXHIBIT AMENDING re 569 Brief filed byMichael Wolf. (Related document(s) 569 ) (far, COURT STAFF) (Filed on 2/1/2010) (Entered: 02/05/2010)
538 RESPONSE to re 535 Objection by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Cooper, Charles) (Filed on 2/2/2010) (Entered: 02/02/2010)
539 First MOTION to File Amicus Curiae Brief 09−cv−2292 VRW filed by Michael James McDermott. Motion Hearing set for 2/2/2010 02:27 PM in Courtroom 1, 17th Floor, San Francisco. (McDermott, Michael) (Filed on 2/2/2010) (Entered: 02/02/2010)
540 NOTICE of Appearance by Jerome Cary Roth (Roth, Jerome) (Filed on 2/2/2010) (Entered: 02/02/2010)
***Deadlines terminated re doc 539. (cgk, COURT STAFF) (Filed on 2/2/2010) (Entered: 02/02/2010)
541 Memorandum in Opposition re 472 MOTION to Compel filed byCalifornians Against Eliminating Basic Rights. (Harrison, James) (Filed on 2/2/2010) (Entered: 02/02/2010)
542 Declaration of Kari Krogseng in Support of 541 Memorandum in Opposition to Motion to Compel filed byCalifornians Against Eliminating Basic Rights. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 541 ) (Harrison, James) (Filed on 2/2/2010) (Entered: 02/02/2010)
543 Memorandum in Opposition re 472 MOTION to Compel Opposition of No on Proposition 8 a Project of the ACLU of Northern California to Defendant Intervenors Motion to Compel Compliance with Nonparty Document Subpoenas filed byACLU Foundation of Northern California. (Bomse, Stephen) (Filed on 2/2/2010) (Entered: 02/02/2010)
544 Declaration of Elizabeth Gill in Support of Opposition of No on Proposition 8 a Project of the ACLU of Northern California to Defendant Intervenors Motion to Compel Compliance with Nonparty Document Subpoenas filed byACLU Foundation of Northern California. (Bomse, Stephen) (Filed on 2/2/2010) (Entered: 02/02/2010)
545 Statement re 472 MOTION to Compel by Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Boutrous, Theodore) (Filed on 2/2/2010) (Entered: 02/02/2010)
546 Memorandum in Opposition re 472 MOTION to Compel Compliance With Non−Party Document Subpoenas filed byEquality California. (Whittemore, Lauren) (Filed on 2/2/2010) (Entered: 02/02/2010)
547 Declaration of JAMES CARROLL in Support of 546 Memorandum in Opposition to Defendant−Intervenors' Motion to Compel Compliance With Non−Party Document Subpoenas filed byEquality California. (Related document(s) 546 ) (Whittemore, Lauren) (Filed on 2/2/2010) (Entered: 02/02/2010)
570 APPLICATION to File an Amicus Curiae Brief in Support of Plaintiffs and Statement of Interest of Amici Curiae filed by California Professors of Family Law. (far, COURT STAFF) (Filed on 2/2/2010) (Entered: 02/04/2010)
574 BRIEF AMICUS CURIAE filed byCalifornia Professors of Family Law. (far, COURT STAFF) (Filed on 2/2/2010) (Entered: 02/05/2010)
575 CERTIFICATE OF SERVICE by California Professors of Family Law re 570 MOTION for Leave to File, 574 Brief (far, COURT STAFF) (Filed on 2/2/2010) (Entered: 02/05/2010)
548 *** FILED IN ERROR. REFER TO DOCUMENT 554 . *** MOTION for Leave to File Brief of the Progressive Project and COLAGE as [proposed] amici curiae filed by The Progressive Project. (Mitchel, Steven) (Filed on 2/3/2010) Modified on 2/3/2010 (feriab, COURT STAFF). (Entered: 02/03/2010)
549 Letter from Stephen V. Bomse re motion by Defendants−Intervenors to compel compliance with document subpoena. (Bomse, Stephen) (Filed on 2/3/2010) (Entered: 02/03/2010)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 70 of 90

02/03/2010 02/03/2010 02/03/2010 02/03/2010 02/03/2010 02/03/2010 02/03/2010 02/03/2010 02/03/2010 02/03/2010
02/03/2010
02/03/2010 02/03/2010

550 MOTION to File Amicus Curiae Brief in Support of Plaintiffs filed by American Anthropological Association, American Psychoanalytic Association, The National Association of Social Workers, National Association of Social Workers, California, American Academy of Pediatrics, California. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Freed, John) (Filed on 2/3/2010) (Entered: 02/03/2010)
551 MOTION to File Amicus Curiae Brief of American Civil Liberties Union, Lambda Legal Defense and Education Fund, Inc., and National Center for Lesbian Rights filed by ACLU Foundation of Northern California. (Gill, Elizabeth) (Filed on 2/3/2010) (Entered: 02/03/2010)
552 Brief re 551 MOTION to File Amicus Curiae Brief of American Civil Liberties Union, Lambda Legal Defense and Education Fund, Inc., and National Center for Lesbian Rights filed byACLU Foundation of Northern California. (Related document(s) 551 ) (Gill, Elizabeth) (Filed on 2/3/2010) (Entered: 02/03/2010)
553 *** FILED IN ERROR. REFER TO DOCUMENT 554 . *** MOTION for Leave to File Brief of the Progressive Project and COLAGE as [proposed] amici curiae filed by The Progressive Project. (Mitchel, Steven) (Filed on 2/3/2010) Modified on 2/3/2010 (feriab, COURT STAFF). (Entered: 02/03/2010)
554 MOTION for Leave to File Brief of the Progressive Project and COLAGE as [proposed] amici curiae CORRECTION OF DOCKET #[548 and 553] filed by The Progressive Project. (Mitchel, Steven) (Filed on 2/3/2010) (Entered: 02/03/2010)
555 MOTION for Leave to File a Brief as Amicus Curiae on Behalf of Plaintiffs filed by Donald B. King. (Richmond, Diana) (Filed on 2/3/2010) (Entered: 02/03/2010)
556 Brief of Amicus Curiae Justice Donald B. King, Retired, in Support of Plaintiffs filed byDonald B. King. (Richmond, Diana) (Filed on 2/3/2010) (Entered: 02/03/2010)
557 Proposed Order re 555 MOTION for Leave to File a Brief as Amicus Curiae on Behalf of Plaintiffs by Donald B. King. (Richmond, Diana) (Filed on 2/3/2010) (Entered: 02/03/2010)
558 MOTION to File Amicus Curiae Brief in Support of Plaintiffs filed by Unitarian Universalist Legislative Ministry California, et al.. (Isaacson, Eric) (Filed on 2/3/2010) (Entered: 02/03/2010)
559 Brief of Amici Curiae Unitarian Universalist Legislative Ministry California; Unitarian Universalist Legislative Ministry Action Network, CA; Unitarian Universalist Association: California Faith for Equality; California Council of Churches; California Council of Churches Church IMPACT; Northern California Nevada Conference of the United Church of Christ; Southern California Nevada Conference of the United Church of Christ; General Synod of the United Church of Christ; Universal Fellowship of Metropolitan Community Churches; Pacific Association of Reform Rabbis; and Progressive Jewish Alliance filed byUnitarian Universalist Legislative Ministry California, et al.. (Isaacson, Eric) (Filed on 2/3/2010) (Entered: 02/03/2010)
560 Proposed Order for Leave to File Amicus Curiae Brief ofUnitarian Universalist Legislative Ministry California; Unitarian Universalist Legislative Ministry Action Network, CA; Unitarian Universalist Association: California Faith for Equality; California Council of Churches; California Council of Churches Church IMPACT; Northern California Nevada Conference of the United Church of Christ; Southern California Nevada Conference of the United Church of Christ; General Synod of the United Church of Christ; Universal Fellowship of Metropolitan Community Churches; Pacific Association of Reform Rabbis; and Progressive Jewish Alliance by Unitarian Universalist Legislative Ministry California, et al.. (Isaacson, Eric) (Filed on 2/3/2010) (Entered: 02/03/2010)
561 MOTION to File Amicus Curiae Brief filed by American Association for Marriage & Family Therapy, California Division. (Kay, Kelly) (Filed on 2/3/2010) (Entered: 02/03/2010)
562 MOTION for Leave to File Amicus Curiae Brief filed by National Gay and Lesbian Task Force Foundation. (Popik, Susan) (Filed on 2/3/2010) (Entered: 02/03/2010)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 71 of 90

02/03/2010 02/03/2010 02/03/2010 02/03/2010
02/03/2010
02/03/2010 02/03/2010 02/04/2010 02/04/2010 02/04/2010 02/05/2010

563 Brief of Amicus Curiae filed byNational Gay and Lesbian Task Force Foundation. (Popik, Susan) (Filed on 2/3/2010) (Entered: 02/03/2010)
564 Proposed Order re 562 MOTION for Leave to File Amicus Curiae Brief by National Gay and Lesbian Task Force Foundation. (Popik, Susan) (Filed on 2/3/2010) (Entered: 02/03/2010)
565 Proposed Order re 554 MOTION for Leave to File Brief of the Progressive Project and COLAGE as [proposed] amici curiae CORRECTION OF DOCKET #[548 and 553] by The Progressive Project. (Mitchel, Steven) (Filed on 2/3/2010) (Entered: 02/03/2010)
566 Amended MOTION to File Amicus Curiae Brief AMENDED MOTION FOR LEAVE TO FILE AN AMICI CURIAE BRIEF BY THE ASIAN LAW CAUCUS, ASIAN AMERICAN JUSTICE CENTER, ASIAN PACIFIC AMERICAN BAR ASSOCIATION OF LOS ANGELES COUNTY, ASIAN PACIFIC AMERICAN LEGAL CENTER, ASIAN PACIFIC BAR ASSOCIATION OF SILICON VALLEY, ASIAN PACIFIC ISLANDER LEGAL OUTREACH, BIENESTAR HUMAN SERVICES, CALIFORNIA STATE CONFERENCE OF THE NAACP, COALITION FOR HUMANE IMMIGRANT RIGHTS, JAPANESE AMERICAN BAR ASSOCIATION, LA RAZA CENTRO LEGAL, MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND, NATIONAL BLACK JUSTICE COALITION, SOUTH ASIAN BAR ASSOCIATION OF NORTHERN CALIFORNIA AND ZUNA INSTITUTE; AND [PROPOSED] ORDER filed by Asian Law Caucus, ASIAN AMERICAN JUSTICE CENTER, ASIAN PACIFIC AMERICAN BAR ASSOCIATION OF LOS ANGELES COUNTY, ASIAN PACIFIC AMERICAN LEGAL CENTER, ASIAN PACIFIC BAR ASSOCIATION OF SILICON VALLEY, Asian Pacific Islander Legal Outreach, Bienestar Human Services, California State Conference of the NAACP, Coalition for Humane Immigrant Rights, Japanese American Bar Association, La Raza Centro Legal, Mexican American Legal Defense And Education Fund, National Black Justice Coalition, South Asian Bar Association of Northern California, Zuna Institute. (Obstler, Peter) (Filed on 2/3/2010) (Entered: 02/03/2010)
567 Brief re 566 Amended MOTION to File Amicus Curiae Brief AMENDED MOTION FOR LEAVE TO FILE AN AMICI CURIAE BRIEF BY THE ASIAN LAW CAUCUS, ASIAN AMERICAN JUSTICE CENTER, ASIAN PACIFIC AMERICAN BAR ASSOCIATION OF LOS ANGELES COUNTY, ASIAN PACIFIC AMERICAN LEGAL CENTE filed byASIAN AMERICAN JUSTICE CENTER, ASIAN PACIFIC AMERICAN BAR ASSOCIATION OF LOS ANGELES COUNTY, ASIAN PACIFIC AMERICAN LEGAL CENTER, ASIAN PACIFIC BAR ASSOCIATION OF SILICON VALLEY, Asian Law Caucus, Asian Pacific Islander Legal Outreach, Bienestar Human Services, California State Conference of the NAACP, Coalition for Humane Immigrant Rights, Japanese American Bar Association, La Raza Centro Legal, Mexican American Legal Defense And Education Fund, National Black Justice Coalition, South Asian Bar Association of Northern California, Zuna Institute. (Attachments: # 1 Supplement Addendum A)(Related document(s) 566 ) (Obstler, Peter) (Filed on 2/3/2010) (Entered: 02/03/2010)
576 MOTION for Leave to File an Amici Curiae Brief filed by Asian Law Caucus. (far, COURT STAFF) (Filed on 2/3/2010) (Entered: 02/05/2010)
582 Brief filed byAsian Law Caucus. (far, COURT STAFF) (Filed on 2/3/2010) (Entered: 02/05/2010)
571 CERTIFICATE OF SERVICE by Donald B. King re 557 Proposed Order, 556 Brief, 555 MOTION for Leave to File a Brief as Amicus Curiae on Behalf of Plaintiffs Certificate of Service (Richmond, Diana) (Filed on 2/4/2010) (Entered: 02/04/2010)
572 ORDER REFERRING Doc #472 to Magistrate Judge Spero. (vrwlc1, COURT STAFF) (Filed on 2/4/2010) (Entered: 02/04/2010)
573 ORDER setting 2/26/10 as deadline to respond to amicus submissions. (vrwlc1, COURT STAFF) (Filed on 2/4/2010) (Entered: 02/04/2010)
577 Letter from Stephen Bomse to Magistrate Judge Spero re Hearing on Defendant−Intervenors Motion to Compel. (Bomse, Stephen) (Filed on 2/5/2010) (Entered: 02/05/2010)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 72 of 90

02/05/2010 02/05/2010 02/05/2010 02/05/2010 02/05/2010
02/09/2010
02/09/2010 02/10/2010
02/11/2010 02/11/2010 02/11/2010 02/11/2010 02/12/2010
02/12/2010 02/12/2010 02/12/2010
02/12/2010

578 ORDER of USCA (far, COURT STAFF) (Filed on 2/5/2010) (Entered: 02/05/2010)
579 ORDER of USCA (far, COURT STAFF) (Filed on 2/5/2010) (Entered: 02/05/2010)
580 MANDATE of USCA (far, COURT STAFF) (Filed on 2/5/2010) (Entered: 02/05/2010)
581 CLERKS Letter Spreading Mandate to Counsel (far, COURT STAFF) (Filed on 2/5/2010) (Entered: 02/05/2010)
584 Reply to Opposition re 472 MOTION to Compel filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Attachments: # 1 Declaration of Jesse Panuccio)(Cooper, Charles) (Filed on 2/5/2010) (Entered: 02/05/2010)
585 NOTICE OF REFERENCE AND ORDER SETTING HEARING ON DEFENDANT−INTERVENORS 472 MOTION to Compel : Motion Hearing set for 2/22/2010 AT 10:00 AM in Courtroom A, 15th Floor, San Francisco. Signed by Judge Joseph C. Spero on 2/8/10. (klh, COURT STAFF) (Filed on 2/9/2010) (Entered: 02/09/2010)
586 Letter from STEPHEN V. BOMSE TO MAGISTRATE JUDGE JOSEPH C. SPERO RE HEARING ON MOTION TO COMPEL. (Bomse, Stephen) (Filed on 2/9/2010) (Entered: 02/09/2010)
587 MOTION for leave to appear in Pro Hac Vice of Suzanne B. Goldberg ( Filing fee $ 210, receipt number 34611042247.) filed by National Gay and Lesbian Task Force Foundation. (Attachments: # 1 Proposed Order)(far, COURT STAFF) (Filed on 2/10/2010) (Entered: 02/11/2010)
588 Letter from STEPHEN V. BOMSE TO MAGISTRATE JUDGE JOSEPH C. SPERO RE HEARING ON MOTION TO COMPEL. (Bomse, Stephen) (Filed on 2/11/2010) (Entered: 02/11/2010)
589 ORDER. Signed by Judge Spero on February 11, 2010. (vrwlc1, COURT STAFF) (Filed on 2/11/2010) (Entered: 02/11/2010)
590 CLERKS NOTICE Continuing Hearing on Dft−Intervenor's Motion to Compel. Motion Hearing re−set for 2/25/2010 at 02:30 PM in Courtroom A, 15th Floor, San Francisco. (klh, COURT STAFF) (Filed on 2/11/2010) (Entered: 02/11/2010)
591 Letter from STEPHEN V. BOMSE TO MAGISTRATE JUDGE JOSEPH C. SPERO RE HEARING ON MOTION TO COMPEL. (Bomse, Stephen) (Filed on 2/11/2010) (Entered: 02/11/2010)
592 Letter Brief re 561 MOTION to File Amicus Curiae Brief (Correction of Numerical Error) filed byAmerican Association for Marriage & Family Therapy, California Division. (Related document(s) 561 ) (Kay, Kelly) (Filed on 2/12/2010) (Entered: 02/12/2010)
593 AFFIDAVIT in Opposition to Defendant−Intervenors' Motion to Compel filed byCalifornians Against Eliminating Basic Rights. (Attachments: # 1 Exhibit A)(Harrison, James) (Filed on 2/12/2010) (Entered: 02/12/2010)
594 Letter from Administration Requesting Telephonic Appearance. (Stroud, Andrew) (Filed on 2/12/2010) (Entered: 02/12/2010)
595 Transcript of Proceedings held on 01/20/10, before Magistrate Judge Joseph C. Spero. Court Reporter/Transcriber James Yeomans, Telephone number (415) 863−5179. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 5/13/2010. (jjy, COURT STAFF) (Filed on 2/12/2010) (Entered: 02/12/2010)
596 Transcript of Proceedings held on 01/20/10, before Magistrate Judge Joseph C. Spero. Court Reporter/Transcriber James Yeomans, Telephone number (415) 863−5179. Per

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 73 of 90

02/22/2010
02/22/2010 02/24/2010 02/24/2010 02/24/2010 02/26/2010 02/26/2010 02/26/2010 02/26/2010 02/26/2010 02/26/2010 02/26/2010

General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 5/13/2010. (jjy, COURT STAFF) (Filed on 2/12/2010) (Entered: 02/12/2010)
597 Declaration of ELIZABETH GILL SUPPLEMENTAL DECLARATION OF ELIZABETH GILL IN SUPPORT OF OPPOSITION OF NO ON PROPOSITION 8, CAMPAIGN FOR MARRIAGE EQUALITY: A PROJECT OF THE AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA TO DEFENDANT−INTERVENORS' MOTION TO COMPEL COMPLIANCE WITH NONPARTY DOCUMENT SUBPOENAS filed byACLU Foundation of Northern California. (Bomse, Stephen) (Filed on 2/22/2010) (Entered: 02/22/2010)
598 Declaration of Geoff Kors in Support of 589 Order, 546 Memorandum in Opposition to Motion to Compel filed byEquality California. (Related document(s) 589 , 546 ) (Whittemore, Lauren) (Filed on 2/22/2010) (Entered: 02/22/2010)
599 ORDER by Judge Vaughn R Walker granting doc 587 Motion Application for Admission of Attorney Suzanne B Goldberg Pro Hac Vice representing National Gay and Lesbian Task Force as Amicus Curiae. (cgk, COURT STAFF) (Filed on 2/24/2010) (Entered: 02/24/2010)
600 ORDER GRANTING re 594 Letter filed by Mark B. Horton, Arnold Schwarzenegger, Linette Scott for Andrew Stroud to appear telephonically on 2/25/10 at 2:30 PM before Judge Spero on the Motion to Compel. Court will initiate the phone contact. Signed by Judge Joseph C. Spero on 2/24/10. (klh, COURT STAFF) (Filed on 2/24/2010) (Entered: 02/24/2010)
601 Declaration of JAMES BRIAN CARROLL in Support of 546 Memorandum in Opposition to Defendant−Intervenors' Motion to Compel Compliance With Non−Party Document Subpoenas filed byEquality California. (Attachments: # 1 Exhibit A)(Related document(s) 546 ) (Whittemore, Lauren) (Filed on 2/24/2010) (Entered: 02/24/2010)
602 Minute Entry: Motion Hearing held on 2/25/2010 before Joseph C. Spero re 472 MOTION to Compel filed by Dennis Hollingsworth, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Mark A. Jansson, Martin F. Gutierrez, Gail J. Knight. Motion submitted. (Court Reporter Connie Kuhl.) (klh, COURT STAFF) (Date Filed: 2/26/2010) (Entered: 02/26/2010)
603 EXHIBIT B − Structure of the No on 8 − Equality for All Campaign re 601 Declaration of James Brian Carroll in Support of Equality California's Opposition to Motion to Conpel filed byEquality California. (Related document(s) 601 ) (klh, COURT STAFF) (Filed on 2/26/2010) (Entered: 02/26/2010)
604 Reply Memorandum to Amicus Submissions filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Cooper, Charles) (Filed on 2/26/2010) (Entered: 02/26/2010)
605 TRIAL BRIEF by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Cooper, Charles) (Filed on 2/26/2010) (Entered: 02/26/2010)
606 Proposed Findings of Fact by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Cooper, Charles) (Filed on 2/26/2010) (Entered: 02/26/2010)
607 Reply Memorandum to Amicus Curiae Filings filed byPaul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Olson, Theodore) (Filed on 2/26/2010) (Entered: 02/26/2010)
608 Proposed Findings of Fact by City and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Olson, Theodore) (Filed on 2/26/2010) (Entered: 02/26/2010)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 74 of 90

03/03/2010 03/05/2010 03/09/2010 03/10/2010 03/10/2010
03/11/2010 03/11/2010 03/11/2010 03/11/2010 03/12/2010 03/12/2010 03/15/2010 03/15/2010

609 Declaration of GEOFF KORS in Support of 602 Motion Hearing, 546 Memorandum in Opposition to Motion to Compel filed byEquality California. (Related document(s) 602 , 546 ) (Whittemore, Lauren) (Filed on 3/3/2010) (Entered: 03/03/2010)
610 ORDER by Judge Spero granting 472 Motion to Compel. (vrwlc1, COURT STAFF) (Filed on 3/5/2010) (Entered: 03/05/2010)
611 MOTION for Reconsideration re 610 Order on Motion to Compel filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Cooper, Charles) (Filed on 3/9/2010) (Entered: 03/09/2010)
612 ORDER denying 611 Motion for Reconsideration (vrwlc1, COURT STAFF) (Filed on 3/10/2010) (Entered: 03/10/2010)
613 Transcript of Proceedings held on 2−25−2010, before Judge Joseph C. Spero. Court Reporter/Transcriber Connie McCarthy Kuhl, Telephone number 415−431−2020. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 6/8/2010. (ck, COURT STAFF) (Filed on 3/10/2010) (Entered: 03/10/2010)
614 OBJECTIONS to 610 March 5, 2010 Order of Magistrate Judge Spero of No on Proposition 8, Campaign for Marriage Equality: A Project of the American Civil Liberties Union of Northern California and Equality California by ACLU Foundation of Northern California, Equality California. (Bomse, Stephen) (Filed on 3/11/2010) Modified on 3/12/2010 (far, COURT STAFF). (Entered: 03/11/2010)
615 STIPULATED REQUEST FOR ORDER SHORTENING TIME and [PROPOSED] ORDER PURSUANT TO STIPULATION by ACLU Foundation of Northern California, Equality California, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Whittemore, Lauren) (Filed on 3/11/2010) Modified on 3/12/2010 (far, COURT STAFF). (Entered: 03/11/2010)
616 Declaration of LAUREN WHITTEMORE in Support of 615 Stipulation, and Stipulated Request for Order Shortening Time filed byACLU Foundation of Northern California, Equality California, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Related document(s) 615 ) (Whittemore, Lauren) (Filed on 3/11/2010) (Entered: 03/11/2010)
617 MOTION [ADMINISTRATIVE] to Set Hearing Date of March 5 or March 16, 2010 Re Objections to Judge Joseph Spero's March 5, 2010 Order re 614 Objection, filed by ACLU Foundation of Northern California, Equality California, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Attachments: # 1 Proposed Order)(Whittemore, Lauren) (Filed on 3/11/2010) (Entered: 03/11/2010)
618 ORDER by Chief Judge Vaughn R Walker GRANTING doc 617 Motion for a hearing on objections to Magistrate Judge Spero's 3/5/2010 Order filed by Third−Party Equality California, doc #614. The Court therefore sets a hearing date of March 16, 2010 at 10:00 AM. (cgk, COURT STAFF) (Filed on 3/12/2010) (Entered: 03/12/2010)
Set/Reset Hearings: Motion Hearing set for 3/16/2010 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (cgk, COURT STAFF) (Filed on 3/12/2010) (Entered: 03/12/2010)
619 OBJECTIONS to re 610 Order on Motion to Compel by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Cooper, Charles) (Filed on 3/15/2010) (Entered: 03/15/2010)
620 RESPONSE to re 614 Objection, by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Cooper, Charles) (Filed on 3/15/2010) (Entered: 03/15/2010)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 75 of 90

03/16/2010
03/16/2010 03/16/2010 03/22/2010 03/23/2010 03/23/2010 03/24/2010
03/24/2010 03/25/2010 03/25/2010 03/29/2010 04/12/2010

621 Minute Entry: Motion Hearing held on 3/16/2010 before Chief Judge Vaughn R Walker. PROCEEDINGS:Hearing on Third Party ACLU and Equality California's Objections to Magistrate Judge Spero's 3/5/2010 Order. The court heard argument from counsel. The court submitted the matter. The court to issue a written order. (Court Reporter Kathy Sullivan.) (cgk, COURT STAFF) (Date Filed: 3/16/2010) (Entered: 03/16/2010)
622 RESPONSE to 619 Defendant−Intervenors' Objections to Magistrate Judge Spero's March 5, 2010 Order Granting Motion to Compel by Californians Against Eliminating Basic Rights. (Krogseng, Kari) (Filed on 3/16/2010) Modified on 3/17/2010 (far, COURT STAFF). (Entered: 03/16/2010)
***Deadlines terminated. (far, COURT STAFF) (Filed on 3/16/2010) (Entered: 03/17/2010)
623 ORDER denying objections to Doc #610 re 619 Objection filed by Dennis Hollingsworth, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Mark A. Jansson, Martin F. Gutierrez, Gail J. Knight, 614 Objection, filed by Equality California, ACLU Foundation of Northern California. (vrwlc1, COURT STAFF) (Filed on 3/22/2010) (Entered: 03/22/2010)
624 MOTION to Stay Discovery Order of Magistrate Judge Spero and Order Rejecting Objections Thereto Pending Appeal or, in the Alternative, for Interim Stay Pending Application for Stay to Court of Appeals filed by ACLU Foundation of Northern California, Equality California. (Bomse, Stephen) (Filed on 3/23/2010) (Entered: 03/23/2010)
625 ORDER by Judge Walker granting 624 Motion to Stay. The court's March 22 order, Doc #623, is STAYED until March 29, 2010 to allow objectors to seek relief in the court of appeals. (vrwlc1, COURT STAFF) (Filed on 3/23/2010) (Entered: 03/23/2010)
626 Transcript of Proceedings held on March 16, 2010, before Judge Vaughn R. Walker. Court Reporter/Transcriber Katherine Powell Sullivan, RMR, CRR, CSR, Telephone number 415−794−6659/Katherine_Sullivan@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 6/22/2010. (Sullivan, Katherine) (Filed on 3/24/2010) (Entered: 03/24/2010)
627 JOINT NOTICE OF APPEAL as to 623 Order, 610 Order on Motion to Compel filed by Equality California. (Filing fee $ 455; Receipt no. 34611043904). (slh, COURT STAFF) (Filed on 3/24/2010) (Entered: 03/25/2010)
628 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 627 Notice of Appeal. (Attachments: # 1 docket sheet)(slh, COURT STAFF) (Filed on 3/25/2010) (Entered: 03/25/2010)
Copy of Notice of Appeal and Docket sheet mailed to all counsel. (slh, COURT STAFF) (Filed on 3/25/2010) (Entered: 03/25/2010)
629 TRANSCRIPT DESIGNATION AND ORDERING FORM for proceedings held on 2/25/10 and 3/16/10 before Judge Walker. (far, COURT STAFF) (Filed on 3/29/2010) (Entered: 03/30/2010)
630 ORDER granting 370 Motion for Leave to File; granting 373 Motion for Leave to File; granting 374 Motion to File Amicus Curiae Brief; granting 375 Motion to File Amicus Curiae Brief; granting 377 Motion to File Amicus Curiae Brief; granting 382 Motion to File Amicus Curiae Brief; granting 383 Motion for Leave to File; granting 386 Motion for Leave to File; granting 537 Motion to File Amicus Curiae Brief; granting 539 Motion to File Amicus Curiae Brief; granting 550 Motion to File Amicus Curiae Brief; granting 551 Motion to File Amicus Curiae Brief; granting 554 Motion for Leave to File; granting 555 Motion for Leave to File; granting 558 Motion to File Amicus Curiae Brief; granting 561 Motion to File Amicus Curiae Brief; granting 562 Motion for Leave to File; granting 566 Motion to File Amicus Curiae Brief; granting

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 76 of 90

04/13/2010 04/16/2010 04/16/2010
04/17/2010 04/22/2010 04/22/2010 04/22/2010 04/22/2010 04/22/2010 04/23/2010
04/25/2010 04/25/2010

568 Motion for Leave to File; granting 570 Motion for Leave to File; granting 576 Motion for Leave to File; granting 128 Motion to File Amicus Curiae Brief (vrwlc1, COURT STAFF) (Filed on 4/12/2010) (Entered: 04/12/2010)
631 ORDER TO SHOW CAUSE why the evidentiary record should not be closed. Show Cause Response due by 4/16/2010. Signed by Judge Walker on April 13, 2010. (vrwlc1, COURT STAFF) (Filed on 4/13/2010) (Entered: 04/13/2010)
632 RESPONSE TO ORDER TO SHOW CAUSE by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal and Motion for Contempt. (Attachments: # 1 Proposed Order)(Cooper, Charles) (Filed on 4/16/2010) (Entered: 04/16/2010)
633 Declaration of Jesse Panuccio in Support of 632 Response to Order to Show Cause, and Motion for Contempt filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Related document(s) 632 ) (Cooper, Charles) (Filed on 4/16/2010) (Entered: 04/16/2010)
634 ORDER DIRECTING the parties and nonparties to inform the court in writing not later than April 22, 2010 whether they have resolved outstanding discovery issues; DISCHARGING Doc #631. (vrwlc1, COURT STAFF) (Filed on 4/17/2010) (Entered: 04/17/2010)
635 RESPONSE to re 634 Order of April 17, 2010 by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Cooper, Charles) (Filed on 4/22/2010) (Entered: 04/22/2010)
636 Declaration in Support of 635 Response ( Non Motion ) filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 635 ) (Cooper, Charles) (Filed on 4/22/2010) (Entered: 04/22/2010)
637 RESPONSE to re 634 Order by Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Olson, Theodore) (Filed on 4/22/2010) (Entered: 04/22/2010)
638 NOTICE by City and County of San Francisco Notice of Joinder by Plaintiff−Intervenor City and County of San Francisco to Plaintiffs' Response to April 17, 2010 Order (Chou, Danny) (Filed on 4/22/2010) (Entered: 04/22/2010)
639 Statement re 634 Order Statement of Objectors in Response to April 17, 2010 Order by ACLU Foundation of Northern California. (Attachments: # 1 Exhibit A, April 19 Letter, # 2 Exhibit B, April 20 Letter)(Bomse, Stephen) (Filed on 4/22/2010) (Entered: 04/22/2010)
640 MOTION for Leave to File Motion to Strike and/or Reconsider filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Attachments: # 1 Proposed Order, # 2 Exhibit Proposed Motion to Strike, # 3 Exhibit Declaration in Support of Proposed Motion to Strike, # 4 Exhibit Declaration in Support of Proposed Motion to Strike, # 5 Exhibit Declaration in Support of Proposed Motion to Strike, # 6 Proposed Order)(Cooper, Charles) (Filed on 4/23/2010) (Entered: 04/23/2010)
641 ORDER TO SHOW CAUSE why the No on 8 groups should not be held in contempt. Order to Show Cause Hearing set for 4/28/2010 10:30 AM. Show Cause Response due by 4/27/2010. (vrwlc1, COURT STAFF) (Filed on 4/25/2010) (Entered: 04/25/2010)
Set/Reset Hearings: Order To Show Cause Hearing re Contempt on The No on 8 groups for failing to produce documents as ordered set for 4/28/2010 10:30 AM in Courtroom 6, 17th Floor, San Francisco. (cgk, COURT STAFF) (Filed on 4/25/2010) (Entered: 04/26/2010)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 77 of 90

04/26/2010 04/26/2010 04/26/2010 04/26/2010 04/26/2010 04/26/2010 04/26/2010 04/27/2010 04/28/2010
04/30/2010 04/30/2010 04/30/2010 05/03/2010

642 MOTION for Leave to File Motion to Strike and/or Reconsider filed by Hak−Shing William Tam. (Attachments: # 1 Proposed Order, # 2 Exhibit Proposed Motion to Strike, # 3 Exhibit Declaration in Support of Proposed Motion to Strike, # 4 Proposed Order)(Thompson, Terry) (Filed on 4/26/2010) (Entered: 04/26/2010)
643 ORDER of USCA (far, COURT STAFF) (Filed on 4/26/2010) (Entered: 04/26/2010)
644 ORDER of USCA (far, COURT STAFF) (Filed on 4/26/2010) (Entered: 04/26/2010)
645 USCA Case Number 10−15649 9th Circuit (far, COURT STAFF) (Filed on 4/26/2010) (Entered: 04/26/2010)
646 ORDER of USCA (far, COURT STAFF) (Filed on 4/26/2010) (Entered: 04/26/2010)
647 WRIT OF CERTIORARI.(far, COURT STAFF) (Filed on 4/26/2010) (Entered: 04/26/2010)
648 Letter from Andrew Stroud, Counsel for Gov. Schwarzenegger re Telephonic Appearance. (Stroud, Andrew) (Filed on 4/26/2010) (Entered: 04/26/2010)
649 RESPONSE to re 641 Order to Show Cause Response of Equality California and ACLU to Order to Show Cause, April 25, 2010 by ACLU Foundation of Northern California, Equality California. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Bomse, Stephen) (Filed on 4/27/2010) (Entered: 04/27/2010)
650 Minute Entry: Show Cause Hearing. 1.Plaintiffs and proponents shall inform the court not later than April 30, 2010 at noon PDT whether the No on 8 groups' production is in compliance with the court's March 5 and March 22 orders (Doc ##610, 623). 2. If plaintiffs and proponents inform the court that the No on 8 groups' production is not in compliance, the court will hold a further hearing on the contempt OSC, Doc #641, on May 3, 2010 at 10 AM PDT. 3. If the No on 8 groups' production complies with the court's March 5 and March 22 orders, proponents shall serve and file any supplement to the evidentiary record not later than May 5, 2010 at 5 PM PDT. Plaintiffs shall respond to proponents' submission not later than May 7, 2010 at 5 PM PDT, and proponents shall file any reply not later than May 12, 2010 at 5 PM PDT. At that time the evidentiary record shall be submitted and upon the court's rulings shall be closed. 4. Proponents' and Dr Tam's motions for leave to file motions for reconsideration, Doc ##640, 642, are GRANTED. Plaintiffs shall serve and file their opposition to the motions for reconsideration on or before May 6, 2010 at noon PDT, and proponents and Dr Tam may serve and file a reply on or before May 10, 2010 at noon PDT. 5. The court proposes closing arguments be held June 16, 2010 at 10 AM. The parties are to inform the court clerk promptly if that date is not agreeable. (Court Reporter Joan Columbini.) (cgk, COURT STAFF) (Date Filed: 4/28/2010) (Entered: 04/29/2010)
651 RESPONSE to re 650 Show Cause Hearing,,,,,, by Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Olson, Theodore) (Filed on 4/30/2010) (Entered: 04/30/2010)
652 RESPONSE to re 650 Show Cause Hearing,,,,,, by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Cooper, Charles) (Filed on 4/30/2010) (Entered: 04/30/2010)
653 ORDER DISCHARGING 641 Order to Show Cause. The hearing scheduled for 5/3/2010 is VACATED. (vrwlc1, COURT STAFF) (Filed on 4/30/2010) (Entered: 04/30/2010)
654 Transcript of Proceedings held on April 28, 2010, before Judge Vaughn R. Walker. Court Reporter/Transcriber Joan Marie Columbini, Telephone number 415−255−6842. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 8/2/2010. (Columbini, Joan) (Filed on 5/3/2010) (Entered: 05/03/2010)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 78 of 90

05/05/2010 05/05/2010 05/05/2010 05/05/2010 05/06/2010 05/06/2010
05/06/2010 05/07/2010 05/07/2010 05/07/2010 05/07/2010 05/10/2010 05/10/2010 05/10/2010
05/12/2010 05/18/2010

655 MOTION to Seal filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Cooper, Charles) (Filed on 5/5/2010) (Entered: 05/05/2010)
656 Declaration of Peter A. Patterson in Support of 655 MOTION to Seal filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Related document(s) 655 ) (Cooper, Charles) (Filed on 5/5/2010) (Entered: 05/05/2010)
657 Received Proposed Order re 655 MOTION to Seal by Dennis Hollingsworth. (far, COURT STAFF) (Filed on 5/5/2010) (far, COURT STAFF). (Entered: 05/05/2010)
658 CERTIFICATE OF SERVICE by Dennis Hollingsworth re 656 Declaration in Support, 657 Received Order, 655 MOTION to Seal (far, COURT STAFF) (Filed on 5/5/2010) (Entered: 05/05/2010)
659 Memorandum in Opposition re 640 MOTION for Leave to File Motion to Strike and/or Reconsider, 642 MOTION for Leave to File Motion to Strike and/or Reconsider filed byPaul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Olson, Theodore) (Filed on 5/6/2010) (Entered: 05/06/2010)
660 Memorandum in Opposition PLAINTIFF−INTERVENOR CITY AND COUNTY OF SAN FRANCISCO'S OPPOSITION TO DEFENDANT−INTERVENORS PROPONENTS AND DR. TAM'S MOTIONS TO STRIKE/RECONSIDER filed byCity and County of San Francisco. (Flynn, Ronald) (Filed on 5/6/2010) (Entered: 05/06/2010)
661 Declaration of Therese M. Stewart in Support of 660 Memorandum in Opposition, filed byCity and County of San Francisco. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 660 ) (Flynn, Ronald) (Filed on 5/6/2010) (Entered: 05/06/2010)
662 SUPREME COURT LETTER.(far, COURT STAFF) (Filed on 5/7/2010) (Entered: 05/07/2010)
663 NOTICE by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal (Cooper, Charles) (Filed on 5/7/2010) (Entered: 05/07/2010)
664 Declaration of Peter A. Patterson in Support of 663 Notice (Other) filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Related document(s) 663 ) (Cooper, Charles) (Filed on 5/7/2010) (Entered: 05/07/2010)
665 Statement in Response to Proponents' Motion to Supplement the Record by City and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Olson, Theodore) (Filed on 5/7/2010) (Entered: 05/07/2010)
666 Reply to Opposition To Motion To Strike filed byHak−Shing William Tam. (Thompson, Terry) (Filed on 5/10/2010) (Entered: 05/10/2010)
667 Reply Memorandum re 640 MOTION for Leave to File Motion to Strike and/or Reconsider filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Cooper, Charles) (Filed on 5/10/2010) (Entered: 05/10/2010)
668 Declaration of Nicole J. Moss in Support of 667 Reply Memorandum, filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 667 ) (Cooper, Charles) (Filed on 5/10/2010) (Entered: 05/10/2010)
669 Reply Memorandum to Motion to Supplement the Record filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Cooper, Charles) (Filed on 5/12/2010) (Entered: 05/12/2010)
670 Letter from Thomas R. Burke/Davis Wright Tremaine LLP for the Media Coalition to The Honorable Vaughn R. Walker, Chief Judge of the U.S. District Court. (Burke,

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 79 of 90

05/24/2010 05/31/2010 06/02/2010
06/02/2010 06/02/2010 06/03/2010 06/08/2010 06/08/2010 06/08/2010 06/08/2010 06/08/2010 06/09/2010 06/11/2010 06/11/2010 06/11/2010 06/15/2010
06/15/2010
06/15/2010
06/15/2010

Thomas) (Filed on 5/18/2010) (Entered: 05/18/2010)
671 Letter from Charles J. Cooper to Chief Judge Walker. (Cooper, Charles) (Filed on 5/24/2010) (Entered: 05/24/2010)
672 ORDER to the parties. (vrwlc1, COURT STAFF) (Filed on 5/31/2010) (Entered: 05/31/2010)
673 Administrative Motion to File Under Seal filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Attachments: # 1 Attachment 1 −− List of Exhibits, # 2 Attachment 2 −− Unrestricted Documents, # 3 Attachment 3 −− Redacted Documents, # 4 Attachmnet 4 −− Amended Motion to Supplement the Record, # 5 Declaration, # 6 Proposed Order)(Cooper, Charles) (Filed on 6/2/2010) (Entered: 06/02/2010)
674 NOTICE by City and County of San Francisco NOTICE TO COURT CLERK FROM PLAINTIFF−INTERVENOR CITY AND COUNTY OF SAN FRANCISCO RE USE OF VIDEO (Flynn, Ronald) (Filed on 6/2/2010) (Entered: 06/02/2010)
675 NOTICE by Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo re 672 Order (Notice to Court Clerk re Plaintiffs' Request for a Copy of the Trial Recording) (Olson, Theodore) (Filed on 6/2/2010) (Entered: 06/02/2010)
676 Letter from Deputy Attorney General, Tamar Pachter to Chief Judge Walker. (Pachter, Tamar) (Filed on 6/3/2010) (Entered: 06/03/2010)
677 Questions for closing arguments. (vrwlc1, COURT STAFF) (Filed on 6/8/2010) (Entered: 06/08/2010)
678 Schedule for closing arguments. (vrwlc1, COURT STAFF) (Filed on 6/8/2010) (Entered: 06/08/2010)
679 MANDATE of USCA (far, COURT STAFF) (Filed on 6/8/2010) (Entered: 06/08/2010)
680 CLERKS Letter Spreading Mandate to Counsel (far, COURT STAFF) (Filed on 6/8/2010) (Entered: 06/08/2010)
681 WRIT OF CERTIORARI FILED. (far, COURT STAFF) (Filed on 6/8/2010) (Entered: 06/08/2010)
682 ORDER denying request in 670 Letter filed by Media Coalition (vrwlc1, COURT STAFF) (Filed on 6/9/2010) (Entered: 06/09/2010)
683 ORDER re 673 GRANTING amended motion to supplement the record. (vrwlc1, COURT STAFF) (Filed on 6/11/2010) (Entered: 06/11/2010)
684 ORDER granting 673 Administrative Motion to File Under Seal (vrwlc1, COURT STAFF) (Filed on 6/11/2010) (Entered: 06/11/2010)
685 ORDER DENYING Doc ##640−2, 642, motions to strike exhibits and related testimony. (vrwlc1, COURT STAFF) (Filed on 6/11/2010) (Entered: 06/11/2010)
686 RESPONSE to re 677 Order Plaintiffs' and Plaintiff−Intervenor's Response to Court's Questions for Closing Arguments by City and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Olson, Theodore) (Filed on 6/15/2010) (Entered: 06/15/2010)
687 Response re 677 Order Defendant−Intervenors' Response to Court's Questions for Closing Arguments byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Cooper, Charles) (Filed on 6/15/2010) (Entered: 06/15/2010)
688 RESPONSE to Question 12 to Plaintiffs and Proponents and Waiver of Closing Argument by Arnold Schwarzenegger , Mark B Horton, and Linette Scott. (Stroud, Andrew) (Filed on 6/15/2010) Modified on 6/15/2010 (feriab, COURT STAFF). (Entered: 06/15/2010)
689 NOTICE by Dean C. Logan LOS ANGELES COUNTY REGISTRAR−RECORDER/COUNTY CLERK'S WAIVER OF CLOSING ARGUMENT

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 80 of 90

06/16/2010 06/16/2010 06/17/2010
06/24/2010
06/24/2010 06/24/2010 06/29/2010 06/29/2010 06/29/2010 06/29/2010 06/30/2010 07/09/2010

(Whitehurst, Judy) (Filed on 6/15/2010) (Entered: 06/15/2010)
690 Minute Entry: CLOSING ARGUMENTS held. Bench Trial completed on 6/16/2010 before Chief Judge Vaughn R Walker. (Court Reporter Debra Pas and Katherine Sullivan.) (Attachments: # 1 Appendix) (cgk, COURT STAFF) (Date Filed: 6/16/2010) (Entered: 06/16/2010)
691 TRIAL LOG OF CLOSING ARGUMENTS. (cgk, COURT STAFF) (Filed on 6/16/2010). (Entered: 06/16/2010)
692 *** FILED IN ERROR. PLEASE SEE DOCKET # 693 . *** Transcript of Proceedings held on June 16, 2010, before Judge Vaughn R. Walker. Court Reporter/Transcriber Katherine Powell Sullivan, CSR, RPR, CRR, and Debra L. Pas, CSR, RMR, CRR, Telephone number 415−794−6659/Katherine_Sullivan@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 9/15/2010. (Sullivan, Katherine) (Filed on 6/17/2010) Modified on 6/24/2010 (ewn, COURT STAFF). (Entered: 06/17/2010)
693 Amended Transcript of Proceedings held on June 16, 2010, before Judge Vaughn R. Walker. Court Reporter/Transcriber Katherine Powell Sullivan, CSR, RPR, CRR, and Debra L. Pas, CSR, RMR, CRR, Telephone number 415−794−6659/Katherine_Sullivan@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 9/22/2010. (Sullivan, Katherine) (Filed on 6/24/2010) (Entered: 06/24/2010)
694 Letter from Thomas Burke to Judge Walker. (Burke, Thomas) (Filed on 6/24/2010) (Entered: 06/24/2010)
***Deadlines terminated. (far, COURT STAFF) (Filed on 6/24/2010) (Entered: 06/25/2010)
695 Letter from Theodore J. Boutrous, Jr. re Christian Legal Society v. Martinez, No. 08−1371 (U.S. June 28, 2010). (Attachments: # 1 Exhibit A)(Boutrous, Theodore) (Filed on 6/29/2010) (Entered: 06/29/2010)
696 MOTION Administrative Relief filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Attachments: # 1 Proposed Order)(Cooper, Charles) (Filed on 6/29/2010) (Entered: 06/29/2010)
697 Declaration of Peter A. Patterson in Support of 696 MOTION Administrative Relief filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Related document(s) 696 ) (Cooper, Charles) (Filed on 6/29/2010) (Entered: 06/29/2010)
698 Memorandum in Opposition re 696 MOTION Administrative Relief filed byCity and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Olson, Theodore) (Filed on 6/29/2010) (Entered: 06/29/2010)
699 Letter from Charles J. Cooper. (Cooper, Charles) (Filed on 6/30/2010) (Entered: 06/30/2010)
700 Letter from Theodore B. Olson re: Gill v. Office of Personnel Mgmt, No. 1:09−cv−10309−JLT (D. Mass. July 8, 2010); Commonwealth of Massachusetts v. Dept of Health and Human Services, No. 1:09−cv−11156−JLT (D. Mass. July 8, 2010). (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Olson, Theodore) (Filed on 7/9/2010) (Entered: 07/09/2010)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 81 of 90

07/09/2010 07/14/2010 08/03/2010
08/03/2010
08/04/2010 08/04/2010 08/04/2010 08/04/2010
08/04/2010 08/04/2010 08/04/2010
08/05/2010 08/05/2010 08/06/2010 08/06/2010 08/06/2010 08/10/2010

701 Letter from Theodore B. Olson re: Notice. (Olson, Theodore) (Filed on 7/9/2010) (Entered: 07/09/2010)
702 Letter from Charles J. Cooper. (Cooper, Charles) (Filed on 7/14/2010) (Entered: 07/14/2010)
705 MOTION to Stay Pending Appeal filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. Motion Hearing set for 10/21/2010 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Attachments: # 1 Proposed Order)(Cooper, Charles) (Filed on 8/3/2010) (Entered: 08/03/2010)
706 MOTION to Shorten Time filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Attachments: # 1 Affidavit Declaration of Peter A. Patterson in Support of Defendant−Intervenors' Motion to Shorten Time, # 2 Proposed Order)(Cooper, Charles) (Filed on 8/3/2010) (Entered: 08/03/2010)
707 Letter from Theodore J. Boutrous Jr.. (Boutrous, Theodore) (Filed on 8/4/2010) (Entered: 08/04/2010)
708 FINDINGS OF FACT AND CONCLUSIONS OF LAW. (vrwlc1, COURT STAFF) (Filed on 8/4/2010) (Entered: 08/04/2010)
709 ORDER denying 311 Motion to Intervene (vrwlc1, COURT STAFF) (Filed on 8/4/2010) (Entered: 08/04/2010)
710 ORDER granting 706 Motion to Shorten Time. Plaintiffs, plaintiff−intervenor and defendants are DIRECTED to respond to Doc #705 on or before August 6, 2010. The clerk shall STAY entry of judgment herein until the motion to stay pending appeal has been decided. (vrwlc1, COURT STAFF) (Filed on 8/4/2010) (Entered: 08/04/2010)
711 Joinder re 705 MOTION to Stay Pending Appeal by Board of Supervisors of Imperial County, County of Imperial of the State of California, Isabel Vargas. (Monk, Jennifer) (Filed on 8/4/2010) (Entered: 08/04/2010)
712 ORDER finding as moot 369 Motion to Withdraw (vrwlc1, COURT STAFF) (Filed on 8/4/2010) (Entered: 08/04/2010)
713 NOTICE OF APPEAL as to 708 Order by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. Filing fee $ 455, Receipt Number 34611048938.(far, COURT STAFF) (Filed on 8/4/2010) (Entered: 08/05/2010)
714 Copy of Notice of Appeal and Docket sheet electronically mailed to all counsel (Attachments: # 1 docket sheet)(far, COURT STAFF) (Filed on 8/5/2010) (Entered: 08/05/2010)
715 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 713 Notice of Appeal (Attachments: # 1 docket sheet, # 2 cover letter, # 3 notice of appeal notification form)(far, COURT STAFF) (Filed on 8/5/2010) (Entered: 08/05/2010)
716 Memorandum in Opposition re 705 MOTION to Stay Pending Appeal filed byEdmund G. Brown, Jr. (Powell, Daniel) (Filed on 8/6/2010) (Entered: 08/06/2010)
717 Memorandum in Opposition re 705 MOTION to Stay Pending Appeal filed byMark B. Horton, Arnold Schwarzenegger, Linette Scott. (Mennemeier, Kenneth) (Filed on 8/6/2010) (Entered: 08/06/2010)
718 Memorandum in Opposition re 705 MOTION to Stay Pending Appeal filed byCity and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Boutrous, Theodore) (Filed on 8/6/2010) (Entered: 08/06/2010)
719 NOTICE OF APPEAL as to 709 Order on Motion to Intervene, 708 Order on Motion for Miscellaneous Relief by Board of Supervisors of Imperial County, County of Imperial of the State of California, Isabel Vargas. Filing fee $ 455, Receipt Number 34611049132. (far, COURT STAFF) (Filed on 8/10/2010) (Entered: 08/10/2010)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 82 of 90

08/10/2010 08/10/2010 08/10/2010 08/10/2010 08/11/2010 08/12/2010 08/12/2010 08/12/2010
08/12/2010
08/12/2010 08/16/2010 08/17/2010 08/17/2010
08/17/2010 08/17/2010

720 Received Document: REPRESENTATION STATEMENT re 719 Notice of Appeal, by Board of Supervisors of Imperial County, County of Imperial of the State of California, Isabel Vargas. (far, COURT STAFF) (Filed on 8/10/2010) (Entered: 08/10/2010)
721 STATEMENT OF RELATED CASE by Board of Supervisors of Imperial County, County of Imperial of the State of California, Isabel Vargas. (far, COURT STAFF) (Filed on 8/10/2010) (Entered: 08/10/2010)
722 Copy of Notice of Appeal and Docket sheet electronically mailed to all counsel (Attachments: # 1 docket sheet)(far, COURT STAFF) (Filed on 8/10/2010) (Entered: 08/10/2010)
723 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 719 Notice of Appeal, (Attachments: # 1 docket sheet, # 2 cover letter, # 3 USCA Appeal Notification Form)(far, COURT STAFF) (Filed on 8/10/2010) (Entered: 08/10/2010)
724 ORDER finding as moot 414 Motion to Seal Document ; finding as moot 482 Motion to Seal Document (vrwlc1, COURT STAFF) (Filed on 8/11/2010) (Entered: 08/11/2010)
725 ORDER by Judge Vaughn R Walker granting doc 448 Motion to Seal. (cgk, COURT STAFF) (Filed on 8/12/2010) (Entered: 08/12/2010)
726 ORDER, by Judge Joseph C. Spero, signed 8/12/10,granting 520 Dft−Intervenors' Motion to Seal Defendant−Interventors' Revised Privilege Log. (klh, COURT STAFF) (Filed on 8/12/2010) (Entered: 08/12/2010)
727 ORDER by Judge Walker denying 705 Motion to Stay. The clerk is DIRECTED to enter judgment forthwith. That judgment shall be STAYED until August 18, 2010 at 5 PM PDT at which time defendants and all persons under their control or supervision shall cease to apply or enforce Proposition 8. (vrwlc1, COURT STAFF) (Filed on 8/12/2010) (Main Document 727 replaced on 8/12/2010) (ewn, COURT STAFF). (Entered: 08/12/2010)
728 PERMANENT INJUNCTION. This action having come before and tried by the court and the court considered the same pursuant to FRCP 52(a), on August 4, 2010, ordered entry of judgment in favor of plaintiffs and plaintiff−intervenors and against defendants and defendant−intervenors and each of them, Doc #708, now therefore: IT IS HEREBY ORDERED, ADJUDGED AND DECREED that: Defendants in their official capacities, and all persons under the control or supervision of defendants, are permanently enjoined from applying or enforcing Article I, § 7.5 of the California Constitution. (cgk, COURT STAFF) (Filed on 8/12/2010) (Entered: 08/12/2010)
737 NOTICE re move to nullify filed by Carlvin Justice. (far, COURT STAFF) (Filed on 8/12/2010) (Entered: 08/18/2010)
738 NOTICE re bill of review and motion to dismiss filed by Carlvin Justice. (far, COURT STAFF) (Filed on 8/16/2010) (Entered: 08/18/2010)
729 MOTION for Extension of Time to File a Motion for Attorney's Fees and Related Expenses filed by City and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Monagas, Enrique) (Filed on 8/17/2010) (Entered: 08/17/2010)
730 Declaration in Support of 729 MOTION for Extension of Time to File a Motion for Attorney's Fees and Related Expenses filed byCity and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Related document(s) 729 ) (Monagas, Enrique) (Filed on 8/17/2010) (Entered: 08/17/2010)
731 Proposed Order re 729 MOTION for Extension of Time to File a Motion for Attorney's Fees and Related Expenses by City and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Monagas, Enrique) (Filed on 8/17/2010) (Entered: 08/17/2010)
732 MOTION to Shorten Time filed by City and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Monagas, Enrique) (Filed on 8/17/2010) (Entered: 08/17/2010)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 83 of 90

08/17/2010 08/17/2010 08/18/2010 08/18/2010
08/18/2010
08/18/2010 08/19/2010 08/20/2010 08/23/2010
08/24/2010 09/02/2010 09/02/2010 09/03/2010 09/08/2010 09/08/2010

733 Declaration of Enrique A. Monagas in Support of 732 MOTION to Shorten Time filed byCity and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Related document(s) 732 ) (Monagas, Enrique) (Filed on 8/17/2010) (Entered: 08/17/2010)
734 Proposed Order re 732 MOTION to Shorten Time by City and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Monagas, Enrique) (Filed on 8/17/2010) (Entered: 08/17/2010)
735 Statement of Non−Opposition to Plaintiffs' and Plaintiff−Intervenors' Motions re Timing of Application for Attorneys Fees and Costs filed byEdmund G. Brown, Jr. (Pachter, Tamar) (Filed on 8/18/2010) (Entered: 08/18/2010)
736 Memorandum in Opposition re 732 MOTION to Shorten Time filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Attachments: # 1 Affidavit of Brian W. Raum in Support of Defendant−Intervenors' Opposition to Motion to Shorten Time)(Raum, Brian) (Filed on 8/18/2010) (Entered: 08/18/2010)
739 Reply Memorandum re 729 MOTION for Extension of Time to File a Motion for Attorney's Fees and Related Expenses Defendant Patrick O'Connell's Statement of Non−Opposition to Plaintiffs' and Plaintiff−Intervenors' Motion to Enlarge Time, and Certificate of Service filed byPatrick O'Connell. (Kolm, Claude) (Filed on 8/18/2010) (Entered: 08/18/2010)
740 Reply Memorandum re 732 MOTION to Shorten Time Defendant Patrick O'Connell's Statement of Non−Opposition to Plaintiffs' and Plaintiff−Intervenors' Motion to Shorten Time to Decide Plaintiffs' Motion to Enlarge Time, and Certificate of Service filed byPatrick O'Connell. (Kolm, Claude) (Filed on 8/18/2010) (Entered: 08/18/2010)
741 Statement of Non−Opposition to Plaintiffs' and Plaintiff−Intervenor's Motions re Timing of Application for Attorney Fees and Costs filed byMark B. Horton, Arnold Schwarzenegger, Linette Scott. (Mennemeier, Kenneth) (Filed on 8/19/2010) (Entered: 08/19/2010)
742 MOTION for Extension of Time to File A Bill of Costs filed by City and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Attachments: # 1 Affidavit of Enrique A. Monagas, # 2 Proposed Order)(Monagas, Enrique) (Filed on 8/20/2010) (Entered: 08/20/2010)
743 Memorandum in Opposition re 742 MOTION for Extension of Time to File A Bill of Costs, 729 MOTION for Extension of Time to File a Motion for Attorney's Fees and Related Expenses filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Attachments: # 1 Affidavit of Brian W. Raum in Support of Defendant−Intervenors' Opposition to Motion to Enlarge Time)(Raum, Brian) (Filed on 8/23/2010) (Entered: 08/23/2010)
744 ORDER by Judge Walker granting 729 Motion for Extension of Time to File; finding as moot 732 Motion to Shorten Time; granting 742 Motion for Extension of Time to File (vrwlc1, COURT STAFF) (Filed on 8/24/2010) (Entered: 08/24/2010)
745 NOTICE of Change of Address by Timothy D Chandler and Change of Designated Local Counsel (Chandler, Timothy) (Filed on 9/2/2010) (Entered: 09/02/2010)
746 Transcript Designation and Ordering Form for proceedings held on 5/22/2009 − 6/16/2010 before Judge Walker, re 713 Notice of Appeal, Transcript due by 9/3/2010. (Cooper, Charles) (Filed on 9/2/2010) (Entered: 09/02/2010)
747 Received Document from the Court of Appeal of the State of California, Third Appellate District. The petition for writ of mandamus is denied. (far, COURT STAFF) (Filed on 9/3/2010) (Entered: 09/07/2010)
748 USCA Case Number 10−16696 9th Circuit (far, COURT STAFF) (Filed on 9/8/2010) (Entered: 09/08/2010)
749 ORDER of USCA (far, COURT STAFF) (Filed on 9/8/2010) (Entered: 09/08/2010)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 84 of 90

09/08/2010 09/08/2010 09/08/2010 10/19/2010
10/22/2010 10/22/2010 10/22/2010 11/19/2010 12/01/2010
12/02/2010 01/07/2011 01/07/2011 01/07/2011 01/07/2011 01/07/2011 03/02/2011
03/14/2011
04/06/2011 04/25/2011
04/27/2011
04/27/2011
04/28/2011 04/28/2011

750 USCA Case Number 10−16751 9th Circuit (far, COURT STAFF) (Filed on 9/8/2010) (Entered: 09/08/2010)
751 ORDER of USCA (far, COURT STAFF) (Filed on 9/8/2010) (Entered: 09/08/2010)
752 ORDER of USCA (far, COURT STAFF) (Filed on 9/8/2010) (Entered: 09/08/2010)
755 RECEIVED: REQUEST FROM USCA for Record on Appeal. (far, COURT STAFF) (Filed on 10/19/2010) Modified on 10/22/2010 (far, COURT STAFF). (Entered: 10/22/2010)
753 ORDER of USCA (far, COURT STAFF) (Filed on 10/22/2010) (Entered: 10/22/2010)
754 WRIT OF CERTIORARI. (far, COURT STAFF) (Filed on 10/22/2010) (Entered: 10/22/2010)
Certified and Transmitted Record on Appeal to US Court of Appeals (far, COURT STAFF) (Filed on 10/22/2010) (Entered: 10/22/2010)
756 ORDER of USCA (far, COURT STAFF) (Filed on 11/19/2010) (Entered: 11/19/2010)
EXHIBIT LOCATIONS: Shelf 80: 2 boxes Plaintiff;Shelf 84: one box Plaintiff + one box Plaintiff/Defendant + 2 black binders Plaintiff, 1 black binder Defendant;Shelf 87: one expando Defendant Intervenor; Shelf 88: 2 boxes Plaintiff and one box Defendant; Shelf 92: 2 boxes Plaintiff (far, COURT STAFF) (Filed on 12/1/2010) (Entered: 12/01/2010)
757 ORDER of USCA (far, COURT STAFF) (Filed on 12/2/2010) (Entered: 12/03/2010)
760 USCA Memorandum Motion to Disqualify. (far, COURT STAFF) (Filed on 1/7/2011) (Entered: 01/07/2011)
761 USCA Memorandum (far, COURT STAFF) (Filed on 1/7/2011) (Entered: 01/07/2011)
762 ORDER of USCA (far, COURT STAFF) (Filed on 1/7/2011) (Entered: 01/07/2011)
763 USCA OPINION (far, COURT STAFF) (Filed on 1/7/2011) (Entered: 01/07/2011)
764 USCA Per Curiam Opinion. (far, COURT STAFF) (Filed on 1/7/2011) (Entered: 01/07/2011)
765 ORDER REASSIGNING CASE. Case reassigned to Judge Hon. James Ware for all further proceedings. Judge Hon. Vaughn R. Walker no longer assigned to the case. (mjj2, COURT STAFF) (Filed on 3/2/2011) (Entered: 03/03/2011)
766 STATUS REPORT (Joint Status Statement) by Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Monagas, Enrique) (Filed on 3/14/2011) (Entered: 03/14/2011)
767 ORDER of USCA (far, COURT STAFF) (Filed on 4/6/2011) (Entered: 04/06/2011)
768 MOTION to Vacate Judgment filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. Motion Hearing set for 7/11/2011 09:00 AM in Courtroom 5, 17th Floor, San Francisco before Hon. James Ware. (Attachments: # 1 Proposed Order Proposed Order)(Cooper, Charles) (Filed on 4/25/2011) (Entered: 04/25/2011)
769 ORDER Expediting Hearing re 768 MOTION to Vacate Judgment. Signed by Judge James Ware on April 27, 2011. (jwlc3, COURT STAFF) (Filed on 4/27/2011) (Entered: 04/27/2011)
Set/Reset Deadlines as to 768 MOTION to Vacate Judgment. Responses due by 5/13/2011. Replies due by 5/23/2011. Motion Hearing set for 6/13/2011 09:00 AM in Courtroom 5, 17th Floor, San Francisco before Hon. James Ware. (sis, COURT STAFF) (Filed on 4/27/2011) (Entered: 04/27/2011)
770 ORDER of USCA (amendment to 771 Order) (far, COURT STAFF) (Filed on 4/28/2011) Modified on 4/28/2011 (far, COURT STAFF). (Entered: 04/28/2011)
771 ORDER of USCA (Attachments: # 1 part 2, # 2 part 3, # 3 part 4, # 4 part 5, # 5 part 6, # 6 part 7, # 7 part 8, # 8 part 9, # 9 part 10)(far, COURT STAFF) (Filed on

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 85 of 90

04/28/2011 04/28/2011 05/03/2011 05/10/2011 05/12/2011
05/12/2011 05/12/2011 05/12/2011 05/12/2011 05/13/2011 05/13/2011
05/13/2011 05/13/2011
05/13/2011
05/16/2011

4/28/2011) (Entered: 04/28/2011)
772 ORDER Setting Hearing on Motion re 770 USCA Order, 771 USCA Order. Signed by Judge James Ware on April 28, 2011. (jwlc3, COURT STAFF) (Filed on 4/28/2011) (Additional attachment(s) added on 5/3/2011: # 1 COS) (sis, COURT STAFF). (Entered: 04/28/2011)
Set/Reset Deadlines as to Pursuant to 772 Order: Responses due by 5/13/2011. Replies due by 5/23/2011. Motion Hearing re: 770 , 771 set for 6/13/2011 09:00 AM in Courtroom 5, 17th Floor, San Francisco before Hon. James Ware. (sis, COURT STAFF) (Filed on 4/28/2011) (Entered: 04/29/2011)
773 Letter to Chief Judge James Ware on behalf of Media Coalition's Motion in Ninth Circuit. (Burke, Thomas) (Filed on 5/3/2011) (Entered: 05/03/2011)
774 Statement re 768 MOTION to Vacate Judgment − Statement of No Position by Dean C. Logan. (Whitehurst, Judy) (Filed on 5/10/2011) (Entered: 05/10/2011)
775 RESPONSE (re 768 MOTION to Vacate Judgment ) PLAINTIFF−INTERVENOR CITY AND COUNTY OF SAN FRANCISCO'S OPPOSITION TO DEFENDANT−INTERVENORS' MOTION TO VACATE JUDGMENT filed byCity and County of San Francisco. (Van Aken, Christine) (Filed on 5/12/2011) (Entered: 05/12/2011)
776 NOTICE of Substitution of Counsel by Tamar Pachter (Pachter, Tamar) (Filed on 5/12/2011) (Entered: 05/12/2011)
777 Letter from Ephraim Margolin, counsel for Vaughn R. Walker. (Margolin, Ephraim) (Filed on 5/12/2011) (Entered: 05/12/2011)
778 RESPONSE (re 768 MOTION to Vacate Judgment ) filed byEdmund G. Brown, Jr, Linette Scott, Kamala D. Harris, Howard Backer. (Powell, Daniel) (Filed on 5/12/2011) (Entered: 05/12/2011)
784 FILED UNDER SEAL EXHIBIT A to 777 (far, COURT STAFF) (Filed on 5/12/2011) (Entered: 05/13/2011)
779 RESPONSE (re 768 MOTION to Vacate Judgment ) Plaintiffs' Opposition to the Motion to Vacate Judgment filed byPaul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Olson, Theodore) (Filed on 5/13/2011) (Entered: 05/13/2011)
780 Declaration of Enrique A. Monagas in Support of 779 Opposition/Response to Motion filed byPaul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Related document(s) 779 ) (Olson, Theodore) (Filed on 5/13/2011) (Entered: 05/13/2011)
781 ORDER RE: THE LODGING OF TRIAL TAPES re 777 Letter filed by Vaughn R. Walker. Signed by Judge James Ware on 05/12/11. (sis, COURT STAFF) (Filed on 5/13/2011) (Entered: 05/13/2011)
782 MOTION for Leave to File Brief of Amici Curiae Lambda Legal Defense and Education Fund, Inc., ACLU Foundation of Northern California, National Center for Lesbian Rights, and Equality California in Opposition to Plaintiffs' Motion to Vacate Judgment filed by Lambda Legal Defense and Education Fund, Inc.. (Renn, Peter) (Filed on 5/13/2011) (Entered: 05/13/2011)
783 Brief re 782 MOTION for Leave to File Brief of Amici Curiae Lambda Legal Defense and Education Fund, Inc., ACLU Foundation of Northern California, National Center for Lesbian Rights, and Equality California in Opposition to Plaintiffs' Motion to Vacate Jud filed byLambda Legal Defense and Education Fund, Inc.. (Related document(s) 782 ) (Renn, Peter) (Filed on 5/13/2011) (Entered: 05/13/2011)
785 ORDER RE: SUBSTITUTION OF COUNSEL re 776 Notice of Substitution of Counsel filed by Edmund G. Brown, Jr., Attorney Tamar Pachter for Mark B. Horton,Tamar Pachter for Linette Scott added. Attorney Kenneth C. Mennemeier and Andrew Walter Stroud terminated. Signed by Judge James Ware on 5/16/11. (sis, COURT STAFF) (Filed on 5/16/2011) (Entered: 05/16/2011)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 86 of 90

05/18/2011 05/23/2011 05/25/2011
05/26/2011 05/26/2011

786 ORDER by Judge James Ware granting 782 Motion for Leave to File Brief. (tmi, COURT STAFF) (Filed on 5/18/2011) (Entered: 05/18/2011)
787 REPLY (re 768 MOTION to Vacate Judgment ) filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Cooper, Charles) (Filed on 5/23/2011) (Entered: 05/23/2011)
788 MOTION for Leave to File Brief of Amici Curiae Bay Area Lawyers for Individual Freedom, et al., in Opposition to Proponents' Motion to Vacate Judgment filed by Bay Area Lawyers for Individual Freedom. Motion Hearing set for 6/13/2011 09:00 AM in Courtroom 5, 17th Floor, San Francisco before Hon. James Ware. (Attachments: # 1 Brief of Amici Curiae Bay Area Lawyers for Individual Freedom,, AIDS Legal Referral Panel, API Equality LA, API Equality Northern California, Asian American Bar Association of the Greater Bay Area, Asian American Institute, Asian American Justice Center, Asian Law Caucus, Asian Pacific American Bar Association of Los Angeles County, Asian Pacific American Bar Association of Silicon Valley, Asian Pacific American Legal Center, Asian Pacific Islander Legal Outreach, Bay Area Association of Muslim Lawyers, The Black Women Lawyers Association of Northern California, The California Employment Lawyers Association, The Charles Houston Bar Association, Courage Campaign, Equal Justice Society, Family Equality Council, Fred T. Korematsu Center for Law and Equality, Freedom to Marry, Gay & Lesbian Advocates & Defenders, Impact Fund, Iranian American Bar Association, Korean American Bar Association of Northern California, Korean American Bar Association of Southern California, Law Foundation of Silicon Valley, Lawyers Committee for Civil Rights of the San Francisco Bay Area, Lesbian & Gay Lawyers Association of Los Angeles, Marin County Bar Association, Marriage Equality USA, National Asian Pacific American Bar Association, Philippine American Bar Association of Los Angeles, Queens Bench Bar Association, Sacramento Lawyers for the Equality of Gays and Lesbians, San Francisco La Raza Lawyers Association, Santa Clara County Bar Association, Santa Clara County Black Lawyers Association, Society of American Law Teachers, Transgender Law Center, Vietnamese American Bar Association of Northern California, and Women Lawyers of Alameda County, # 2 Proposed Order [Proposed] Order Granting Motion for Leave to File Brief of Amici Curiae Bay Area Lawyers for Individual Freedom, et al., in Opposition to Proponents' Motion to Vacate Judgment)(Bass, Joren) (Filed on 5/25/2011) (Entered: 05/25/2011)
789 Modified ORDER by Judge James Ware granting 788 Motion for Leave to File. The parties shall submit their brief by 5/27/2011 as a separate docket entry. (fj, COURT STAFF) (Filed on 5/26/2011) (Entered: 05/26/2011)
790 Brief of Amici Curiae Bay Area Lawyers for Individual Freedom, AIDS Legal Referral Panel, API Equality LA, API Equality Northern California, Asian American Bar Association of the Greater Bay Area, Asian American Institute, Asian American Justice Center, Asian Law Caucus, Asian Pacific American Bar Association of Los Angeles County, Asian Pacific American Bar Association of Silicon Valley, Asian Pacific American Legal Center, Asian Pacific Islander Legal Outreach, Bay Area Association of Muslim Lawyers, The Black Women Lawyers Association of Northern California, The California Employment Lawyers Association, The Charles Houston Bar Association, Courage Campaign, Equal Justice Society, Family Equality Council, Fred T. Korematsu Center for Law and Equality, Freedom to Marry, Gay & Lesbian Advocates & Defenders, Impact Fund, Iranian American Bar Association, Korean American Bar Association of Northern California, Korean American Bar Association of Southern California, Law Foundation of Silicon Valley, Lawyers Committee for Civil Rights of the San Francisco Bay Area, Lesbian & Gay Lawyers Association of Los Angeles, Marin County Bar Association, Marriage Equality USA, National Asian Pacific American Bar Association, Philippine American Bar Association of Los Angeles, Queens Bench Bar Association, Sacramento Lawyers for the Equality of Gays and Lesbians, San Francisco La Raza Lawyers Association, Santa Clara County Bar Association, Santa Clara County Black Lawyers Association, Society of American Law Teachers, Transgender Law Center, Vietnamese American Bar Association of Northern California, and Women Lawyers of Alameda County, in Opposition to Proponents' Motion to Vacate Judgment filed byBay Area Lawyers for Individual Freedom. (Bass, Joren) (Filed on 5/26/2011) (Entered: 05/26/2011)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 87 of 90

05/26/2011 05/27/2011 05/27/2011 05/27/2011 05/31/2011 06/14/2011
06/14/2011 06/14/2011 06/14/2011 06/15/2011
06/24/2011 06/27/2011 06/27/2011 06/29/2011 07/08/2011 07/15/2011

791 ORDER Excusing Appearance re 772 Order. Signed by Judge James Ware on 5/26/11. (Attachments: # 1 Certificate of Service)(fj, COURT STAFF) (Filed on 5/26/2011) (Entered: 05/26/2011)
792 MOTION for Leave to File Brief of Amicus Curiae The Bar Association of San Francisco filed by The Bar Association of San Francisco. (Attachments: # 1 Proposed Order)(Balabanian, David) (Filed on 5/27/2011) (Entered: 05/27/2011)
793 Brief of Amicus Curiae The Bar Association of San Francisco In Opposition to Defendant−Intervenors' Motion to Vacate Judgment filed byThe Bar Association of San Francisco. (Balabanian, David) (Filed on 5/27/2011) (Entered: 05/27/2011)
794 Letter from Michael J. McDermott − Amicus Pro Se. (McDermott, Michael) (Filed on 5/27/2011) (Entered: 05/27/2011)
795 ORDER by Judge James Ware granting 792 Motion for Leave to File (sis, COURT STAFF) (Filed on 5/31/2011) (Entered: 05/31/2011)
796 Minute Entry: Arguments heard, matter submitted, Court to issue order.Motion Hearing held on 6/13/2011 before James Ware (Date Filed: 6/14/2011) re 768 MOTION to Vacate Judgment filed by Dennis Hollingsworth, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Mark A. Jansson, Martin F. Gutierrez, Gail J. Knight. (Court Reporter Debra Pas.) (sis, COURT STAFF) (Date Filed: 6/14/2011) (Entered: 06/14/2011)
797 ORDER DENYING DEFENDANT−INTERVENORS MOTION TO VACATE JUDGMENT by Judge James Ware denying 768 Motion to Vacate (jwlc1, COURT STAFF) (Filed on 6/14/2011) (Entered: 06/14/2011)
798 ORDER denying motion for order compelling return of trial recordings 771 USCA Order. Signed by Judge James Ware on June 14, 2011. (jwlc2, COURT STAFF) (Filed on 6/14/2011) (Entered: 06/14/2011)
Set/Reset Deadlines as to Responses due by 7/15/2011. Replies due by 8/1/2011. Motion Hearing for Plaintiff's Cross Motion to Lift Protective Order set for 8/29/2011 09:00 AM before Hon. James Ware. (sis, COURT STAFF) (Filed on 6/14/2011) (Entered: 06/14/2011)
799 Transcript of Proceedings held on 6/13/2011, before Judge James Ware. Court Reporter/Transcriber Debra L. Pas, CRR, Telephone number (415) 431−1477. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 9/13/2011. (Pas, Debra) (Filed on 6/15/2011) (Entered: 06/15/2011)
800 NOTICE OF APPEAL as to 797 Order on Motion to Vacate by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. Filing fee $ 455, Receipt Number 34611061453. (far, COURT STAFF) (Filed on 6/24/2011) (Entered: 06/27/2011)
801 Copy of Notice of Appeal and Docket sheet mailed to all counsel (Attachments: # 1 docket sheet)(far, COURT STAFF) (Filed on 6/27/2011) (Entered: 06/27/2011)
802 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 800 Notice of Appeal, (Attachments: # 1 docket sheet, # 2 cover letter, # 3 notice of appeal notification form)(far, COURT STAFF) (Filed on 6/27/2011) (Entered: 06/27/2011)
803 NOTICE of Substitution of Counsel by Patrice Jeanine Salseda (Salseda, Patrice) (Filed on 6/29/2011) (Entered: 06/29/2011)
804 ORDER of USCA (far, COURT STAFF) (Filed on 7/8/2011) (Entered: 07/08/2011)
805 Statement of Non−Opposition to Plaintiffs' Motion to Publicly Release Trial Videotapes filed byEdmund G. Brown, Jr. (Pachter, Tamar) (Filed on 7/15/2011) (Entered: 07/15/2011)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 88 of 90

07/15/2011 07/18/2011 07/20/2011 08/24/2011 08/29/2011 09/01/2011
09/19/2011 09/22/2011 09/22/2011 09/22/2011 09/23/2011
09/23/2011 09/27/2011 09/28/2011

806 Brief Supplemental Brief in Support of Motion for Order Compelling Return of Trial Recordings filed byMartin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Cooper, Charles) (Filed on 7/15/2011) (Entered: 07/15/2011)
807 NOTICE of Change In Counsel by Theodore B Olson re Sarah E. Piepmeier, Esq. (Olson, Theodore) (Filed on 7/18/2011) (Entered: 07/18/2011)
808 TRANSCRIPT DESIGNATION by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal for proceedings held on June 13, 2011 before Judge Ware.. (Cooper, Charles) (Filed on 7/20/2011) (Entered: 07/20/2011)
809 Letter from Theodore J. Boutrous Jr.. (Attachments: # 1 Declaration of Enrique A. Monagas Authenticating Video Clips for the August 29, 2011 Hearing)(Boutrous, Theodore) (Filed on 8/24/2011) (Entered: 08/24/2011)
810 Minute Entry: Arguments heard, matter submitted. Court to issue order.Motion Hearing held on 8/29/2011 before James Ware (Date Filed: 8/29/2011). (Court Reporter Connie Kuhl.) (sis, COURT STAFF) (Date Filed: 8/29/2011) (Entered: 08/29/2011)
811 Transcript of Proceedings held on 8−29−2011, before Chief Judge James Ware. Court Reporter Connie Kuhl, Telephone number 415−431−2020. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 11/30/2011. (ck, COURT STAFF) (Filed on 9/1/2011) (Entered: 09/01/2011)
812 ORDER GRANTING PLAINTIFFS' MOTION TO UNSEAL DIGITAL RECORDING OF TRIAL; GRANTING LIMITED STAY re 771 USCA Order. Signed by Judge James Ware on September 19, 2011. (jwlc1, COURT STAFF) (Filed on 9/19/2011) (Entered: 09/19/2011)
813 NOTICE OF APPEAL as to 812 Order by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. Filing fee $ 455, Receipt Number 34611064971. (far, COURT STAFF) (Filed on 9/22/2011) (Entered: 09/22/2011)
814 Copy of Notice of Appeal and Docket sheet mailed to all counsel (Attachments: # 1 docket sheet)(far, COURT STAFF) (Filed on 9/22/2011) (Entered: 09/22/2011)
815 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 813 Notice of Appeal, (Attachments: # 1 docket sheet, # 2 cover letter, # 3 appeal notification form)(far, COURT STAFF) (Filed on 9/22/2011) (Entered: 09/22/2011)
816 MOTION to Stay Pending Appeal filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. Motion Hearing set for 10/28/2011 09:00 AM in Courtroom 9, 19th Floor, San Francisco before Hon. James Ware. Responses due by 10/7/2011. Replies due by 10/14/2011. (Attachments: # 1 Exhibit 1−26, # 2 Exhibit 27−29, # 3 Exhibit 30−36, # 4 Proposed Order Proposed Order)(Cooper, Charles) (Filed on 9/23/2011) (Entered: 09/23/2011)
817 MOTION to Expedite Consideration of Motion for Stay Pending Appeal filed by Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight, ProtectMarriage.com − Yes on 8, A Project of California Renewal. (Attachments: # 1 Declaration In Support of Motion to Shorten Time, # 2 Proposed Order Proposed Order)(Cooper, Charles) (Filed on 9/23/2011) (Entered: 09/23/2011)
818 ORDER by Judge James Ware finding as moot 816 Motion to Stay; finding as moot 817 Motion to Expedite (jwlc2, COURT STAFF) (Filed on 9/27/2011) (Entered: 09/27/2011)
819 ORDER of USCA. The District Court's September 19, 2011 812 Order is temporarily stayed pending consideration of appellant's emergency motion for stay pending

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 89 of 90

10/06/2011 10/28/2011 10/28/2011 10/28/2011 11/02/2011 11/10/2011 01/12/2012 01/12/2012 01/12/2012 01/12/2012 02/06/2012 02/07/2012
02/07/2012
02/23/2012 02/23/2012 02/27/2012 02/27/2012 03/23/2012 06/25/2012 06/25/2012 06/25/2012 08/03/2012
08/27/2012 08/29/2012

appeal.(far, COURT STAFF) (Filed on 9/28/2011) (Entered: 09/28/2011)
820 USCA Case Number 11−17255 9th Circuit (far, COURT STAFF) (Filed on 10/6/2011) (Entered: 10/06/2011)
821 ORDER of USCA (far, COURT STAFF) (Filed on 10/28/2011) (Entered: 10/28/2011)
822 ORDER of USCA (far, COURT STAFF) (Filed on 10/28/2011) (Entered: 10/28/2011)
823 ORDER of USCA (far, COURT STAFF) (Filed on 10/28/2011) (Entered: 10/28/2011)
824 Transcript Designation and Ordering Form before Judge Ware, (Cooper, Charles) (Filed on 11/2/2011) (Entered: 11/02/2011)
825 ORDER of USCA (far, COURT STAFF) (Filed on 11/10/2011) (Entered: 11/10/2011)
826 ORDER of USCA (far, COURT STAFF) (Filed on 1/12/2012) (Entered: 01/12/2012)
827 ORDER of USCA (far, COURT STAFF) (Filed on 1/12/2012) (Entered: 01/12/2012)
828 ORDER of USCA (far, COURT STAFF) (Filed on 1/12/2012) (Entered: 01/12/2012)
829 SUPREME COURT ORDER. (far, COURT STAFF) (Filed on 1/12/2012) (Entered: 01/12/2012)
830 USCA OPINION. (far, COURT STAFF) (Filed on 2/6/2012) (Entered: 02/06/2012)
831 USCA Memorandum as to 713 Notice of Appeal, filed by Dennis Hollingsworth, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Mark A. Jansson, Martin F. Gutierrez, Gail J. Knight, 800 Notice of Appeal, filed by Dennis Hollingsworth, ProtectMarriage.com − Yes on 8, A Project of California Renewal, Mark A. Jansson, Martin F. Gutierrez, Gail J. Knight (rcs, COURT STAFF) (Filed on 2/7/2012) (Entered: 02/09/2012)
832 ORDER of USCA as to 719 Notice of Appeal, filed by County of Imperial of the State of California, Isabel Vargas, Board of Supervisors of Imperial County (rcs, COURT STAFF) (Filed on 2/7/2012) (Entered: 02/09/2012)
833 ORDER of USCA (far, COURT STAFF) (Filed on 2/23/2012) (Entered: 02/23/2012)
834 ORDER of USCA (far, COURT STAFF) (Filed on 2/23/2012) (Entered: 02/23/2012)
835 MANDATE of USCA (far, COURT STAFF) (Filed on 2/27/2012) (Entered: 02/27/2012)
836 CLERKS Letter Spreading Mandate to Counsel (far, COURT STAFF) (Filed on 2/27/2012) (Entered: 02/27/2012)
837 NOTICE by Doug Swardstrom of Withdrawal of Kaylan Phillips as Counsel (Phillips, Kaylan) (Filed on 3/23/2012) (Entered: 03/23/2012)
838 USCA CONCURRENCE(far, COURT STAFF) (Filed on 6/25/2012) (far, COURT STAFF). (Entered: 06/25/2012)
839 USCA DISSENT (far, COURT STAFF) (Filed on 6/25/2012) (Entered: 06/25/2012)
840 ORDER of USCA (far, COURT STAFF) (Filed on 6/25/2012) (Entered: 06/25/2012)
841 NOTICE of Substitution of Counsel by John Thomas Seyman Notice of Substitution of Counsel of John T. Seyman; and, Notice of Withdrawal of Counsels Claude F. Kolm, and Manuel F. Martinez (With Certificate of Service) (Seyman, John) (Filed on 8/3/2012) (Entered: 08/03/2012)
842 ORDER CLOSING CASE. Signed by Judge James Ware on August 27, 2012. (wsn, COURT STAFF) (Filed on 8/27/2012) (Entered: 08/27/2012)
843 JUDGMENT AND AMENDED ORDER CLOSING CASE. Signed by Judge James Ware on August 29, 2012. (wsn, COURT STAFF) (Filed on 8/29/2012) (Entered: 08/29/2012)

Case: 3:09-cv-2292 As of: 11/18/2014 08:29 AM PST 90 of 90

12/26/2012 01/22/2013 07/01/2013 08/08/2013 08/08/2013 08/08/2013 08/13/2013 09/03/2013

844 SUPREME COURT ORDER. (farS, COURT STAFF) (Filed on 12/26/2012) (Entered: 12/26/2012)
845 Certified and Transmitted Record on Appeal (Exhibits − 50 Binders) sent to US Supreme Court. (farS, COURT STAFF) (Filed on 1/22/2013) (Entered: 01/22/2013)
846 ORDER of USCA (farS, COURT STAFF) (Filed on 7/1/2013) (Entered: 07/01/2013)
847 ORDER of USCA (farS, COURT STAFF) (Filed on 8/8/2013) (Entered: 08/08/2013)
848 MANDATE of USCA (farS, COURT STAFF) (Filed on 8/8/2013) (Entered: 08/08/2013)
849 CLERKS Letter Spreading Mandate to Counsel (farS, COURT STAFF) (Filed on 8/8/2013) (Entered: 08/08/2013)
850 SUPREME COURT ORDER. (farS, COURT STAFF) (Filed on 8/13/2013) (Entered: 08/13/2013)
851 Appeal Record Returned − Exhibit Binders(farS, COURT STAFF) (Filed on 9/3/2013) (Entered: 09/03/2013)

 
 No. _________ ================================================================
In The
Supreme Court of the United States

---------------------------------  ---------------------------------

DENNIS HOLLINGSWORTH, et al., Petitioners,
v.
KRISTIN M. PERRY, et al., Respondents.
---------------------------------  ---------------------------------

On Petition For A Writ Of Certiorari To The United States Court Of Appeals
For The Ninth Circuit
---------------------------------  ---------------------------------

PETITION FOR A WRIT OF CERTIORARI ---------------------------------  ---------------------------------

ANDREW P. PUGNO LAW OFFICES OF
ANDREW P. PUGNO 101 Parkshore Drive, Suite 100 Folsom, California 95630
DAVID AUSTIN R. NIMOCKS JAMES A. CAMPBELL ALLIANCE DEFENDING FREEDOM 801 G Street, NW, Suite 509 Washington, D.C. 20001

CHARLES J. COOPER Counsel of Record
DAVID H. THOMPSON HOWARD C. NIELSON, JR. PETER A. PATTERSON COOPER AND KIRK, PLLC 1523 New Hampshire
Avenue, NW Washington, D.C. 20036 Tel: (202) 220-9600 Email: ccooper@
cooperkirk.com

Counsel for Petitioners

================================================================
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831

i
QUESTION PRESENTED
Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.

ii
PARTIES TO THE PROCEEDINGS BELOW
Petitioners Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Mark A. Jansson, and ProtectMarriage.com – Yes on 8, A Project of California Renewal (“ProtectMarriage.com”) intervened as defendants in the district court and were the appellants in the court below.
Respondents, plaintiffs Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo and intervening plaintiff City and County of San Francisco, were the appellees below.
Official-capacity defendants Edmund G. Brown, Jr., as Governor of California, Kamala D. Harris, as Attorney General of California, Ron Chapman, as Director of the California Department of Public Health & State Registrar of Vital Statistics, Linette Scott, as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health, Patrick O’Connell, as Clerk-Recorder for the County of Alameda, and Dean C. Logan, as Registrar-Recorder/County Clerk for the County of Los Angeles, and intervening defendant Hak-Shing William Tam were not parties to the appeal below.1
1 The Attorney General of California, although not a party to the appeal, was on the service list and filed documents in the court below and filed an amicus brief addressing the question certified to the California Supreme Court. See Dkt. Entries 8, 311, 352. The court below did not, however, certify to the Attorney General of California that the constitutionality of a law of the State of California was drawn into question. See 28 U.S.C. § 2403(b).

iii
CORPORATE DISCLOSURE STATEMENT
No corporations are parties, and there are no parent companies or publicly held companies owning any corporation’s stock. Petitioner ProtectMarriage. com is a primarily formed ballot committee under California law. See CAL. GOV. CODE §§ 82013 & 82047.5. Its “sponsor” under California law is California Renewal, a California nonprofit corporation, recognized as a public welfare organization under 26 U.S.C. § 501(c)(4).

iv
TABLE OF CONTENTS Page
QUESTION PRESENTED................................... i
PARTIES TO THE PROCEEDINGS BELOW ..... ii
CORPORATE DISCLOSURE STATEMENT ....... iii
TABLE OF AUTHORITIES ................................. vi
OPINIONS BELOW............................................. 1
JURISDICTION................................................... 1
CONSTITUTIONAL PROVISIONS INVOLVED..... 2
INTRODUCTION ................................................ 2
STATEMENT OF THE CASE.............................. 8
REASONS FOR GRANTING THE WRIT ........... 13
I. The Question Presented Is Exceedingly Important................................................... 13
II. The Decision Below Conflicts with Crawford v. Board of Education ........................ 15
III. The Decision Below Fundamentally Misapplies Romer v. Evans and Conflicts with the Decisions of Other Appellate Courts ..... 17
IV. The Decision Below Conflicts with This Court’s Decision in Baker v. Nelson and with Uniform Appellate Authority Upholding State Marriage Laws .................... 23
V. The Ninth Circuit’s Holding That Proposition 8 Serves No Legitimate Governmental Purpose Conflicts with the Decisions of This and Other Appellate Courts .......... 25

v
TABLE OF CONTENTS – Continued Page
A. The Traditional Definition of Marriage Furthers Society’s Vital Interest in Responsible Procreation and Childrearing ................................................. 26
B. Proposition 8 Serves California’s Legitimate Interest in Proceeding Cautiously When Considering Redefining the Institution of Marriage ................. 35
C. The Purpose of Proposition 8 Is Not To “Dishonor” Gays and Lesbians ....... 37
CONCLUSION..................................................... 39
INDEX TO APPENDIX
Opinion, Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), filed Feb. 7, 2012...................................1a
Opinion, Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010), filed Aug. 4, 2010 .............137a
Opinion, Perry v. Brown, 52 Cal. 4th 1116 (Cal. 2011), filed Nov. 17, 2011 ....................................318a
Order, Perry v. Schwarzenegger, 628 F.3d 1191 (9th Cir. 2011), filed Jan. 4, 2011 .......................413a
Order, Perry v. Brown, 681 F.3d 1065 (9th Cir. 2012), filed Jun. 5, 2012......................................441a

vi
TABLE OF AUTHORITIES Page
CASES Andersen v. King County, 138 P.3d 963 (Wash.
2006) (plurality) ......................................................30 Baker v. Nelson, 409 U.S. 810 (1972)...............3, 23, 24 Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) ....23, 24 Board of Trs. of the Univ. of Ala. v. Garrett, 531
U.S. 356 (2001)........................................................30 Bowen v. Gilliard, 483 U.S. 587 (1987) .....................33 Central State Univ. v. American Ass’n Univ.
Professors, 526 U.S. 124 (1999) ..............................33 Citizens for Equal Prot. v. Bruning, 455 F.3d
859 (8th Cir. 2006) .......................................... passim City of Cleburne v. Cleburne Living Ctr., 473
U.S. 432 (1985)..................................................30, 31 City of New Orleans v. Dukes, 427 U.S. 297
(1976) .......................................................................33 Crawford v. Board of Educ., 458 U.S. 527 (1982)....passim De Burgh v. De Burgh, 250 P.2d 598 (Cal. 1952).......28 Dean v. District of Columbia, 653 A.2d 307 (D.C.
1995) ..................................................................24, 29 District Attorney’s Office v. Osborne, 557 U.S.
52 (2009) ....................................................................5 Heller v. Doe, 509 U.S. 312 (1995) .......................31, 37 Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006).........31 In re Marriage Cases, 183 P.3d 384 (Cal. 2008).....3, 8, 32

vii
TABLE OF AUTHORITIES – Continued Page
In re Marriage of J.B. and H.B., 326 S.W.3d 654 (Tex. Ct. App. 2010)..............................17, 24, 29
Johnson v. Robison, 415 U.S. 361 (1974).......30, 31, 32 Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973) ..........24 Lawrence v. Texas, 539 U.S. 558 (2003) .................7, 39 Loving v. Virginia, 388 U.S. 1 (1967).........................28 Lyng v. Automobile Workers, 485 U.S. 360 (1988) ...... 33 Massachusetts v. United Sates Dep’t of HHS,
682 F.3d 1 (1st Cir. 2012) ....................................7, 24 Maynard v. Hill, 125 U.S. 190 (1888) ........................13 Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App.
2005) ..................................................................30, 31 New State Ice Co. v. Liebmann, 285 U.S. 262
(1932) .........................................................................3 Nguyen v. INS, 533 U.S. 53 (2001) ............................31 Romer v. Evans, 517 U.S. 620 (1996)................. passim Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App.
1974) ..................................................................24, 29 Sosna v. Iowa, 419 U.S. 393 (1975)............................13 Standhardt v. Superior Court of Ariz., 77 P.3d
451 (Ariz. Ct. App. 2003).......................17, 24, 29, 30 Strauss v. Horton, 207 P.3d 48 (Cal. 2009) .....21, 22, 37 Tully v. Griffin, Inc., 429 U.S. 68 (1976)....................23 United States R.R. Ret. Bd. v. Fritz, 449 U.S.
166 (1980) ................................................................37

viii
TABLE OF AUTHORITIES – Continued Page
United States v. Salerno, 481 U.S. 739 (1987)...........18 Washington v. Glucksberg, 521 U.S. 702 (1997) ..........3 Williams v. North Carolina, 317 U.S. 287 (1942) ....... 13 Ysura v. Pocatello Educ. Ass’n, 555 U.S. 353
(2009) .......................................................................33
CONSTITUTIONAL AND LEGISLATIVE MATERIALS U.S. CONST. amend. XIV, § 1 .............................. passim 28 U.S.C. § 1254(1) .......................................................1 28 U.S.C. § 1331 ...........................................................8 28 U.S.C. § 2403(b) .......................................................1 CAL. CONST. art. I, § 7.5 ................................................2 CAL. ELEC. CODE § 342 ..................................................8 CAL. FAM. CODE § 308.5 ................................................8 CAL. GOV. CODE § 82047.5(b) ........................................8 HAW. CONST. art. I, § 23 ..............................................14 HAW. REV. STAT. § 572B ..............................................14 NEV. REV. STAT. § 122A...............................................14 OR. REV. STAT. § 106.300.............................................14 WASH. REV. CODE § 26.60.015.....................................15

ix
TABLE OF AUTHORITIES – Continued
Page
OTHER
1 WILLIAM BLACKSTONE, COMMENTARIES .....................27
About Us – Equality California, at http://www. eqca.org/site/pp.asp?c=kuLRJ9MRKrH&b= 4025493 ...................................................................21
Baker v. Nelson, No. 71-1027, Jurisdictional Statement (Oct. Term 1972) ...................................23
BARON DE MONTESQUIEU, 2 THE SPIRIT OF LAWS (1st American from the 5th London ed., 1802) ......27
BRONISLAW MALINOWSKI, SEX, CULTURE, AND MYTH (1962).............................................................28
Claude Levi-Strauss, Introduction, in 1 A HISTORY OF THE FAMILY: DISTANT WORLDS, ANCIENT WORLDS (Andre Burguiere, et al. eds., 1996) .........26
G. ROBINA QUALE, A HISTORY OF MARRIAGE SYSTEMS (1988) ..............................................................28
Jackson v. Abercrombie, No. 1:11-cv-00734-ACKKSC, Memorandum in Support of Plaintiffs’ Motion for Summary Judgment, ECF Doc. No. 65-1 (D. Haw. June 15, 2012)...........................14
JAMES Q. WILSON, THE MARRIAGE PROBLEM (2002) .......................................................................28
JOEL PRENTISS BISHOP, COMMENTARIES ON THE LAW OF MARRIAGE & DIVORCE (1852).......................28

x
TABLE OF AUTHORITIES – Continued
Page
JOHN LOCKE, SECOND TREATISE OF CIVIL GOVERNMENT (1690) .............................................................27
KINGSLEY DAVIS, The Meaning & Significance of Marriage in Contemporary Society, in CONTEMPORARY MARRIAGE: COMPARATIVE PERSPECTIVES ON A CHANGING INSTITUTION (Kingsley Davis, ed. 1985).......................................................28
KRISTEN ANDERSON MOORE, ET AL., MARRIAGE FROM A CHILD’S PERSPECTIVE, CHILD TRENDS RESEARCH BRIEF (June 2002) ..................................34
M.V. LEE BADGETT, WHEN GAY PEOPLE GET MARRIED (2009)........................................................38
National Conference of State Legislatures, Defining Marriage, at http://www.ncsl.org/issuesresearch/human-services/same-sex-marriageoverview.aspx ..........................................................20
NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1st ed. 1828)...........................28
Robin Roberts ABC News Interview with President Obama, May 9, 2012, available at http:// abcnews.go.com/Politics/transcript-robin-robertsabc-news-interview-president-obama/story? id=16316043&singlePage=true ................................7
SARA MCLANAHAN & GARY SANDEFUR, GROWING UP WITH A SINGLE PARENT: WHAT HURTS, WHAT HELPS (1994)............................................................34
W. BRADFORD WILCOX, ET AL., EDS., WHY MARRIAGE MATTERS (2d ed. 2005)...................................28

xi
TABLE OF AUTHORITIES – Continued Page
William J. Doherty, et al., Responsible Fathering, 60 J. MARRIAGE & FAMILY (1998) .....................34
WITHERSPOON INSTITUTE, MARRIAGE AND THE PUBLIC GOOD (2008).................................................36

1
PETITION FOR A WRIT OF CERTIORARI Petitioners respectfully petition for a writ of
certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case.
---------------------------------  ---------------------------------
OPINIONS BELOW The Ninth Circuit’s opinion is reported at 671 F.3d 1052. App. 1a. The Ninth Circuit’s order denying rehearing en banc is reported at 681 F.3d 1065. App. 441a. The district court’s findings of fact and conclusions of law are reported at 704 F. Supp.2d 921. App. 137a. The Ninth Circuit’s certification order is reported at 628 F.3d 1191. App. 413a. The California Supreme Court’s answer is reported at 265 P.3d 1002, 52 Cal.4th 1116. App. 318a.
---------------------------------  ---------------------------------
JURISDICTION The judgment below was entered on February 7, 2012. The Ninth Circuit denied a timely petition for rehearing en banc on June 5, 2012. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).2
---------------------------------  ---------------------------------
2 In the event that 28 U.S.C. § 2403(b) may apply, this petition has been served on the Attorney General of California.

2
CONSTITUTIONAL PROVISIONS INVOLVED
The Equal Protection Clause of the Fourteenth Amendment provides: “[N]or shall any State . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV, § 1.
Proposition 8, now codified as Article I, Section 7.5 of the California Constitution, provides: “Only marriage between a man and a woman is valid or recognized in California.”
---------------------------------  ---------------------------------
INTRODUCTION
The profoundly important question whether the ancient and vital institution of marriage should be fundamentally redefined to include same-sex couples “is currently a matter of great debate in our nation,” as the court below acknowledged, “and [is] an issue over which people of good will may disagree.” App. 17a. Six States and the District of Columbia now recognize same-sex marriages, and two other States have enacted legislation that would recognize samesex marriages but will not take effect unless approved by the People in referenda this fall. Many other States, on the other hand, have chosen instead to retain, at least for now, the traditional definition of marriage as the union of a man and a woman. As our Nation’s founders envisioned, then, some States have chosen to “serve as a laboratory; and try [this] novel social . . . experiment[ ] without risk to the rest of the country,” while others have chosen to continue evaluating the results of the experiment before making

3
such a profound change to this age-old, civilizing social institution. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). Until the decision below, every state and federal appellate court to consider a federal constitutional challenge to state laws defining marriage – including this Court, see Baker v. Nelson, 409 U.S. 810 (1972) – had upheld the traditional definition, thus permitting the “earnest and profound debate about the morality, legality, and practicality of [redefining marriage] . . . to continue, as it should in a democratic society.” Washington v. Glucksberg, 521 U.S. 702, 735 (1997).
In this case, however, a divided panel of the Ninth Circuit held that the Equal Protection Clause of the Fourteenth Amendment bars the People of the State of California from adopting a constitutional amendment – Proposition 8 – that reinstated the traditional definition of marriage a few months after the California Supreme Court, in a four-to-three decision, had ordered that marriage be redefined to include same-sex couples. Proposition 8 was doomed, the panel majority reasoned, because of its “relative timing,” App. 56a, and because it “change[d] the law far too little to achieve any of the effects it purportedly was intended to yield,” App. 91a. Having been adopted after the California Supreme Court’s decision in In re Marriage Cases interpreting the State Constitution to extend the right to marry to same-sex couples, Proposition 8’s “unique and strictly limited effect” was to “take away” from same-sex couples “the official designation of ‘marriage,’ ” while “leaving in

4
place all of its incidents” under the State’s domestic partnership laws. App. 17a.
The panel majority held that Proposition 8’s constitutionality is directly controlled by Romer v. Evans, 517 U.S. 620 (1996), even though that case invalidated a Colorado constitutional amendment that, far from having a “unique and strictly limited effect,” imposed an “unprecedented” and “comprehensive” ban on all “legislative, executive or judicial action at any level of state or local government designed to protect the named class [of] homosexual persons or gays and lesbians,” id. at 624. Further, the timing of the Colorado amendment’s adoption played absolutely no role in the Court’s analysis. True, the Colorado amendment operated to repeal a handful of municipal ordinances extending certain antidiscrimination protections to gays and lesbians, but the amendment was held facially invalid, and thus was void throughout the State, not just in those cities that had previously passed antidiscrimination ordinances. Nor did the Romer Court’s decision leave any doubt at all that the amendment would have been struck down regardless where it came from, including a State lacking any preexisting legal protections, state or local, for gays and lesbians. Indeed, the panel majority’s misreading of Romer would bring the case squarely into conflict with Crawford v. Board of Education, 458 U.S. 527 (1982), which expressly “reject[ed] the contention that once a State chooses to do ‘more’ than the Fourteenth Amendment requires, it may never recede,” id. at 535 (emphasis added). As Judge O’Scannlain recognized in his dissent from denial of rehearing en banc, the

5
panel majority’s ruling rests on a “gross misapplication of Romer v. Evans . . . that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the Judges from sister circuits who have since interpreted it.” App. 445a.
The Ninth Circuit’s error, if left uncorrected, will have widespread and immediate negative consequences. As the policy debate progresses in other States (especially, though not exclusively, those in the Ninth Circuit), it will necessarily be skewed by the suggestion that any experiment with the definition of marriage is irrevocable. Similarly, the Ninth Circuit’s determination that California’s progressive domestic partnership laws uniquely undermine the State’s ability to maintain the traditional definition of marriage will have the perverse effect of creating strong disincentives for States to experiment with civil union or domestic partnership laws. Indeed, even on its own terms, the ruling calls into immediate question the constitutionality of the traditional definition of marriage in other States in the Ninth Circuit that have already provided recognition and benefits to same-sex couples, such as Hawaii, Nevada, Oregon, and Washington. If allowed to stand, the decision below thus will as a practical matter “pretermit other responsible solutions” to the emerging and novel social issues raised by same-sex relationships, District Attorney’s Office v. Osborne, 557 U.S. 52, 73 (2009), and will force States to make an all-or-nothing choice: either to retain the traditional definition of marriage without any recognition of same-sex relationships or to radically

6
redefine – with no possibility of reconsideration – an age-old institution that continues to play a vital role in our society today.
Even more problematic is the panel majority’s conclusion that Proposition 8 serves no conceivable legitimate state interest and that the “sole purpose” of the initiative’s supporters was to proclaim publicly the “lesser worth” of gays and lesbians as a class and to “dishonor a disfavored group.” App. 88a, 91a. This conclusion conflicts with a host of state and federal appellate decisions upholding the traditional definition of marriage as rationally related to society’s vital interest in channeling the unique procreative potential of opposite-sex relationships into enduring, stable unions for the sake of responsibly producing and raising the next generation. Indeed, the Ninth Circuit’s sweeping dismissal of the important societal interests served by the traditional definition of marriage is tantamount to a judicial death sentence for traditional marriage laws throughout the Circuit.
In any event, the Ninth Circuit’s charge is simply untrue, and leveling it against the People of California is especially unfair, for they have enacted into law some of the Nation’s most sweeping and progressive protections of gays and lesbians. Californians of all races, creeds, and walks of life have opted to preserve the traditional definition of marriage not because they seek to dishonor gays and lesbians as a class, but because they believe that the traditional definition of marriage continues to meaningfully serve society’s legitimate interests, and they cannot yet know how those interests will be affected by fundamentally

7
redefining marriage. As President Obama recently recognized, millions of Americans “feel very strongly” about preserving the traditional definition of marriage not “from a mean-spirited perspective,” but simply because they “care about families.” Robin Roberts ABC News Interview with President Obama, May 9, 2012, available at http://abcnews.go.com/ Politics/transcript-robin-roberts-abc-news-interviewpresident-obama/story?id=16316043&singlePage=true.
Unique recognition of a unique relationship in no way disapproves or dishonors other relationships that the State has chosen to recognize differently. As the First Circuit recently recognized, “preserv[ing] the heritage of marriage as traditionally defined over centuries of Western civilization . . . is not the same as ‘mere moral disapproval of an excluded group.’ ” Massachusetts v. United States Dep’t of HHS, 682 F.3d 1, 16 (1st Cir. 2012) (quoting Lawrence v. Texas, 539 U.S. 558, 585 (2003) (O’Connor, J., concurring in judgment)). Thus, while our Constitution does not mandate the traditional definition of marriage, neither does our Constitution condemn it. Rather, it leaves the definition of marriage in the hands of the People, to be resolved through the democratic process in each State.
This Court should review the decision below to resolve the conflicts it creates with the decisions of other appellate tribunals, to correct its manifest errors in disregard of this Court’s precedents, and to return to the People themselves this important and sensitive issue.
---------------------------------  ---------------------------------

8
STATEMENT OF THE CASE
1. “From the beginning of California statehood, the legal institution of civil marriage has been understood to refer to a relationship between a man and a woman.” In re Marriage Cases, 183 P.3d 384, 407 (Cal. 2008). In 2000, Californians passed Proposition 22, an initiative statute reaffirming that understanding. See CAL. FAM. CODE § 308.5. In 2008, the California Supreme Court nevertheless interpreted the State constitution to require that marriage be redefined to include same-sex couples and invalidated Proposition 22. See In re Marriage Cases, 183 P.3d 384 (Cal. 2008). Less than six months later, the People of California adopted Proposition 8, which amended the California Constitution to provide that “[o]nly marriage between a man and a woman is valid or recognized in California.”
2. Respondents, a gay couple and a lesbian couple, filed this suit in the district court against State officials responsible for enforcing California’s marriage laws, claiming that Proposition 8 violates the Fourteenth Amendment to the United States Constitution. The district court had subject matter jurisdiction under 28 U.S.C. § 1331. All of the public officials named as defendants informed the court that they would not defend Proposition 8. Petitioners, official proponents of that measure and the primarily formed ballot measure committee designated by the proponents as the official Yes on 8 campaign committee, see CAL. ELEC. CODE § 342; CAL. GOV. CODE § 82047.5(b), moved to intervene to defend Proposition 8, and the

9
district court granted the motion. After a trial, the district court ruled that Proposition 8 violates the Fourteenth Amendment. App. 137a. Petitioners appealed, and the Ninth Circuit stayed the district court’s judgment barring enforcement of Proposition 8 pending appeal.
3. One week before oral argument in the Ninth Circuit, the court of appeals announced that the panel would be composed of Circuit Judges Reinhardt, Hawkins, and Smith. Petitioners promptly moved to disqualify Judge Reinhardt primarily on the ground that his wife, Ramona Ripston, in her capacity as Executive Director of the ACLU of Southern California (“ACLU/SC”), not only had provided advice and counsel to the lawyers for Respondents in their decision to bring this challenge to Proposition 8, but had directly participated in this case in the district court. 9th Cir. Dkt. Entry (“Dkt. Entry”) 282 at 7. Under Ms. Ripston’s direct supervision, the ACLU/SC had represented parties who unsuccessfully sought to intervene in the district court as plaintiffs and parties who filed amicus curiae briefs urging the court to strike down Proposition 8. See N.D. Cal. Doc. No. (“Doc. No.”) 62 at 2, Doc. No. 79 at 2, and Doc. No. 552 at 2. Judge Reinhardt denied the motion. Dkt. Entry 284. Despite Petitioners’ focus on the ACLU/SC’s activities, including its activities in this very case, Judge Reinhardt asserted that “the chief basis for the recusal motion appears to be my wife’s beliefs.” Dkt. Entry 295 at 3 (emphasis added). And despite acknowledging that he had “always recused himself ”

10
when the ACLU/SC had “participated in any way” in a case while it was before the Ninth Circuit, Judge Reinhardt dismissed the significance of the ACLU/SC’s having participated in this case while it was before the district court. Id. at 10 n.5.
The Ninth Circuit’s decision striking down Proposition 8, authored by Judge Reinhardt, tracked the analysis, point-by-point, urged by the ACLU/SC in the district court. See Doc. No. 62, Doc. No. 552.
4. After briefing and oral argument, the Ninth Circuit certified to the Supreme Court of California the question whether “under California law, the official proponents of an initiative measure” have standing “to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.” App. 416a. On November 17, 2011, the Supreme Court of California issued a unanimous opinion answering “the question posed by the Ninth Circuit in the affirmative.” App. 326a. Based “upon the history and purpose of the initiative provisions of the California Constitution and upon the numerous California decisions that have uniformly permitted the official proponents of initiative measures to appear as parties and defend the validity of measures they have sponsored,” App. 397a, the Supreme Court of California held that when the responsible public officials decline to defend an initiative measure,
under article II, section 8 of the California Constitution and the relevant provisions of the

11
Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.
App. 402a.3
5. Relying on the California Supreme Court’s response to the certified question, the Ninth Circuit unanimously held that Petitioners had standing to appeal the district court’s decision. App. 18a.
3 While the case was pending before the California Supreme Court, the district court judge, Judge Vaughn Walker, retired from the bench and shortly thereafter disclosed publicly that he is gay and in a 10-year committed relationship with another man. Petitioners promptly filed a motion to vacate the district court’s decision on the grounds that Judge Walker likely had a direct and substantial interest in the outcome of the case and that he therefore, at a minimum, was required to disclose to the parties both the existence of his long-term same-sex relationship and whether he and his partner had any interest in marrying if Proposition 8 was invalidated. See Doc. Nos. 768, 787. The district court, Judge James Ware presiding, denied Petitioners’ motion, reasoning that Judge Walker had no duty to disclose even a “fervently” held desire to marry his samesex partner. Doc. No. 797 at 9, 18. Petitioners appealed, and the Ninth Circuit affirmed Judge Ware’s ruling “for substantially the reasons set forth in the district court’s opinion.” App. 19a.

12
On the merits, a divided panel held that Proposition 8 violates the Equal Protection Clause. The panel majority asserted that “[w]hether under the Constitution same-sex couples may ever be denied the right to marry” is “an important and highly controversial question” that it need not decide. App. 17a. The panel majority ruled that Proposition 8 is unconstitutional on the “narrow grounds” that the initiative’s effect was to “take away” from same-sex couples “the official designation of ‘marriage’ ” while “leaving in place all of its incidents” through domestic partnerships. Id. According to the Ninth Circuit, under this Court’s decision in Romer v. Evans, 517 U.S. 620 (1996), this “unique and strictly limited effect of Proposition 8” distinguished it from other State laws defining marriage as the union of a man and a woman, App. 17a, and rendered it wholly unsupported by any conceivable legitimate rational basis. And while the panel majority expressly disavowed any suggestion “that Proposition 8 is the result of ill will on the part of the voters of California,” App. 87a, it nonetheless insisted, paradoxically, that the initiative’s supporters were motivated only by a desire to “dishonor” and to “disapprove of gays and lesbians as a class,” App. 87a, 91a. Judge Smith dissented. App. 95a.
Petitioners timely sought rehearing en banc. The Court of Appeals denied the petition but stayed its mandate pending the timely filing and disposition of a petition for writ of certiorari in this Court. App. 444a. Judge O’Scannlain, joined by Judges Bybee and Bea, dissented, explaining that the panel opinion had

13
declared unconstitutional the “definition of marriage that has existed for millennia” on the basis of a “gross misapplication of Romer v. Evans . . . .” App. 445a. Judge Smith also would have granted the petition. App. 443a.
---------------------------------  ---------------------------------
REASONS FOR GRANTING THE WRIT
I. The Question Presented Is Exceedingly Important.
The decision below requires the Nation’s largest State to fundamentally redefine marriage, an institution long recognized as “more basic in our civilization than any other,” Williams v. North Carolina, 317 U.S. 287, 303 (1942), and “the foundation of the family and of society,” Maynard v. Hill, 125 U.S. 190, 211 (1888). Subject only to the Constitution, a State “has absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created.” Sosna v. Iowa, 419 U.S. 393, 404 (1975) (quoting Pennoyer v. Neff, 95 U.S. 714, 734-35 (1877)). Whether the Constitution requires California to eliminate the most longstanding, universal, and fundamental of these conditions – that a marriage consists of man and woman – is a question that should be settled by this Court.
Even on its own terms the impact of the decision below is not limited to California. The Ninth Circuit

14
identified two principal aspects of Proposition 8 that it found fatal: (1) that Proposition 8 overruled a prior judicial redefinition of marriage to include same-sex couples, and (2) that it left in place domestic partnerships offering same-sex couples virtually all of the legal incidents of marriage. See App. 17-18a. At a minimum, this reasoning calls into immediate question the marriage laws of Hawaii, Nevada, and Oregon, which extend to same-sex couples the incidents but not the designation of marriage. See HAW. REV. STAT. § 572B; NEV. REV. STAT. § 122A; OR. REV. STAT. § 106.300. And the people of Hawaii also amended their constitution to preserve the traditional definition of marriage as an issue for their legislature to address after the State’s courts had threatened that definition. See HAW. CONST. art. I, § 23. Tellingly, an equal protection challenge relying on the decision below is already pending before a federal district court in Hawaii. See Jackson v. Abercrombie, No. 1:11-cv-00734-ACK-KSC, ECF Doc. No. 65-1, at 32-40 (D. Haw. June 15, 2012).
The decision below likewise threatens to shortcircuit further democratic deliberation regarding official recognition of same-sex relationships throughout the Circuit. The decision, for example, casts doubt over the State of Washington’s decision to submit to popular referendum a recently enacted statute that

15
would extend the designation of marriage to same-sex couples.4
More fundamentally, as demonstrated below, the purportedly “unique” aspects of Proposition 8 highlighted by the panel majority, App. 17a, ultimately fail to distinguish Proposition 8 as a constitutional matter from any other law defining marriage as the union of a man and a woman. See infra Part V.A.4-5. It is thus all but certain that the decision below, despite its professed narrowness, will in due course lead to States throughout the Circuit being forced to redefine marriage by judicial decree.
II. The Decision Below Conflicts with Crawford v. Board of Education.
The Ninth Circuit’s decision cannot be squared with Crawford v. Board of Education, 458 U.S. 527 (1982), which emphatically “reject[ed] the contention that once a State chooses to do ‘more’ than the Fourteenth Amendment requires, it may never recede.” Id. at 535. As in this case, Crawford involved an equal protection challenge to a California constitutional amendment (there, Proposition 1) that superseded in part a decision of the California Supreme Court interpreting the State Constitution to go beyond the
4 Washington, like California, has already extended the rights and responsibilities of marriage to same-sex couples through its domestic partnership laws. See WASH. REV. CODE § 26.60.015.

16
mandates of the Federal Constitution. Upholding Proposition 1, this Court expressly refused to “interpret the Fourteenth Amendment to 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.” Id. at 540. Instead, this Court held, “having gone beyond the requirements of the Federal Constitution, the State was free to return in part to the standard prevailing generally throughout the United States.” Id. at 542. Further, directly contrary to the Ninth Circuit’s insistence that a different analysis is required when a state-law right is “withdrawn” than when it is not extended in the first instance, App. 68a, Crawford makes clear that when a State repeals a law the relevant inquiry is simply whether that law was “required by the Federal Constitution in the first place,” 458 U.S. at 538.
The panel majority’s attempts to distinguish Crawford fail. First, this Court’s findings in Crawford that Proposition 1 did not draw a racial classification and was not motivated by race, see App. 67-68a, meant only that it was not subject to strict scrutiny, see Crawford, 458 U.S. at 536. These findings are of no moment here, where the Ninth Circuit purported to apply rational-basis review. Second, the Ninth Circuit emphasized that even after Proposition 1, California’s Constitution still provided a “more robust ‘right . . . than exists under the Federal Constitution.’ ” App. 67a (quoting Crawford, 458 U.S. at 542). But this Court left no doubt that California “could have conformed its law to the Federal Constitution in every

17
respect” rather than “pull[ing] back only in part.” Crawford, 458 U.S. at 542.
In short, the fundamental lesson of Crawford is that a State is no less free to withdraw state constitutional rights that exceed federal constitutional requirements than it was to extend them (or not) in the first place. This Court should grant review to resolve the conflict between the decision below and Crawford.
III. The Decision Below Fundamentally Misapplies Romer v. Evans and Conflicts with the Decisions of Other Appellate Courts.
Notwithstanding Crawford, the court below insisted that Romer v. Evans, 517 U.S. 620 (1996), required a different result. Noting that Romer invalidated Colorado’s Amendment 2, “an initiative constitutional amendment that reduce[d] the rights of gays and lesbians under state law,” App. 56a, the Ninth Circuit held that Romer directly “governs” and “controls” this case because Proposition 8 is “remarkably similar” to Amendment 2. App. 57a, 60a, 68a. This conclusion, however, is a “gross misapplication of Romer.” App. 445a.
1. Other federal and state appellate courts have expressly rejected Romer-based challenges to the traditional definition of marriage. See, e.g., In re Marriage of J.B. and H.B., 326 S.W.3d 654, 680 (Tex. Ct. App. 2010); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 868 (8th Cir. 2006); Standhardt v. Superior Court of Ariz., 77 P.3d 451, 464-65 (Ariz. Ct. App.

18
2003). In Bruning, for example, the Eighth Circuit rejected a Romer-based challenge to an amendment to the Nebraska Constitution that not only defines marriage as the union of a man and a woman but also forbids recognition of “the uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship.” 455 F.3d at 863. The Eighth Circuit specifically “reject[ed] the district court’s conclusion that the Colorado enactment at issue in Romer is indistinguishable” from Nebraska’s marriage amendment and held that the latter’s “focus is not so broad as to render Nebraska’s reasons for its enactment ‘inexplicable by anything but animus’ towards same-sex couples.” Id. at 868.
2. At the root of the Ninth Circuit’s error is its assertion that Romer turned on the timing of Colorado’s Amendment 2 rather than its substance. See App. 64a. But nothing in Romer suggests that Amendment 2 would have been valid had it only been enacted before Aspen, Boulder, and Denver passed ordinances banning discrimination on the basis of sexual orientation. Nor did Romer suggest that a constitutional amendment identical to Amendment 2 would be valid in a State that had no preexisting local laws protecting gays and lesbians from discrimination. Indeed, this Court struck down Amendment 2 on its face, not merely as applied in the handful of local jurisdictions that had previously enacted antidiscrimination ordinances protecting gays and lesbians. See United States v. Salerno, 481 U.S. 739, 745 (1987).

19
The panel majority’s reading of Romer turned on the fact that Amendment 2 “withdrew” from gays and lesbians “elective” local antidiscrimination protections – that is, antidiscrimination protections “that the Fourteenth Amendment did not require . . . to be afforded to gays and lesbians” in the first place. App. 64a. But Amendment 2 “in explicit terms [did] more than repeal or rescind” antidiscrimination laws that were not required by the Federal Constitution. Romer, 517 U.S. at 624 (emphasis added). It imposed a “broad and undifferentiated disability on a single named group” by prohibiting “all legislative, executive or judicial action at any level of state or local government designed to protect the named class [of] homosexual persons or gays and lesbians.” Id. at 624, 632. By “identif[ying] persons by a single trait and then den[ying] them protection across the board,” id. at 633, Amendment 2 “deem[ed] a class of persons a stranger to [the] laws,” id. at 635. It was these “exceptional” – indeed “unprecedented” – characteristics of Amendment 2 that concerned the Court, id. at 63233, not the fact that it repealed a handful of local antidiscrimination laws.
In any event, there is no merit, legal or logical, in the panel majority’s theory that “[w]ithdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place, regardless of whether the right was withdrawn after a week, a year, or a decade.” App. 55a. To the contrary, under conventional equal protection analysis,

20
the “relative timing” of such events is wholly irrelevant. If a person of good will can rationally oppose in good faith the State’s redefinition of marriage to include same-sex couples before the State has done so, that same person’s continued opposition, for the same reasons, obviously does not somehow become irrational the moment after the State has done so.
3. Putting aside the red herring of its timing, it is plain that Proposition 8 differs sharply from Amendment 2 in every material respect. First, far from being “unprecedented in our jurisprudence,” Romer, 517 U.S. at 633, or alien to “our constitutional tradition,” id., it is difficult to think of a law with deeper roots in California’s and our Nation’s history and practices than one defining marriage as the union of a man and a woman. That definition has prevailed for all but 142 days of California’s 162 year history, and it continues to prevail in federal law and in the overwhelming majority of the States, most often through constitutional provisions much like Proposition 8.5 Nor is it in any way “unprecedented” or even unusual that in restoring the traditional definition of marriage the People of California
5 Thirty States have enshrined the traditional definition of marriage in their constitutions, and the Federal Government and nine additional States have expressly codified the traditional definition of marriage by statute. See National Conference of State Legislatures, Defining Marriage, at http://www.ncsl.org/ issues-research/human-services/same-sex-marriage-overview.aspx. The statutes of three other States have been interpreted to preserve the traditional definition of marriage.

21
exercised the “inalienable,” “fundamental” right that they have reserved to themselves to “amend the[ir] Constitution through the initiative process when they conclude that a judicial interpretation or application of a preexisting constitutional provision should be changed.” Strauss v. Horton, 207 P.3d 48, 108, 117 (Cal. 2009) (emphasis omitted). To the contrary, “there have been many instances in the past” in which they have done so. Id. at 115. Indeed, “past state constitutional amendments that diminished state constitutional rights . . . refut[e] [the] description of Prop. 8 as ‘unprecedented.’ ” Id. at 105.
Second, far from imposing a “broad and undifferentiated disability on a single named group” or denying that group “protection across the board,” Romer, 517 U.S. at 632-33, Proposition 8 “simply . . . restore[d] the traditional definition of marriage as referring to the union between a man and a woman,” Strauss, 207 P.3d at 76. And it achieved this purpose in the narrowest possible manner, leaving undisturbed the numerous other laws – including the expansive domestic partnership laws – that provide gays and lesbians in California “with some of the most comprehensive civil rights protections in the nation.” About Us – Equality California, at http://www.eqca.org/site/pp. asp?c=kuLRJ9MRKrH&b=4025493 (conclusion of California’s “largest statewide LGBT rights advocacy organization”). Thus, as the California Supreme Court itself recognized, there is simply no comparison between Proposition 8 and a law, such as Colorado’s Amendment 2, that “sweepingly . . . leaves [a minority]

22
group vulnerable to public or private discrimination in all areas without legal recourse.” Strauss, 207 P.3d at 102.
Finally, though Amendment 2 was so bereft of any conceivable legitimate state purpose that it could be explained only as resulting from “animus toward” and “a bare . . . desire to harm a politically unpopular group,” Romer, 517 U.S. at 632, 634, the Ninth Circuit correctly disclaimed any “suggest[ion] that Proposition 8 is the result of ill will on the part of the voters of California.” App. 87a. As we discuss more fully below, the animating purpose of marriage is bound up in the uniquely procreative nature of opposite-sex relationships, and it can be and is supported by countless people of good faith who harbor no ill will toward gays and lesbians and their relationships.
In short, the fatal flaw in Amendment 2 was its exceptionally harsh and unprecedented character, its inexplicable breadth, and the resulting “inevitable inference” of “animosity” that it raised, Romer, 517 U.S. at 634, not the fact that it worked a change in preexisting law. Any other reading of Romer is foreclosed by Crawford, a case that Romer never questioned, let alone overruled. This Court should review the Ninth Circuit’s decision to resolve the conflict created by its “gross misapplication” of Romer.

23
IV. The Decision Below Conflicts with This Court’s Decision in Baker v. Nelson and with Uniform Appellate Authority Upholding State Marriage Laws.
The Ninth Circuit’s decision also conflicts with binding precedent of this Court holding that the traditional definition of marriage does not violate the Fourteenth Amendment. In Baker v. Nelson, 409 U.S. 810 (1972), this Court unanimously dismissed, “for want of a substantial federal question,” an appeal from the Minnesota Supreme Court squarely presenting the question whether a State’s refusal to recognize same-sex relationships as marriages violates the Due Process or Equal Protection Clauses of the Fourteenth Amendment. Id.; see also Baker v. Nelson, No. 711027, Jurisdictional Statement at 3 (Oct. Term 1972); Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971). This Court’s dismissal of the appeal in Baker was a decision on the merits that constitutes “controlling precedent unless and until re-examined by this Court.” Tully v. Griffin, Inc., 429 U.S. 68, 74 (1976).
The Ninth Circuit dismissed Baker in a footnote, arguing that because Proposition 8 restored, rather than simply preserved, the traditional definition of marriage, this case “is squarely controlled by Romer” and Baker is “not pertinent here.” App. 60-61a. As we have demonstrated, however, the Ninth Circuit’s reading of Romer is misguided and, indeed, brings it into conflict with Crawford.

24
The decision below also conflicts squarely with the Eighth Circuit’s decision in Bruning, which held that “laws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States.” 455 F.3d at 871. Likewise, every state appellate court to address a federal constitutional challenge to the traditional definition of marriage – including two within the Ninth Circuit – has upheld the state law at issue. See In re Marriage of J.B. and H.B., 326 S.W.3d 654; Standhardt, 77 P.3d 451, review denied, No. CV-03-0422-PR, 2004 Ariz. LEXIS 62 (Ariz. May 25, 2004); Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995); Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App.), review denied, 84 Wash.2d 1008 (Wash. 1974); Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973); Baker, 191 N.W.2d 185.
To be sure, the First Circuit recently invalidated a federal statute, the Defense of Marriage Act, defining marriage as the union of a man and a woman for purposes of federal law. See Massachusetts v. United States Dep’t of HHS, 682 F.3d 1, 5 (1st Cir. 2012) (“Rather than challenging the right of states to define marriage as they see fit, the appeals contest the right of Congress to undercut the choices made by same-sex couples and by individual states in deciding who can be married to whom.”). While the First Circuit purported to distinguish Baker and relied in part on considerations of federalism and States’ traditional role in regulating marriage, see id. at 8, 9-10, 12-13, some aspects of its decision are plainly in tension with the precedents discussed above.

25
This Court should grant review to resolve the conflict created by the Ninth Circuit’s decision and to provide clarity in this important area of the law.
V. The Ninth Circuit’s Holding That Proposition 8 Serves No Legitimate Governmental Purpose Conflicts with the Decisions of This and Other Appellate Courts.
In keeping with its dispositive focus on the timing of Proposition 8’s passage, the Ninth Circuit held that the measure could be upheld only if “a legitimate interest exists that justifies the People of California’s action in taking away from same-sex couples the right to use the official designation and enjoy the status of marriage – a legitimate interest that suffices to overcome the ‘inevitable inference’ of animus to which Proposition 8’s discriminatory effects otherwise give rise.” App. 69a. The court below then considered, and rejected, four societal purposes served by the traditional definition of marriage: promoting responsible procreation and child rearing; proceeding with caution when considering fundamental change to a vital social institution; protecting religious and other fundamental liberties; and preserving a valued and ancient tradition.
While each of these interests readily satisfies rational basis scrutiny, California’s important interests in responsible procreation and proceeding with caution warrant specific mention. In particular, the Ninth Circuit’s conclusion that Proposition 8 lacks

26
even a rational relationship to society’s indisputable interest in responsible procreation and childrearing conflicts directly with a host of appellate decisions. And its analysis of both interests contravenes decisions of this Court defining and applying rational basis review. This Court should grant review to resolve these conflicts.
A. The Traditional Definition of Marriage Furthers Society’s Vital Interest in Responsible Procreation and Childrearing.
1. The record of human history leaves no doubt that the institution of marriage as the union of man and woman is founded on the simple biological reality that opposite-sex unions – and only such unions – can produce children. Marriage, thus, is “a social institution with a biological foundation.” Claude LeviStrauss, Introduction, in 1 A HISTORY OF THE FAMILY: DISTANT WORLDS, ANCIENT WORLDS 5 (Andre Burguiere, et al. eds., 1996).
The unique procreative potential of sexual relationships between men and women implicates vital social interests. On the one hand, procreation is necessary to the survival and perpetuation of society and, indeed, the human race; accordingly, the responsible creation, nurture, and socialization of the next generation is a vital – indeed existential – social good. On the other hand, irresponsible procreation and childrearing – the all too frequent result of casual

27
or transient sexual relationships between men and women – commonly results in hardships, costs, and other ills for children, parents, and society as a whole. A central purpose of marriage in virtually every society, then, is and always has been to regulate sexual relationships between men and women so that the unique procreative capacity of such relationships benefits rather than harms society. In particular, through the institution of marriage, societies seek to increase the likelihood that children will be born and raised in stable and enduring family units by both the mothers and the fathers who brought them into this world.
This understanding of marriage has been uniformly recognized by eminent authorities throughout the ages. Blackstone put it well: the relation “of parent and child . . . is consequential to that of marriage, being its principal end and design; and it is by virtue of this relation that infants are protected, maintained, and educated.” 1 WILLIAM BLACKSTONE, COMMENTARIES *410; see also id. *435 (“the establishment of marriage in all civilized states is built on this natural obligation of the father to provide for his children; for that ascertains and makes known the person who is bound to fulfill this obligation; whereas, in promiscuous and illicit conjunctions, the father is unknown”).6 And it has prevailed in California
6 See also, e.g., JOHN LOCKE, SECOND TREATISE OF CIVIL GOVERNMENT §§ 78-79 (1690); BARON DE MONTESQUIEU, 2 THE SPIRIT OF LAWS 96, 173 (1st American from the 5th London ed.,
(Continued on following page)

28
throughout its history, just as it has everywhere else. See, e.g., De Burgh v. De Burgh, 250 P.2d 598, 601 (Cal. 1952) (marriage “channels biological drives that might otherwise become socially destructive” into enduring family units to “ensure[ ] the care and education of children in a stable environment”). Indeed, prior to the recent movement to redefine marriage to include same-sex relationships, it was commonly understood, without a hint of controversy, that the institution of marriage owed its very existence to society’s vital interest in responsible procreation and childrearing. That is why, no doubt, this Court has repeatedly recognized marriage as “fundamental to our very existence and survival.” E.g., Loving v. Virginia, 388 U.S. 1, 12 (1967).
2. Not surprisingly, “a host of judicial decisions” have concluded that “the many laws defining marriage as the union of one man and one woman and extending a variety of benefits to married couples are rationally related to the government interest in ‘steering procreation into marriage.’ ” Bruning, 455
1802); NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1st ed. 1828) (“marriage”); JOEL PRENTISS BISHOP, COMMENTARIES ON THE LAW OF MARRIAGE & DIVORCE § 39 (1852); BRONISLAW MALINOWSKI, SEX, CULTURE, AND MYTH 11 (1962); KINGSLEY DAVIS, The Meaning & Significance of Marriage in Contemporary Society, in CONTEMPORARY MARRIAGE: COMPARATIVE PERSPECTIVES ON A CHANGING INSTITUTION 1, 7-8 (Kingsley Davis, ed. 1985); G. ROBINA QUALE, A HISTORY OF MARRIAGE SYSTEMS 2 (1988); JAMES Q. WILSON, THE MARRIAGE PROBLEM 41 (2002); W. BRADFORD WILCOX, ET AL., EDS., WHY MARRIAGE MATTERS 15 (2d ed. 2005).

29
F.3d at 867; see also, e.g., Dean, 653 A.2d at 363; Baker, 191 N.W.2d at 186-87; In re Marriage of J.B. and H.B., 326 S.W.3d at 677-78; Standhardt, 77 P.3d at 461-64; Singer, 522 P.2d at 1195, 1197. Indeed, the decision below collides directly with the Eighth Circuit’s 2006 decision upholding Nebraska’s constitutional amendment affirming the traditional definition of marriage. The State’s interest in “ ‘steering procreation into marriage,’ ” the Eighth Circuit held, “justifies conferring the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on samesex couples, who cannot.” Bruning, 455 F.3d at 867.
3. In breaking with this substantial body of appellate authority, the Ninth Circuit rejected as irrational the concern that “opposite-sex couples were more likely to procreate accidentally or irresponsibly when same-sex couples were allowed access to the designation of ‘marriage.’ ” App. 74-75a. But, as noted below, there plainly is a rational basis for concern that officially embracing an understanding of marriage as nothing more than a loving, committed relationship between consenting adults, severed entirely from its traditional procreative purposes, would necessarily entail a significant risk over time of weakening the institution of marriage and its ability to further the important social interests it has always served. See infra Part V.B.
More important, however, the Ninth Circuit’s reasoning contravenes well-settled principles of rationalbasis review. This Court’s precedent makes clear that

30
“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 differences does not give rise to a constitutional violation.” Board of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 366-67 (2001) (quotation marks omitted). It follows, then, 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 v. Robison, 415 U.S. 361, 383 (1974), 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,” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985). Thus, the relevant inquiry is not, as the Ninth Circuit would in effect have it, whether restoring the traditional definition of marriage was necessary to avoid harm to that institution. Rather, the question is whether recognizing opposite-sex relationships as marriages furthers interests that would not be furthered, or would not be furthered to the same degree, by recognizing same-sex relationships as marriages. See, e.g., Andersen v. King County, 138 P.3d 963, 98485 (Wash. 2006) (plurality); Morrison v. Sadler, 821 N.E.2d 15, 23, 29 (Ind. Ct. App. 2005); Standhardt, 77 P.3d at 463.
The answer to that question is clear. Unlike relationships between men and women, sexual relationships between individuals of the same gender cannot produce children – let alone do so as the unintended

31
result of even casual sexual behavior. Thus, as Respondents themselves acknowledged below, unlike “heterosexual couples who practice sexual behavior outside their marriage” and thus present “a big threat [of] irresponsible procreation,” same-sex couples “don’t present a threat of irresponsible procreation.” Trial Tr. 3107 (Doc. No. 693 at 155).
Under Johnson and Cleburne, that is the end of the matter. As other appellate courts have repeatedly recognized, it is the unique procreative capacity of opposite-sex relationships – including the very real threat it can pose to the interests of society and to the welfare of children conceived unintentionally – that the institution of marriage has always sought to address. See, e.g., Bruning, 455 F.3d at 867; Hernandez v. Robles, 855 N.E.2d 1, 7 (N.Y. 2006); Morrison, 821 N.E.2d at 24-26. Given this central concern of marriage, the “commonsense distinction,” Heller v. Doe, 509 U.S. 312, 326 (1995), that marriage has always drawn between same-sex couples and oppositesex couples “is neither surprising nor troublesome from a constitutional perspective,” Nguyen v. INS, 533 U.S. 53, 63 (2001); see also id. at 73 (“To fail to acknowledge even our most basic biological differences . . . risks making the guarantee of equal protection superficial, and so disserving it.”). To the contrary, it is plainly reasonable for the People of California, like virtually every society throughout human history, to maintain a unique institution to address the unique challenges posed by the unique

32
procreative potential of sexual relationships between men and women.
4. The Ninth Circuit claimed that this Court’s ruling in “Johnson concerns decisions not to add to a legislative scheme a group that is unnecessary to the purposes of that scheme,” but has no application to decisions to “subtract[ ] a disfavored group from a scheme of which it already was a part.” App. 74a. According to the Ninth Circuit, while society’s interest in responsible procreation and childrearing might justify “a failure to afford the use of the designation of ‘marriage’ to same-sex couples in the first place,” under Romer “it is irrelevant to a measure withdrawing from them, and only them, use of that designation.” App. 75a.
As Romer emphasized, however, equal protection analysis focuses on “the classification adopted,” requiring only “that the classification bear a rational relationship to an independent and legitimate legislative end.” 517 U.S. at 632-33 (emphasis added). Obviously, the rationality of a classification does not turn on the manner in which it was adopted – if it was reasonable for California to draw a line between opposite-sex couples and other types of relationships for 158 years before the California Supreme Court’s sharply divided ruling in the Marriage Cases, it is also reasonable for California to draw the same line after that short-lived decision. And if it is reasonable for Congress and at least 41 other States to distinguish between opposite-sex couples and other types of relationships for purposes of marriage, it is rational

33
for California to do so as well. Indeed, this Court has, in the takings context, squarely rejected the proposition that there is a legally material difference between repealing a benefit and declining to extend it in the first instance, emphasizing that “[f]or legal purposes . . . the two situations are identical.” Bowen v. Gilliard, 483 U.S. 587, 604 (1987) (emphasis added). This Court’s rational-basis decisions likewise have applied the same mode of analysis to legislation withdrawing legal rights as it has to legislation refusing to extend rights in the first instance. See, e.g., Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 356, 360 n.2 (2009); Central State Univ. v. American Ass’n of Univ. Professors, 526 U.S. 124, 127 (1999); Lyng v. Automobile Workers, 485 U.S. 360, 371 (1988); Bowen, 483 U.S. at 598-601; Fritz, 449 U.S. at 176-77; City of New Orleans v. Dukes, 427 U.S. 297, 303-05 (1976).
5. The Ninth Circuit also condemned Proposition 8 because it limits the use of “the designation of ‘marriage,’ while leaving in place all the substantive rights and responsibilities of same-sex partners.” App. 84a. The court reasoned that “[i]n order to be rationally related to the purpose of funneling more childrearing into families led by two biological parents, Proposition 8 would have had to modify . . . in some way” California’s laws granting same-sex couples the same rights as opposite-sex couples to form families and raise children. App. 72a.
But it is simply inconceivable that Proposition 8 stands on weaker constitutional footing than would an amendment that restored the traditional definition

34
of marriage and repealed California’s generous domestic partnership laws. In any event, the animating purpose of marriage is not to prevent gays and lesbians from forming families and raising children. Rather, it is to help steer potentially procreative conduct into stable and enduring family units by providing recognition, encouragement, and support to committed opposite-sex relationships. For the overwhelming majority of pregnancies – especially unintended pregnancies – the question is not whether the child will be raised by two opposite-sex parents or by two same-sex parents, but rather whether the child will be raised by both its mother and father or by its mother alone, often relying on the assistance of the State. See, e.g., William J. Doherty, et al., Responsible Fathering, 60 J. MARRIAGE & FAMILY 277, 280 (1998). And there simply can be no dispute that children raised by their mother and father do better, on average, than children raised solely by their mother, and that the State has a direct and compelling interest in avoiding the public financial burdens and social costs too often associated with single motherhood. See, e.g., SARA MCLANAHAN & GARY SANDEFUR, GROWING UP WITH A SINGLE PARENT: WHAT HURTS, WHAT HELPS 1 (1994); KRISTEN ANDERSON MOORE, ET AL., MARRIAGE FROM A CHILD’S PERSPECTIVE, CHILD TRENDS RESEARCH BRIEF 6 (June 2002). Thus, regardless of whatever provisions the State may make regarding the families of gays and lesbians, it is plainly rational for the State to make special provision through the institution of marriage to address the unique social risks

35
posed by potentially procreative sexual relationships between men and women.
B. Proposition 8 Serves California’s Legitimate Interest in Proceeding Cautiously When Considering Redefining the Institution of Marriage.
It is simply not possible to foresee with certainty the long-term consequences of fundamentally redefining marriage in a way that severs its inherent connection with the procreative and childrearing purposes it has always served. Indeed, Respondents’ own expert conceded as much at trial. Trial Tr. 254 (Doc. No. 453 at 41) (admitting that “[t]he consequences of same-sex marriage is an impossible question to answer”). But there is very little doubt, as Respondents’ expert also conceded, that redefining marriage by law would “definitely [have] an impact on the social meaning of marriage” and that changing the public meaning of marriage would “unquestionably [have] real world consequences.” Trial Tr. 311-13 (Doc. No. 453 at 98-100). And it is plainly reasonable for the voters of California to be concerned that redefining marriage could, over time, weaken the institution of marriage and its ability to serve its vital purposes. Indeed, a diverse group of 70 prominent scholars from all relevant academic fields recently expressed “deep[ ] concerns about the institutional consequences of same-sex marriage for marriage itself ”:

36
Same-sex marriage would further undercut the idea that procreation is intrinsically connected to marriage. It would undermine the idea that children need both a mother and a father, further weakening the societal norm that men should take responsibility for the children they beget.
WITHERSPOON INSTITUTE, MARRIAGE AND THE PUBLIC GOOD 18-19 (2008). See also Trial Tr. 2776-77, 2780-82 (Doc. No. 530 at 193-94, 197-99) (testimony of David Blankenhorn). Surely it is not irrational for Californians to proceed cautiously on this sensitive and controversial social issue by continuing to observe and assess the results of redefining marriage in other jurisdictions before doing so themselves and putting at risk the key interests served by this fundamental, civilizing social institution. By adopting Proposition 8, the People of California demonstrated that they are not yet ready to take that step, nor to allow unelected judges to impose that result. This is the genius of our federal system at work.
The Ninth Circuit identified ways in which Californians purportedly could have designed Proposition 8 to track this cautionary interest more closely, such as by including a sunset provision requiring the People to “vote again” to preserve the traditional definition of marriage after a certain period of time. App. 80a. Of course, the People are free to “vote again” whenever they so choose, just as they did in enacting Proposition 8. Thus the notion that placing the traditional definition of marriage in the California Constitution forever shields that issue from democratic

37
deliberation has no basis in fact. See Strauss, 207 P.3d at 60 (“more than 500 amendments to the California Constitution have been adopted since ratification of California’s current Constitution in 1879”). In any event, the question whether there were alternatives that would serve Californians’ cautionary interest as effectively as Proposition 8 was for the voters to decide; narrow tailoring arguments such as those urged by the Ninth Circuit plainly have no place in rational basis review. See, e.g., Heller, 509 U.S. at 321; United States R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 175 (1980).
C. The Purpose of Proposition 8 Is Not To “Dishonor” Gays and Lesbians.
Because “there are plausible reasons” for California’s adherence to the traditional definition of marriage, judicial “inquiry is at an end.” Fritz, 449 U.S. at 179. See, e.g., Heller, 509 U.S. at 320; Romer, 517 U.S. at 631-36. At any rate, there is no truth to the panel majority’s charge that Proposition 8 is nothing more than an effort to “dishonor a disfavored group” and to proclaim the “lesser worth” of gays and lesbians as a class. App. 88a, 91a. This charge makes sense only if marriage is itself nothing more than, as the panel majority would have it, see App. 91a, an honorific bestowed by society on relationships it approves and withheld from relationships it disapproves. But support for the traditional definition of marriage is rooted precisely in resisting this reductive view of marriage in favor of one that maintains the

38
inherent link between the institution and its traditional procreative purposes. And this traditional view of marriage has nothing to do with disapproval of gays and lesbians.
The Ninth Circuit’s charge of anti-gay animus is, moreover, at war with its own acknowledgment that the question whether marriage should be redefined to include same-sex couples is one “over which people of good will may disagree.” App. 17a. A person who seeks only to dishonor gays and lesbians and to proclaim their lesser worth as a class is not, obviously, a person of good will who has no “desire to harm” gays and lesbians as a class. The Ninth Circuit’s charge thus defames over seven million California voters and countless other Americans who believe that traditional marriage continues to serve society’s legitimate interests, including the citizens and lawmakers of at least 41 other States, the Members of Congress and President who supported enactment of the federal Defense of Marriage Act, the large majority of state and federal judges who have addressed the issue, and until very recently President Obama.
In sum, as one of Respondents’ own expert witnesses acknowledges, there are “millions of Americans . . . who believe in equal rights for gays and lesbians . . . but who draw the line at marriage.” M.V. LEE BADGETT, WHEN GAY PEOPLE GET MARRIED 175 (2009) (quoting Rabbi Michael Lerner). Because “other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group,” maintaining “the traditional institution of marriage”

39

is a “legitimate state interest.” Lawrence v. Texas, 539 U.S. 558, 585-86 (2003) (O’Connor, J., concurring in judgment).
---------------------------------  ---------------------------------

CONCLUSION

For the foregoing reasons, the petition for writ of certiorari should be granted.

July 30, 2012

Respectfully submitted,

ANDREW P. PUGNO LAW OFFICES OF
ANDREW P. PUGNO 101 Parkshore Drive, Suite 100 Folsom, California 95630
DAVID AUSTIN R. NIMOCKS JAMES A. CAMPBELL ALLIANCE DEFENDING FREEDOM 801 G Street, NW, Suite 509 Washington, D.C. 20001

CHARLES J. COOPER Counsel of Record
DAVID H. THOMPSON HOWARD C. NIELSON, JR. PETER A. PATTERSON COOPER AND KIRK, PLLC 1523 New Hampshire
Avenue, NW Washington, D.C. 20036 Tel: (202) 220-9600 Email: ccooper@
cooperkirk.com

Counsel for Petitioners

1a
671 F.3d 1052 United States Court of Appeals,
Ninth Circuit.
Kristin M. PERRY; Sandra B. Stier; Paul T. Katami; Jeffrey J. Zarrillo, Plaintiffs-Appellees, City and County of San Francisco, Intervenor-Plaintiff-Appellee, v.
Edmund G. BROWN, Jr., in his official capacity as Governor of California; Kamala D. Harris, in her official capacity as Attorney General of California; Mark B. Horton, in his official capacity as Director of the California Department of Public Health & State Registrar of Vital Statistics; Linette Scott, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health; Patrick O’Connell, in his official capacity as Clerk-Recorder for the County of Alameda; Dean C. Logan, in his official capacity as Registrar-Recorder/County Clerk for
the County of Los Angeles, Defendants, Hak-Shing William Tam, Intervenor-Defendant,
and Dennis Hollingsworth; Gail J. Knight; Martin F. Gutierrez; Mark A. Jansson; ProtectMarriage.com-Yes
On 8, a Project of California Renewal, as official proponents of Proposition 8, Intervenor-Defendants-Appellants.
Kristin M. Perry; Sandra B. Stier; Paul T. Katami; Jeffrey J. Zarrillo, Plaintiffs-Appellees, City and County of San Francisco, Intervenor-Plaintiff-Appellee, v.

2a
Edmund G. Brown, Jr., in his official capacity as Governor of California; Kamala D. Harris, in her official capacity as Attorney General of California; Mark B. Horton, in his official capacity as Director of the California Department of Public Health & State Registrar of Vital Statistics; Linette Scott, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health; Patrick O’Connell, in his official capacity as Clerk-Recorder for the County of Alameda; Dean C. Logan, in his official capacity as Registrar-Recorder/County Clerk for
the County of Los Angeles, Defendants, Hak-Shing William Tam, Intervenor-Defendant,
and Dennis Hollingsworth; Gail J. Knight; Martin F. Gutierrez; Mark A. Jansson; ProtectMarriage.com-Yes
On 8, a Project of California Renewal, as official proponents of Proposition 8, Intervenor-Defendants-Appellants.
Nos. 10-16696, 11-16577. | Argued and Submitted Dec. 6, 2010. | Submission Withdrawn Jan. 4, 2011. |
Resubmitted Feb. 7, 2012. | Argued and Submitted Dec. 8, 2011. | Filed Feb. 7, 2012.
Theodore J. Boutrous, Jr., Christopher D. Dusseault, Theane Evangelis Kapur, Sarah E. Piepmeier, Enrique A. Monagas, and Joshua S. Lipshutz, Gibson, Dunn & Crutcher LLP, Los Angeles, CA; Theodore B. Olson (argued), Matthew D. McGill, and Amir C. Tayrani, Gibson, Dunn & Crutcher LLP, Washington, D.C.; David Boies (argued), Jeremy M. Goldman, and Theodore H. Uno, Boies, Schiller & Flexner LLP, Armonk, NY; for plaintiffs-appellees Kristin M. Perry,

3a
Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo.
Dennis J. Herrera, City Attorney; Therese M. Stewart (argued), Chief Deputy City Attorney; Christine Van Aken and Mollie M. Lee, Deputy City Attorneys; San Francisco, CA; for intervenor-plaintiff-appellee City and County of San Francisco.
Andrew P. Pugno, Law Offices of Andrew P. Pugno, Folsom, CA; Charles J. Cooper (argued), David H. Thompson, Howard C. Nielson, Jr., and Peter A. Patterson, Cooper and Kirk, PLLC, Washington, D.C.; Brian W. Raum and James A. Campbell, Alliance Defense Fund, Scottsdale, AZ; for intervenordefendants-appellants Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Mark A. Jansson, and ProtectMarriage.com.
James Joseph Lynch, Jr., Sacramento, CA; for amicus curiae Margie Reilly.
Paul Benjamin Linton, Thomas More Society, Northbrook, IL; Christopher M. Gacek, Family Research Council, Washington, D.C.; Thomas Brejcha, Thomas More Society, Chicago, IL; for amicus curiae the Family Research Council.
Kelly J. Shackelford, Jeffrey C. Mateer, Hiriam S. Sasser, III, and Justin E. Butterfield, Liberty Institute, Plano, TX; for amici curiae Liberty Institute, Association of Maryland Families, California Family Council, Center for Arizona Policy, Citizens for Community Values, Cornerstone Action, Cornerstone

4a
Family Council, Delaware Family Policy Council, Family Action Council of Tennessee, the Family Foundation, the Family Policy Council of West Virginia, Family Policy Institute of Washington, Florida Family Policy Council, Georgia Family Council, Illinois Family Institute, Independence Law Center, Iowa Family Policy Center, Louisiana Family Forum Action, Massachusetts Family Institute, Michigan Family Forum, Minnesota Family Council, Missouri Family Policy Council, Montana Family Foundation, New Jersey Family First, New Jersey Family Policy Council, North Carolina Family Policy Council, Oklahoma Family Policy Council, Oregon Family Council, Palmetto Family Council, Pennsylvania Family Institute, Wisconsin Family Action, and Wywatch Family Action.
Lynn D. Wardle, Marriage Law Project, J. Reuben Clark Law School, Provo, UT; Stephen Kent Ehat, Lindon, UT; Lincoln C. Oliphant, Columbus School of Law, the Catholic University of America, Washington, D.C.; for amici curiae High Impact Leadership Coalition, the Center for Urban Renewal and Education, and the Frederick Douglass Foundation, Inc.
Dean R. Broyles and James M. Griffiths, the Western Center for Law & Policy, Escondido, CA; for amici curiae Parents and Friends of Ex-Gays and Desert Stream Ministries.
M. Edward Whelan III, Ethics and Public Policy Center, Washington, D.C.; for amicus curiae the Ethics and Public Policy Center.

5a
Mary E. McAlister, Stephen M. Crampton, and Rena M. Lindevaldsen, Liberty Counsel, Lynchburg, VA; Matthew D. Staver and Anita L. Staver, Liberty Counsel, Orlando, FL; for amici curiae Liberty Counsel, Campaign for Children and Families, and JONAH Inc.
Jay Alan Sekulow, Stuart J. Roth, and Walter M. Weber, American Center for Law & Justice, Washington, D.C.; for amicus curiae the American Center for Law and Justice.
Donald W. MacPherson, the MacPherson Group, Phoenix, AZ; for amicus curiae the Hausvater Project.
Matthew B. McReynolds and Kevin T. Snider, Pacific Justice Institute, Sacramento, CA; for amicus curiae Pacific Justice Institute.
Von G. Keetch, Alexander Dushku, and R. Shawn Gunnarson, Kirton & McConkie, Salt Lake City, UT; Anthony R. Picarello, Jr., Jeffrey Hunter Moon, and Michael F. Moses, U.S. Conference of Catholic Bishops, Washington, D.C.; Carl H. Esbeck, National Association of Evangelicals, Washington, D.C.; James F. Sweeney, Sweeney & Greene LLP, Elk Grove, CA; for amici curiae United States Conference of Catholic Bishops, California Catholic Conference, National Association of Evangelicals, the Church of Jesus Christ of Latter-day Saints, the Ethics & Religious Liberty Commission, Lutheran Church – Missouri Synod, Calvary Chapel Fellowship of Ministries of California, the Christian and Missionary Alliance, Coral Ridge Ministries, the Council of Korean

6a
Churches in Southern California, Southern California Korean Ministers Association, and Holy Movement for America.
Kristen K. Waggoner and Steven T. O’Ban, Ellis, Li & McKinstry PLLC, Seattle, WA; for amici curiae Robert P. George, Sherif Girgis, and Ryan T. Anderson.
Gary G. Kreep, United States Justice Foundation, Ramona, CA; for amicus curiae National Association for Research & Therapy of Homosexuality (NARTH).
Abram J. Pafford, Pafford, Lawrence & Ross, PLLC, Washington, D.C.; for amicus curiae American College of Pediatricians.
John C. Eastman, Anthony T. Caso, and Karen J. Lugo, Center for Constitutional Jurisprudence, Orange, CA; for amicus curiae Center for Constitutional Jurisprudence.
Kevin J. Hasson and Lori H. Windham, the Becket Fund for Religious Liberty, Washington, D.C.; for amicus curiae the Becket Fund for Religious Liberty.
Steven W. Fitschen, the National Legal Foundation, Virginia Beach, VA; for amicus curiae National Legal Foundation.
Lawrence J. Joseph, Washington, D.C.; for amicus curiae Eagle Forum Education & Legal Defense Fund.
Holly L. Carmichael, Los Gatos, CA; for amicus curiae Concerned Women of America.

7a
William C. Duncan, Marriage Law Foundation, Lehi, UT; Joshua K. Baker, National Organization for Marriage, Washington, D.C.; for amici curiae National Organization for Marriage, National Organization for Marriage Rhode Island, and Family Leader.
Herbert G. Grey, Beaverton, OR; for amicus curiae Paul McHugh.
Eugene Dong, Palo Alto, CA; for amicus curiae Eugene Dong.
Gregory F. Zoeller, Attorney General; Thomas M. Fischer, Solicitor General; and Ellen H. Meilaender, Deputy Attorney General, State of Indiana; Kenneth T. Cuccinelli, II, Attorney General; E. Duncan Getchell, Solicitor General; and Stephen McCullough, Deputy Solicitor General, State of Virginia; Michael A. Cox, Attorney General and Eric Restuccia, Solicitor General, State of Michigan; James D. Caldwell, Attorney General and Kyle Duncan, Appellate Chief, State of Louisiana; Troy King, Attorney General, State of Alabama; Daniel S. Sullivan, Attorney General, State of Alaska; Bill McCollum, Attorney General, State of Florida; Lawrence G. Wasden, Attorney General, State of Idaho; Jon Bruning, Attorney General, State of Nebraska; Thomas W. Corbett, Jr., Attorney General, Commonwealth of Pennsylvania; Henry McMaster, Attorney General, State of South Carolina; Mark L. Shurtleff, Attorney General, State of Utah; Bruce A. Salzburg, Attorney General, State of Wyoming; for amici curiae States of Indiana, Virginia, Louisiana, Michigan, Alabama, Alaska, Florida,

8a
Idaho, Nebraska, Pennsylvania, South Carolina, Utah, and Wyoming.
Kenneth A. Klukowski, American Civil Rights Union, Alexandria, VA; for amicus curiae American Civil Rights Union.
Richard G. Katerndahl, San Rafael, CA; for amicus curiae Catholics for the Common Good.
Jerome C. Roth, Michelle Friedland, Mark R. Conrad, and Miriam L. Seifter, Munger, Tolles & Olson LLP, San Francisco, CA; for amici curiae Bay Area Lawyers for Individual Freedom, Alameda County Bar Association, Bar Association of San Francisco, Los Angeles County Bar Association, Marin County Bar Association, Santa Clara County Bar Association, AIDS Legal Referral Panel, API Equality – LA, Asian American Bar Association of the Greater Bay Area, Asian Pacific American Bar Association of Los Angeles County, Asian Pacific Bar Association of Silicon Valley, Asian Pacific Islander Legal Outreach, Bay Area Association of Muslim Lawyers, California Employment Lawyers Association, California Women’s Law Center, East Bay La Raza Lawyers Association, Equal Justice Society, Family Equality Council, Filipino Bar Association of Northern California, Freedom to Marry, Impact Fund, Japanese American Bar Association of Greater Los Angeles, Korean American Bar Association of Northern California, Latina and Latino Critical Legal Theory, Inc., Law Foundation of Silicon Valley, Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, Legal Aid

9a
Society-Employment Law Center, Lesbian and Gay Lawyers Association of Los Angeles, Marriage Equality USA, Mexican American Bar Association, National Asian Pacific American Bar Association, National Lawyers Guild San Francisco Bay Area Chapter, People for the American Way Foundation, Queen’s Bench Bar Association, San Francisco Chamber of Commerce, San Francisco La Raza Lawyers Association, San Francisco Trial Lawyers Association, Santa Clara County Black Lawyers Association, Society of American Law Teachers, South Asian Bar Association of Northern California, Transgender Law Center, and Women Lawyers of Alameda County.
Elizabeth B. Wydra, David H. Gans, Douglas T. Kendall, and Judith E. Schaeffer, Constitutional Accountability Center, Washington, D.C.; for amicus curiae Constitutional Accountability Center.
Daniel H. Squire, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.; Alan E. Schoenfeld, David Sapir Lesser, and Erin G.H. Sloane, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY; for amici curiae Legislators from United States Jurisdictions That Have Legalized Same-Sex Marriage.
Nathalie F.P. Gilfoyle, American Psychological Association, Washington, D.C.; Paul M. Smith, William M. Hohengarten, and Julia K. Martinez, Jenner & Block LLP, Washington, D.C.; for amici curiae American Psychological Association, the California Psychological Association, the American Psychiatric Association,

10a
and the American Association for Marriage and Family Therapy.
Laura W. Brill, Nicholas F. Daum, and Richard M. Simon, Kendall Brill & Klieger LLP, Los Angeles, CA; for amicus curiae Jon B. Eisenberg.
Herma Hill Kay, University of California – Berkeley School of Law, Berkeley, CA; Michael S. Wald, Stanford Law School, Stanford, CA; for amici curiae California Professors of Family Law.
Aderson François, Howard University School of Law Civil Rights Clinic, Washington, D.C.; Ayesha N. Khan, Americans United for Separation of Church and State, Washington D.C.; Brad W. Seiling, Kathryn A.B. Bartow, and Benjamin G. Shatz, Manatt, Phelps & Phillips, LLP, Los Angeles, CA; Jon B. Streeter, Susan J. Harriman, and Jo W. Golub, Keker & Van Nest, LLP, San Francisco, CA; for amici curiae Howard University School of Law Civil Rights Clinic and Americans United for Separation of Church and State.
Justin Ford, O’Melveny & Myers LLP, Los Angeles, CA; Walter Dellinger, Jonathan D. Hacker, Sarah Goldfrank, and Anton Metlitsky, O’Melveny & Myers LLP, Washington, D.C.; for amicus curiae National LGBT Bar Association.
Martha Coakley, Attorney General; Maura T. Healey, Jonathan B. Miller, and Christopher K. Barry-Smith, Assistant Attorneys General, Boston, MA; for amicus curiae the Commonwealth of Massachusetts.

11a
Christopher L. Lebsock and Arthur N. Bailey, Jr., Hausfeld LLP, San Francisco, CA; for amicus curiae the California Teachers Association.
Steven M. Freeman, Steven C. Sheinberg, Deborah Besinger, and Michelle Deutchman, Anti-Defamation League, New York, NY; Victoria F. Maroulis, Anna T. Neill, and Brett J. Arnold, Quinn Emanuel Urquhart & Sullivan, LLP, Redwood Shores, CA; for amicus curiae Anti-Defamation League.
John Payton, Debo P. Adegbile, and Dale E. Ho, NAACP Legal Defense & Educational Fund, Inc., New York, NY; for amicus curiae NAACP Legal Defense & Educational Fund, Inc.
Kathleen M. O’Sullivan and Abha Khanna, Perkins Coie LLP, Seattle, WA; for amici curiae Professors William N. Eskridge, Jr., Bruce A. Ackerman, Rebecca L. Brown, Daniel A. Farber, Kenneth L. Karst, and Andrew Koppelman.
Sonya D. Winner, Bruce R. Deming, David M. Jolley, and John D. Freed, Covington & Burling LLP, San Francisco, CA; for amici curiae American Anthropological Association, American Psychoanalytic Association, National Association of Social Workers, National Association of Social Workers, California Chapter, American Sociological Association, and American Academy of Pediatrics, California.
Jon W. Davidson, Jennifer C. Pizer, and Tara L. Borelli, Lambda Legal Defense and Education Fund, Inc., Los Angeles, CA; Alan L. Schlosser and Elizabeth

12a
O. Gill, ACLU Foundation of Northern California, San Francisco, CA; Shannon P. Minter, Christopher F. Stoll, and Ilona M. Turner, National Center for Lesbian Rights, San Francisco, CA; for amici curiae ACLU Foundation of Northern California, Gay and Lesbian Advocates and Defenders, Lambda Legal Defense and Education Fund, Inc., and National Center for Lesbian Rights.
Eric Alan Isaacson, San Diego, CA; Stacey M. Kaplan, San Francisco, CA; for amici curiae California Faith for Equality, California Council of Churches, General Synod of the United Church of Christ, Universal Fellowship of Metropolitan Community Churches, the Episcopal Bishops of California and Los Angeles, Progressive Jewish Alliance, Pacific Association of Reform Rabbis, Unitarian Universalist Association, and Unitarian Universalist Legislative Ministry California.
David C. Codell, Linda M. Burrow, Albert Giang, and Benjamin A. Au, Caldwell Leslie & Proctor, PC, Los Angeles, CA; for amicus curiae Equality California.
Diana E. Richmond and Louis P. Feuchtbaum, Sideman & Bancroft LLP, San Francisco, CA; Richard B. Rosenthal, the Law Offices of Richard B. Rosenthal, P.A., San Rafael, CA; for amici curiae Donald B. King, Justice (Ret.) and the American Academy of Matrimonial Lawyers (Northern California Chapter).
Elizabeth J. Cabraser, Kelly M. Dermody, Brendan P. Glackin, Anne Shaver, and Alison Stocking, Lieff, Cabraser, Heimann & Bernstein, LLP, San Francisco,

13a
CA; Rachel Geman, Lieff, Cabraser, Heimann & Bernstein, LLP, New York, NY; for amici curiae Professors Bryan Adamson, Janet Cooper Alexander, Barbara A. Atwood, Barbara Babcock, Erwin Chemerinsky, Joshua P. Davis, David L. Faigman, Pamela S. Karlan, Toni M. Massaro, Arthur Miller, David Oppenheimer, Judith Resnik, Fred Smith, and Larry Yackle.
Scott Wm. Davenport, Jason J. Molnar, Darin L. Wessel, and Peter C. Catalanotti, Manning & Marder, Kass, Ellrod, Ramirez LLP, Irvine, CA; for amicus curiae the Southern Poverty Law Center.
Peter Obstler, Jee Young You, Suneeta D. Fernandes, and Doug Karpa, Bingham McCutchen LLP, San Francisco, CA; for amici curiae Asian American Justice Center, Asian Law Caucus, Asian American Institute, Asian Pacific American Legal Center, Asian Pacific American Women Lawyers Alliance, Asian Pacific Islander Legal Outreach, API Equality, California Conference of the NAACP, Chinese for Affirmative Action, Coalition for Humane Immigrant Rights of Los Angeles, Korematsu Center at Seattle University, Mexican American Legal Defense and Education Fund, and Zuna Institute.
Susan M. Popik and Merri A. Baldwin, Chapman, Popik & White LLP, San Francisco, CA; Suzanne B. Goldberg, Clinical Professor of Law and Director, Sexuality & Gender Law Clinic, Columbia Law School, New York, NY; for amici curiae National Gay and Lesbian Task Force Foundation, Human Rights

14a
Campaign, American Humanist Association, and Courage Campaign Institute.
David Boies (argued), Jeremy M. Goldman, and Theodore H. Uno, Boies, Schiller & Flexner LLP, Armonk, NY; Theodore B. Olson, Matthew D. McGill, and Amir C. Tayrani, Gibson, Dunn & Crutcher LLP, Washington, D.C.; Theodore J. Boutrous, Jr., Christopher D. Dusseault, Theane Evangelis Kapur, Enrique A. Monagas, and Joshua S. Lipshutz, Gibson, Dunn & Crutcher LLP, Los Angeles, CA; for plaintiffsappellees Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo.
Dennis J. Herrera, Therese M. Stewart (argued), and Christine Van Aken, City and County of San Francisco, San Francisco, CA; for intervenor-plaintiffappellee City and County of San Francisco.
Andrew P. Pugno, Law Offices of Andrew P. Pugno, Folsom, CA; Charles J. Cooper (argued), David H. Thompson, Howard C. Nielson, Jr., and Peter A. Patterson, Cooper and Kirk, PLLC, Washington, D.C.; Brian W. Raum and James A. Campbell, Alliance Defense Fund, Scottsdale, AZ; for intervenordefendants-appellants Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Mark A. Jansson, and ProtectMarriage.com.
Jon W. Davidson, Tara L. Borelli, and Peter C. Renn, Lambda Legal Defense and Education Fund, Los Angeles, CA; Shannon P. Minter, Christopher F. Stoll, and Ilona M. Turner, National Center for Lesbian Rights, San Francisco, CA; Alan L. Schlosser and

15a
Elizabeth O. Gill, ACLU Foundation of Northern California, San Francisco, CA; for amici curiae Lambda Legal Defense and Education Fund, National Center for Lesbian Rights, ACLU Foundation of Northern California, and Equality California.
David M. Balabanian, Frank Busch, Elizabeth Benson, and Kathryn Conrad, Bingham McCutchen LLP, San Francisco, CA; for amicus curiae the Bar Association of San Francisco.
Appeal from the United States District Court for the Northern District of California, Vaughn R. Walker, Chief District Judge, Presiding (No. 10-16696), James Ware, Chief District Judge, Presiding (No. 11-16577). D.C. Nos. 3:09-cv-02292-VRW, 3:09-cv-02292-JW.
Before: STEPHEN REINHARDT, MICHAEL DALY HAWKINS, and N. RANDY SMITH, Circuit Judges.
Opinion Opinion by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge N.R. SMITH.
OPINION REINHARDT, Circuit Judge:
Prior to November 4, 2008, the California Constitution guaranteed the right to marry to opposite-sex couples and same-sex couples alike. On that day, the People of California adopted Proposition 8, which amended the state constitution to eliminate the right

16a
of same-sex couples to marry. We consider whether that amendment violates the Fourteenth Amendment to the United States Constitution. We conclude that it does.
Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted. Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status, all parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed to obtain from the State, or any other authorized party, an important right – the right to obtain and use the designation of ‘marriage’ to describe their relationships. Nothing more, nothing less. Proposition 8 therefore could not have been enacted to advance California’s interests in childrearing or responsible procreation, for it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples. Nor did Proposition 8 have any effect on religious freedom or on parents’ rights to control their children’s education; it could not have been enacted to safeguard these liberties.
All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed

17a
relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for “laws of this sort.” Romer v. Evans, 517 U.S. 620, 633, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996).
“Broader issues have been urged for our consideration, but we adhere to the principle of deciding constitutional questions only in the context of the particular case before the Court.” Sweatt v. Painter, 339 U.S. 629, 631, 70 S.Ct. 848, 94 L.Ed. 1114 (1950). Whether under the Constitution same-sex couples may ever be denied the right to marry, a right that has long been enjoyed by opposite-sex couples, is an important and highly controversial question. It is currently a matter of great debate in our nation, and an issue over which people of good will may disagree, sometimes strongly. Of course, when questions of constitutional law are necessary to the resolution of a case, courts may not and should not abstain from deciding them simply because they are controversial. We need not and do not answer the broader question in this case, however, because California had already extended to committed same-sex couples both the incidents of marriage and the official designation of ‘marriage,’ and Proposition 8’s only effect was to take away that important and legally significant designation, while leaving in place all of its incidents. This unique and strictly limited effect of Proposition 8

18a
allows us to address the amendment’s constitutionality on narrow grounds.
Thus, as a result of our “traditional reluctance to extend constitutional interpretations to situations or facts which are not before the Court, much of the excellent research and detailed argument presented in th[is] case[ ] is unnecessary to [its] disposition.” Id. Were we unable, however, to resolve the matter on the basis we do, we would not hesitate to proceed to the broader question – the constitutionality of denying same-sex couples the right to marry.
Before considering the constitutional question of the validity of Proposition 8’s elimination of the rights of same-sex couples to marry, we first decide that the official sponsors of Proposition 8 are entitled to appeal the decision below, which declared the measure unconstitutional and enjoined its enforcement. The California Constitution and Elections Code endow the official sponsors of an initiative measure with the authority to represent the State’s interest in establishing the validity of a measure enacted by the voters, when the State’s elected leaders refuse to do so. See Perry v. Brown, 52 Cal.4th 1116, 134 Cal.Rptr.3d 499, 265 P.3d 1002 (2011). It is for the State of California to decide who may assert its interests in litigation, and we respect its decision by holding that Proposition 8’s proponents have standing to bring this appeal on behalf of the State. We therefore conclude that, through the proponents of ballot measures, the People of California must be allowed to defend in federal courts, including on appeal, the

19a
validity of their use of the initiative power. Here, however, their defense fails on the merits. The People may not employ the initiative power to single out a disfavored group for unequal treatment and strip them, without a legitimate justification, of a right as important as the right to marry. Accordingly, we affirm the judgment of the district court.
We also affirm – for substantially the reasons set forth in the district court’s opinion – the denial of the motion by the official sponsors of Proposition 8 to vacate the judgment entered by former Chief Judge Walker, on the basis of his purported interest in being allowed to marry his same-sex partner.
I
A
Upon its founding, the State of California recognized the legal institution of civil marriage for its residents. See, e.g., Cal. Const. of 1849, art. XI, §§ 12, 14 (discussing marriage contracts and marital property); Cal. Stats. 1850, ch. 140 (“An Act regulating Marriages”). Marriage in California was understood, at the time and well into the twentieth century, to be limited to relationships between a man and a woman. See In re Marriage Cases, 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384, 407-09 (2008). In 1977, that much was made explicit by the California Legislature, which amended the marriage statute to read, “Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the

20a
consent of the parties capable of making that contract is necessary.” Cal. Stats.1977, ch. 339, § 1. The 1977 provision remains codified in California statute. See Cal. Fam.Code § 300(a).
Following the enactment of the Defense of Marriage Act of 1996, Pub.L. 104-199, 110 Stat. 2419 (codified in relevant part at 1 U.S.C. § 7), which expressly limited the federal definition of marriage to relationships between one man and one woman, dozens of states enacted similar provisions into state law. See Andrew Koppelman, The Difference the MiniDOMAs Make, 38 Loy. U. Chi. L.J. 265, 265-66 (2007). California did so in 2000 by adopting Proposition 22, an initiative statute, which provided, “Only marriage between a man and a woman is valid or recognized in California.” Cal. Fam.Code § 308.5. The proposition ensured that same-sex marriages performed in any state that might permit such marriages in the future would not be recognized in California, and it guaranteed that any legislative repeal of the 1977 statute would not allow same-sex couples to marry within the State, because the Legislature may not amend or repeal an initiative statute enacted by the People. See Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at 40910.
Meanwhile, however, California had created the designation “domestic partnership” for “two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring.” Cal. Stats.1999, ch. 588, § 2 (codified at Cal. Fam.Code § 297(a)). At first, California gave registered domestic

21a
partners only limited rights, such as hospital visitation privileges, id. § 4, and health benefits for the domestic partners of certain state employees, id. § 3. Over the next several years, however, the State substantially expanded the rights of domestic partners. By 2008, “California statutory provisions generally afford[ed] same-sex couples the opportunity to . . . obtain virtually all of the benefits and responsibilities afforded by California law to married oppositesex couples.” Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at 417-18. The 2003 Domestic Partner Act provided broadly: “Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.” Cal. Stats.2003, ch. 421, § 4 (codified at Cal. Fam.Code § 297.5(a)). It withheld only the official designation of marriage and thus the officially conferred and societally recognized status that accompanies that designation.
B
In 2004, same-sex couples and the City and County of San Francisco filed actions in California state courts alleging that the State’s marriage statutes violated the California Constitution. Proposition 22 was among the statutes challenged, because as an initiative statutory enactment, it was equal in dignity

22a
to an enactment by the Legislature and thus subject to the restrictions of the state constitution.1 The consolidated cases were eventually decided by the California Supreme Court, which held the statutes to be unconstitutional, for two independent reasons.
First, the court held that the fundamental right to marry provided by the California Constitution could not be denied to same-sex couples, who are guaranteed “the same substantive constitutional rights as opposite-sex couples to choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage.” Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at 433-34. The court began by reaffirming that “the right to marry is an integral component of an individual’s interest in personal autonomy protected by the privacy provision of article I, section 1 [of the California Constitution], and of the liberty interest protected by the due process clause of article I,
1 The California Constitution differentiates between initiative statutes, which require petitions signed by five percent of electors, and initiative constitutional amendments, which require petitions signed by eight percent of electors. Cal. Const. art. 2, § 8(b). An initiative statutory enactment has somewhat greater status than a statute adopted by the Legislature, in that the Legislature may not amend or repeal the initiative statute without submitting the change to approval by the electors (unless the initiative statute provides otherwise). Id. § 10(c). Yet, like a statutory enactment by the Legislature, and unlike an initiative constitutional amendment, it is subject to the terms of the state constitution.

23a
section 7.” Id., 76 Cal.Rptr.3d 683, 183 P.3d at 426 (emphasis omitted). It then held “that an individual’s homosexual orientation is not a constitutionally legitimate basis for withholding or restricting the individual’s legal rights.” Id., 76 Cal.Rptr.3d 683, 183 P.3d at 429. The court acknowledged that although such an inclusive understanding of the right to marry was one that had developed only “in recent decades,” as the State extended greater recognition to same-sex couples and households, it was “apparent that history alone does not provide a justification for interpreting the constitutional right to marry as protecting only one’s ability to enter into an officially recognized family relationship with a person of the opposite sex,” because “ ‘[f]undamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights.’ ” Id., 76 Cal.Rptr.3d 683, 183 P.3d at 428-30 (quoting Hernandez v. Robles, 7 N.Y.3d 338, 381, 821 N.Y.S.2d 770, 855 N.E.2d 1 (2006) (Kaye, C.J., dissenting)).
The court concluded its due process analysis by rejecting the argument that the availability of domestic partnerships satisfied “all of the personal and dignity interests that have traditionally informed the right to marry,” because “[t]he current statutes – by drawing a distinction between the name assigned to the family relationship available to opposite-sex couples and the name assigned to the family relationship available to same-sex couples, and by reserving the historic and highly respected designation of

24a
‘marriage’ exclusively to opposite-sex couples while offering same-sex couples only the new and unfamiliar designation of domestic partnership – pose a serious risk of denying the official family relationship of same-sex couples the equal dignity and respect that is a core element of the constitutional right to marry.” Id., 76 Cal.Rptr.3d 683, 183 P.3d at 434-35.
Second, the court held that “[t]he current statutory assignment of different names for the official family relationships of opposite-sex couples on the one hand, and of same-sex couples on the other” violated the equal protection clause in article I, section 7 of the California Constitution. Id., 76 Cal.Rptr.3d 683, 183 P.3d at 435, 452-53. The court determined that the State had no interest in reserving the name ‘marriage’ for opposite-sex couples; “the historic and well-established nature of this limitation” could not itself justify the differential treatment, and the court found no reason that restricting the designation of ‘marriage’ to opposite-sex couples was necessary to preserve the benefits of marriage enjoyed by opposite-sex couples or their children. Id., 76 Cal.Rptr.3d 683, 183 P.3d at 450-52. The court noted specifically that “the distinction in nomenclature between marriage and domestic partnership cannot be defended on the basis of an asserted difference in the effect on children of being raised by an opposite-sex couple instead of by a same-sex couple,” because “the governing California statutes permit same-sex couples to adopt and raise children and additionally draw no distinction between married couples and

25a
domestic partners with regard to the legal rights and responsibilities relating to children raised within each of these family relationships.” Id., 76 Cal.Rptr.3d 683, 183 P.3d at 452 n. 72. Restricting access to the designation of ‘marriage’ did, however, “work[ ] a real and appreciable harm upon same-sex couples and their children,” because “providing only a novel, alternative institution for same-sex couples” constituted “an official statement that the family relationship of samesex couples is not of comparable stature or equal dignity to the family relationship of opposite-sex couples.” Id., 76 Cal.Rptr.3d 683, 183 P.3d at 452. Consequently, the court determined that withholding only the name ‘marriage’ from same-sex couples violated the California Constitution’s guarantee of equal protection.
The court remedied these constitutional violations by striking the language from the marriage statutes “limiting the designation of marriage to a union ‘between a man and a woman,’ ” invalidating Proposition 22, and ordering that the designation of ‘marriage’ be made available to both opposite-sex and same-sex couples. Id., 76 Cal.Rptr.3d 683, 183 P.3d at 453. Following the court’s decision, California counties issued more than 18,000 marriage licenses to same-sex couples.
C
Five California residents – defendants-intervenorsappellants Dennis Hollingsworth, Gail J. Knight,

26a
Martin F. Gutierrez, Hak-Shing William Tam, and Mark A. Jansson (collectively, “Proponents”) – collected voter signatures and filed petitions with the state government to place an initiative on the November 4, 2008, ballot. Unlike Proposition 22, this was an initiative constitutional amendment, which would be equal in effect to any other provision of the California Constitution, rather than subordinate to it. The Proponents’ measure, designated Proposition 8, proposed to add a new provision to the California Constitution’s Declaration of Rights, immediately following the Constitution’s due process and equal protection clauses. The provision states, “Only marriage between a man and a woman is valid or recognized in California.” According to the official voter information guide, Proposition 8 “[c]hanges the California Constitution to eliminate the right of same-sex couples to marry in California.” Official Voter Information Guide, California General Election (Nov. 4, 2008), at 54. Following a contentious campaign, a slim majority of California voters (52.3 percent) approved Proposition 8. Pursuant to the state constitution, Proposition 8 took effect the next day, as article I, section 7.5 of the California Constitution.
Opponents of Proposition 8 then brought an original action for a writ of mandate in the California Supreme Court. They contended that Proposition 8 exceeded the scope of the People’s initiative power because it revised, rather than amended, the California Constitution. The opponents did not raise any federal constitutional challenge to Proposition 8 in

27a
the state court. The state officials named as respondents refused to defend the measure’s validity, but Proponents were permitted to intervene and do so. Following argument, the court upheld Proposition 8 as a valid initiative but construed the measure as not nullifying the 18,000-plus marriages of same-sex couples that had already been performed in the State. Strauss v. Horton, 46 Cal.4th 364, 93 Cal.Rptr.3d 591, 207 P.3d 48, 98-110, 119-22 (2009).
The court also explained Proposition 8’s precise effect on California law: “[T]he measure carves out a narrow and limited exception to the[ ] state constitutional rights [articulated in the Marriage Cases], reserving the official designation of the term ‘marriage’ for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.” Id., 93 Cal.Rptr.3d 591, 207 P.3d at 61; see also id., 93 Cal.Rptr.3d 591, 207 P.3d at 75. In other words, after Proposition 8, “[s]ame-sex couples retain all of the fundamental substantive components encompassed within the constitutional rights of privacy and due process, with the sole (albeit significant) exception of the right to equal access to the designation ‘marriage.’ ” Id., 93 Cal.Rptr.3d 591, 207 P.3d at 116. Proposition 8 accomplished this result not by “declar[ing] the state of the law as it existed when the Marriage Cases decision was rendered, but instead

28a
[by] establish[ing] a new substantive state constitutional rule that became effective once Proposition 8 was approved by the voters.” Id., 93 Cal.Rptr.3d 591, 207 P.3d at 115; see also id., 93 Cal.Rptr.3d 591, 207 P.3d at 63.
II
A
Two same-sex couples – plaintiffs Kristin Perry and Sandra Stier, and Paul Katami and Jeffrey Zarrillo – filed this action under 42 U.S.C. § 1983 in May 2009, after being denied marriage licenses by the County Clerks of Alameda County and Los Angeles County, respectively. Alleging that Proposition 8 violates the Fourteenth Amendment to the United States Constitution, they sought a declaration of its unconstitutionality and an injunction barring its enforcement. The City and County of San Francisco (“San Francisco”) was later permitted to intervene as a plaintiff to present evidence of the amendment’s effects on its governmental interests. The defendants – the two county clerks and four state officers, including the Governor and Attorney General – filed answers to the complaint but once again refused to argue in favor of Proposition 8’s constitutionality. As a result, the district court granted Proponents’ motion to intervene as of right under Federal Rule of Civil

29a
Procedure 24(a) to defend the validity of the proposition they had sponsored.2
The district court held a twelve-day bench trial, during which it heard testimony from nineteen witnesses and, after giving the parties a full and fair opportunity to present evidence and argument, built an extensive evidentiary record.3 In a thorough opinion
2 The district court subsequently denied the motion to intervene brought by the Campaign for California Families, a public interest organization that supported Proposition 8 but was not the measure’s official sponsor. We affirmed that decision in Perry v. Proposition 8 Official Proponents (Perry I ), 587 F.3d 947 (9th Cir.2009). The district court also denied leave to intervene to a coalition of civil rights advocacy organizations. Id. at 950 n. 1.
3 A number of ancillary matters, none of which we need revisit here, were presented to this court immediately prior to and during the trial. First, we granted Proponents’ petition for a writ of mandamus to protect their First Amendment interests in campaign communications against intrusion by Plaintiffs’ discovery requests. Perry v. Schwarzenegger (Perry II), 591 F.3d 1147 (9th Cir.2010), amending and denying reh’g en banc of 591 F.3d 1126 (9th Cir.2009). Second, we denied a similar mandamus petition brought by three non-party organizations that had campaigned against Proposition 8. Perry v. Schwarzenegger (Perry III ), 602 F.3d 976 (9th Cir.2010). Finally, a motions panel of this court denied Proponents’ emergency petition for a writ of mandamus, filed on the eve of trial, to prohibit the district court from broadcasting the trial via streaming video and audio to a few federal courthouses around the country. The Supreme Court then granted Proponents’ application for a temporary and eventually permanent stay of the broadcast. Hollingsworth v. Perry, ___ U.S. ___, 130 S.Ct. 1132, 175 L.Ed.2d 878 (2010) (mem.); Hollingsworth v. Perry, ___ U.S. ___, 130 S.Ct. 705, 175 L.Ed.2d 657 (2010).

30a
in August 2010, the court made eighty findings of fact and adopted the relevant conclusions of law. Perry v. Schwarzenegger (Perry IV), 704 F.Supp.2d 921 (N.D.Cal.2010).4 The court held Proposition 8 unconstitutional under the Due Process Clause because no compelling state interest justifies denying same-sex couples the fundamental right to marry. Id. at 991-95. The court also determined that Proposition 8 violated the Equal Protection Clause, because there is no rational basis for limiting the designation of ‘marriage’ to opposite-sex couples. Id. at 997-1003. The court therefore entered the following injunction: “Defendants in their official capacities, and all persons
4 The court found, among other things, that (1) marriage benefits society by organizing individuals into cohesive family units, developing a realm of liberty for intimacy and free decision making, creating stable households, legitimating children, assigning individuals to care for one another, and facilitating property ownership, id. at 961; (2) marriage benefits spouses and their children physically, psychologically, and economically, id. at 962-63, whether the spouses are of the same or opposite sexes, id. at 969-70; (3) domestic partnerships lack the social meaning associated with marriage, id. at 970, 973-75; (4) permitting same-sex couples to marry would not affect the number or stability of opposite-sex marriages, id. at 972-73; (5) the children of same-sex couples benefit when their parents marry, and they fare just as well as children raised by opposite-sex parents, id. at 973, 980-81; (6) Proposition 8 stigmatizes samesex couples as having relationships inferior to those of oppositesex couples, id. at 973-74, 979-80; (7) Proposition 8 eliminated same-sex couples’ right to marry but did not affect any other substantive right they enjoyed, id. at 977; and (8) the campaign in favor of Proposition 8 relied upon stereotypes and unfounded fears about gays and lesbians, id. at 988-91.

31a
under the control or supervision of defendants, are permanently enjoined from applying or enforcing Article I, § 7.5 of the California Constitution.”5 Doc. 728 (Permanent Injunction), Perry v. Schwarzenegger, No. 09-cv-02292 (N.D.Cal. Aug. 12, 2010).6
B
Proponents appealed immediately, and a motions panel of this court stayed the district court’s injunction pending appeal. The motions panel asked the parties to discuss in their briefs, as a preliminary matter, whether the Proponents had standing to seek review of the district court order. After considering the parties’ arguments, we concluded that Proponents’ standing to appeal depended on the precise
5 Without explanation, the district court failed to enter a separate declaratory judgment as Plaintiffs had requested. The court’s opinion made clear its holding “that Proposition 8 is unconstitutional.” 704 F.Supp.2d at 1003. But the clerk apparently never issued this declaratory judgment as a separate document, as Fed.R.Civ.P. 58 requires.
6 Concurrently with its decision on the merits of Plaintiffs’ claim, the district court denied a motion to intervene as a defendant brought by Imperial County, its board of supervisors, and one of its Deputy County Clerks. We affirmed the district court’s denial of the motion, on alternative grounds, in Perry v. Schwarzenegger (Perry VI ), 630 F.3d 898 (9th Cir.2011). The newly elected County Clerk of Imperial County subsequently moved to intervene in this court in the companion appeal, No. 10-16751. In light of the fact that Proponents have standing to appeal, we deny the motion as untimely but have considered the Clerk’s filings as briefs amici curiae.

32a
rights and interests given to official sponsors of an initiative under California law, which had never been clearly defined by the State’s highest court. We therefore certified the following question to the California Supreme Court:
Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.
Perry v. Schwarzenegger (Perry V), 628 F.3d 1191, 1193 (9th Cir.2011). The state court granted our request for certification in February 2011, and in November 2011 rendered its decision. See Perry v. Brown (Perry VII), 52 Cal.4th 1116, 134 Cal.Rptr.3d 499, 265 P.3d 1002 (2011). We now resume consideration of this appeal.7
7 We vacated submission of this case upon ordering that our question be certified to the California Supreme Court. Perry V, 628 F.3d at 1200. The case is now ordered resubmitted.

33a
III
We begin, as we must, with the issue that has prolonged our consideration of this case: whether we have jurisdiction over an appeal brought by the defendant-intervenor Proponents, rather than the defendant state and local officers who were directly enjoined by the district court order.8 In view of Proponents’ authority under California law, we conclude that they do have standing to appeal.
For purposes of Article III standing, we start with the premise that “a State has standing to defend the constitutionality of its [laws].” Diamond v. Charles, 476 U.S. 54, 62, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986). When a state law is ruled unconstitutional, either the state or a state officer charged with the law’s enforcement may appeal that determination. Typically, the named defendant in an action challenging the constitutionality of a state law is a state officer, because sovereign immunity protects the state from being sued directly. See Ex parte Young, 209 U.S. 123, 157-58, 28 S.Ct. 441, 52 L.Ed. 714 (1908); L.A. County Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir.1992). In such cases, if a court invalidates the state law and enjoins its enforcement, there is no question that the state officer is entitled to appeal
8 Although we regret the delay that our need to resolve this issue has caused, we note that this delay was not of our own making. See Perry V, 628 F.3d at 1200-02 (Reinhardt, J., concurring). We are grateful to the California Supreme Court for the thoughtful and full consideration it gave our question.

34a
that determination. See, e.g., Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 129 S.Ct. 1093, 172 L.Ed.2d 770 (2009) (Idaho Secretary of State and Attorney General appealed decision striking down an Idaho law on First Amendment grounds); Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000) (Nebraska Attorney General appealed decision holding unconstitutional a Nebraska abortion law). Moreover, there is no reason that a state itself may not also choose to intervene as a defendant, and indeed a state must be permitted to intervene if a state officer is not already party to an action in which the constitutionality of a state law is challenged. See 28 U.S.C. § 2403(b); Fed.R.Civ.P. 5.1; cf. Fed. R.App. P. 44(b). When a state does elect to become a defendant itself, the state may appeal an adverse decision about the constitutionality of one of its laws, just as a state officer may. See, e.g., Caruso v. Yamhill County ex rel. County Comm’r, 422 F.3d 848, 852-53 & n. 2 (9th Cir.2005) (sole appellant was the State of Oregon, which had intervened as a defendant in the district court). In other words, in a suit for an injunction against enforcement of an allegedly unconstitutional state law, it makes no practical difference whether the formal party before the court is the state itself or a state officer in his official capacity. Cf. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 114 n. 25, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (discussing the “fiction” of Ex parte Young); see also Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 269-70, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997) (same).

35a
Whether the defendant is the state or a state officer, the decision to assert the state’s own interest in the constitutionality of its laws is most commonly made by the state’s executive branch – the part of state government that is usually charged with enforcing and defending state law. See, e.g., Ysursa, 555 U.S. at 354, 129 S.Ct. 1093 (Idaho state officers represented by state Attorney General); Caruso, 422 F.3d at 851 (State of Oregon represented by Oregon Department of Justice). Some sovereigns vest the authority to assert their interest in litigation exclusively in certain executive officers. See, e.g., 28 U.S.C. §§ 516-19; 28 C.F.R. § 0.20.
The states need not follow that approach, however. It is their prerogative, as independent sovereigns, to decide for themselves who may assert their interests and under what circumstances, and to bestow that authority accordingly. In Karcher v. May, 484 U.S. 72, 108 S.Ct. 388, 98 L.Ed.2d 327 (1987), for example, the Supreme Court held that the State of New Jersey was properly represented in litigation by the Speaker of the General Assembly and the President of the Senate, appearing on behalf of the Legislature, because “the New Jersey Legislature had authority under state law to represent the State’s interests.” Id. at 82, 108 S.Ct. 388 (citing In re Forsythe, 91 N.J. 141, 450 A.2d 499, 500 (1982)).9 Principles of
9 See also Richardson v. Ramirez, 418 U.S. 24, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974), in which a county clerk was not barred from appealing a judgment invalidating California’s felon
(Continued on following page)

36a
federalism require that federal courts respect such decisions by the states as to who may speak for them: “there are limits on the Federal Government’s power to affect the internal operations of a State.” Va. Office for Protection & Advocacy v. Stewart, ___ U.S. ___, 131 S.Ct. 1632, 1641, 179 L.Ed.2d 675 (2011). It is not for a federal court to tell a state who may appear on its behalf any more than it is for Congress to direct state law-enforcement officers to administer a federal regulatory scheme, see Printz v. United States, 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997), to command a state to take ownership of waste generated within its borders, see New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992), or to dictate where a state shall locate its capital, see Coyle v. Smith, 221 U.S. 559, 31 S.Ct. 688, 55 L.Ed. 853 (1911). Who may speak for the state is, necessarily, a question of state law. All a federal court need determine is that the state has suffered a harm sufficient to confer standing and that the party seeking to invoke the jurisdiction of the court is authorized by the state to represent its interest in remedying that harm.
Proponents claim to assert the interest of the People of California in the constitutionality of Proposition 8, which the People themselves enacted. When
disenfranchisement law, even though the only state officer who had been sued, then-California Secretary of State Edmund G. Brown, Jr., refused to pursue the appeal. Id. at 26 n. 1, 36-38, 94 S.Ct. 2655.

37a
faced with a case arising in a similar posture, in which an Arizona initiative constitutional amendment was defended only by its sponsors, the Supreme Court expressed “grave doubts” about the sponsors’ standing given that the Court was “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.” Arizonans for Official English v. Arizona (Arizonans), 520 U.S. 43, 65-66, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). Absent some conferral of authority by state law, akin to the authority that the New Jersey legislators in Karcher had as “elected representatives,” the Court suggested that proponents of a ballot measure would not be able to appeal a decision striking down the initiative they sponsored. Id. at 65, 117 S.Ct. 1055.
Here, unlike in Arizonans, we do know that California law confers on “initiative sponsors” the authority “to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.” The California Supreme Court has told us, in a published opinion containing an exhaustive review of the California Constitution and statutes, that it does. In answering our certified question, the court held
that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents

38a
of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.
Perry VII, 134 Cal.Rptr.3d at 536-37, 265 P.3d 1002. “[T]he role played by the proponents in such litigation,” the court explained, “is comparable to the role ordinarily played by the Attorney General or other public officials in vigorously defending a duly enacted state law and raising all arguable legal theories upon which a challenged provision may be sustained.” Id. at 525, 265 P.3d 1002. The State’s highest court thus held that California law provides precisely what the Arizonans Court found lacking in Arizona law: it confers on the official proponents of an initiative the authority to assert the State’s interests in defending the constitutionality of that initiative, where the state officials who would ordinarily assume that responsibility choose not to do so.
We are bound to accept the California court’s determination. Although other states may act differently, California’s conferral upon proponents of the authority to represent the People’s interest in the initiative measure they sponsored is consistent with that state’s unparalleled commitment to the authority of the electorate: “No other state in the nation carries the concept of initiatives as ‘written in stone’ to such lengths as” does California. People v. Kelly, 47 Cal.4th 1008, 103 Cal.Rptr.3d 733, 222 P.3d 186, 200 (2010)

39a
(internal quotation marks omitted). Indeed, California defines the initiative power as “one of the most precious rights of our democratic process,” and considers “the sovereign people’s initiative power” to be a “fundamental right” under the state constitution. Assoc. Home Builders v. City of Livermore, 18 Cal.3d 582, 135 Cal.Rptr. 41, 557 P.2d 473, 477 (1976); Brosnahan v. Brown, 32 Cal.3d 236, 186 Cal.Rptr. 30, 651 P.2d 274, 277 (1982); Costa v.Super. Ct., 37 Cal.4th 986, 39 Cal.Rptr.3d 470, 128 P.3d 675, 686 (2006). As the California Supreme Court explained in answering our certified question, “[t]he initiative power would be significantly impaired if there were no one to assert the state’s interest in the validity of the measure when elected officials decline to defend it in court or to appeal a judgment invalidating the measure.” Perry VII, 134 Cal.Rptr.3d at 523, 265 P.3d 1002. The authority of official proponents to “assert[ ] the state’s interest in the validity of an initiative measure” thus “serves to safeguard the unique elements and integrity of the initiative process.” Id. at 533., 265 P.3d 1002
It matters not whether federal courts think it wise or desirable for California to afford proponents this authority to speak for the State, just as it makes no difference whether federal courts think it a good idea that California allows its constitution to be amended by a majority vote through a ballot measure in the first place. Cf. Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118, 32 S.Ct. 224, 56 L.Ed. 377 (1912) (holding nonjusticiable a Guaranty Clause

40a
challenge to Oregon’s initiative system). The People of California are largely free to structure their system of governance as they choose, and we respect their choice. All that matters, for federal standing purposes, is that the People have an interest in the validity of Proposition 8 and that, under California law, Proponents are authorized to represent the People’s interest. That is the case here.
In their supplemental brief on the issue of standing, Plaintiffs argue for the first time that Proponents must satisfy the requirements of third-party standing in order to assert the interests of the State of California in this litigation. Litigants who wish “to bring actions on behalf of third parties” must satisfy three requirements. Powers v. Ohio, 499 U.S. 400, 410-11, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). First, they “must have suffered an ‘injury in fact,’ thus giving [them] a ‘sufficiently concrete interest’ in the outcome of the issue in dispute.” Id. at 411, 111 S.Ct. 1364. Second, they “must have a close relation to the third party.” Id. Third, “there must exist some hindrance to the third party’s ability to protect his or her own inerests.” Id. Plaintiffs contend that Proponents cannot satisfy these requirements with respect to the State of California as a third party.
The requirements of third-party standing, however, are beside the point: the State of California is no more a “third party” relative to Proponents than it is to the executive officers of the State who ordinarily assert the State’s interest in litigation. As the California Supreme Court has explained, “the role played

41a
by the proponents” in litigation “regarding the validity or proper interpretation of a voter-approved initiative measure . . . is comparable to the role ordinarily played by the Attorney General or other public officials in vigorously defending a duly enacted state law.” Perry VII, 134 Cal.Rptr.3d at 525, 265 P.3d 1002. When the Attorney General of California appears in federal court to defend the validity of a state statute, she obviously need not satisfy the requirements of third-party standing; she stands in the shoes of the State to assert its interests in litigation. For the purposes of the litigation, she speaks to the court as the State, not as a third party. The same is true of Proponents here, just as it was true of the presiding legislative officers in Karcher, 484 U.S. at 82, 108 S.Ct. 388. The requirements of third-party standing are therefore not relevant.
Nor is it relevant whether Proponents have suffered a personal injury, in their capacities as private individuals. Although we asked the California Supreme Court whether “the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity,” Perry V, 628 F.3d at 1193 (emphasis added), the Court chose to address only the latter type of interest. Perry VII, 134 Cal.Rptr.3d at 515, 265 P.3d 1002 (“Because [our] conclusion [that proponents are authorized to assert the State’s interest] is sufficient to support an affirmative response to the question posed by the Ninth Circuit, we need not decide whether, under

42a
California law, the official proponents also possess a particularized interest in a voter-approved initiative’s validity.”). The exclusive basis of our holding that Proponents possess Article III standing is their authority to assert the interests of the State of California, rather than any authority that they might have to assert particularized interests of their own. Just as the Attorney General of California need not satisfy the requirements of third-party standing when she appears in federal court to defend the validity of a state statute, she obviously need not show that she would suffer any personal injury as a result of the statute’s invalidity. The injury of which she complains is the State’s, not her own. The same is true here. Because “a State has standing to defend the constitutionality of its [laws],” Diamond, 476 U.S. at 62, 106 S.Ct. 1697, Proponents need not show that they would suffer any personal injury from the invalidation of Proposition 8. That the State would suffer an injury, id., is enough for Proponents to have Article III standing when state law authorizes them to assert the State’s interests.
To be clear, we do not suggest that state law has any “power directly to enlarge or contract federal jurisdiction.” Duchek v. Jacobi, 646 F.2d 415, 419 (9th Cir.1981). “Standing to sue in any Article III court is, of course, a federal question which does not depend on the party’s . . . standing in state court.” Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985). State courts may afford litigants standing to appear where federal courts

43a
would not,10 but whether they do so has no bearing on the parties’ Article III standing in federal court.
State law does have the power, however, to answer questions antecedent to determining federal standing, such as the one here: who is authorized to assert the People’s interest in the constitutionality of an initiative measure? Because the State of California has Article III standing to defend the constitutionality of Proposition 8, and because both the California Constitution and California law authorize “the official proponents of [an] initiative . . . to appear and assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so,” Perry VII, 134 Cal.Rptr.3d at 505, 265 P.3d 1002, we conclude that Proponents are proper appellants here. They possess Article III standing to prosecute this appeal from the district court’s judgment invalidating Proposition 8.
10 Cf. City of Los Angeles v. Lyons, 461 U.S. 95, 113, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (“[T]he state courts need not impose the same standing or remedial requirements that govern federal-court proceedings. The individual States may permit their courts to use injunctions to oversee the conduct of law enforcement authorities on a continuing basis. But this is not the role of a federal court. . . .”).

44a
IV
We review the district court’s decision to grant a permanent injunction for abuse of discretion, but we review the determinations underlying that decision by the standard that applies to each determination. Accordingly, we review the court’s conclusions of law de novo and its findings of fact for clear error. See Ting v. AT&T, 319 F.3d 1126, 1134-35 (9th Cir.2003); Fed.R.Civ.P. 52(a).
Plaintiffs and Proponents dispute whether the district court’s findings of fact concern the types of “facts” – so-called “adjudicative facts” – that are capable of being “found” by a court through the clash of proofs presented in adjudication, as opposed to “legislative facts,” which are generally not capable of being found in that fashion. “Adjudicative facts are facts about the parties and their activities . . . , usually answering the questions of who did what, where, when, how, why, with what motive or intent” – the types of “facts that go to a jury in a jury case,” or to the factfinder in a bench trial. Marshall v. Sawyer, 365 F.2d 105, 111 (9th Cir.1966) (quoting Kenneth Culp Davis, The Requirement of a Trial-Type Hearing, 70 Harv. L.Rev. 193, 199 (1956)) (internal quotation marks omitted). “Legislative facts,” by contrast, “do not usually concern [only] the immediate parties but are general facts which help the tribunal decide questions of law, policy, and discretion.” Id.
It is debatable whether some of the district court’s findings of fact concerning matters of history

45a
or social science are more appropriately characterized as “legislative facts” or as “adjudicative facts.” We need not resolve what standard of review should apply to any such findings, however, because the only findings to which we give any deferential weight – those concerning the messages in support of Proposition 8 that Proponents communicated to the voters to encourage their approval of the measure, Perry IV, 704 F.Supp.2d at 990-91 – are clearly “adjudicative facts” concerning the parties and “ ‘who did what, where, when, how, why, with what motive or intent.’ ” Marshall, 365 F.2d at 111. Aside from these findings, the only fact found by the district court that matters to our analysis is that “[d]omestic partnerships lack the social meaning associated with marriage” – that the difference between the designation of ‘marriage’ and the designation of ‘domestic partnership’ is meaningful. Perry IV, 704 F.Supp.2d at 970. This fact was conceded by Proponents during discovery. Defendant-Intervenors’ Response to Plaintiffs’ First Set of Requests for Admission, Exhibit No. PX 0707, at 2 (“Proponents admit that the word ‘marriage’ has a unique meaning.”); id. at 11 (Proponents “[a]dmit that there is a significant symbolic disparity between domestic partnership and marriage”). Our analysis therefore does not hinge on what standard we use to review the district court’s findings of fact. Cf. Lockhart v. McCree, 476 U.S. 162, 168 n. 3, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986) (“Because we do not ultimately base our decision today on the [validity or] invalidity of the lower courts’ ‘factual’ findings, we need not decide the ‘standard of review’ issue” – whether

46a
“the ‘clearly erroneous’ standard of Rule 52(a) applies to the kind of ‘legislative’ facts at issue here.”).
V
We now turn to the merits of Proposition 8’s constitutionality.
A
The district court held Proposition 8 unconstitutional for two reasons: first, it deprives same-sex couples of the fundamental right to marry, which is guaranteed by the Due Process Clause, see Perry IV, 704 F.Supp.2d at 991-95; and second, it excludes samesex couples from state-sponsored marriage while allowing opposite-sex couples access to that honored status, in violation of the Equal Protection Clause, see id. at 997-1003. Plaintiffs elaborate upon those arguments on appeal.
Plaintiffs and Plaintiff-Intervenor San Francisco also offer a third argument: Proposition 8 singles out same-sex couples for unequal treatment by taking away from them alone the right to marry, and this action amounts to a distinct constitutional violation because the Equal Protection Clause protects minority groups from being targeted for the deprivation of an existing right without a legitimate reason. Romer, 517 U.S. at 634-35, 116 S.Ct. 1620. Because this third argument applies to the specific history of same-sex marriage in California, it is the narrowest ground for

47a
adjudicating the constitutional questions before us, while the first two theories, if correct, would apply on a broader basis. Because courts generally decide constitutional questions on the narrowest ground available, we consider the third argument first. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 217, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995) (citing Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring)).
B
Proposition 8 worked a singular and limited change to the California Constitution: it stripped same-sex couples of the right to have their committed relationships recognized by the State with the designation of ‘marriage,’ which the state constitution had previously guaranteed them, while leaving in place all of their other rights and responsibilities as partners – rights and responsibilities that are identical to those of married spouses and form an integral part of the marriage relationship. In determining that the law had this effect, “[w]e rely not upon our own interpretation of the amendment but upon the authoritative construction of [California’s] Supreme Court.” Romer, 517 U.S. at 626, 116 S.Ct. 1620. The state high court held in Strauss that “Proposition 8 reasonably must be interpreted in a limited fashion as eliminating only the right of same-sex couples to equal access to the designation of marriage, and as not otherwise affecting the constitutional right of those couples to establish an officially recognized family

48a
relationship,” which California calls a ‘domestic partnership.’ 93 Cal.Rptr.3d 591, 207 P.3d at 76. Proposition 8 “leaves intact all of the other very significant constitutional protections afforded same-sex couples,” including “the constitutional right to enter into an officially recognized and protected family relationship with the person of one’s choice and to raise children in that family if the couple so chooses.” Id., 93 Cal.Rptr.3d 591, 207 P.3d at 102. Thus, the extent of the amendment’s effect was to “establish[ ] a new substantive state constitutional rule,” id., 93 Cal.Rptr.3d 591, 207 P.3d at 63, which “carves out a narrow and limited exception to these state constitutional rights,” by “reserving the official designation of the term ‘marriage’ for the union of opposite-sex couples as a matter of state constitutional law,” id., 93 Cal.Rptr.3d 591, 207 P.3d at 61.11
Both before and after Proposition 8, same-sex partners could enter into an official, state-recognized relationship that affords them “the same rights, protections, and benefits” as an opposite-sex union and
11 In rejecting the argument that Proposition 8 had impermissibly revised, rather than amended, the state constitution, Strauss explained that it “drastically overstates the effect of Proposition 8 on the fundamental state constitutional rights of same-sex couples” to suggest that the proposition “ ‘eliminat[ed]’ or ‘stripp[ed]’ same-sex couples of a fundamental constitutional right,” because the substantive protections of the state equal protection clause and due process and privacy provisions remained intact – with the “sole, albeit significant, exception” of the right to use the designation of ‘marriage,’ which was eliminated for same-sex couples. 93 Cal.Rptr.3d 591, 207 P.3d at 102.

49a
subjects them “to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.” Cal. Fam.Code § 297.5(a). Now as before, same-sex partners may:
• Raise children together, and have the same rights and obligations as to their children as spouses have, see Cal. Fam.Code § 297.5(d);
• Enjoy the presumption of parentage as to a child born to either partner, see Elisa B. v. Super. Ct. [37 Cal.4th 108, 33 Cal.Rptr.3d 46], 117 P.3d 660, 670 (Cal.2005); Kristine M. v. David P., 135 Cal.App.4th 783 [37 Cal.Rptr.3d 748] (2006); or adopted by one partner and raised jointly by both, S.Y. v. S.B., 201 Cal.App.4th 1023 [134 Cal.Rptr.3d 1] (2011);
• Adopt each other’s children, see Cal. Fam.Code § 9000(g);
• Become foster parents, see Cal. Welf. & Inst.Code § 16013(a);
• Share community property, see Cal. Fam.Code § 297.5(k);
• File state taxes jointly, see Cal. Rev. & Tax.Code § 18521(d);

50a
• Participate in a partner’s group health insurance policy on the same terms as a spouse, see Cal. Ins.Code § 10121.7;
• Enjoy hospital visitation privileges, see Cal. Health & Safety Code § 1261;
• Make medical decisions on behalf of an incapacitated partner, see Cal. Prob.Code § 4716;
• Be treated in a manner equal to that of a widow or widower with respect to a deceased partner, see Cal. Fam.Code § 297.5(c);
• Serve as the conservator of a partner’s estate, see Cal. Prob.Code §§ 1811-1813.1; and
• Sue for the wrongful death of a partner, see Cal.Civ.Proc.Code § 377.60 – among many other things.
Proposition 8 did not affect these rights or any of the other “ ‘constitutionally based incidents of marriage’ ” guaranteed to same-sex couples and their families. Strauss, 93 Cal.Rptr.3d 591, 207 P.3d at 61 (quoting Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at 434). In adopting the amendment, the People simply took the designation of ‘marriage’ away from lifelong same-sex partnerships, and with it the State’s authorization of that official status and the societal approval that comes with it.
By emphasizing Proposition 8’s limited effect, we do not mean to minimize the harm that this change in the law caused to same-sex couples and their

51a
families. To the contrary, we emphasize the extraordinary significance of the official designation of ‘marriage.’ That designation is important because ‘marriage’ is the name that society gives to the relationship that matters most between two adults. A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of ‘registered domestic partnership’ does not. The word ‘marriage’ is singular in connoting “a harmony in living,” “a bilateral loyalty,” and “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). As Proponents have admitted, “the word ‘marriage’ has a unique meaning,” and “there is a significant symbolic disparity between domestic partnership and marriage.” It is the designation of ‘marriage’ itself that expresses validation, by the state and the community, and that serves as a symbol, like a wedding ceremony or a wedding ring, of something profoundly important. See id. at 971.
We need consider only the many ways in which we encounter the word ‘marriage’ in our daily lives and understand it, consciously or not, to convey a sense of significance. We are regularly given forms to complete that ask us whether we are “single” or “married.” Newspapers run announcements of births, deaths, and marriages. We are excited to see someone ask, “Will you marry me?”, whether on bended knee in a restaurant or in text splashed across a stadium

52a
Jumbotron. Certainly it would not have the same effect to see “Will you enter into a registered domestic partnership with me?”. Groucho Marx’s one-liner, “Marriage is a wonderful institution . . . but who wants to live in an institution?” would lack its punch if the word ‘marriage’ were replaced with the alternative phrase. So too with Shakespeare’s “A young man married is a man that’s marr’d,” Lincoln’s “Marriage is neither heaven nor hell, it is simply purgatory,” and Sinatra’s “A man doesn’t know what happiness is until he’s married. By then it’s too late.” We see tropes like “marrying for love” versus “marrying for money” played out again and again in our films and literature because of the recognized importance and permanence of the marriage relationship. Had Marilyn Monroe’s film been called How to Register a Domestic Partnership with a Millionaire, it would not have conveyed the same meaning as did her famous movie, even though the underlying drama for samesex couples is no different. The name ‘marriage’ signifies the unique recognition that society gives to harmonious, loyal, enduring, and intimate relationships. See Knight v.Super. Ct., 128 Cal.App.4th 14, 31, 26 Cal.Rptr.3d 687 (2005) (“[M]arriage is considered a more substantial relationship and is accorded a greater stature than a domestic partnership.”); cf. Griswold, 381 U.S. at 486.
The official, cherished status of ‘marriage’ is distinct from the incidents of marriage, such as those listed in the California Family Code. The incidents are both elements of the institution and manifestations of

53a
the recognition that the State affords to those who are in stable and committed lifelong relationships. We allow spouses but not siblings or roommates to file taxes jointly, for example, because we acknowledge the financial interdependence of those who have entered into an “enduring” relationship. The incidents of marriage, standing alone, do not, however, convey the same governmental and societal recognition as does the designation of ‘marriage’ itself. We do not celebrate when two people merge their bank accounts; we celebrate when a couple marries. The designation of ‘marriage’ is the status that we recognize. It is the principal manner in which the State attaches respect and dignity to the highest form of a committed relationship and to the individuals who have entered into it.12
We set this forth because we must evaluate Proposition 8’s constitutionality in light of its actual and specific effects on committed same-sex couples desiring to enter into an officially recognized lifelong relationship. Before Proposition 8, California guaranteed
12 Cf. Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at 43435 (“[D]rawing a distinction between the name assigned to the family relationship available to opposite-sex couples and the name assigned to the family relationship available to same-sex couples, and . . . reserving the historic and highly respected designation of marriage exclusively to opposite-sex couples while offering same-sex couples only the new and unfamiliar designation of domestic partnership[,] pose[s] a serious risk of denying the official family relationship of same-sex couples the equal dignity and respect that is a core element of the constitutional right to marry.”).

54a
gays and lesbians both the incidents and the status and dignity of marriage. Proposition 8 left the incidents but took away the status and the dignity. It did so by superseding the Marriage Cases and thus endorsing the “official statement that the family relationship of same-sex couples is not of comparable stature or equal dignity to the family relationship of opposite-sex couples.” Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at 452. The question we therefore consider is this: did the People of California have legitimate reasons for enacting a constitutional amendment that serves only to take away from same-sex couples the right to have their lifelong relationships dignified by the official status of ‘marriage,’ and to compel the State and its officials and all others authorized to perform marriage ceremonies to substitute the label of ‘domestic partnership’ for their relationships?
Proponents resist this framing of the question. They deem it irrelevant to our inquiry that the California Constitution, as interpreted by the Marriage Cases, had previously guaranteed same-sex couples the right to use the designation of ‘marriage,’ because In re Marriage Cases was a “short-lived decision,” and same-sex couples were allowed to marry only during a “143-day hiatus” between the effective date of the Marriage Cases decision and the enactment of Proposition 8. Proponents’ Reply Br. 75, 79-80. According to Proponents, a decision to “restore” the “traditional definition of marriage” is indistinguishable from a decision to “adhere” to that definition in the first place.

55a
Id. at 79-80. We are bound, however, by the California Supreme Court’s authoritative interpretation of Proposition 8’s effect on California law, see Romer, 517 U.S. at 626, 116 S.Ct. 1620: Proposition 8 “eliminat[ed] . . . the right of same-sex couples to equal access to the designation of marriage” by “carv[ing] out a narrow and limited exception to these state constitutional rights” that had previously guaranteed the designation of ‘marriage’ to all couples, oppositesex and same-sex alike. Strauss, 93 Cal.Rptr.3d 591, 207 P.3d at 61, 76.
Even were we not bound by the state court’s explanation, we would be obligated to consider Proposition 8 in light of its actual effect, which was, as the voters were told, to “eliminate the right of same-sex couples to marry in California.” Voter Information Guide at 54. The context matters. Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place, regardless of whether the right was withdrawn after a week, a year, or a decade. The action of changing something suggests a more deliberate purpose than does the inaction of leaving it as it is. As the California Supreme Court held, “Proposition 8 [did] not ‘readjudicate’ the issue that was litigated and resolved in the Marriage Cases.” Strauss, 93 Cal.Rptr.3d 591, 207 P.3d at 63. Rather than “declar[ing] the state of the law as it existed under the California Constitution at the time of the Marriage Cases,” Proposition 8 “establishe[d] a new substantive state constitutional

56a
rule that took effect upon” its adoption by the electorate. Id. (emphasis added). Whether or not it is a historical accident, as Proponents argue, that Proposition 8 postdated the Marriage Cases rather than predating and thus preempting that decision, the relative timing of the two events is a fact, and we must decide this case on its facts.
C
1
This is not the first time the voters of a state have enacted an initiative constitutional amendment that reduces the rights of gays and lesbians under state law. In 1992, Colorado adopted Amendment 2 to its state constitution, which prohibited the state and its political subdivisions from providing any protection against discrimination on the basis of sexual orientation. See Colo. Const. art. II, § 30b. Amendment 2 was proposed in response to a number of local ordinances that had banned sexual-orientation discrimination in such areas as housing, employment, education, public accommodations, and health and welfare services. The effect of Amendment 2 was “to repeal” those local laws and “to prohibit any governmental entity from adopting similar, or more protective statutes, regulations, ordinances, or policies in the future.” Evans v. Romer, 854 P.2d 1270, 1284-85 (Colo.1993). The law thus “withdr[ew] from homosexuals, but no others, specific legal protection . . . ,

57a
and it forb[ade] reinstatement of these laws and policies.” Romer, 517 U.S. at 627, 116 S.Ct. 1620.
The Supreme Court held that Amendment 2 violated the Equal Protection Clause because “[i]t is not within our constitutional tradition to enact laws of this sort” – laws that “singl[e] out a certain class of citizens for disfavored legal status,” which “raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” Id. at 633-34, 116 S.Ct. 1620. The Court considered possible justifications for Amendment 2 that might have overcome the “inference” of animus, but it found them all lacking. It therefore concluded that the law “classifie[d] homosexuals not to further a proper legislative end but to make them unequal to everyone else.” Id. at 635, 116 S.Ct. 1620.13
Proposition 8 is remarkably similar to Amendment 2. Like Amendment 2, Proposition 8 “single[s]
13 Romer did not apply heightened scrutiny to Amendment 2, even though the amendment targeted gays and lesbians. Instead, Romer found that Amendment 2 “fail[ed], indeed defie[d], even [the] conventional inquiry” for non-suspect classes, concerning whether a “legislative classification . . . bears a rational relation to some legitimate end.” Romer, 517 U.S. at 63132, 116 S.Ct. 1620. Amendment 2 amounted to “a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit.” Id. at 635, 116 S.Ct. 1620. We follow this approach and reach the same conclusion as to Proposition 8. See also High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir.1990) (declining to apply heightened scrutiny).

58a
out a certain class of citizens for disfavored legal status. . . . ” Id. at 633, 116 S.Ct. 1620. Like Amendment 2, Proposition 8 has the “peculiar property,” id. at 632, 116 S.Ct. 1620, of “withdraw[ing] from homosexuals, but no others,” an existing legal right – here, access to the official designation of ‘marriage’ – that had been broadly available, notwithstanding the fact that the Constitution did not compel the state to confer it in the first place. Id. at 627, 116 S.Ct. 1620. Like Amendment 2, Proposition 8 denies “equal protection of the laws in the most literal sense,” id. at 633, 116 S.Ct. 1620, because it “carves out” an “exception” to California’s equal protection clause, by removing equal access to marriage, which gays and lesbians had previously enjoyed, from the scope of that constitutional guarantee. Strauss, 93 Cal.Rptr.3d 591, 207 P.3d at 61. Like Amendment 2, Proposition 8 “by state decree . . . put[s] [homosexuals] in a solitary class with respect to” an important aspect of human relations, and accordingly “imposes a special disability upon [homosexuals] alone.” Romer, 517 U.S. at 627, 631, 116 S.Ct. 1620. And like Amendment 2, Proposition 8 constitutionalizes that disability, meaning that gays and lesbians may overcome it “only by enlisting the citizenry of [the state] to amend the State Constitution” for a second time. Id. at 631, 116 S.Ct. 1620. As we explain below, Romer compels that we affirm the judgment of the district court.
To be sure, there are some differences between Amendment 2 and Proposition 8. Amendment 2 “impos[ed] a broad and undifferentiated disability on a

59a
single named group” by “identif[ying] persons by a single trait and then den[ying] them protection across the board.” Romer, 517 U.S. at 632-33, 116 S.Ct. 1620. Proposition 8, by contrast, excises with surgical precision one specific right: the right to use the designation of ‘marriage’ to describe a couple’s officially recognized relationship. Proponents argue that Proposition 8 thus merely “restor[es] the traditional definition of marriage while otherwise leaving undisturbed the manifold rights and protections California law provides gays and lesbians,” making it unlike Amendment 2, which eliminated various substantive rights. Proponents’ Reply Br. 77.
These differences, however, do not render Romer less applicable. It is no doubt true that the “special disability” that Proposition 8 “imposes upon” gays and lesbians has a less sweeping effect on their public and private transactions than did Amendment 2. Nevertheless, Proposition 8 works a meaningful harm to gays and lesbians, by denying to their committed lifelong relationships the societal status conveyed by the designation of ‘marriage,’ and this harm must be justified by some legitimate state interest. Romer, 517 U.S. at 631, 116 S.Ct. 1620. Proposition 8 is no less problematic than Amendment 2 merely because its effect is narrower; to the contrary, the surgical precision with which it excises a right belonging to gay and lesbian couples makes it even more suspect. A law that has no practical effect except to strip one group of the right to use a state-authorized and socially meaningful designation is all the more

60a
“unprecedented” and “unusual” than a law that imposes broader changes, and raises an even stronger “inference that the disadvantage imposed is born of animosity toward the class of persons affected,” id. at 633-34, 116 S.Ct. 1620. In short, Romer governs our analysis notwithstanding the differences between Amendment 2 and Proposition 8.
There is one further important similarity between this case and Romer. Neither case requires that the voters have stripped the state’s gay and lesbian citizens of any federal constitutional right. In Romer, Amendment 2 deprived gays and lesbians of statutory protections against discrimination; here, Proposition 8 deprived same-sex partners of the right to use the designation of ‘marriage.’ There is no necessity in either case that the privilege, benefit, or protection at issue be a constitutional right. We therefore need not and do not consider whether same-sex couples have a fundamental right to marry, or whether states that fail to afford the right to marry to gays and lesbians must do so. Further, we express no view on those questions.14
14 Because we do not address the question of the constitutionality of a state’s ban on same-sex marriage, the Supreme Court’s summary dismissal of Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972) (mem.), is not pertinent here.
In Baker, the Court “dismissed for want of a substantial federal question” an appeal from the Minnesota Supreme Court’s decision to uphold a state statute that did not permit marriage between two people of the same sex. Id. Such dismissals “prevent lower courts from coming to opposite conclusions
(Continued on following page)

61a
Ordinarily, “if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.” Romer, 517 U.S. at 631, 116 S.Ct. 1620. Such was the case in Romer, and it is the case here as well. The end must be one that is legitimate for the government to pursue, not just one that would be legitimate for a private actor. See id. at 632, 635, 116 S.Ct. 1620. The question here, then, is whether California had any more legitimate justification for withdrawing from gays and lesbians its constitutional protection with
on the precise issues presented and necessarily decided by” them, Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977) (per curiam), “ ‘except when doctrinal developments indicate otherwise,’ ” Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975) (quoting Port Authority Bondholders Protective Committee v. Port of New York Authority, 387 F.2d 259, 263 n. 3 (2d Cir.1967)). “[N]o more may be read into” them, however, “than was essential to sustain th[e] judgment. Questions which ‘merely lurk in the record’ are not resolved, and no resolution of them may be inferred.” Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 183, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979) (citations omitted).
Whether or not the constitutionality of any ban on same-sex marriage was “presented and necessarily decided” in Baker, and whether or not Baker would govern that question in light of subsequent “doctrinal developments,” we address no such question here. We address a wholly different question: whether the people of a state may by plebiscite strip a group of a right or benefit, constitutional or otherwise, that they had previously enjoyed on terms of equality with all others in the state. That question was not present in Baker and is squarely controlled by Romer, which postdates Baker by more than two decades.

62a
respect to the official designation of ‘marriage’ than Colorado did for withdrawing from that group all protection against discrimination generally.
Proposition 8, like Amendment 2, enacts a “ ‘[d]iscrimination[ ] of an unusual character,’ ” which requires “ ‘careful consideration to determine whether [it] [is] obnoxious to the’ ” Constitution. Id. at 633, 116 S.Ct. 1620 (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38, 48 S.Ct. 423, 72 L.Ed. 770 (1928)). As in Romer, therefore, we must consider whether any legitimate state interest constitutes a rational basis for Proposition 8; otherwise, we must infer that it was enacted with only the constitutionally illegitimate basis of “animus toward the class it affects.” Romer, 517 U.S. at 632, 116 S.Ct. 1620.
2
Before doing so, we briefly consider one other objection that Proponents raise to this analysis: the argument that because the Constitution “is not simply a one-way ratchet that forever binds a State to laws and policies that go beyond what the Fourteenth Amendment would otherwise require,” the State of California – “ ‘having gone beyond the requirements of the Federal Constitution’ ” in extending the right to marry to same-sex couples – “ ‘was free to return . . . to the standard prevailing generally throughout the United States.’ ” Proponents’ Reply Br. 76 (quoting Crawford v. Bd. of Educ., 458 U.S. 527, 542, 102 S.Ct. 3211, 73 L.Ed.2d 948 (1982)). Proponents appear to

63a
suggest that unless the Fourteenth Amendment actually requires that the designation of ‘marriage’ be given to same-sex couples in the first place, there can be no constitutional infirmity in taking the designation away from that group of citizens, whatever the People’s reason for doing so.
Romer forecloses this argument. The rights that were repealed by Amendment 2 included protections against discrimination on the basis of sexual orientation in the private sphere. Those protections, like any protections against private discrimination, were not compelled by the Fourteenth Amendment.15 Rather, “[s]tates ha[d] chosen to counter discrimination by enacting detailed statutory schemes” prohibiting disrimination in employment and public accommodations, among other contexts, and certain Colorado jurisdictions had chosen to extend those protections to gays and lesbians. Romer, 517 U.S. at 628, 116 S.Ct. 1620 (emphasis added). It was these elective protections
15 Indeed, as the Court observed, not only does the Fourteenth Amendment not prohibit private discrimination; it does not even “give Congress a general power to prohibit discrimination in public accommodations” by statute. Romer, 517 U.S. at 628, 116 S.Ct. 1620 (emphasis added) (citing Civil Rights Cases, 109 U.S. 3, 25, 3 S.Ct. 18, 27 L.Ed. 835 (1883)). Congress has passed antidiscrimination laws regulating private conduct only under its Article I powers. See, e.g., Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) (upholding the Civil Rights Act of 1964 under the Commerce Clause).

64a
that Amendment 2 withdrew and forbade.16 The relevant inquiry in Romer was not whether the state of the law after Amendment 2 was constitutional; there was no doubt that the Fourteenth Amendment did not require antidiscrimination protections to be afforded to gays and lesbians. The question, instead, was whether the change in the law that Amendment 2 effected could be justified by some legitimate purpose.
The Supreme Court’s answer was “no” – there was no legitimate reason to take away broad legal protections from gays and lesbians alone, and to inscribe that deprivation of equality into the state constitution, once those protections had already been provided. We therefore need not decide whether a state may decline to provide the right to marry to same-sex couples. To determine the validity of Proposition 8, we must consider only whether the change in the law that it effected – eliminating by constitutional amendment the right of same-sex couples to have the official designation and status of ‘marriage’ bestowed upon their relationships, while maintaining that right for opposite-sex couples – was justified by a legitimate reason.
16 The protections at issue in Romer were not of substantially more distant provenance than the protection at issue here. While Aspen and Boulder had enacted their ordinances somewhat earlier, Denver’s ordinance – which covered a far greater population – had taken effect only the year before Colorado voters adopted Amendment 2. Evans, 854 P.2d at 1284.

65a
This does not mean that the Constitution is a “one-way ratchet,” as Proponents suggest. It means only that the Equal Protection Clause requires the state to have a legitimate reason for withdrawing a right or benefit from one group but not others, whether or not it was required to confer that right or benefit in the first place. Thus, when Congress, having chosen to provide food stamps to the poor in the Food Stamp Act of 1964, amended the Act to exclude households of unrelated individuals, such as “hippies” living in “hippie communes,” the Supreme Court held the amendment unconstitutional because “a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973). In both Romer and Moreno, the constitutional violation that the Supreme Court identified was not the failure to confer a right or benefit in the first place; Congress was no more obligated to provide food stamps than Colorado was to enact antidiscrimination laws. Rather, what the Supreme Court forbade in each case was the targeted exclusion of a group of citizens from a right or benefit that they had enjoyed on equal terms with all other citizens. The constitutional injury that Romer and Moreno identified – and that serves as a basis of our decision to strike down Proposition 8 – has little to do with the substance of the right or benefit from which a group is excluded, and much to do with the act of exclusion itself. Proponents’ reliance on Crawford v. Board of Education, 458 U.S. 527, 102 S.Ct. 3211, 73 L.Ed.2d 948 (1982),

66a
is therefore misplaced. In Crawford, the Court affirmed Proposition 1, a California initiative constitutional amendment that barred state courts from ordering school busing or pupil-assignment plans except when necessary to remedy a federal constitutional violation. Id. at 531-32, 102 S.Ct. 3211. Like Proposition 8, Proposition 1 was adopted in response to a decision of the California Supreme Court under the state constitution, which had held that state schools were obligated to take “reasonably feasible steps,” including busing and pupil-assignment plans, “to alleviate school segregation.” Crawford v. Bd. of Educ., 17 Cal.3d 280, 130 Cal.Rptr. 724, 551 P.2d 28, 45 (1976). The Supreme Court “reject[ed] the contention that once a State chooses to do ‘more’ than the Fourteenth Amendment requires, it may never recede.”17 Crawford, 458 U.S. at 535, 102 S.Ct. 3211.
17 Additionally, the Court stated that it “would not interpret the Fourteenth Amendment to 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, 102 S.Ct. 3211. In enacting Proposition 8, the People did not “declare the state of the law as it existed when the Marriage Cases decision was rendered, but instead establishe[d] a new substantive state constitutional rule” that amended the charter’s text to supersede the previous California Declaration of Rights. Strauss, 93 Cal.Rptr.3d 591, 207 P.3d at 115. The People thus acted as Congress does when it disapproves of a statutory interpretation by a federal court and enacts a new statute to produce its preferred result. See, e.g., Religious Freedom Restoration Act of 1993, Pub.L. No. 103-141 (enacted in response to the Supreme Court’s decision in Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990)). Of course, Crawford did not suggest that it
(Continued on following page)

67a
That conclusion was consistent with the principle that states should be free “to experiment” with social policy, without fear of being locked in to “legislation that has proved unworkable or harmful when the State was under no obligation to adopt the legislation in the first place.” Id. at 535, 539-40, 102 S.Ct. 3211.
Critically, however, the Court noted that Proposition 1 did not itself draw any classification; “[i]t simply forb[ade] state courts” from ordering specific remedies under state law “in the absence of a Fourteenth Amendment violation,” while maintaining the state constitution’s more robust “right to desegregation than exists under the Federal Constitution.” Id. at 537, 542, 102 S.Ct. 3211 (emphasis added); see also id. at 544, 102 S.Ct. 3211 (noting that other remedies remained available). Most important, the proposition’s purported benefit, “neighborhood schooling,” was “made available regardless of race.” Id. There was no evidence that the “purpose of [the] repealing
ends the inquiry to note that the Fourteenth Amendment generally allows the People to exercise their state constitutional right to supersede a decision of the state supreme court by an initiative constitutional amendment. A federal court must still determine whether the constitutional amendment enacted by the People is otherwise valid under the Federal Constitution; sometimes laws passed because of disagreement with judicial decisions are not. Cf. City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) (holding the Religious Freedom Restoration Act unconstitutional in part). Proposition 1 was valid because, in superseding a decision of the California Supreme Court, it did not draw an improper classification among groups. Proposition 8 is invalid because it does.

68a
legislation [was] to disadvantage a racial minority,” which would have made the proposition unconstitutional. Id. at 539 n. 21, 543-45, 102 S.Ct. 3211 (citing Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967)). Because Proposition 1 did not establish any classification, and because it was supported by permissible policy preferences against specific court remedies, the Supreme Court held that it was valid. On the same day, by contrast, the Court struck down a similar Washington initiative, because it had been “drawn for racial purposes” in a manner that “impose[d] substantial and unique burdens on racial minorities” and accordingly violated the Fourteenth Amendment. Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 470-71, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982).
Romer, not Crawford, controls where a privilege or protection is withdrawn without a legitimate reason from a class of disfavored individuals, even if that right may not have been required by the Constitution in the first place. Although Colorado presented before the Supreme Court an argument regarding Crawford identical to the one that Proponents present here, that argument did not persuade the Court.18 Neither
18 See Petitioners’ Br. 32-33, 48, Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (No. 94-1039) (“Crawford controls this case. Through Amendment 2, Colorado has simply defined the package of civil rights available to homosexuals and bisexuals under the Colorado Constitution as no larger than that provided by the Constitution and laws of the United States. . . . While a state or local government can grant
(Continued on following page)

69a
Proposition 8 nor Amendment 2 was a law of general applicability that merely curtailed state courts’ remedial powers, as opposed to a single group’s rights. Rather, both Proposition 8 and Amendment 2 “carve[d] out” rights from gays and lesbians alone. Unlike the measure in Crawford, Proposition 8 is a “discrimination of an unusual character” that requires “careful consideration” of its purposes and effects, whether or not the Fourteenth Amendment required the right to be provided ab initio. Following Romer, we must therefore decide whether a legitimate interest exists that justifies the People of California’s action in taking away from same-sex couples the right to use the official designation and enjoy the status of ‘marriage’ – a legitimate interest that suffices to overcome the “inevitable inference” of animus to which Proposition 8’s discriminatory effects otherwise give rise.
D
We first consider four possible reasons offered by Proponents or amici to explain why Proposition 8 might have been enacted: (1) furthering California’s interest in childrearing and responsible procreation, (2) proceeding with caution before making significant
more protection than that required by the United States Constitution, a state or local government can also rescind that additional protection – and prohibit its subsequent reextension – without committing a federal constitutional violation. [Crawford, 458 U.S. at 538-39, 102 S.Ct. 3211.] Amendment 2 does nothing more.”).

70a
changes to marriage, (3) protecting religious freedom, and (4) preventing children from being taught about same-sex marriage in schools. To be credited, these rationales “must find some footing in the realities of the subject addressed by the legislation.” Heller v. Doe, 509 U.S. 312, 321, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). They are, conversely, not to be credited if they “could not reasonably be conceived to be true by the governmental decisionmaker.” Vance v. Bradley, 440 U.S. 93, 111, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979).19 Because Proposition 8 did not further any of these interests, we conclude that they cannot have been rational bases for this measure, whether or not they are legitimate state interests.
1
The primary rationale Proponents offer for Proposition 8 is that it advances California’s interest in responsible procreation and childrearing. Proponents’ Br. 77-93. This rationale appears to comprise two distinct elements. The first is that children are better off when raised by two biological parents and that society can increase the likelihood of that family structure by allowing only potential biological parents – one man and one woman – to marry. The second is that marriage reduces the threat of “irresponsible
19 As we have noted, we need not consider whether any form of heightened scrutiny is necessary or appropriate in order to reach the result we do. See supra note 13.

71a
procreation” – that is, unintended pregnancies out of wedlock – by providing an incentive for couples engaged in potentially procreative sexual activity to form stable family units. Because same-sex couples are not at risk of “irresponsible procreation” as a matter of biology, Proponents argue, there is simply no need to offer such couples the same incentives. Proposition 8 is not rationally related, however, to either of these purported interests, whether or not the interests would be legitimate under other circumstances.
We need not decide whether there is any merit to the sociological premise of Proponents’ first argument – that families headed by two biological parents are the best environments in which to raise children – because even if Proponents are correct, Proposition 8 had absolutely no effect on the ability of same-sex couples to become parents or the manner in which children are raised in California. As we have explained, Proposition 8 in no way modified the state’s laws governing parentage, which are distinct from its laws governing marriage. See Strauss, 93 Cal.Rptr.3d 591, 207 P.3d at 61. Both before and after Proposition 8, committed opposite-sex couples (“spouses”) and same-sex couples (“domestic partners”) had identical rights with regard to forming families and raising children. See Cal. Fam.Code § 297.5(d) (“The rights and obligations of registered domestic partners with respect to a child of either of them shall be the same as those of spouses.”). Similarly, Proposition 8 did not alter the California adoption or presumed-parentage laws, which continue to apply equally to same-sex

72a
couples. Cf. Elisa B., 33 Cal.Rptr.3d 46, 117 P.3d at 667-71 (applying the presumed parentage statutes to a lesbian couple); Sharon S. v. Super. Ct., 31 Cal.4th 417, 2 Cal.Rptr.3d 699, 73 P.3d 554, 570 (2003) (applying the adoption laws to a lesbian couple). In order to be rationally related to the purpose of funneling more childrearing into families led by two biological parents, Proposition 8 would have had to modify these laws in some way. It did not do so.20
Moreover, California’s “current policies and conduct . . . recognize that gay individuals are fully capable of . . . responsibly caring for and raising children.” Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at 428. And California law actually prefers a
20 For the reasons explained above, Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir.2006), is not applicable here. As our dissenting colleague states, the fact that Proposition 8 left intact California’s laws concerning family formation and childrearing by same-sex couples distinguishes this case from Citizens. See Dissent at 1110 (“Unlike the Nebraska constitutional amendment, which prohibited the recognition of both marriages by same-sex couples and other same-sex relationships, Proposition 8 left California’s existing domestic partnership laws intact. . . . Thus, it cannot be said that Proposition 8 ‘confer[s] the inducements of marital . . . benefits on opposite-sex couples . . . , but not on same-sex couples. . . .’ ” (all but first alteration in original)).
We also note that the Nebraska constitutional amendment at issue in Citizens did not withdraw an existing right from same-sex couples as did Proposition 8. Cf. Dissent at 1105 n. 2. (“[W]hile the withdrawal of a right may not be analytically significant for rational basis review, it may still be factually significant.”).

73a
non-biological parent who has a parental relationship with a child to a biological parent who does not; in California, the parentage statutes place a premium on the “social relationship,” not the “biological relationship,” between a parent and a child. See, e.g., Susan H. v. Jack S., 30 Cal.App.4th 1435, 1442-43, 37 Cal.Rptr.2d 120 (1994). California thus has demonstrated through its laws that Proponents’ first rationale cannot “reasonably be conceived to be true by the governmental decisionmaker,” Vance, 440 U.S. at 111, 99 S.Ct. 939. We will not credit a justification for Proposition 8 that is totally inconsistent with the measure’s actual effect and with the operation of California’s family laws both before and after its enactment.
Proponents’ second argument is that there is no need to hold out the designation of ‘marriage’ as an encouragement for same-sex couples to engage in responsible procreation, because unlike opposite-sex couples, same-sex couples pose no risk of procreating accidentally. Proponents contend that California need not extend marriage to same-sex couples when the State’s interest in responsible procreation would not be advanced by doing so, even if the interest would not be harmed, either. See Johnson v. Robison, 415 U.S. 361, 383, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974) (“When . . . the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not, we cannot say that the statute’s classification of beneficiaries and nonbeneficiaries is invidiously discriminatory.”). But Plaintiffs do not

74a
ask that marriage be extended to anyone. As we have by now made clear, the question is whether there is a legitimate governmental interest in withdrawing access to marriage from same-sex couples. We therefore need not decide whether, under Johnson, California would be justified in not extending the designation of ‘marriage’ to same-sex couples; that is not what Proposition 8 did. Johnson concerns decisions not to add to a legislative scheme a group that is unnecessary to the purposes of that scheme, but Proposition 8 subtracted a disfavored group from a scheme of which it already was a part.21
Under Romer, it is no justification for taking something away to say that there was no need to provide it in the first place; instead, there must be some legitimate reason for the act of taking it away, a reason that overcomes the “inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” Romer, 517 U.S. at 634, 116 S.Ct. 1620. In order to explain how rescinding access to the designation of ‘marriage’ is rationally related to the State’s interest in responsible procreation, Proponents would have had to argue that oppositesex couples were more likely to procreate accidentally or irresponsibly when same-sex couples were allowed
21 Moreover, Johnson did not involve a dignitary benefit that was withdrawn from one group, such as an official and meaningful state designation that established the societal status of the members of the group; it concerned only a specific form of government assistance.

75a
access to the designation of ‘marriage.’ We are aware of no basis on which this argument would be even conceivably plausible. There is no rational reason to think that taking away the designation of ‘marriage’ from same-sex couples would advance the goal of encouraging California’s opposite-sex couples to procreate more responsibly. The Johnson argument, to put it mildly, does not help Proponents’ cause.
Given the realities of California law, and of human nature, both parts of Proponents’ primary rationale simply “find [no] footing in the realities of the subject addressed by the legislation,” and thus cannot be credited as rational. Heller, 509 U.S. at 321, 113 S.Ct. 2637. Whatever sense there may be in preferring biological parents over other couples – and we need not decide whether there is any – California law clearly does not recognize such a preference, and Proposition 8 did nothing to change that circumstance. The same is true for Proponents’ argument that it is unnecessary to extend the right to use the designation of ‘marriage’ to couples who cannot procreate, because the purpose of the designation is to reward couples who procreate responsibly or to encourage couples who wish to procreate to marry first. Whatever merit this argument may have – and again, we need not decide whether it has any – the argument is addressed to a failure to afford the use of the designation of ‘marriage’ to same-sex couples in the first place; it is irrelevant to a measure withdrawing from them, and only them, use of that designation.

76a
The same analysis applies to the arguments of some amici curiae that Proposition 8 not only promotes responsible procreation and childrearing as a general matter but promotes the single best family structure for such activities. See, e.g., Br. Amicus Curiae of High Impact Leadership Coalition, et al. 14 (“Society has a compelling interest in preserving the institution that best advances the social interests in responsible procreation, and that connects procreation to responsible child-rearing.”); Br. Amicus Curiae of Am. Coll. of Pediatricians 15 (“[T]he State has a legitimate interest in promoting the family structure that has proven most likely to foster an optimal environment for the rearing of children.”). As discussed above, Proposition 8 in no way alters the state laws that govern childrearing and procreation. It makes no change with respect to the laws regarding family structure. As before Proposition 8, those laws apply in the same way to same-sex couples in domestic partnerships and to married couples. Only the designation of ‘marriage’ is withdrawn and only from one group of individuals.
We in no way mean to suggest that Proposition 8 would be constitutional if only it had gone further – for example, by also repealing same-sex couples’ equal parental rights or their rights to share community property or enjoy hospital visitation privileges. Only if Proposition 8 had actually had any effect on childrearing or “responsible procreation” would it be necessary or appropriate for us to consider the legitimacy of Proponents’ primary rationale

77a
for the measure.22 Here, given all other pertinent aspects of California law, Proposition 8 simply could not have the effect on procreation or childbearing that Proponents claim it might have been intended to have. Accordingly, an interest in responsible procreation and childbearing cannot provide a rational basis for the measure.
We add one final note. To the extent that it has been argued that withdrawing from same-sex couples access to the designation of ‘marriage’ – without in
22 The difference between what Proposition 8 did take away – only the name ‘marriage’ – and what it might also have taken away – any of the substantive “incidents of marriage” that samesex couples still enjoy – influenced the underlying politics of Proposition 8 and shapes the basic issues in this case. The official argument in favor of Proposition 8, published in the Voter Information Guide, emphasized this distinction: “Proposition 8 doesn’t take away any rights or benefits of gay or lesbian domestic partnerships. Under California law, ‘domestic partners shall have the same rights, protections, and benefits’ as married spouses. (Family Code § 297.5.) There are NO exceptions. Proposition 8 WILL NOT change this.” Voter Information Guide at 56. Moreover, Strauss observed “that an alternative, much more sweeping initiative measure – proposing the addition of a new constitutional section that would have provided not only that ‘[o]nly marriage between one man and one woman is valid or recognized in California,’ but also that ‘[n]either the Legislature nor any court, government institution, government agency, initiative statute, local government, or government official shall . . . bestow statutory rights, incidents, or employee benefits of marriage on unmarried individuals’ – was circulated for signature at the same time as Proposition 8, but did not obtain sufficient signatures to qualify for the ballot.” 93 Cal.Rptr.3d 591, 207 P.3d at 76 n. 8.

78a
any way altering the substantive laws concerning their rights regarding childrearing or family formation – will encourage heterosexual couples to enter into matrimony, or will strengthen their matrimonial bonds, we believe that the People of California “could not reasonably” have “conceived” such an argument “to be true.” Vance, 440 U.S. at 111, 99 S.Ct. 939. It is implausible to think that denying two men or two women the right to call themselves married could somehow bolster the stability of families headed by one man and one woman. While deferential, the rational-basis standard “is not a toothless one.” Mathews v. Lucas, 427 U.S. 495, 510, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976). “[E]ven the standard of rationality . . . must find some footing in the realities of the subject addressed by the legislation.” Heller, 509 U.S. at 321, 113 S.Ct. 2637. Here, the argument that withdrawing the designation of ‘marriage’ from samesex couples could on its own promote the strength or stability of opposite-sex marital relationships lacks any such footing in reality.
2
Proponents offer an alternative justification for Proposition 8: that it advances California’s interest in “proceed[ing] with caution” when considering changes to the definition of marriage. Proponents’ Br. 93. But this rationale, too, bears no connection to the reality of Proposition 8. The amendment was enacted after the State had provided same-sex couples the right to marry and after more than 18,000 couples had

79a
married (and remain married even after Proposition 8, Strauss, 93 Cal.Rptr.3d 591, 207 P.3d at 122).23
Perhaps what Proponents mean is that California had an interest in pausing at 18,000 married same-sex couples to evaluate whether same-sex couples should continue to be allowed to marry, or whether the same-sex marriages that had already occurred were having any adverse impact on society. Even if that were so, there could be no rational connection between the asserted purpose of “proceeding with caution” and the enactment of an absolute ban, unlimited in time, on same-sex marriage in the state constitution.24 To enact a constitutional prohibition is to adopt a fundamental barrier: it means that the legislative process, by which incremental policymaking would normally proceed, is completely foreclosed. Cf. Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 489, 75 S.Ct. 461, 99 L.Ed. 563 (1955) (observing that legislatures may rationally reform policy “one step at a time”). Once Proposition 8 was enacted, any
23 The over 18,000 couples that did marry represented more than one-third of all couples that had entered into registered domestic partnerships in California at the time. See Gary J. Gates et al., The Williams Institute, Marriage, Registration and Dissolution by Same-Sex Couples in the U.S. 5 (July 2008) (noting that there were 48,157 registered domestic partnerships in California as of Spring 2008).
24 When the Eighteenth Amendment was ratified, the Nation was similarly not interested in “proceeding with caution” in reallocating grain from wartime rations to alcohol production. It meant, instead, to effect a permanent ban on alcohol.

80a
future steps forward, however cautious, would require “enlisting the citizenry of [California] to amend the State Constitution” once again. Romer, 517 U.S. at 631, 116 S.Ct. 1620.
Had Proposition 8 imposed not a total ban but a time-specific moratorium on same-sex marriages, during which the Legislature would have been authorized to consider the question in detail or at the end of which the People would have had to vote again to renew the ban, the amendment might plausibly have been designed to “proceed with caution.” In that case, we would have had to consider whether the objective of “proceed[ing] with caution” was a legitimate one. But that is not what Proposition 8 did. The amendment superseded the Marriage Cases and then went further, by prohibiting the Legislature or even the People (except by constitutional amendment) from choosing to make the designation of ‘marriage’ available to same-sex couples in the future. Such a permanent ban cannot be rationally related to an interest in proceeding with caution.
In any event, in light of the express purpose of Proposition 8 and the campaign to enact it, it is not credible to suggest that “proceed[ing] with caution” was the reason the voters adopted the measure. The purpose and effect of Proposition 8 was “to eliminate the right of same-sex couples to marry in California” – not to “suspend” or “study” that right. Voter Information Guide at 54 (Proposition 8, Official Title and

81a
Summary) (emphasis added).25 The voters were told that Proposition 8 would “overturn [ ]” the Marriage Cases “to RESTORE the meaning of marriage.” Id. at 56 (Argument in Favor of Proposition 8). The avowed purpose of Proposition 8 was to return with haste to a time when same-sex couples were barred from using the official designation of ‘marriage,’ not to study the matter further before deciding whether to make the designation more equally available.
3
We briefly consider two other potential rationales for Proposition 8, not raised by Proponents but offered by amici curiae. First is the argument that Proposition 8 advanced the State’s interest in protecting religious liberty. See, e.g., Br. Amicus Curiae of the Becket Fund for Religious Liberty (Becket Br.) 2. There is no dispute that even before Proposition 8, “no religion [was] required to change its religious policies or practices with regard to same-sex couples, and no religious officiant [was] required to solemnize a marriage in contravention of his or her religious beliefs.” Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at 451-52; see Becket Br. 4-5 (acknowledging this point). Rather, the religious-liberty interest that
25 In California, “[b]allot summaries . . . in the ‘Voter Information Guide’ are recognized sources for determining the voters’ intent.” People v. Garrett, 92 Cal.App.4th 1417, 1426, 112 Cal.Rptr.2d 643 (2001) (citing Hodges v. Super. Ct., 21 Cal.4th 109, 86 Cal.Rptr.2d 884, 980 P.2d 433, 438-39 (1999)).

82a
Proposition 8 supposedly promoted was to decrease the likelihood that religious organizations would be penalized, under California’s antidiscrimination laws and other government policies concerning sexual orientation, for refusing to provide services to families headed by same-sex spouses. But Proposition 8 did nothing to affect those laws. To the extent that California’s antidiscrimination laws apply to various activities of religious organizations, their protections apply in the same way as before. Amicus’s argument is thus more properly read as an appeal to the Legislature, seeking reform of the State’s antidiscrimination laws to include greater accommodations for religious organizations. See, e.g., Becket Br. 8 n. 6 (“Unlike many other states, California has no religious exemptions to its statutory bans on gender, marital status, and sexual orientation discrimination in public accommodations.”). This argument is in no way addressed by Proposition 8 and could not have been the reason for Proposition 8.
Second is the argument, prominent during the campaign to pass Proposition 8, that it would “protect[ ] our children from being taught in public schools that ‘same-sex marriage’ is the same as traditional marriage.” Perry IV, 704 F.Supp.2d at 930, 989-90 (quoting the Voter Information Guide at 56) (emphasis omitted); see Br. Amicus Curiae for the Hausvater Project 13-15. Yet again, California law belies the premise of this justification. Both before and after Proposition 8, schools have not been required to teach anything about same-sex marriage. They “may . . .

83a
elect[ ] to offer comprehensive sexual health education”; only then might they be required to “teach respect for marriage and committed relationships.” Cal. Educ.Code § 51933(a)-(b), (b)(7). Both before and after Proposition 8, schools have retained control over the content of such lessons. And both before and after Proposition 8, schools and individual teachers have been prohibited from giving any instruction that discriminates on the basis of sexual orientation; now as before, students could not be taught the superiority or inferiority of either same- or opposite-sex marriage or other “committed relationships.” Cal. Educ.Code §§ 51500, 51933(b)(4). The Marriage Cases therefore did not weaken, and Proposition 8 did not strengthen, the rights of schools to control their curricula and of parents to control their children’s education.
There is a limited sense in which the extension of the designation ‘marriage’ to same-sex partnerships might alter the content of the lessons that schools choose to teach. Schools teach about the world as it is; when the world changes, lessons change. A shift in the State’s marriage law may therefore affect the content of classroom instruction just as would the election of a new governor, the discovery of a new chemical element, or the adoption of a new law permitting no-fault divorce: students learn about these as empirical facts of the world around them. But to protest the teaching of these facts is little different from protesting their very existence; it is like opposing the election of a particular governor on the

84a
ground that students would learn about his holding office, or opposing the legitimation of no-fault divorce because a teacher might allude to that fact if a course in societal structure were taught to graduating seniors. The prospect of children learning about the laws of the State and society’s assessment of the legal rights of its members does not provide an independent reason for stripping members of a disfavored group of those rights they presently enjoy.
4
Proposition 8’s only effect, we have explained, was to withdraw from gays and lesbians the right to employ the designation of ‘marriage’ to describe their committed relationships and thus to deprive them of a societal status that affords dignity to those relationships. Proposition 8 could not have reasonably been enacted to promote childrearing by biological parents, to encourage responsible procreation, to proceed with caution in social change, to protect religious liberty, or to control the education of schoolchildren. Simply taking away the designation of ‘marriage,’ while leaving in place all the substantive rights and responsibilities of same-sex partners, did not do any of the things its Proponents now suggest were its purposes. Proposition 8 “is so far removed from these particular justifications that we find it impossible to credit them.” Romer, 517 U.S. at 635, 116 S.Ct. 1620. We therefore need not, and do not, decide whether any of these purported rationales for the law would be “legitimate,” id. at 632, 116 S.Ct. 1620, or would

85a
suffice to justify Proposition 8 if the amendment actually served to further them.
E
1
We are left to consider why else the People of California might have enacted a constitutional amendment that takes away from gays and lesbians the right to use the designation of ‘marriage.’ One explanation is the desire to revert to the way things were prior to the Marriage Cases, when ‘marriage’ was available only to opposite-sex couples, as had been the case since the founding of the State and in other jurisdictions long before that. This purpose is one that Proposition 8 actually did accomplish: it “restore[d] the traditional definition of marriage as referring to a union between a man and a woman.” Strauss, 93 Cal.Rptr.3d 591, 207 P.3d at 76. But tradition alone is not a justification for taking away a right that had already been granted, even though that grant was in derogation of tradition. In Romer, it did not matter that at common law, gays and lesbians were afforded no protection from discrimination in the private sphere; Amendment 2 could not be justified on the basis that it simply repealed positive law and restored the “traditional” state of affairs. 517 U.S. at 627-29, 116 S.Ct. 1620. Precisely the same is true here.
Laws may be repealed and new rights taken away if they have had unintended consequences or if

86a
there is some conceivable affirmative good that revocation would produce, cf. Crawford, 458 U.S. at 539-40, 102 S.Ct. 3211, but new rights may not be stripped away solely because they are new. Tradition is a legitimate consideration in policymaking, of course, but it cannot be an end unto itself. Cf. Williams v. Illinois, 399 U.S. 235, 239-40, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970). “[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.” Lawrence v. Texas, 539 U.S. 558, 577-78, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003); see Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (noting the historical pedigree of bans on interracial marriage but not even considering tradition as a possible justification for Virginia’s law). If tradition alone is insufficient to justify maintaining a prohibition with a discriminatory effect, then it is necessarily insufficient to justify changing the law to revert to a previous state. A preference for the way things were before same-sex couples were allowed to marry, without any identifiable good that a return to the past would produce, amounts to an impermissible preference against same-sex couples themselves, as well as their families.
Absent any legitimate purpose for Proposition 8, we are left with “the inevitable inference that the disadvantage imposed is born of animosity toward,”

87a
or, as is more likely with respect to Californians who voted for the Proposition, mere disapproval of, “the class of persons affected.” Romer, 517 U.S. at 634, 116 S.Ct. 1620. We do not mean to suggest that Proposition 8 is the result of ill will on the part of the voters of California. “Prejudice, we are beginning to understand, rises not from malice or hostile animus alone.” Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 374, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) (Kennedy, J., concurring). Disapproval may also be the product of longstanding, sincerely held private beliefs. Still, while “[p]rivate biases may be outside the reach of the law, . . . the law cannot, directly or indirectly, give them effect.” Palmore v. Sidoti, 466 U.S. 429, 433, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984). Ultimately, the “inevitable inference” we must draw in this circumstance is not one of ill will, but rather one of disapproval of gays and lesbians as a class. “[L]aws singling out a certain class of citizens for disfavored legal status or general hardships are rare.” Romer, 517 U.S. at 633, 116 S.Ct. 1620. Under Romer, we must infer from Proposition 8’s effect on California law that the People took away from gays and lesbians the right to use the official designation of ‘marriage’ – and the societal status that accompanies it – because they disapproved of these individuals as a class and did not wish them to receive the same official recognition and societal approval of their committed relationships that the State makes available to oppositesex couples.

88a
It will not do to say that Proposition 8 was intended only to disapprove of same-sex marriage, rather than to pass judgment on same-sex couples as people. Just as the criminalization of “homosexual conduct . . . is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres,” Lawrence, 539 U.S. at 575, 123 S.Ct. 2472, so too does the elimination of the right to use the official designation of ‘marriage’ for the relationships of committed same-sex couples send a message that gays and lesbians are of lesser worth as a class – that they enjoy a lesser societal status. Indeed, because laws affecting gays and lesbians’ rights often regulate individual conduct – what sexual activity people may undertake in the privacy of their own homes, or who is permitted to marry whom – as much as they regulate status, the Supreme Court has “declined to distinguish between status and conduct in [the] context” of sexual orientation. Christian Legal Soc’y v. Martinez, ___ U.S. ___, 130 S.Ct. 2971, 2990, 177 L.Ed.2d 838 (2010). By withdrawing the availability of the recognized designation of ‘marriage,’ Proposition 8 enacts nothing more or less than a judgment about the worth and dignity of gays and lesbians as a class.
Just as a “desire to harm . . . cannot constitute a legitimate governmental interest,” Moreno, 413 U.S. at 534, 93 S.Ct. 2821, neither can a more basic disapproval of a class of people. Romer, 517 U.S. at 63335, 116 S.Ct. 1620. “The issue is whether the majority may use the power of the State to enforce these views

89a
on the whole society” through a law that abridges minority individuals’ rights. Lawrence, 539 U.S. at 571, 123 S.Ct. 2472. It may not. Without more, “[m]oral disapproval of [a] group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.” Id. at 582, 123 S.Ct. 2472 (O’Connor, J., concurring). Society does sometimes draw classifications that likely are rooted partially in disapproval, such as a law that grants educational benefits to veterans but denies them to conscientious objectors who engaged in alternative civilian service. See Johnson, 415 U.S. at 362-64, 94 S.Ct. 1160. Those classifications will not be invalidated so long as they can be justified by reference to some independent purpose they serve; in Johnson, they could provide an incentive for military service and direct assistance to those who needed the most help in readjusting to post-war life, see id. at 376-83, 94 S.Ct. 1160. Enacting a rule into law based solely on the disapproval of a group, however, “is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit.” Romer, 517 U.S. at 635, 116 S.Ct. 1620. Like Amendment 2, Proposition 8 is a classification of gays and lesbians undertaken for its own sake.
2
The “inference” that Proposition 8 was born of disapproval of gays and lesbians is heightened by evidence of the context in which the measure was

90a
passed.26 The district court found that “[t]he campaign to pass Proposition 8 relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships.” Perry IV, 704 F.Supp.2d at 990. Television and print advertisements “focused on . . . the concern that people of faith and religious groups would somehow be harmed by the recognition of gay marriage” and “conveyed a message that gay people and relationships are inferior, that homosexuality is undesirable and that children need to be protected from exposure to gay people and their relationships.” Id. These messages were not crafted accidentally. The strategists responsible for the campaign in favor of Proposition 8 later explained their approach: “ ‘[T]here were limits to the degree of tolerance Californians would afford the gay community. They would entertain allowing gay marriage, but not if doing so had significant implications for the rest of society,’ ” such as what children would be taught in school. Id. at 988 (quoting Frank Schubert & Jeff Flint, Passing Prop 8, Politics, Feb. 2009, at 45-47). Nor were these messages new; for decades,
26 A contextual evaluation is both useful and appropriate as part of the “careful consideration” in which courts must engage when faced with “[d]iscriminations of an unusual character.” Romer, 517 U.S. at 633, 116 S.Ct. 1620 (internal quotation marks omitted); see Moreno, 413 U.S. at 533-38, 93 S.Ct. 2821. When a law is enacted by ballot initiative, we look to objective indicators of the voters’ motivations, such as campaign materials, to shed light on the “historical context.” S. Alameda Spanish Speaking Org. v. Union City, 424 F.2d 291, 295 (9th Cir.1970); see, e.g., Washington, 458 U.S. at 463, 102 S.Ct. 3187.

91a
ballot measures regarding homosexuality have been presented to voters in terms designed to appeal to stereotypes of gays and lesbians as predators, threats to children, and practitioners of a deviant “lifestyle.” See Br. Amicus Curiae of Constitutional Law Professors at 2-8. The messages presented here mimic those presented to Colorado voters in support of Amendment 2, such as, “Homosexual indoctrination in the schools? IT’S HAPPENING IN COLORADO!” Colorado for Family Values, Equal Rights – Not Special Rights, at 2 (1992), reprinted in Robert Nagel, Playing Defense, 6 Wm. & Mary Bill Rts. J. 167, 193 (1997).
When directly enacted legislation “singl[es] out a certain class of citizens for disfavored legal status,” we must “insist on knowing the relation between the classification adopted and the object to be attained,” so that we may ensure that the law exists “to further a proper legislative end” rather than “to make the[ ] [class] unequal to everyone else.” Romer, 517 U.S. at 632-33, 635, 116 S.Ct. 1620. Proposition 8 fails this test. Its sole purpose and effect is “to eliminate the right of same-sex couples to marry in California” – to dishonor a disfavored group by taking away the official designation of approval of their committed relationships and the accompanying societal status, and nothing more. Voter Information Guide at 54. “It is at once too narrow and too broad,” for it changes the law far too little to have any of the effects it purportedly was intended to yield, yet it dramatically reduces the societal standing of gays and lesbians and

92a
diminishes their dignity. Romer, 517 U.S. at 633, 116 S.Ct. 1620. Proposition 8 did not result from a legitimate “Kulturkampf” concerning the structure of families in California, because it had no effect on family structure, but in order to strike it down, we need not go so far as to find that it was enacted in “a fit of spite.” Id. at 636, 116 S.Ct. 1620 (Scalia, J., dissenting). It is enough to say that Proposition 8 operates with no apparent purpose but to impose on gays and lesbians, through the public law, a majority’s private disapproval of them and their relationships, by taking away from them the official designation of ‘marriage,’ with its societally recognized status. Proposition 8 therefore violates the Equal Protection Clause.
VI
Finally, we address Proponents’ motion to vacate the district court’s judgment. On April 6, 2011, after resigning from the bench, former Chief Judge Walker disclosed that he was gay and that he had for the past ten years been in a relationship with another man. Proponents moved shortly thereafter to vacate the judgment on the basis that 28 U.S.C. § 455(b)(4) obligated Chief Judge Walker to recuse himself, because he had an “interest that could be substantially affected by the outcome of the proceeding,” and that 28 U.S.C. § 455(a) obligated him either to recuse himself or to disclose his potential conflict, because “his impartiality might reasonably be questioned.” Chief Judge Ware, to whom this case was assigned

93a
after Chief Judge Walker’s retirement, denied the motion after receiving briefs and hearing argument.
The district court properly held that it had jurisdiction to hear and deny the motion under Fed.R.Civ.P. 62.1(a), that the motion was timely, and that Chief Judge Walker had no obligation to recuse himself under either § 455(b)(4) or § 455(a) or to disclose any potential conflict. As Chief Judge Ware explained, the fact that a judge “could be affected by the outcome of a proceeding[,] in the same way that other members of the general public would be affected, is not a basis for either recusal or disqualification under Section 455(b)(4).” Perry v. Schwarzenegger, 790 F.Supp.2d 1119, 1122 (N.D.Cal.2011); see In re City of Houston, 745 F.2d 925, 929-30 (5th Cir.1984) (“We recognize that ‘an interest which a judge has in common with many others in a public matter is not sufficient to disqualify him.’ ”). Nor could it possibly be “reasonable to presume,” for the purposes of § 455(a), “that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by the proceeding.” 790 F.Supp.2d at 1122; see United States v. Alabama, 828 F.2d 1532, 1541-42 (11th Cir.1987). To hold otherwise would demonstrate a lack of respect for the integrity of our federal courts.
The denial of the motion to vacate was premised on Chief Judge Ware’s finding that Chief Judge Walker was not obligated to recuse himself. “We review the district court’s denial of a motion to vacate the judgment for an abuse of discretion.” Jeff D. v.

94a
Kempthorne, 365 F.3d 844, 850 (9th Cir.2004). Our standard for abuse of discretion requires us to (1) “look to whether the trial court identified and applied the correct legal rule to the relief requested”; and, if the trial court applied the correct legal rule, to (2) “look to whether the trial court’s resolution . . . resulted from a factual finding that was illogical, implausible, or without support in inferences that may be drawn from the facts in the record.” United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir.2009) (en banc). Here, Chief Judge Ware did not incorrectly apply the law. He identified and applied § 455(b)(4) and § 455(a), the correct legal rules, as well as the relevant precedents. His application of the law, determining whether Chief Judge Walker was obligated to recuse himself, was discretionary. See United States v. Johnson, 610 F.3d 1138, 1147-48 (9th Cir.2010). His resolution of the issue on the basis of the facts was not illogical, implausible, or without support in inferences that may be drawn from the facts in the record. Thus, we affirm Chief Judge Ware’s decision not to grant the motion to vacate.
VII
By using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the People of California violated the Equal Protection Clause. We hold Proposition 8 to be unconstitutional on this ground. We do not doubt the importance of the more general questions presented to us concerning the

95a
rights of same-sex couples to marry, nor do we doubt that these questions will likely be resolved in other states, and for the nation as a whole, by other courts. For now, it suffices to conclude that the People of California may not, consistent with the Federal Constitution, add to their state constitution a provision that has no more practical effect than to strip gays and lesbians of their right to use the official designation that the State and society give to committed relationships, thereby adversely affecting the status and dignity of the members of a disfavored class. The judgment of the district court is
AFFIRMED.27
N.R. SMITH, Circuit Judge, concurring in part and dissenting in part.
I agree with the majority’s analysis and decisions in parts III and VI of its opinion, determining that (1) the Proponents have standing to bring this appeal; and (2) the Motion to Vacate the Judgment should be denied. Because I do not agree with the majority’s analysis of other topics regarding the constitutionality of Proposition 8, I have chosen to write separately. Ultimately, I am not convinced that Proposition 8 is not rationally related to a legitimate governmental interest. I must therefore respectfully dissent.
27 The stay pending appeal issued by this court on August 16, 2010 remains in effect pending issuance of the mandate.

96a
Before addressing the issues now presented before our panel, I want to emphasize a distinguishing point in my analysis from what may be anticipated by the reader. Similar to the California Supreme Court in its prior opinion concerning Proposition 8, our panel was not tasked with determining whether this constitutional amendment “is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution.” Strauss v. Horton, 46 Cal.4th 364, 93 Cal.Rptr.3d 591, 207 P.3d 48, 59 (2009). Our personal views regarding the political and sociological debate on marriage equality are irrelevant to our task. Instead, we are only asked to consider the constitutional validity of Proposition 8 under the federal Constitution. The California Supreme Court has already interpreted and applied “the principles and rules embodied in the California Constitution” to Proposition 8 and found it valid. Strauss, 93 Cal.Rptr.3d 591, 207 P.3d 48.
I.
Proponents and their supporting amici (hereinafter Proponents) argue that the United States Supreme Court’s summary dismissal in Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972) (mem.), “mandates reversal of the district court’s ruling.” According to Proponents, the claims raised here are the same as those rejected in Baker, and the claims are therefore foreclosed by that decision. The majority dispenses with Baker in a footnote. However, other federal courts have indicated that Baker, if it is

97a
not controlling, at least stands for exercising “restraint” when it comes to addressing due process and equal protection challenges against laws prohibiting marriage by same-sex couples. Citizens for Equal Protection v. Bruning, 455 F.3d 859, 870 (8th Cir.2006); see also Wilson v. Ake, 354 F.Supp.2d 1298, 1305 (M.D.Fla.2005) (“Baker v. Nelson is binding precedent upon this Court. . . .”). But see In re Kandu, 315 B.R. 123, 138 (Bankr.W.D.Wash.2004) (concluding that “Baker is not binding precedent on the issues presented” because the case centered on federal Defense of Marriage Act and because “doctrinal developments” indicated Baker was no longer binding). Because Baker is binding United States Supreme Court precedent and may foreclose Plaintiffs’ claims, one must follow it or distinguish it.
A.
In Baker v. Nelson, two men were denied a marriage license by a Minnesota county clerk. 291 Minn. 310, 191 N.W.2d 185, 185 (1971). Because they were denied the license, the two men filed suit asking that the court force the clerk to grant the license. Id. In Minnesota Statutes c. 517, the Minnesota state legislature had codified that the state “d[id] not authorize marriage between persons of the same sex. . . .” Id. at 186. On appeal, the Minnesota Supreme Court addressed several issues, including whether the Minnesota statutes prohibiting marriage by same-sex couples denied the petitioners “the equal protection of the laws” as guaranteed by the Fourteenth Amendment.

98a
Id. The Minnesota Supreme Court held that “[t]he equal protection clause of the Fourteenth Amendment . . . is not offended by the state’s classification of persons authorized to marry.” Id. at 187. On appeal to the United States Supreme Court, the Court summarily dismissed the appeal “for want of a substantial federal question.” Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37.
Though not stated in the summary dismissal in Baker, the Supreme Court decision has long standing precedent supporting it. Throughout our nation’s history, the States have had “the absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be credited. . . .” Pennoyer v. Neff, 95 U.S. 714, 734-35, 24 L.Ed. 565 (1878), reaffirmed in Sosna v. Iowa, 419 U.S. 393, 404, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975).
Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature. That body prescribes the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it creates, its effects upon the property rights of both, present and prospective, and the acts which may constitute grounds for its dissolution.
Maynard v. Hill, 125 U.S. 190, 205, 8 S.Ct. 723, 31 L.Ed. 654 (1888).

99a
As Justice Stewart opined in his concurrence in Zablocki v. Redhail, a State
may in many circumstances absolutely prohibit [marriage]. Surely, for example, a State may legitimately say that no one can marry his or her sibling, that no one can marry who is not at least 14 years old, that no one can marry without first passing an examination for venereal disease, or that no one can marry who has a living husband or wife.
434 U.S. 374, 392, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978) (Stewart, J., concurring).
The summary dismissal of an appeal for want of a substantial federal question is a decision on the merits. Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). “[U]nless and until the Supreme Court should instruct otherwise, inferior federal courts had best adhere to the view that if the Court has branded a question as unsubstantial, it remains so except when doctrinal developments indicate otherwise. . . .” Id. (internal quotation marks omitted). “[L]ower courts are bound by summary decisions by [the Supreme] Court until such time as the Court informs (them) that (they) are not.” Id. at 34445, 95 S.Ct. 2281 (internal quotation marks omitted). “Summary . . . dismissals for want of a substantial federal question . . . reject the specific challenges presented in the statement of jurisdiction and do leave undisturbed the judgment appealed from. They do prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily

100a
decided by those actions.” Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977) (per curiam). Thus, “[a] summary disposition affirms only the judgment of the court below, and no more may be read into [the] action than was essential to sustain that judgment.” Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 182-83, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979) (citation omitted). “Questions which ‘merely lurk in the record’ are not resolved, and no resolution of them may be inferred.” Id. at 183, 99 S.Ct. 983 (citation omitted).
The jurisdictional statements presented to the United States Supreme Court in Baker v. Nelson were as follows:
1. Whether appellee’s refusal to sanctify appellants’ marriage deprives appellants of their liberty to marry and of their property without due process of law under the Fourteenth Amendment.
2. Whether appellee’s refusal, pursuant to Minnesota marriage statutes, to sanctify appellants’ marriage because both are of the male sex violates their rights under the equal protection clause of the Fourteenth Amendment.
3. Whether appellee’s refusal to sanctify appellants’ marriage deprives appellants of their right to privacy under the Ninth and Fourteenth Amendments.
See In re Kandu, 315 B.R. at 137.

101a
B.
Here, we must address whether the question before us involves “the precise issues presented and necessarily decided by” Baker v. Nelson, such that the Supreme Court’s summary dismissal would have precedential effect here. Alternatively, the question before us could be one that “merely lurk[ed] in the record” of Baker, and the present case would not be resolved by the Supreme Court’s summary dismissal.
In this case, the following issues were presented for review:
1. Whether [Proponents] have standing to appeal the district court’s judgment.
2. Whether Proposition 8 violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
3. Whether Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
Plaintiff-Intervenor City and County of San Francisco (hereinafter San Francisco) presented the following additional issue for review:
1. Whether Proposition 8, a constitutional amendment adopted after a plebiscite campaign that played on fears and prejudices about lesbians and gay men, violates the Equal Protection Clause of the federal Constitution where its effect is to remove the honored title “marriage” but not the incidents of marriage from same-sex couples,

102a
and its purpose is to remove the taint that its supporters believed the inclusion of lesbian and gay couples worked on the institution of marriage.
The equal protection question raised in this case seems to be distinguishable from the precise issues presented and necessarily decided in Baker, especially when the equal protection issue is framed as San Francisco advocates.1 The equal protection issue decided in Baker rested on whether Minnesota’s “refusal, pursuant to Minnesota marriage statutes, to sanctify appellants’ marriage . . . violates their rights
1 Whether prohibiting marriage by same-sex couples violates due process was an issue presented and decided in Baker v. Nelson. In this case, the district court determined that “plaintiffs seek to exercise their fundamental right to marry under the Due Process Clause,” Perry v. Schwarzenegger, 704 F.Supp.2d 921, 993 (N.D.Cal.2010), and that Proposition 8 violated the Due Process Clause, because it denied Plaintiffs this fundamental right and did not withstand strict scrutiny. Id. at 994-95. But in Baker, the Minnesota Supreme Court determined that prohibiting marriage by same-sex couples did not offend the Due Process Clause. 191 N.W.2d at 186-87. Because the United States Supreme Court “branded [that] question as unsubstantial” in its summary dismissal, the due process issue “remains so except when doctrinal developments indicate otherwise.” Hicks v. Miranda, 422 U.S. at 344, 95 S.Ct. 2281 (internal quotation marks omitted). The United States Supreme Court cases following Baker do not suggest any such doctrinal developments have occurred. See, e.g., Lawrence v. Texas, 539 U.S. 558, 578, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (“[This case] does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” (internal quotation marks omitted)).

103a
under the equal protection clause. . . .” In re Kandu, 315 B.R. at 137. Here, San Francisco presents the issue of whether Proposition 8’s effect of “remov[ing] the honored title ‘marriage’ but not the incident of marriage from same-sex couples” violates equal protection. This Proposition 8 issue may have “merely lurk[ed] in the record” of Baker. Unlike Minnesota, California granted same-sex couples rights to both the designation and the incidents of marriage, before withdrawing the right of access to the designation through Proposition 8. Therefore, the constitutionality of withdrawing from same-sex couples the right of access to the designation of marriage does not seem to be among the “specific challenges” raised in Baker. If so, though the precedential effect of Baker v. Nelson is not challenged by this decision, such precedent is distinguishable from the decision of the district court here.
II.
In deciding this case, one should be mindful that generally state governance over marriage is not challenged easily. However, while “marriage is a social relation subject to the State’s police power,” this does not mean that the State’s “powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment.” Loving v. Virginia, 388 U.S. 1, 7, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). A marriage regulation “containing racial classifications,” such as the one at issue in Loving, is subject to “the very heavy burden of justification which the

104a
Fourteenth Amendment has traditionally required of state statutes drawn according to race.” Id. at 9, 87 S.Ct. 1817. However, not “every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny.” Zablocki, 434 U.S. at 386, 98 S.Ct. 673 (majority opinion). Proposition 8 does not involve such a suspect classification and therefore should not be analyzed under any heightened scrutiny, but we must still ask “whether there is any rational foundation for the discrimination[ ] . . . .” See Loving, 388 U.S. at 9, 87 S.Ct. 1817.
A.
The Plaintiffs, San Francisco, and their supporting amici (hereinafter Plaintiffs) challenge Proposition 8 under the Equal Protection Clause of the Fourteenth Amendment. However, because Proposition 8 is “a classification neither involving fundamental rights nor proceeding along suspect lines,” Heller v. Doe, 509 U.S. 312, 319, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993), I do not address the application of strict scrutiny review to Proposition 8. Under strict scrutiny review, the government would need to establish that the classification is necessary to achieve a compelling governmental interest, and there must not be a less onerous available alternative. The United States Supreme Court has not recognized that the fundamental right to marry includes a fundamental right to gay marriage. See Lawrence, 539 U.S. at 578, 123 S.Ct. 2472. Gays and lesbians are not a suspect

105a
or quasi-suspect class. High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 573 (9th Cir.1990).
I also do not address intermediate scrutiny because Supreme Court precedent thus far has never held that sexual orientation is a “quasi-suspect classification.” See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441-42, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Under that standard of review, generally applied in illegitimacy and gender cases, the government would need to establish that the classification is substantially related to an important governmental interest. See id. at 441, 105 S.Ct. 3249.
Thus, Proposition 8 is subject to rational basis review rather than to any heightened scrutiny. See id. at 440-42, 105 S.Ct. 3249.
B.
“The Fourteenth Amendment’s promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.” Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). Thus, when assessing the constitutionality of most government measures, we use rational basis review in an attempt “to reconcile the principle with the reality.” Id. Under rational basis review, “we will uphold the legislative

106a
classification so long as it bears a rational relation to some legitimate end.” Id.
In equal protection analysis, rational basis review “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” Heller, 509 U.S. at 319, 113 S.Ct. 2637 (internal quotation marks omitted). A classification “neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity.” Id. “Such a classification cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.” Id. at 320, 113 S.Ct. 2637. The government is not required to “actually articulate at any time the purpose or rationale supporting its classification”; rather, a classification “must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Id. (internal quotation marks omitted).
Additionally, the government “has no obligation to provide evidence to sustain the rationality of a statutory classification.” Id. The measure at issue “is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” Id. (internal quotation marks omitted). “[T]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it. . . .” Id. (internal quotation marks omitted). Further, a legislature’s generalizations may pass rational basis review “even

107a
when there is an imperfect fit between means and ends.” Id. at 321, 113 S.Ct. 2637. In sum, the measure need only have “arguable” assumptions underlying its “plausible rationales” to survive constitutional challenge. Id. at 333, 113 S.Ct. 2637.
However, “even the standard of rationality . . . must find some footing in the realities of the subject addressed by the legislation.” Id. at 321, 113 S.Ct. 2637. Also, some interests are not legitimate governmental interests. E.g., Romer, 517 U.S. at 634, 116 S.Ct. 1620 (stating that “animosity toward the class of persons affected” is not a legitimate governmental interest); Cleburne, 473 U.S. at 448, 105 S.Ct. 3249 (stating that “mere negative attitudes, or fear” are not legitimate governmental interests); U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973) (stating that a “bare . . . desire to harm a politically unpopular group” is not a legitimate governmental interest).
As a general rule, states may use their police power to regulate the “morals” of their population. See, e.g., Berman v. Parker, 348 U.S. 26, 32, 75 S.Ct. 98, 99 L.Ed. 27 (1954). In his dissent in Lawrence, 539 U.S. at 589-91, 123 S.Ct. 2472 (Scalia, J., dissenting), Justice Scalia argued that “[c]ountless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority’s belief that certain sexual behavior is ‘immoral and unacceptable’ constitutes a rational basis for regulation.” Id. at 589, 123 S.Ct. 2472. He then suggested that the Supreme Court has relied on morality as the

108a
basis for its decision making and states, “[s]tate laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of validation of laws based on moral choices.” Id. at 590, 123 S.Ct. 2472.
However, Justice O’Connor articulated a different perspective in determining whether moral disapproval may serve as a rational basis for equal protection. She outlined that moral disapproval is not a legitimate state interest to justify, by itself, a statute that bans homosexual conduct. She stated that “[m]oral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.” Id. at 582, 123 S.Ct. 2472 (O’Connor, J., concurring). She continued: “Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons.” Id. The Lawrence majority opinion seems to have implicitly agreed with Justice O’Connor, when it stated that a court’s “obligation is to define the liberty of all, not to mandate its own moral code.” Id. at 559, 123 S.Ct. 2472 (majority opinion) (internal quotation mark omitted).
Therefore, such interests (e.g., animus, negative attitudes, fear, a bare desire to harm, and moral disapproval) alone will not support the constitutionality of a measure, because the Equal Protection Clause

109a
does not permit a “status-based enactment divorced from any factual context from which [the courts] could discern a relationship to legitimate state interests,” or a “classification of persons undertaken for its own sake. . . .” Romer, 517 U.S. at 635, 116 S.Ct. 1620.
III.
The majority concludes that “Romer governs our analysis notwithstanding the differences between Amendment 2 and Proposition 8,” because of the similarities between the measures at issue in Romer and in the present case. However, the differences between Amendment 2 and Proposition 8 indicate that Romer does not directly control our analysis of the constitutionality of Proposition 8.
Before comparing Amendment 2 to Proposition 8, I want to attempt to clarify the extent of the Plaintiffs’ interest asserted here. One must understand the unique manner in which California defines this interest. Because the California Supreme Court defined and clarified that interest in its Strauss v. Horton opinion, I quote liberally from it.
Proposition 8 “properly must be understood as having a considerably narrower scope and more limited effect” than what might be the case in other states. Strauss, 93 Cal.Rptr.3d 591, 207 P.3d at 61. “Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right to . . . choose one’s life partner and enter with that person into a committed, officially recognized,

110a
and protected family relationship that enjoys all of the constitutionally based incidents of marriage.” Id. (internal quotation marks omitted).
Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles. . . . Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.
Id.
Further, the California Supreme Court continued, “as a qualitative matter, the act of limiting access to the designation of marriage to oppositesex couples [through Proposition 8] does not have a substantial or, indeed, even a minimal effect on the governmental plan or framework of California that existed prior to the amendment.” Id., 93 Cal.Rptr.3d 591, 207 P.3d at 62.
However, the California Supreme Court was also quick to point out that this differentiation did not diminish or minimize “the significance of the official designation of ‘marriage,’ ” which they characterized

111a
as “a vital factor” in their prior decision holding that failing to provide access to this designation to samesex couples “impinged upon the privacy and due process rights of same-sex couples and violated those couples’ right to the equal protection of the laws guaranteed by the California Constitution.” Id., 93 Cal.Rptr.3d 591, 207 P.3d at 59, 61.
Therefore, “Proposition 8 reasonably must be interpreted in a limited fashion as eliminating only the right of same-sex couples to equal access to the designation of marriage, and as not otherwise affecting the constitutional right of those couples to establish an officially recognized family relationship.” Id., 93 Cal.Rptr.3d 591, 207 P.3d at 76.
Accordingly, although Proposition 8 eliminates the ability of same-sex couples to enter into an official relationship designated “marriage,” in all other respects those couples continue to possess, under the state constitutional privacy and due process clauses, “the core set of basic substantive legal rights and attributes traditionally associated with marriage,” including, “most fundamentally, the opportunity of an individual to establish – with the person with whom the individual has chose to share his or her life – an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.” Like opposite-sex couples, same-sex couples enjoy this protection not as a matter

112a
of legislative grace, but of constitutional right.
Id., 93 Cal.Rptr.3d 591, 207 P.3d at 77 (citation omitted).
A.
In Romer, Colorado voters adopted Amendment 2 to the State Constitution, which “prohibits all legislative, executive, or judicial action at any level of state or local government designed to protect . . . gays and lesbians.” 517 U.S. at 624, 116 S.Ct. 1620. Amendment 2 was passed in response to municipal ordinances enacted in various Colorado cities that protected “persons discriminated against by reason of their sexual orientation.” Id. The Supreme Court examined Amendment 2 under rational basis review, where “if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.” Id. at 631, 116 S.Ct. 1620. The Supreme Court held that Amendment 2 failed rational basis review for two reasons. Id. at 632, 116 S.Ct. 1620. “First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and . . . invalid form of legislation.” Id. “Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class if affects; it

113a
lacks a rational relationship to legitimate state interests.” Id.
B.
There are several ways to distinguish Romer from the present case. First, in Romer, the Supreme Court stated that “[t]he change Amendment 2 works in the legal status of gays and lesbians in the private sphere is far reaching, both on its own terms and when considered in light of the structure and operation of modern anti-discrimination laws.” Id. at 627, 116 S.Ct. 1620. Here, “Proposition 8 reasonably must be interpreted in a limited fashion as eliminating only the right of same-sex couples to equal access to the designation of marriage, and as not otherwise affecting the constitutional right of those couples to establish an officially recognized family relationship.” Strauss, 93 Cal.Rptr.3d 591, 207 P.3d at 76. Thus, Romer is inapposite, because Proposition 8 eliminates the right of access to the designation of marriage from same-sex couples, rather than working a far reaching change in their legal status.
Second, Amendment 2’s “sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects.” Romer, 517 U.S. at 632, 116 S.Ct. 1620. Again, Proposition 8 “carves out a narrow and limited exception to [the] state constitutional rights” of privacy and due process. Strauss, 93 Cal.Rptr.3d 591, 207 P.3d at 61. Proposition 8

114a
therefore lacks the “sheer breadth” that prompted the Supreme Court to raise the inference of animus in Romer.
The effect of animus is also unclear. In Romer, the Supreme Court stated that “laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity towards the class of persons affected.” 517 U.S. at 634, 116 S.Ct. 1620. The Supreme Court indicated that Amendment 2 was constitutionally invalid, because its only purpose was animus; Amendment 2 was not “directed to any identifiable legitimate purpose or discrete objective.” Id. at 635, 116 S.Ct. 1620. In short, Romer was a case where the only basis for the measure at issue was animus. However, in a case where the measure at issue was prompted both by animus and by some independent legitimate purpose, the measure may still be constitutionally valid. The Supreme Court has stated that while “negative attitudes,” “fear” or other biases “may often accompany irrational (and therefore unconstitutional) discrimination, their presence alone does not a constitutional violation make.” Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 367, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) (discussing Cleburne, 473 U.S. at 448, 105 S.Ct. 3249). If “animus” is one such bias, its presence alone may not make Proposition 8 invalid if the measure also rationally relates to a legitimate governmental interest.
Finally, gays and lesbians were burdened by Amendment 2, because it “operate[d] to repeal and forbid all laws or policies providing specific protection

115a
for gays or lesbians from discrimination by every level of Colorado government.” Romer, 517 U.S. at 629, 116 S.Ct. 1620. In contrast, “although Proposition 8 eliminates the ability of same-sex couples to enter into an official relationship designated ‘marriage,’ in all other respects those couples continue to possess, under the state constitutional privacy and due process clauses, the core set of basic substantive legal rights and attributes traditionally associated with marriage. . . .” Strauss, 93 Cal.Rptr.3d 591, 207 P.3d at 77 (internal quotation marks omitted). Put otherwise, Proposition 8 does not burden gays and lesbians to the same extent Amendment 2 burdened gays and lesbians in Colorado.
C.
Proponents argue that the fact that Proposition 8 withdrew from same-sex couples the existing right of access to the designation of marriage should be significant in our constitutional analysis. However, Supreme Court equal protection cases involving challenges to measures withdrawing an existing right do not indicate that the withdrawal should affect our analysis. Instead, it seems that the court has upheld legislation that withdraws, rather than reserves, some legal right. E.g., U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 176-77, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980) (applying “traditional” principles of rational basis review to Congress’s determination “that some of those who in the past received full windfall benefits would not continue to do so”); City of New Orleans v.

116a
Dukes, 427 U.S. 297, 303-05, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976) (per curiam) (concluding that city’s elimination of rights of some pushcart food vendors, but not others, was “not constitutionally impermissible”). In fact, in its decision in Romer, the Supreme Court does not base its decision on this contention. Rather, it mentioned withdrawing specific legal protections from gays and lesbians only in the context of referring to the irrational targeting of that group when compared to the sweeping change Amendment 2 created in the law.2 Romer, 517 U.S. at 627, 116 S.Ct. 1620.
D.
The above differences between Amendment 2 and Proposition 8 indicate that Romer does not directly
2 However, while the withdrawal of a right may not be analytically significant for rational basis review, it may still be factually significant. For example, the fact that Proposition 8 involves the withdrawal of an existing right and not the extension of a previously reserved right suggests that Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974), is inapposite to the present case. In Johnson, the Supreme Court declared that “[w]hen . . . the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not, we cannot say that the statute’s classification of beneficiaries and nonbeneficiaries is invidiously discriminatory.” Id. at 383, 94 S.Ct. 1160. As the majority argues, the rule from Johnson appears to be inapplicable here, because Proposition 8 involves the withdrawal from same-sex couples of the existing right to access the designation of marriage, and not the addition of same-sex couples to the group previously reserved the right.

117a
control here. In Romer, the Supreme Court found that animus alone was the purpose behind Amendment 2. Here, the majority backs into its inference of animus, first determining that all other bases for Proposition 8 are constitutionally invalid. Assuming animus or moral disapproval were one of the purposes of Proposition 8, the measure would still survive rational basis review if there were also a valid rational basis behind Proposition 8. Only if there were no other basis would Proposition 8 fail rational basis review. Thus, our task is to determine whether Proposition 8 rationally relates to any independent legitimate governmental interest.
IV.
In our case, Proponents argue that Proposition 8, defining marriage as the union of one man and one woman, is rationally related to a legitimate governmental interest for several reasons. Some of those reasons have already been discussed in the majority opinion and need no further discussion here. However, two of those reasons deserve more discussion, because they have been credited by other courts: (1) a responsible procreation theory, justifying the inducement of marital recognition only for opposite-sex couples, because it “steers procreation into marriage” because opposite-sex couples are the only couples who can procreate children accidentally or irresponsibly; and (2) an optimal parenting theory, justifying the inducement of marital recognition only for oppositesex couples, because the family structure of two

118a
committed biological parents – one man and one woman – is the optimal partnership for raising children. See, e.g., Citizens for Equal Protection, 455 F.3d at 867-68.
A.
Proponents argue that Proposition 8, defining marriage as the union of one man and one woman, preserves the fundamental and historical purposes of marriage. They argue that, if the definition of marriage between a man and a woman is changed, it would fundamentally redefine the term from its original and historical procreative purpose. This shift in purpose would weaken society’s perception of the importance of entering into marriage to have children, which would increase the likelihood that couples would choose to cohabitate rather than to get married. They also argue that irresponsible procreation, by accident or willfully in a cohabitation relationship, will result in less stable circumstances for children and that same-sex couples do not present this threat of irresponsible procreation. They argue that, in the case of unintended pregnancies, the question is not whether the child will be raised by two opposite-sex parents, but rather whether it will be raised, on the one hand by two parents, or on the other hand by its mother alone (often with the assistance of the state). “Proposition 8 seeks to channel potentially procreative conduct into relationships where that conduct is likely to further, rather than harm, society’s interest in responsible procreation and childrearing.”

119a
Proponents also argue the “optimal parenting” rationale serves as a rational basis for Proposition 8. The optimal parenting rationale posits that Proposition 8 promotes the optimal setting for the responsible raising and care of children-by their biological parents in a stable marriage relationship. Proponents offer many judicial decisions and secondary authorities supporting both rationales.
In sum, Proponents argue that Proposition 8 is rationally related to legitimate governmental interests.
B.
The first requirement of rational basis review is that there must be some conceivable legitimate governmental interest for the measure at issue.3
1.
The California Supreme Court indicated that responsible procreation is a legitimate governmental interest:
Whether or not the state’s interest in encouraging responsible procreation properly can be viewed as a reasonably conceivable justification for the statutory limitation of
3 This requirement is easily met, because “[v]irtually any goal that is not forbidden by the Constitution will be deemed sufficient to meet the rational basis test.” Erwin Chemerinsky, Constitutional Law: Principles and Policies 698 (4th ed.2011).

120a
marriage to a man and a woman for purposes of the rational basis equal protection standard, this interest clearly does not provide an appropriate basis for defining or limiting the scope of the constitutional right to marry. . . . [A]lthough the state undeniably has a legitimate interest in promoting “responsible procreation,” that interest cannot be viewed as a valid basis for defining or limiting the class of persons who may claim the protection of the fundamental constitutional right to marry.
In re Marriage Cases, 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384, 432 (2008) (emphasis added), superseded by constitutional amendment as stated in Strauss, 93 Cal.Rptr.3d 591, 207 P.3d 48.
2.
With regard to the optimal parenting rationale, the California Supreme Court stated the following about “the state’s interest in fostering a favorable environment for the procreation and raising of children”:
[A]lthough promoting and facilitating a stable environment for the procreation and raising of children is unquestionably one of the vitally important purposes underlying the institution of marriage and the constitutional right to marry, past cases make clear that this right is not confined to, or restrictively defined by, that purpose alone. As noted above, our past cases have recognized

121a
that the right to marry is the right to enter into a relationship that is the center of the personal affections that ennoble and enrich human life – a relationship that is at once the most socially productive and individually fulfilling relationship that one can enjoy in the course of a lifetime. The personal enrichment afforded by the right to marry may be obtained by a couple whether or not they choose to have children, and the right to marry never has been limited to those who plan or desire to have children. . . . [T]he state constitutional right to marry . . . cannot properly be defined by or limited to the state’s interest in fostering a favorable environment for the procreation and raising of children.
Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at 432 (citations and internal quotation marks omitted). Thus, the California Supreme Court discussed “the state’s interest in fostering a favorable environment for the protection and raising of children” without using the “legitimate interest” and “for the purposes of the rational basis equal protection standard” language used to discuss “responsible procreation.” See id.
a.
Plaintiffs argue that the optimal parenting rationale cannot be a legitimate governmental interest because same-sex couples in domestic partnerships have all the substantive parenting rights opposite-sex

122a
couples in marriages enjoy. Additionally, California family law does not give any official preferences to opposite-sex parents.4 Proposition 8 did not change this factual situation, because it “leav[es] undisturbed . . . a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.” Strauss, 93 Cal.Rptr.3d 591, 207 P.3d at 61. “This state’s current policies and conduct regarding homosexuality . . . recognize that gay individuals are fully capable of entering into the kind of loving and enduring committed relationships that may serve as the foundation of a family and of responsibly caring for and raising children.” Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at 428.
4 For example, “[t]he rights and obligations of registered domestic partners with respect to a child of either of them shall be the same as those of spouses.” Cal. Fam.Code § 297.5(d). Also, “[i]t is the policy of this state that all persons engaged in providing care and services to foster children . . . shall not be subjected to discrimination or harassment on the basis of their clients’ or their own actual or perceived . . . sexual orientation. . . .” Cal. Welf. & Inst.Code § 16013(a). Further, “[t]he parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.” Cal. Fam.Code § 7602. This legal structure is reinforced by the equal status of gays and lesbians in other areas of California’s laws, such as in antidiscrimination protections regarding business establishments. E.g., Cal. Civ.Code § 51(b) (“All persons within the jurisdiction of this state are free and equal, and no matter what their . . . sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”).

123a
The parties argue about whether this analysis subjects Proposition 8 to heightened scrutiny rather than rational basis review. In my view, while Plaintiffs may give a correct accounting of California law, it does not necessarily follow that the optimal parenting rationale is an illegitimate governmental interest, because it contradicts existing laws on parenting and the family. For example, a posited reason offered by one lawmaking body after being rejected by another lawmaking body can “provide[ ] a conceivable basis” for a measure. FCC v. Beach Comm’ns, Inc., 508 U.S. 307, 318, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). In Beach Communications, the Supreme Court accepted a posited reason for a federal agency regulation, even though Congress had previously rejected that purpose and the regulation presented a conflict in the statutory scheme.5 Id. Thus, even if California’s legislature previously rejected the optimal parenting rationale in its parenting laws (and Proposition 8 is inconsistent with its statutory scheme), that does not prevent the people of California from adopting Proposition 8 under that rationale.
5 See also City of Dallas v. Stanglin, 490 U.S. 19, 26-28, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989) (stating that a city could rationally impose an age and time restriction on dance halls, even if it had not imposed similar restrictions on other premises where teenagers and adults congregated together; arguments focusing on the inconsistency between the classification and the “interests and objectives” of the city “misapprehend[ed] the nature of rational-basis scrutiny”).

124a
b.
In Heller, the Supreme Court stated that “legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” 509 U.S. at 320, 113 S.Ct. 2637 (citations omitted). However, the Supreme Court went on to state that “even the standard of rationality as we so often have defined it must find some footing in the realities of the subject addressed by the legislation.” Id. at 321, 113 S.Ct. 2637.
Under rational basis review, the challenger has the burden to “negative every conceivable basis which might support” the measure. Id. at 320, 113 S.Ct. 2637. In light of this burden, Plaintiffs have offered many secondary authorities to support their argument that the optimal parenting rationale cannot be a legitimate governmental interest. “Against [a] background of more than 100 peer-reviewed studies, the State of California could not reasonably accept as a true – or even debatable – statement of fact Proponents’ view that only opposite-sex couples can create an ‘ideal’ childrearing environment.” Thus, “[i]t is not an end that the State rationally could adopt as its own and therefore cannot sustain Proposition 8.”
Although Proponents were not required to put on any evidence under rational basis review, they also produced evidence. They argue that their evidence shows that married biological parents are the optimal parenting structure. Further, they argue “Plaintiffs fail to cite to a single study comparing outcomes for

125a
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 raising children.”
After review, both sides offer evidence in support of their views on whether the optimal parenting rationale is a legitimate governmental interest. Both sides also offer evidence to undermine the evidence presented by their opponents. However, the standard only requires that the optimal parenting rationale be based on “rational speculation” about married biological parents being the best for children. Heller, 509 U.S. at 320, 113 S.Ct. 2637. Considering “the question is at least debatable,” id. at 326, 113 S.Ct. 2637 (internal quotation marks omitted), the optimal parenting rationale could conceivably be a legitimate governmental interest.6
6 In Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, Justice O’Connor relied on the Fourteenth Amendment’s Equal Protection Clause to invalidate a state law criminalizing homosexual sodomy. In her concurring opinion, she stated:
That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations – the asserted state interest in this case – other reasons exist to promote the institution of
(Continued on following page)

126a
C.
Having a conceivable legitimate governmental interest is, alone, not sufficient for rational basis review. To survive rational basis review, a measure must also have a rational relationship to the posited legitimate governmental interest. In determining whether there is a rational relationship, one should bear in mind “the nature of rational-basis scrutiny, which is the most relaxed and tolerant form of judicial scrutiny under the Equal Protection Clause.”7 Dallas, 490 U.S. at 26, 109 S.Ct. 1591.
1.
The Eighth Circuit credited the responsible procreation and optimal parenting rationales in Citizens for Equal Protection, where Nebraska had enacted a constitutional amendment prohibiting recognition of marriages by same-sex couples and other official same-sex relationships:
The State argues that the many laws defining marriage as the union of one man and
marriage beyond mere moral disapproval of an excluded group. Id. at 585, 123 S.Ct. 2472 (O’Connor, J., concurring). 7 As explained above, this requirement is not a high bar. Indeed, “the classification at issue need not be correlated in fact, even in relation to an assumed purpose for which there need not be any evidence.” Robert C. Farrell, The Two Versions of Rational-Basis Review and Same-Sex Relationships, 86 Wash. L.Rev. 281, 290 (2011).

127a
one woman and extending a variety of benefits to married couples are rationally related to the government interest in “steering procreation into marriage.” By affording legal recognition and a basket of rights and benefits to married heterosexual couples, such laws “encourage procreation to take place within the socially recognized unit that is best situated for raising children.” . . . The argument is based in part on the traditional notion that two committed heterosexuals are the optimal partnership for raising children, which modern-day homosexual parents understandably decry. But it is also based on a “responsible procreation” theory that justifies conferring the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on same-sex couples, who cannot. Whatever our personal views regarding this political and sociological debate, we cannot conclude that the State’s justification “lacks a rational relationship to legitimate state interests.”
455 F.3d at 867-68 (citations omitted).
The factual context in California is distinguishable from the one the Eighth Circuit faced in Nebraska. Unlike the Nebraska constitutional amendment, which prohibited the recognition of both marriages by samesex couples and other same-sex relationships, Proposition 8 left California’s existing domestic partnership laws intact. In California, same-sex couples in domestic partnerships still enjoy the same substantive

128a
rights and benefits as opposite-sex couples in marriages. Thus, it cannot be said that Proposition 8 “confer [s] the inducements of marital . . . benefits on opposite-sex couples . . . , but not on same-sex couples. . . .” See id. at 867. However, this distinction may not be dispositive, because the Eighth Circuit was considering both the substantive legal benefits as well as the designation of marriage.
2.
That leaves the question of whether withdrawing from same-sex couples the right to access the designation of marriage, alone, rationally relates to the responsible procreation and optimal parenting rationales.
a.
Regarding the responsible procreation rationale, Plaintiffs argue that Proponents suggest no reason to believe prohibiting same-sex couples from entering relationships designated “marriage” will make it more likely that opposite-sex couples in California will marry. Put differently, Plaintiffs argue that, because Proposition 8 does not bestow an honor on opposite-sex couples but instead withdraws an honor from same-sex couples, the responsible procreation rationale could be credited only if it is rational to believe that opposite-sex couples will be less likely to raise children in a marital family if the stature of marriage is also available to same-sex couples.

129a
Further, Plaintiffs argue that Proponents’ failure to describe how Proposition 8 rationally relates to the responsible procreation rationale indicates that the rationale lacks the required “footing in the realities of the subject addressed by the legislation.” Heller, 509 U.S. at 321, 113 S.Ct. 2637.
In response, Proponents argue that, “[b]ecause only sexual relationships between men and woman can produce children, such relationships have the potential to further – or harm – this interest in a way that other types of relationships do not.” Thus, “it follows that the commonsense distinction 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.”
However, Proposition 8 is not a “distinction that [California] law has always drawn,” because it “establishes a new substantive state constitutional rule that became effective once Proposition 8 was approved by the voters.” Strauss, 93 Cal.Rptr.3d 591, 207 P.3d at 115. Also,
[n]one of the past cases discussing the right to marry – and identifying this right as one of the fundamental elements of personal autonomy and liberty protected by our Constitution – contains any suggestion that the constitutional right to marry is possessed only by individuals who are at risk of producing children accidentally, or implies that this

130a
constitutional right is not equally important for and guaranteed to responsible individuals who can be counted upon to take appropriate precautions in planning for parenthood.
Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at 432. In this particular context, the fact that Proposition 8 established a new rule, instead of continuing a “distinction that [California] law has always drawn,” weakens Proponents’ argument that Proposition 8 “plainly bears a rational relationship” to the responsible procreation rationale.
b.
Regarding the optimal parenting rationale, Plaintiffs argue that, because Proposition 8 does not change California’s substantive laws governing childraising, procreation, or the family structure, Proposition 8 cannot be rationally related to the optimal parenting rationale. To channel more childrearing into families led by married biological parents, they argue that Proposition 8 would have had to change those laws somehow. Rather, Proposition 8 only singles out gays and lesbians, as a group, as inferior.
Proponents contend that this argument subjects Proposition 8 to heightened scrutiny review, and that the standard for rational basis review does not require the classification be substantially related to an important governmental interest. Instead, for rational basis review, the classification must only (1) serve some conceivable governmental interest; (2) have a

131a
plausible reason for the enactment; (3) remain debatable; and (4) not be totally arbitrary. Their argument continues that, in California’s unique context, Proposition 8 only deals with the designation of the term “marriage” but leaves undisturbed all of the other significant substantive aspects of recognized and protected family relationships. Proponents’ theory only increases the likelihood that children are born and raised in a family structure of biological parents by encouraging such parents to marry; the designation of marriage for only that union would make it more likely that opposite-sex couples will want to enter into marriage and then subsequently raise their own biological offspring, rather than implying that any other union could not be good parents. Proponents claim this interest does not depend on any judgment about the relative parenting capabilities of oppositesex and same-sex couples; it only confirms the instinctive, commonsense belief that married biological parents provide the optimal environment for raising children. Lastly, they argue there can be no requirement of narrow tailoring where there would be a perfect fit with the governmental interest and the law. If the state denied same-sex couples significant benefits under the law, the law would be more likely to fail equal protection by denying important government rights, thus increasing the burden of the test.

132a
3.
“[C]ourts are compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends.” Heller, 509 U.S. at 321, 113 S.Ct. 2637. Here, the people of California might have believed that withdrawing from same-sex couples the right to access the designation of marriage would, arguably, further the interests in promoting responsible procreation and optimal parenting. “The assumptions underlying these rationales may be erroneous, but the very fact that they are ‘arguable’ is sufficient, on rational-basis review, to ‘immuniz[e]’ the congressional choice from constitutional challenge.” Beach Commc’ns, 508 U.S. at 320, 113 S.Ct. 2096 (alteration in original).
Plaintiffs argue that Proposition 8 could only advance the offered rationales through encouraging opposite-sex couples to marry, who otherwise would not marry because they disapprove of same-sex couples having the right of access to the designation of marriage and the stature that comes with the designation. Therefore, Proposition 8 impermissibly gives effect to those “private biases.” See Palmore v. Sidoti, 466 U.S. 429, 433, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984). However, Supreme Court precedent does not suggest that a measure is invalid under rational basis review simply because the means by which its

133a
purpose is accomplished rest on such biases.8 Rather, precedent indicates that such biases invalidate a measure if they are the only conceivable ends for the measure. See, e.g., Romer, 517 U.S. at 635, 116 S.Ct. 1620. Again, in determining whether there is a rational relationship, one must bear in mind that rational basis review “is the most relaxed and tolerant form of judicial scrutiny under the Equal Protection Clause.” Dallas, 490 U.S. at 26, 109 S.Ct. 1591. Thus, I cannot conclude that Proposition 8 is “wholly irrelevant” to any legitimate governmental interests. Heller, 509 U.S. at 324, 113 S.Ct. 2637 (internal quotation marks omitted).
8 In Palmore, the Supreme Court stated that “[p]rivate biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” 466 U.S. at 433, 104 S.Ct. 1879. Even if Palmore indicates that giving effect to private biases through means is illegitimate, it is a case where “acknowledged racial prejudice [was] invoked to justify [a] racial classification[ ].” Id. Thus, the classification came under strict scrutiny. Id. at 432-33, 104 S.Ct. 1879; see also City of Richmond v. J.A. Croson Co., 488 U.S. 469, 520, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (Scalia, J., concurring in the judgment) (“The benign purpose of compensating for social disadvantages . . . can no more be pursued by the illegitimate means of racial discrimination than can other assertedly benign purposes we have repeatedly rejected.”).
While the Supreme Court quoted Palmore in Cleburne, it did so in the context of rejecting “mere negative attitudes” or “fear” as ends. 473 U.S. at 448, 105 S.Ct. 3249.

134a
V.
Given the presumption of validity accorded Proposition 8 for rational basis review, I am not convinced that Proposition 8 lacks a rational relationship to legitimate state interests. Precedent evidences extreme judicial restraint in applying rational basis review to equal protection cases.
Only by faithful adherence to this guiding principle of judicial review of legislation is it possible to preserve to the legislative branch its rightful independence and its ability to function. . . . [R]estraints on judicial review have added force where the legislature must necessarily engage in a process of linedrawing. Defining the class of persons subject . . . inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line, and the fact that the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration.
Beach Commc’ns, 508 U.S. at 315-16, 113 S.Ct. 2096 (alteration, citations, and internal quotation marks omitted). Thus, the judiciary faces a conspicuous limit on our judicial role in applying equal protection to legislative enactments, because
[t]he Court has held that the Fourteenth Amendment permits States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only

135a
if classification rests on grounds wholly irrelevant to the achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.
McGowan v. Maryland, 366 U.S. 420, 425-26, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). A law must be upheld unless the government’s judgment “is ‘clearly wrong, a display of arbitrary power, [or] not an exercise of judgment.’ ” Mathews v. DeCastro, 429 U.S. 181, 185, 97 S.Ct. 431, 50 L.Ed.2d 389 (1976).
Applying rational basis review in these circumstances also requires such restraint. As the Eighth Circuit said, in Citizens for Equal Protection, 455 F.3d at 870:
In the nearly one hundred and fifty years since the Fourteenth Amendment was adopted, to our knowledge no Justice of the Supreme Court has suggested that a state statute or constitutional provision codifying the traditional definition of marriage violates the Equal Protection Clause or any other provision of the United States Constitution. Indeed, in Baker v. Nelson, . . . when faced with a Fourteenth Amendment challenge to a decision by the Supreme Court of Minnesota denying a marriage license to a same-sex couple, the United States Supreme Court

136a
dismissed “for want of a substantial federal question.” There is good reason for this restraint.

137a
704 F.Supp.2d 921
United States District Court, N.D. California.
Kristin M. PERRY, Sandra B. Stier, Paul T. Katami and Jeffrey J. Zarrillo, Plaintiffs,
City and County of San Francisco, Plaintiff-Intervenor, v.
Arnold SCHWARZENEGGER, in his official capacity as Governor of California; Edmund G. Brown Jr., in his official capacity as Attorney General of California; Mark B. Horton, in his official capacity as Director of the California Department of Public Health and State Registrar of Vital Statistics; Linette Scott, in her official capacity as Deputy
Director of Health Information & Strategic Planning for the California Department of Public Health;
Patrick O’Connell, in his official capacity as ClerkRecorder of the County of Alameda; and Dean C. Logan,
in his official capacity as Registrar-Recorder/ County Clerk for the County of Los Angeles,
Defendants, Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Hak-Shing William Tam, Mark A Jansson And Protectmarriage.Com – Yes On 8, A Project of California Renewal, as official proponents of Proposition 8,
Defendant-Intervenors.
No. C 09-2292 VRW. | Aug. 4, 2010.
David Boies, Rosanne C. Baxter, Boies Schiller & Flexner LLP, Armonk, NY, Theodore B. Olson, Amir Cameron Tayrani, Christopher Dean Dusseault, Enrique Antonio Monagas, Matthew Dempsey McGill, Gibson Dunn & Crutcher LLP, Washington, DC, Ethan

138a
D. Dettmer, Theane Evangelis Kapur, Theodore J. Boutrous, Jr., Gibson Dunn & Crutcher LLP, Jennifer Carol Pizer, Jon Warren Davidson, Tara Lynn Borelli, Lambda Legal Defense and Education Fund, Inc., Los Angeles, CA, Jeremy Michael Goldman, Theodore Hideyuki Uno, Boies, Schiller & Flexner LLP, Oakland, CA, Sarah Elizabeth Piepmeier, Gibson, Dunn & Crutcher LLP, Alan Lawrence Schlosser, James Dixon Esseks, Matthew Albert Coles, ACLU Foundation of Northern California, Inc., Christopher Francis Stoll, Ilona Margaret Turner, Shannon Minter, National Ctr for Lesbian Rights, San Francisco, CA, Charles Salvatore Limandri, Law Offices Of Charles S. Limandri, Rancho Santa Fe, CA, for Plaintiffs.
Kenneth C. Mennemeier, Andrew Walter Stroud, Mennemeier Glassman & Stroud LLP, Gordon Bruce Burns, Attorney Generals Office, Dept. of Justice, Sacramento, CA, Daniel J. Powell, Department of Justice, Attorney General’s Office, Tamar Pachter, Office of the California Attorney General, San Francisco, CA, Claude Franklin Kolm, Manuel Francisco Martinez, Office of the County Counsel, Oakland, CA, Judy Whitehurst, Office of County Counsel, Los Angeles, CA, for Defendants.
David E. Bunim, Haas & Najarian, San Francisco, CA, Charles J. Cooper, David H. Thompson, Howard C. Nielson, Jr., Jesse Michael Panuccio, Michael W. Kirk, Peter A. Patterson, Cooper & Kirk PLLC, Austin R. Nimocks, Jordan W. Lorence, Alliance Defense Fund, Washington, DC, Brian W. Raum, Alliance Defense Fund, James A. Campbell, Scottsdale, AZ,

139a
Jennifer Lynn Monk, Robert Henry Tyler, Advocates for Faith and Freedom, Murrieta, CA, for DefendantIntervenors.
Opinion PRETRIAL PROCEEDINGS AND TRIAL EVIDENCE
CREDIBILITY DETERMINATIONS FINDINGS OF FACT
CONCLUSIONS OF LAW ORDER
VAUGHN R. WALKER, Chief Judge.
TABLE OF CONTENTS BACKGROUND TO PROPOSITION 8................927 PROCEDURAL HISTORY OF THIS ACTION.....928 PLAINTIFFS’ CASE AGAINST PROPOSITION 8...................................................................929 PROPONENTS’ DEFENSE OF PROPOSITION 8...................................................................930 TRIAL PROCEEDINGS AND SUMMARY OF TESTIMONY ......................................................... 932 CREDIBILITY DETERMINATIONS ......................938 PLAINTIFFS’ WITNESSES .................................938 PROPONENTS’ WITNESSES..............................944

140a
FINDINGS OF FACT ...............................................953
THE PARTIES ......................................................953
WHETHER ANY EVIDENCE SUPPORTS CALIFORNIA’S REFUSAL TO RECOGNIZE MARRIAGE BETWEEN TWO PEOPLE BECAUSE OF THEIR SEX .......................................956
WHETHER ANY EVIDENCE SHOWS CALIFORNIA HAS AN INTEREST IN DIFFERENTIATING BETWEEN SAME-SEX AND OPPOSITE-SEX UNIONS ...................................963
WHETHER THE EVIDENCE SHOWS THAT PROPOSITION 8 ENACTED A PRIVATE MORAL VIEW WITHOUT ADVANCING A LEGITIMATE GOVERNMENT INTEREST........973
CONCLUSIONS OF LAW........................................991
DUE PROCESS.....................................................991
EQUAL PROTECTION ........................................995
CONCLUSION .......................................................1003
REMEDIES ............................................................. 1003
Plaintiffs challenge a November 2008 voterenacted amendment to the California Constitution (“Proposition 8” or “Prop 8”). Cal. Const. Art. I, § 7.5. In its entirety, Proposition 8 provides: “Only marriage between a man and a woman is valid or recognized in California.” Plaintiffs allege that Proposition 8 deprives them of due process and of equal protection of the laws contrary to the Fourteenth Amendment and that its enforcement by state officials violates 42 USC § 1983.

141a
Plaintiffs are two couples. Kristin Perry and Sandra Stier reside in Berkeley, California and raise four children together. Jeffrey Zarrillo and Paul Katami reside in Burbank, California. Plaintiffs seek to marry their partners and have been denied marriage licenses by their respective county authorities on the basis of Proposition 8. No party contended, and no evidence at trial suggested, that the county authorities had any ground to deny marriage licenses to plaintiffs other than Proposition 8.
Having considered the trial evidence and the arguments of counsel, the court pursuant to FRCP 52(a) finds that Proposition 8 is unconstitutional and that its enforcement must be enjoined.
BACKGROUND TO PROPOSITION 8
In November 2000, the voters of California adopted Proposition 22 through the state’s initiative process. Entitled the California Defense of Marriage Act, Proposition 22 amended the state’s Family Code by adding the following language: “Only marriage between a man and a woman is valid or recognized in California.” Cal. Family Code § 308.5. This amendment further codified the existing definition of marriage as “a relationship between a man and a woman.” In re Marriage Cases, 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384, 407 (2008).
In February 2004, the mayor of San Francisco instructed county officials to issue marriage licenses to same-sex couples. The following month, the California

142a
Supreme Court ordered San Francisco to stop issuing such licenses and later nullified the marriage licenses that same-sex couples had received. See Lockyer v. City & County of San Francisco, 33 Cal.4th 1055, 17 Cal.Rptr.3d 225, 95 P.3d 459 (2004). The court expressly avoided addressing whether Proposition 22 violated the California Constitution.
Shortly thereafter, San Francisco and various other parties filed state court actions challenging or defending California’s exclusion of same-sex couples from marriage under the state constitution. These actions were consolidated in San Francisco superior court; the presiding judge determined that, as a matter of law, California’s bar against marriage by samesex couples violated the equal protection guarantee of Article I Section 7 of the California Constitution. In re Coordination Proceeding, Special Title [Rule 1550 (c)], 2005 WL 583129 (March 14, 2005). The court of appeal reversed, and the California Supreme Court granted review. In May 2008, the California Supreme Court invalidated Proposition 22 and held that all California counties were required to issue marriage licenses to same-sex couples. See In re Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d 384. From June 17, 2008 until the passage of Proposition 8 in November of that year, San Francisco and other California counties issued approximately 18,000 marriage licenses to same-sex couples.
After the November 2008 election, opponents of Proposition 8 challenged the initiative through an original writ of mandate in the California Supreme

143a
Court as violating the rules for amending the California Constitution and on other grounds; the California Supreme Court upheld Proposition 8 against those challenges. Strauss v. Horton, 46 Cal.4th 364, 93 Cal.Rptr.3d 591, 207 P.3d 48 (2009). Strauss leaves undisturbed the 18,000 marriages of same-sex couples performed in the four and a half months between the decision in In re Marriage Cases and the passage of Proposition 8. Since Proposition 8 passed, no samesex couple has been permitted to marry in California.
PROCEDURAL HISTORY OF THIS ACTION
Plaintiffs challenge the constitutionality of Proposition 8 under the Fourteenth Amendment, an issue not raised during any prior state court proceeding. Plaintiffs filed their complaint on May 22, 2009, naming as defendants in their official capacities California’s Governor, Attorney General and Director and Deputy Director of Public Health and the Alameda County Clerk-Recorder and the Los Angeles County Registrar-Recorder/County Clerk (collectively “the government defendants”). Doc. # 1. With the exception of the Attorney General, who concedes that Proposition 8 is unconstitutional, Doc. # 39, the government defendants refused to take a position on the merits of plaintiffs’ claims and declined to defend Proposition 8. Doc. # 42 (Alameda County), Doc. # 41 (Los Angeles County), Doc. # 46 (Governor and Department of Public Health officials).

144a
Defendant-intervenors, the official proponents of Proposition 8 under California election law (“proponents”), were granted leave in July 2009 to intervene to defend the constitutionality of Proposition 8. Doc. # 76. On January 8, 2010, Hak-Shing William Tam, an official proponent and defendant-intervenor, moved to withdraw as a defendant, Doc. # 369; Tam’s motion is denied for the reasons stated in a separate order filed herewith. Plaintiff-intervenor City and County of San Francisco (“CCSF” or “San Francisco”) was granted leave to intervene in August 2009. Doc. # 160 (minute entry).
The court denied plaintiffs’ motion for a preliminary injunction on July 2, 2009, Doc. # 77 (minute entry), and denied proponents’ motion for summary judgment on October 14, 2009, Doc. # 226 (minute entry). Proponents moved to realign the Attorney General as a plaintiff; the motion was denied on December 23, 2009, Doc. # 319. Imperial County, a political subdivision of California, sought to intervene as a party defendant on December 15, 2009, Doc. # 311; the motion is denied for the reasons addressed in a separate order filed herewith.
The parties disputed the factual premises underlying plaintiffs’ claims and the court set the matter for trial. The action was tried to the court January 11-27, 2010. The trial proceedings were recorded and used by the court in preparing the findings of fact and conclusions of law; the clerk is now DIRECTED to file the trial recording under seal as part of the record. The parties may retain their copies of the trial

145a
recording pursuant to the terms of the protective order herein, see Doc. # 672. Proponents’ motion to order the copies’ return, Doc. # 698, is accordingly DENIED.
PLAINTIFFS’ CASE AGAINST PROPOSITION 8
The Due Process Clause provides that no “State [shall] deprive any person of life, liberty, or property, without due process of law.” US Const. Amend. XIV, § 1. Plaintiffs contend that the freedom to marry the person of one’s choice is a fundamental right protected by the Due Process Clause and that Proposition 8 violates this fundamental right because:
1. It prevents each plaintiff from marrying the person of his or her choice;
2. The choice of a marriage partner is sheltered by the Fourteenth Amendment from the state’s unwarranted usurpation of that choice; and
3. California’s provision of a domestic partnership – a status giving same-sex couples the rights and responsibilities of marriage without providing marriage – does not afford plaintiffs an adequate substitute for marriage and, by disabling plaintiffs from marrying the person of their choice, invidiously discriminates, without justification, against plaintiffs and others who seek to marry a person of the same sex.
The Equal Protection Clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” US Const. Amend.

146a
XIV, § 1. According to plaintiffs, Proposition 8 violates the Equal Protection Clause because it:
1. Discriminates against gay men and lesbians by denying them a right to marry the person of their choice whereas heterosexual men and women may do so freely; and
2. Disadvantages a suspect class in preventing only gay men and lesbians, not heterosexuals, from marrying.
Plaintiffs argue that Proposition 8 should be subjected to heightened scrutiny under the Equal Protection Clause because gays and lesbians constitute a suspect class. Plaintiffs further contend that Proposition 8 is irrational because it singles out gays and lesbians for unequal treatment, as they and they alone may not marry the person of their choice. Plaintiffs argue that Proposition 8 discriminates against gays and lesbians on the basis of both sexual orientation and sex.
Plaintiffs conclude that because Proposition 8 is enforced by state officials acting under color of state law and because it has the effects plaintiffs assert, Proposition 8 is actionable under 42 USC § 1983. Plaintiffs seek a declaration that Proposition 8 is invalid and an injunction against its enforcement.
PROPONENTS’ DEFENSE OF PROPOSITION 8
Proponents organized the official campaign to pass Proposition 8, known as ProtectMarriage.com – Yes on 8, a Project of California Renewal (“Protect

147a
Marriage”). Proponents formed and managed the Protect Marriage campaign and ensured its efforts to pass Proposition 8 complied with California election law. See FF 13-17 below. After orchestrating the successful Proposition 8 campaign, proponents intervened in this lawsuit and provided a vigorous defense of the constitutionality of Proposition 8.
The ballot argument submitted to the voters summarizes proponents’ arguments in favor of Proposition 8 during the 2008 campaign. The argument states:
Proposition 8 is simple and straightforward. * * * Proposition 8 is about preserving marriage; it’s not an attack on the gay lifestyle. * * * It protects our children from being taught in public schools that “same-sex marriage” is the same as traditional marriage. * * * 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. * * * If the gay marriage ruling [of the California Supreme Court] is not overturned, TEACHERS COULD BE REQUIRED to teach young children there is no difference between gay marriage and traditional marriage.
We should not accept a court decision that may result in public schools teaching our own kids that gay marriage is ok. * * * [W]hile gays have the right to their private lives, they do not have the right to redefine marriage for everyone else.

148a
PX00011 California Voter Information Guide, California General Election, Tuesday, November 4, 2008 at PM 003365 (emphasis in original).
In addition to the ballot arguments, the Proposition 8 campaign presented to the voters of California a multitude of television, radio and internet-based advertisements and messages. The advertisements conveyed to voters that same-sex relationships are inferior to opposite-sex relationships and dangerous to children. See FF 79-80 below. The key premises on which Proposition 8 was presented to the voters thus appear to be the following:
1. Denial of marriage to same-sex couples preserves marriage;
2. Denial of marriage to same-sex couples allows gays and lesbians to live privately without requiring others, including (perhaps especially) children, to recognize or acknowledge the existence of same-sex couples;
3. Denial of marriage to same-sex couples protects children;
4. The ideal child-rearing environment requires one male parent and one female parent;
1 All cited evidence is available at http://ecf.cand.uscourts. gov/cand/09cv2292.

149a
5. Marriage is different in nature depending on the sex of the spouses, and an oppositesex couple’s marriage is superior to a samesex couple’s marriage; and
6. Same-sex couples’ marriages redefine opposite-sex couples’ marriages.
A state’s interest in an enactment must of course be secular in nature. The state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose. See Lawrence v. Texas, 539 U.S. 558, 571, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003); see also Everson v. Board of Education of Ewing Township, 330 U.S. 1, 15, 67 S.Ct. 504, 91 L.Ed. 711 (1947).
Perhaps recognizing that Proposition 8 must advance a secular purpose to be constitutional, proponents abandoned previous arguments from the campaign that had asserted the moral superiority of opposite-sex couples. Instead, in this litigation, proponents asserted that Proposition 8:
1. Maintains California’s definition of marriage as excluding same-sex couples;
2. Affirms the will of California citizens to exclude same-sex couples from marriage;
3. Promotes stability in relationships between a man and a woman because they naturally (and at times unintentionally) produce children; and
4. Promotes “statistically optimal” childrearing households; that is, households in

150a
which children are raised by a man and a woman married to each other.
Doc. # 8 at 17-18.
While proponents vigorously defended the constitutionality of Proposition 8, they did so based on legal conclusions and cross-examinations of some of plaintiffs’ witnesses, eschewing all but a rather limited factual presentation.
Proponents argued that Proposition 8 should be evaluated solely by considering its language and its consistency with the “central purpose of marriage, in California and everywhere else, * * * to promote naturally procreative sexual relationships and to channel them into stable, enduring unions for the sake of producing and raising the next generation.” Doc. # 172-1 at 21. Proponents asserted that marriage for same-sex couples is not implicit in the concept of ordered liberty and thus its denial does not deprive persons seeking such unions of due process. See generally Doc. # 172-1. Nor, proponents continued, does the exclusion of same-sex couples in California from marriage deny them equal protection because, among other reasons, California affords such couples a separate parallel institution under its domestic partnership statutes. Doc. # 172-1 at 75 et seq.
At oral argument on proponents’ motion for summary judgment, the court posed to proponents’ counsel the assumption that “the state’s interest in marriage is procreative” and inquired how permitting same-sex marriage impairs or adversely affects that interest.

151a
Doc. # 228 at 21. Counsel replied that the inquiry was “not the legally relevant question,” id, but when pressed for an answer, counsel replied: “Your honor, my answer is: I don’t know. I don’t know.” Id at 23.
Despite this response, proponents in their trial brief promised to “demonstrate that redefining marriage to encompass same-sex relationships” would effect some twenty-three specific harmful consequences. Doc. # 295 at 13-14. At trial, however, proponents presented only one witness, David Blankenhorn, to address the government interest in marriage. Blankenhorn’s testimony is addressed at length hereafter; suffice it to say that he provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate. During closing arguments, proponents again focused on the contention that “responsible procreation is really at the heart of society’s interest in regulating marriage.” Tr.3038:7-8. When asked to identify the evidence at trial that supported this contention, proponents’ counsel replied, “you don’t have to have evidence of this point.” Tr. 3037:25-3040:4.
Proponents’ procreation argument, distilled to its essence, is as follows: the state has an interest in encouraging sexual activity between people of the opposite sex to occur in stable marriages because such sexual activity may lead to pregnancy and children, and the state has an interest in encouraging parents to raise children in stable households. Tr. 3050:173051:10. The state therefore, the argument goes, has an interest in encouraging all opposite-sex sexual

152a
activity, whether responsible or irresponsible, procreative or otherwise, to occur within a stable marriage, as this encourages the development of a social norm that opposite-sex sexual activity should occur within marriage. Tr. 3053:10-24. Entrenchment of this norm increases the probability that procreation will occur within a marital union. Because same-sex couples’ sexual activity does not lead to procreation, according to proponents the state has no interest in encouraging their sexual activity to occur within a stable marriage. Thus, according to proponents, the state’s only interest is in opposite-sex sexual activity.
TRIAL PROCEEDINGS AND SUMMARY OF TESTIMONY
The parties’ positions on the constitutionality of Proposition 8 raised significant disputed factual questions, and for the reasons the court explained in denying proponents’ motion for summary judgment, Doc. # 228 at 72-91, the court set the matter for trial.
The parties were given a full opportunity to present evidence in support of their positions. They engaged in significant discovery, including third-party discovery, to build an evidentiary record. Both before and after trial, both in this court and in the court of appeals, the parties and third parties disputed the appropriate boundaries of discovery in an action challenging a voter-enacted initiative. See, for example, Doc. # # 187, 214, 237, 259, 372, 513.

153a
Plaintiffs presented eight lay witnesses, including the four plaintiffs, and nine expert witnesses. Proponents’ evidentiary presentation was dwarfed by that of plaintiffs. Proponents presented two expert witnesses and conducted lengthy and thorough crossexaminations of plaintiffs’ expert witnesses but failed to build a credible factual record to support their claim that Proposition 8 served a legitimate government interest.
Although the evidence covered a range of issues, the direct and cross-examinations focused on the following broad questions:
WHETHER ANY EVIDENCE SUPPORTS CALIFORNIA’S REFUSAL TO RECOGNIZE MARRIAGE BETWEEN TWO PEOPLE BECAUSE OF THEIR SEX;
WHETHER ANY EVIDENCE SHOWS CALIFORNIA HAS AN INTEREST IN DIFFERENTIATING BETWEEN SAME-SEX AND OPPOSITE-SEX UNIONS; and
WHETHER THE EVIDENCE SHOWS PROPOSITION 8 ENACTED A PRIVATE MORAL VIEW WITHOUT ADVANCING A LEGITIMATE GOVERNMENT INTEREST.
Framed by these three questions and before detailing the court’s credibility determinations and findings of fact, the court abridges the testimony at trial:

154a
WHETHER ANY EVIDENCE SUPPORTS CALIFORNIA’S REFUSAL TO RECOGNIZE MARRIAGE BETWEEN TWO PEOPLE BECAUSE OF THEIR SEX
All four plaintiffs testified that they wished to marry their partners, and all four gave similar reasons. Zarrillo wishes to marry Katami because marriage has a “special meaning” that would alter their relationships with family and others. Zarrillo described daily struggles that arise because he is unable to marry Katami or refer to Katami as his husband. Tr. 84:1-17. Zarrillo described an instance when he and Katami went to a bank to open a joint account, and “it was certainly an awkward situation walking to the bank and saying, ‘My partner and I want to open a joint bank account,’ and hearing, you know, ‘Is it a business account? A partnership?’ It would just be a lot easier to describe the situation – might not make it less awkward for those individuals, but it would make it – crystalize it more by being able to say * * * ‘My husband and I are here to open a bank account.’ ” Id. To Katami, marriage to Zarrillo would solidify their relationship and provide them the foundation they seek to raise a family together, explaining that for them, “the timeline has always been marriage first, before family.” Tr. 89:17-18.
Perry testified that marriage would provide her what she wants most in life: a stable relationship with Stier, the woman she loves and with whom she has built a life and a family. To Perry, marriage would provide access to the language to describe her

155a
relationship with Stier: “I’m a 45-year-old woman. I have been in love with a woman for 10 years and I don’t have a word to tell anybody about that.” Tr. 154:20-23. Stier explained that marrying Perry would make them feel included “in the social fabric.” Tr. 175:22. Marriage would be a way to tell “our friends, our family, our society, our community, our parents * * * and each other that this is a lifetime commitment * * * we are not girlfriends. We are not partners. We are married.” Tr. 172:8-12.
Plaintiffs and proponents presented expert testimony on the meaning of marriage. Historian Nancy Cott testified about the public institution of marriage and the state’s interest in recognizing and regulating marriages. Tr. 185:9-13. She explained that 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.” Tr. 201:9-14. The state’s primary purpose in regulating marriage is to create stable households. Tr. 222:13-17.
Think tank founder David Blankenhorn testified that marriage is “a socially-approved sexual relationship between a man and a woman” with a primary purpose to “regulate filiation.” Tr. 2742:9-10, 18. Blankenhorn testified that others hold to an alternative and, to Blankenhorn, conflicting definition of marriage: “a private adult commitment” that focuses on “the tender feelings that the spouses have for one

156a
another.” Tr. 2755:25-2756:1; 2756:10-2757:17; 2761:56. To Blankenhorn, marriage is either a socially approved sexual relationship between a man and a woman for the purpose of bearing and raising children who are biologically related to both spouses or a private relationship between two consenting adults.
Cott explained that marriage as a social institution encompasses a socially approved sexual union and an affective relationship and, for the state, forms the basis of stable households and private support obligations.
Both Cott and Blankenhorn addressed marriage as a historical institution. Cott pointed to consistent historical features of marriage, including that civil law, as opposed to religious custom, has always been supreme in regulating and defining marriage in the United States, Tr. 195:9-15, and that one’s ability to consent to marriage is a basic civil right, Tr. 202:2-5. Blankenhorn identified three rules of marriage (discussed further in the credibility determinations, section I below), which he testified have been consistent across cultures and times: (1) the rule of opposites (the “man/woman” rule); (2) the rule of two; and (3) the rule of sex. Tr. 2879:17-25.
Cott identified historical changes in the institution of marriage, including the removal of race restrictions through court decisions and the elimination of coverture and other gender-based distinctions. Blankenhorn identified changes that to him signify the deinstitutionalization of marriage, including an

157a
increase in births outside of marriage and an increasing divorce rate.
Both Cott and Blankenhorn testified that California stands to benefit if it were to resume issuing marriage licenses to same-sex couples. Blankenhorn noted that marriage would benefit same-sex couples and their children, would reduce discrimination against gays and lesbians and would be “a victory for the worthy ideas of tolerance and inclusion.” Tr. 2850:12-13. Despite the multitude of benefits identified by Blankenhorn that would flow to the state, to gays and lesbians and to American ideals were California to recognize same-sex marriage, Blankenhorn testified that the state should not recognize same-sex marriage. Blankenhorn reasoned that the benefits of same-sex marriage are not valuable enough because same-sex marriage could conceivably weaken marriage as an institution. Cott testified that the state would benefit from recognizing same-sex marriage because such marriages would provide “another resource for stability and social order.” Tr. 252:19-23.
Psychologist Letitia Anne Peplau testified that couples benefit both physically and economically when they are married. Peplau testified that those benefits would accrue to same-sex as well as oppositesex married couples. To Peplau, the desire of same-sex couples to marry illustrates the health of the institution of marriage and not, as Blankenhorn testified, the weakening of marriage. Economist Lee Badgett provided evidence that same-sex couples would benefit economically if they were able to marry and that

158a
same-sex marriage would have no adverse effect on the institution of marriage or on opposite-sex couples.
As explained in the credibility determinations, section I below, the court finds the testimony of Cott, Peplau and Badgett to support findings on the definition and purpose of civil marriage; the testimony of Blankenhorn is unreliable. The trial evidence provides no basis for establishing that California has an interest in refusing to recognize marriage between two people because of their sex.
WHETHER ANY EVIDENCE SHOWS CALIFORNIA HAS AN INTEREST IN DIFFERENTIATING BETWEEN SAMESEX AND OPPOSITE-SEX UNIONS
Plaintiffs’ experts testified that no meaningful differences exist between same-sex couples and oppositesex couples. Blankenhorn identified one difference: some opposite-sex couples are capable of creating biological offspring of both spouses while same-sex couples are not.
Psychologist Gregory Herek defined sexual orientation as “an enduring sexual, romantic, or intensely affectional attraction to men, to women, or to both men and women. It’s also used to refer to an identity or a sense of self that is based on one’s enduring patterns of attraction. And it’s also sometimes used to describe an enduring pattern of behavior.” Tr. 2025:511. Herek explained that homosexuality is a normal expression of human sexuality; the vast majority of

159a
gays and lesbians have little or no choice in their sexual orientation; and therapeutic efforts to change an individual’s sexual orientation have not been shown to be effective and instead pose a risk of harm to the individual. Proponents did not present testimony to contradict Herek but instead questioned him on data showing that some individuals report fluidity in their sexual orientation. Herek responded that the data proponents presented does nothing to contradict his conclusion that the vast majority of people are consistent in their sexual orientation.
Peplau pointed to research showing that, despite stereotypes suggesting gays and lesbians are unable to form stable relationships, same-sex couples are in fact indistinguishable from opposite-sex couples in terms of relationship quality and stability. Badgett testified that same-sex and opposite-sex couples are very similar in most economic and demographic respects. Peplau testified that the ability of same-sex couples to marry will have no bearing on whether opposite-sex couples choose to marry or divorce.
Social epidemiologist Ilan Meyer testified about the harm gays and lesbians have experienced because of Proposition 8. Meyer explained that Proposition 8 stigmatizes gays and lesbians because it informs gays and lesbians that the State of California rejects their relationships as less valuable than opposite-sex relationships. Proposition 8 also provides state endorsement of private discrimination. According to Meyer, Proposition 8 increases the likelihood of negative

160a
mental and physical health outcomes for gays and lesbians.
Psychologist Michael Lamb testified that all available evidence shows that children raised by gay or lesbian parents are just as likely to be welladjusted as children raised by heterosexual parents and that the gender of a parent is immaterial to whether an adult is a good parent. When proponents challenged Lamb with studies purporting to show that married parents provide the ideal child-rearing environment, Lamb countered that studies on childrearing typically compare married opposite-sex parents to single parents or step-families and have no bearing on families headed by same-sex couples. Lamb testified that the relevant comparison is between families headed by same-sex couples and families headed by opposite-sex couples and that studies comparing these two family types show conclusively that having parents of different genders is irrelevant to child outcomes.
Lamb and Blankenhorn disagreed on the importance of a biological link between parents and children. Blankenhorn emphasized the importance of biological parents, relying on studies comparing children raised by married, biological parents with children raised by single parents, unmarried mothers, step families and cohabiting parents. Tr. 2769:14-24 (referring to DIX0026 Kristin Anderson Moore, Susan M Jekielek, and Carol Emig, Marriage from a Child’s Perspective: How Does Family Structure Affect Children, and What Can We Do about It, Child Trends (June 2002));

161a
Tr. 2771:1-13 (referring to DIX0124 Sara McLanahan and Gary Sandefur, Growing Up with a Single Parent: What Hurts, What Helps (Harvard 1994)). As explained in the credibility determinations, section I below, none of the studies Blankenhorn relied on isolates the genetic relationship between a parent and a child as a variable to be tested. Lamb testified about studies showing that adopted children or children conceived using sperm or egg donors are just as likely to be well-adjusted as children raised by their biological parents. Tr. 1041:8-17. Blankenhorn agreed with Lamb that adoptive parents “actually on some outcomes outstrip biological parents in terms of providing protective care for their children.” Tr. 2795:3-5.
Several experts testified that the State of California and California’s gay and lesbian population suffer because domestic partnerships are not equivalent to marriage. Badgett explained that gays and lesbians are less likely to enter domestic partnerships than to marry, meaning fewer gays and lesbians have the protection of a state-recognized relationship. Both Badgett and San Francisco economist Edmund Egan testified that states receive greater economic benefits from marriage than from domestic partnerships. Meyer testified that domestic partnerships actually stigmatize gays and lesbians even when enacted for the purpose of providing rights and benefits to samesex couples. Cott explained that domestic partnerships cannot substitute for marriage because domestic partnerships do not have the same social and historical meaning as marriage and that much of the

162a
value of marriage comes from its social meaning. Peplau testified that little of the cultural esteem surrounding marriage adheres to domestic partnerships.
To illustrate his opinion that domestic partnerships are viewed by society as different from marriage, Herek pointed to a letter sent by the California Secretary of State to registered domestic partners in 2004 informing them of upcoming changes to the law and suggesting dissolution of their partnership to avoid any unwanted financial effects. Tr. 2047:152048:5, PX2265 (Letter from Kevin Shelley, California Secretary of State, to Registered Domestic Partners). Herek concluded that a similar letter to married couples would not have suggested divorce. Tr. 2048:613.
The experts’ testimony on domestic partnerships is consistent with the testimony of plaintiffs, who explained that domestic partnerships do not satisfy their desire to marry. Stier, who has a registered domestic partnership with Perry, explained that “there is certainly nothing about domestic partnership * * * that indicates the love and commitment that are inherent in marriage.” Tr. 171:8-11. Proponents did not challenge plaintiffs’ experts on the point that marriage is a socially superior status to domestic partnership; indeed, proponents stipulated that “[t]here is a significant symbolic disparity between domestic partnership and marriage.” Doc. # 159-2 at 6.
Proponents’ cross-examinations of several experts challenged whether people can be categorized based

163a
on their sexual orientation. Herek, Meyer and Badgett responded that sexual orientation encompasses behavior, identity and attraction and that most people are able to answer questions about their sexual orientation without formal training. According to the experts, researchers may focus on one element of sexual orientation depending on the purpose of the research and sexual orientation is not a difficult concept for researchers to apply.
As explained in the credibility determinations, section I below, and the findings of fact, section II below, the testimony shows that California has no interest in differentiating between same-sex and opposite-sex unions.
WHETHER THE EVIDENCE SHOWS PROPOSITION 8 ENACTED A PRIVATE MORAL VIEW WITHOUT ADVANCING A LEGITIMATE GOVERNMENT INTEREST
The testimony of several witnesses disclosed that a primary purpose of Proposition 8 was to ensure that California confer a policy preference for opposite-sex couples over same-sex couples based on a belief that same-sex pairings are immoral and should not be encouraged in California.
Historian George Chauncey testified about a direct relationship between the Proposition 8 campaign and initiative campaigns from the 1970s targeting gays and lesbians; like earlier campaigns, the Proposition 8 campaign emphasized the importance

164a
of protecting children and relied on stereotypical images of gays and lesbians, despite the lack of any evidence showing that gays and lesbians pose a danger to children. Chauncey concluded that the Proposition 8 campaign did not need to explain what children were to be protected from; the advertisements relied on a cultural understanding that gays and lesbians are dangerous to children.
This understanding, Chauncey observed, is an artifact of the discrimination gays and lesbians faced in the United States in the twentieth century. Chauncey testified that because homosexual conduct was criminalized, gays and lesbians were seen as criminals; the stereotype of gay people as criminals therefore became pervasive. Chauncey noted that stereotypes of gays and lesbians as predators or child molesters were reinforced in the mid-twentieth century and remain part of current public discourse. Lamb explained that this stereotype is not at all credible, as gays and lesbians are no more likely than heterosexuals to pose a threat to children.
Political scientist Gary Segura provided many examples of ways in which private discrimination against gays and lesbians is manifested in laws and policies. Segura testified that negative stereotypes about gays and lesbians inhibit political compromise with other groups: “It’s very difficult to engage in the give-and-take of the legislative process when I think you are an inherently bad person. That’s just not the basis for compromise and negotiation in the political process.” Tr. 1561:6-9. Segura identified religion as

165a
the chief obstacle to gay and lesbian political advances. Political scientist Kenneth Miller disagreed with Segura’s conclusion that gays and lesbians lack political power, Tr. 2482:4-8, pointing to some successes on the state and national level and increased public support for gays and lesbians, but agreed that popular initiatives can easily tap into a strain of antiminority sentiment and that at least some voters supported Proposition 8 because of anti-gay sentiment.
Proponent Hak-Shing William Tam testified about his role in the Proposition 8 campaign. Tam spent substantial time, effort and resources campaigning for Proposition 8. As of July 2007, Tam was working with Protect Marriage to put Proposition 8 on the November 2008 ballot. Tr. 1900:13-18. Tam testified that he is the secretary of the America Return to God Prayer Movement, which operates the website “1man1woman. net.” Tr. 1916:3-24. 1man1woman.net encouraged voters to support Proposition 8 on grounds that homosexuals are twelve times more likely to molest children, Tr. 1919:3-1922:21, and because Proposition 8 will cause states one-by-one to fall into Satan’s hands, Tr. 1928:6-13. Tam identified NARTH (the National Association for Research and Therapy of Homosexuality) as the source of information about homosexuality, because he “believe[s] in what they say.” Tr. 1939:1-9. Tam identified “the internet” as the source of information connecting same-sex marriage to polygamy and incest. Tr. 1957:2-12. Protect Marriage relied on Tam and, through Tam, used the website 1man 1woman.net as part of the Protect Marriage Asian/

166a
Pacific Islander outreach. Tr. 1976:10-15; PX2599 (Email from Sarah Pollo, Account Executive, Schubert Flint Public Affairs (Aug 22, 2008) attaching meeting minutes). Tam signed a Statement of Unity with Protect Marriage, PX2633, in which he agreed not to put forward “independent strategies for public messaging.” Tr. 1966:16-1967:16.
Katami and Stier testified about the effect Proposition 8 campaign advertisements had on their wellbeing. Katami explained that he was angry and upset at the idea that children needed to be protected from him. After watching a Proposition 8 campaign message, PX0401 (Video, Tony Perkins, Miles McPherson, and Ron Prentice Asking for Support of Proposition 8), Katami stated that “it just demeans you. It just makes you feel like people are putting efforts into discriminating against you.” Tr. 108:14-16. Stier, as the mother of four children, was especially disturbed at the message that Proposition 8 had something to do with protecting children. She felt the campaign messages were “used to sort of try to educate people or convince people that there was a great evil to be feared and that evil must be stopped and that evil is us, I guess. * * * And the very notion that I could be part of what others need to protect their children from was just – it was more than upsetting. It was sickening, truly. I felt sickened by that campaign.” Tr. 177:9-18.
Egan and Badgett testified that Proposition 8 harms the State of California and its local governments economically. Egan testified that San

167a
Francisco faces direct and indirect economic harms as a consequence of Proposition 8. Egan explained that San Francisco lost and continues to lose money because Proposition 8 slashed the number of weddings performed in San Francisco. Egan explained that Proposition 8 decreases the number of married couples in San Francisco, who tend to be wealthier than single people because of their ability to specialize their labor, pool resources and access state and employerprovided benefits. Proposition 8 also increases the costs associated with discrimination against gays and lesbians. Proponents challenged only the magnitude and not the existence of the harms Egan identified. Badgett explained that municipalities throughout California and the state government face economic disadvantages similar to those Egan identified for San Francisco.
For the reasons stated in the sections that follow, the evidence presented at trial fatally undermines the premises underlying proponents’ proffered rationales for Proposition 8. An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority

168a
that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.
I
CREDIBILITY DETERMINATIONS
PLAINTIFFS’ WITNESSES
Plaintiffs presented the testimony of the four plaintiffs, four lay witnesses and nine expert witnesses. Proponents did not challenge the credibility of the lay witnesses or the qualifications of the expert witnesses to offer opinion testimony.
Having observed and considered the testimony presented, the court concludes that plaintiffs’ lay witnesses provided credible testimony:
1. Jeffrey Zarrillo, a plaintiff, testified about coming out as a gay man. (Tr. 77:12-15: “Coming out is a very personal and internal process. * * * You have to get to the point where you’re comfortable with yourself, with your own identity and who you are.”) Zarrillo described his nine-year relationship with Katami. (Tr. 79:20-21: “He’s the love of my life. I love him probably more than I love myself.”)
2. Paul Katami, a plaintiff, testified about his reasons for wanting to marry Zarrillo.

169a
(Tr. 89:1-3: “Being able to call him my husband is so definitive, it changes our relationship.” Tr. 90:24-91:2: “I can safely say that if I were married to Jeff, that I know that the struggle that we have validating ourselves to other people would be diminished and potentially eradicated.”) Katami explained why it was difficult for him to tell others about his sexual orientation even though he has been gay for “as long as [he] can remember.” (Tr. 91:17-92:2: “I struggled with it quite a bit. Being surrounded by what seemed everything heterosexual * * * you tend to try and want to fit into that.”) Katami described how the Proposition 8 campaign messages affected him. (Tr. 97:1-11: “[P]rotect the children is a big part of the [Proposition 8] campaign. And when I think of protecting your children, you protect them from people who will perpetrate crimes against them, people who might get them hooked on a drug, a pedophile, or some person that you need protecting from. You don’t protect yourself from an amicable person or a good person. You protect yourself from things that can harm you physically, emotionally. And so insulting, even the insinuation that I would be part of that category.”)
3. Kristin Perry, a plaintiff, testified about her relationship with Stier. (Tr. 139:16-17; 140:13-14: Stier is “maybe the sparkliest person I ever met. * * * [T]he happiest I feel is in my relationship with [Stier.]”) Perry described why she wishes to marry. (Tr. 141:22-142:1: “I want to have a stable and

170a
secure relationship with her that then we can include our children in. And I want the discrimination we are feeling with Proposition 8 to end and for a more positive, joyful part of our lives to * * * begin.”) Perry described the reason she and Stier registered as domestic partners. (Tr. 153:16-17: “[W]e are registered domestic partners based on just legal advice that we received for creating an estate plan.”)
4. Sandra Stier, a plaintiff, testified about her relationship with Perry, with whom she raises their four children. (Tr. 167:3-5: “I have fallen in love one time and it’s with [Perry].”). Stier explained why she wants to marry Perry despite their domestic partnership. (Tr. 171:8-13: “[T]here is certainly nothing about domestic partnership as an institution – not even as an institution, but as a legal agreement that indicates the love and commitment that are inherent in marriage, and [domestic partnership] doesn’t have anything to do for us with the nature of our relationship and the type of enduring relationship we want it to be.”)
5. Helen Zia, a lay witness, testified regarding her experiences with discrimination and about how her life changed when she married her wife in 2008. (Tr. 1235:10-13: “I’m beginning to understand what I’ve always read – marriage is the joining of two families.”)
6. Jerry Sanders, the mayor of San Diego and a lay witness, testified regarding how he

171a
came to believe that domestic partnerships are discriminatory. (Tr. 1273:10-17: On a lastminute decision not to veto a San Diego resolution supporting same-sex marriage: “I was saying that one group of people did not deserve the same dignity and respect, did not deserve the same symbolism about marriage.”)
7. Ryan Kendall, a lay witness, testified about his experience as a teenager whose parents placed him in therapy to change his sexual orientation from homosexual to heterosexual. (Tr. 1521:20: “I knew I was gay. I knew that could not be changed.”) Kendall described the mental anguish he endured because of his family’s disapproval of his sexual orientation. (Tr. 1508:9-10, 1511:2-16: “I remember my mother looking at me and telling me that I was going to burn in hell. * * * [M]y mother would tell me that she hated me, or that I was disgusting, or that I was repulsive. Once she told me that she wished she had had an abortion instead of a gay son.”)
8. Hak-Shing William Tam, an official proponent of Proposition 8 and an intervening defendant, was called as an adverse witness and testified about messages he disseminated during the Proposition 8 campaign. (Tr. 1889:23-25: “Q: Did you invest substantial time, effort, and personal resources in campaigning for Proposition 8? A: Yes.”)

172a
Plaintiffs called nine expert witnesses. As the education and experience of each expert show, plaintiffs’ experts were amply qualified to offer opinion testimony on the subjects identified. Moreover, the experts’ demeanor and responsiveness showed their comfort with the subjects of their expertise. For those reasons, the court finds that each of plaintiffs’ proffered experts offered credible opinion testimony on the subjects identified.
1. Nancy Cott, a historian, testified as an expert in the history of marriage in the United States. Cott testified that marriage has always been a secular institution in the United States, that regulation of marriage eased the state’s burden to govern an amorphous populace and that marriage in the United States has undergone a series of transformations since the country was founded.
a. PX2323 Cott CV: Cott is a professor of American history at Harvard University and the director of the Schlesinger Library on the History of Women in America;
b. PX2323: In 1974, Cott received a PhD from Brandeis University in the history of American civilization;
c. PX2323: Cott has published eight books, including Public Vows: A History of Marriage and the Nation (2000), and has published numerous articles and essays;
d. Tr. 186:5-14: Cott devoted a semester in 1998 to researching and teaching a course at

173a
Yale University in the history of marriage in the United States;
e. Tr. 185:9-13; 188:6-189:10: Cott’s marriage scholarship focuses on marriage as a public institution and as a structure regulated by government for social benefit.
2. George Chauncey, a historian, was qualified to offer testimony on social history, especially as it relates to gays and lesbians. Chauncey testified about the widespread private and public discrimination faced by gays and lesbians in the twentieth century and the ways in which the Proposition 8 campaign echoed that discrimination and relied on stereotypes against gays and lesbians that had developed in the twentieth century.
a. PX2322 Chauncey CV: Chauncey is a professor of history and American studies at Yale University; from 1991-2006, Chauncey was a professor of history at the University of Chicago;
b. Tr. 357:15-17: Chauncey received a PhD in history from Yale University in 1989;
c. PX2322: Chauncey has authored or edited books on the subject of gay and lesbian history, including Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940 (1994) and Hidden from History: Reclaiming the Gay and Lesbian Past (1989, ed);
d. Tr. 359:17-360:11: Chauncey relies on government records, interviews, diaries, films

174a
and advertisements along with studies by other historians and scholars in conducting his research;
e. Tr. 360:12-21: Chauncey teaches courses in twentieth century United States history, including courses on lesbian and gay history.
3. Lee Badgett, an economist, testified as an expert on demographic information concerning gays and lesbians, same-sex couples and children raised by gays and lesbians, the effects of the exclusion of same-sex couples from the institution of marriage and the effect of permitting same-sex couples to marry on heterosexual society and the institution of marriage. Badgett offered four opinions: (1) Proposition 8 has inflicted substantial economic harm on same-sex couples and their children; (2) allowing same-sex couples to marry would not have any adverse effect on the institution of marriage or on opposite-sex couples; (3) same-sex couples are very similar to opposite-sex couples in most economic and demographic respects; and (4) Proposition 8 has imposed economic losses on the State of California and on California counties and municipalities. Tr. 1330:9-1331:5.
a. PX2321 Badgett CV: Badgett is a professor of economics at UMass Amherst and the director of the Williams Institute at UCLA School of Law;
b. PX2321: Badgett received her PhD in economics from UC Berkeley in 1990;

175a
c. Tr. 1325:2-17; PX2321: Badgett has written two books on gay and lesbian relationships and same-sex marriage: Money, Myths, and Change: The Economic Lives of Lesbians and Gay Men (2001) and When Gay People Get Married: What Happens When Societies Legalize Same-Sex Marriage (2009); Badgett has also published several articles on the same subjects;
d. Tr. 1326:4-13: Badgett co-authored two reports (PX1268 Brad Sears and M V Lee Badgett, The Impact of Extending Marriage to Same-Sex Couples on the California Budget, The Williams Institute (June 2008) and PX1283 M V Lee Badgett and R Bradley Sears, Putting a Price on Equality? The Impact of Same-Sex Marriage on California’s Budget, 16 Stan L & Pol Rev. 197 (2005)) analyzing the fiscal impact of allowing samesex couples to marry in California;
e. Tr. 1326:18-1328:4: Badgett has been invited to speak at many universities and at the American Psychological Association convention on the economics of same-sex relationships;
f. Tr. 1329:6-22: Badgett has testified before federal and state government bodies about domestic partner benefits and antidiscrimination laws.
4. Edmund A Egan, the chief economist in the San Francisco Controller’s Office, testified for CCSF as an expert in urban and regional economic policy.

176a
Egan conducted an economic study of the prohibition of same-sex marriage on San Francisco’s economy and concluded that the prohibition negatively affects San Francisco’s economy in many ways. Tr. 683:19-684:19.
a. Tr. 678:1-7: As the chief economist for CCSF, Egan directs the Office of Economic Analysis and prepares economic impact analysis reports for pending legislation;
b. Tr. 681:16-682:25: In preparing economic impact reports, Egan relies on government data and reports, private reports and independent research to determine whether legislation has “real regulatory power” and the effects of the legislation on private behavior;
c. PX2324 Egan CV: Egan received a PhD in city and regional planning from UC Berkeley in 1997;
d. Tr. 679:1-14: Egan is an adjunct faculty member at UC Berkeley and teaches graduate students on regional and urban economics and regional and city planning.
5. Letitia Anne Peplau, a psychologist, was qualified as an expert on couple relationships within the field of psychology. Peplau offered four opinions: (1) for adults who choose to enter marriage, that marriage is often associated with many important benefits; (2) research has shown remarkable similarities between same-sex and opposite-sex couples; (3) if same-sex couples are permitted to marry, they will likely experience the same benefits from marriage as opposite-sex couples; and (4) permitting same-sex

177a
marriage will not harm opposite-sex marriage. Tr. 574:6-19.
a. PX2329 Peplau CV: Peplau is a professor of psychology and vice chair of graduate studies in psychology at UCLA;
b. Tr. 569:10-12: Peplau’s research focuses on social psychology, which is a branch of psychology that focuses on human relationships and social influence; specifically, Peplau studies close personal relationships, sexual orientation and gender;
c. Tr. 571:13: Peplau began studying samesex relationships in the 1970s;
d. Tr. 571:19-572:13; PX2329: Peplau has published or edited about ten books, authored about 120 peer-reviewed articles and published literature reviews on psychology, relationships and sexuality.
6. Ilan Meyer, a social epidemiologist, testified as an expert in public health with a focus on social psychology and psychiatric epidemiology. Meyer offered three opinions: (1) gays and lesbians experience stigma, and Proposition 8 is an example of stigma; (2) social stressors affect gays and lesbians; and (3) social stressors negatively affect the mental health of gays and lesbians. Tr. 817:10-19.
a. PX2328 Meyer CV: Meyer is an associate professor of sociomedical sciences at Columbia University’s Mailman School of Public Health;

178a
b. PX2328; Tr. 807:20-808:7: Meyer received a PhD in sociomedical sciences from Columbia University in 1993;
c. Tr. 810:19-811:16: Meyer studies the relationship between social issues and structures and patterns of mental health outcomes with a specific focus on lesbian, gay and bisexual populations;
d. Tr. 812:9-814:22: Meyer has published about forty peer-reviewed articles, teaches a course on gay and lesbian issues in public health, has received numerous awards for his professional work and has edited and reviewed journals and books.
7. Gregory Herek, a psychologist, testified as an expert in social psychology with a focus on sexual orientation and stigma. Herek offered opinions concerning: (1) the nature of sexual orientation and how sexual orientation is understood in the fields of psychology and psychiatry; (2) the amenability of sexual orientation to change through intervention; and (3) the nature of stigma and prejudice as they relate to sexual orientation and Proposition 8. Tr. 2023:8-14.
a. PX2326 Herek CV: Herek is a professor of psychology at UC Davis;
b. PX2326: Herek received a PhD in personality and social psychology from UC Davis in 1983;
c. Tr. 2018:5-13: Social psychology is the intersection of psychology and sociology in that it focuses on human behavior within a social

179a
context; Herek’s dissertation focused on heterosexuals’ attitudes towards lesbians and gay men;
d. Tr. 2020:1-5: Herek regularly teaches a course on sexual orientation and prejudice;
e. PX2326; Tr. 2021:12-25; Tr. 2022:11-14: Herek serves on editorial boards of peerreviewed journals and has published over 100 articles and chapters on sexual orientation, stigma and prejudice.
8. Michael Lamb, a psychologist, testified as an expert on the developmental psychology of children, including the developmental psychology of children raised by gay and lesbian parents. Lamb offered two opinions: (1) children raised by gays and lesbians are just as likely to be well-adjusted as children raised by heterosexual parents; and (2) children of gay and lesbian parents would benefit if their parents were able to marry. Tr. 1009:23-1010:4.
a. PX2327 Lamb CV: Lamb is a professor and head of the Department of Social and Developmental Psychology at the University of Cambridge in England;
b. Tr. 1003:24-1004:6; PX2327: Lamb was the head of the section on social and emotional development of the National Institute of Child Health and Human Development in Washington DC for seventeen years;
c. Tr. 1007:2-1008:8; PX2327: Lamb has published approximately 500 articles, many about child adjustment, has edited 40 books

180a
in developmental psychology, reviews about 100 articles a year and serves on editorial boards on several academic journals;
d. PX2327: Lamb received a PhD from Yale University in 1976.
9. Gary Segura, a political scientist, testified as an expert on the political power or powerlessness of minority groups in the United States, and of gays and lesbians in particular. Segura offered three opinions: (1) gays and lesbians do not possess a meaningful degree of political power; (2) gays and lesbians possess less power than groups granted judicial protection; and (3) the conclusions drawn by proponents’ expert Miller are troubling and unpersuasive. Tr. 1535:3-18.
a. PX2330 Segura CV: Segura is a professor of political science at Stanford University and received a PhD in political science from the University of Illinois in 1992;
b. Tr. 1525:1-10: Segura and a colleague, through the Stanford Center for Democracy, operate the American National Elections Studies, which provides political scientists with data about the American electorate’s views about politics;
c. Tr. 1525:11-19: Segura serves on the editorial boards of major political science journals;
d. Tr. 1525:22-1526:24: Segura’s work focuses on political representation and whether elected officials respond to the voting public;

181a
within the field of political representation, Segura focuses on minorities;
e. PX2330; Tr. 1527:25-1528:14: Segura has published about twenty-five peer-reviewed articles, authored about fifteen chapters in edited volumes and has presented at between twenty and forty conferences in the past ten years;
f. PX2330; Tr. 1528:21-24: Segura has published three pieces specific to gay and lesbian politics and political issues;
g. Tr. 1532:11-1533:17: Segura identified the methods he used and materials he relied on to form his opinions in this case. Relying on his background as a political scientist, Segura read literature on gay and lesbian politics, examined the statutory status of gays and lesbians and public attitudes about gays and lesbians, determined the presence or absence of gays and lesbians in political office and considered ballot initiatives about gay and lesbian issues.
PROPONENTS’ WITNESSES
Proponents elected not to call the majority of their designated witnesses to testify at trial and called not a single official proponent of Proposition 8 to explain the discrepancies between the arguments in favor of Proposition 8 presented to voters and the arguments presented in court. Proponents informed the court on the first day of trial, January 11, 2010,

182a
that they were withdrawing Loren Marks, Paul Nathanson, Daniel N Robinson and Katherine Young as witnesses. Doc. # 398 at 3. Proponents’ counsel stated in court on Friday, January 15, 2010, that their witnesses “were extremely concerned about their personal safety, and did not want to appear with any recording of any sort, whatsoever.” Tr. 1094:21-23.
The timeline shows, however, that proponents failed to make any effort to call their witnesses after the potential for public broadcast in the case had been eliminated. The Supreme Court issued a temporary stay of transmission on January 11, 2010 and a permanent stay on January 13, 2010. See Hollingsworth v. Perry, ___ U.S. ___, 130 S.Ct. 1132, ___ L.Ed.2d ___ (2010); Hollingsworth v. Perry, ___ U.S. ___, 130 S.Ct. 705, ___ L.Ed.2d ___ (2010). The court withdrew the case from the Ninth Circuit’s pilot program on broadcasting on January 15, 2010. Doc. # 463. Proponents affirmed the withdrawal of their witnesses that same day. Tr. 1094:21-23. Proponents did not call their first witness until January 25, 2010. The record does not reveal the reason behind proponents’ failure to call their expert witnesses.
Plaintiffs entered into evidence the deposition testimony of two of proponents’ withdrawn witnesses, as their testimony supported plaintiffs’ claims. Katherine Young was to testify on comparative religion and the universal definition of marriage. Doc. # 292 at 4 (proponents’ December 7 witness list) Doc. # 2864 at 2 (expert report). Paul Nathanson was to testify on religious attitudes towards Proposition 8. Doc.

183a
# 292 at 4 (proponents’ December 7 witness list); Doc. # 280-4 at 2 (expert report).
Young has been a professor of religious studies at McGill University since 1978. PX2335 Young CV. She received her PhD in history of religions and comparative religions from McGill in 1978. Id. Young testified at her deposition that homosexuality is a normal variant of human sexuality and that same-sex couples possess the same desire for love and commitment as opposite-sex couples. PX2545 (dep. tr.); PX2544 (video of same). Young also explained that several cultures around the world and across centuries have had variations of marital relationships for same-sex couples. Id.
Nathanson has a PhD in religious studies from McGill University and is a researcher at McGill’s Faculty for Religious Studies. PX2334 Nathanson CV. Nathanson is also a frequent lecturer on consequences of marriage for same-sex couples and on gender and parenting. Id. Nathanson testified at his deposition that religion lies at the heart of the hostility and violence directed at gays and lesbians and that there is no evidence that children raised by same-sex couples fare worse than children raised by opposite-sex couples. PX2547 (dep. tr.); PX2546 (video of same).
Proponents made no effort to call Young or Nathanson to explain the deposition testimony that plaintiffs had entered into the record or to call any of the withdrawn witnesses after potential for contemporaneous broadcast of the trial proceedings had been eliminated. Proponents called two witnesses:

184a
1. David Blankenhorn, founder and president of the Institute for American Values, testified on marriage, fatherhood and family structure. Plaintiffs objected to Blankenhorn’s qualification as an expert. For the reasons explained hereafter, Blankenhorn lacks the qualifications to offer opinion testimony and, in any event, failed to provide cogent testimony in support of proponents’ factual assertions.
2. Kenneth P Miller, a professor of government at Claremont McKenna College, testified as an expert in American and California politics. Plaintiffs objected that Miller lacked sufficient expertise specific to gays and lesbians. Miller’s testimony sought to rebut only a limited aspect of plaintiffs’ equal protection claim relating to political power.
David Blankenhorn
Proponents called David Blankenhorn as an expert on marriage, fatherhood and family structure. Blankenhorn received a BA in social studies from Harvard College and an MA in comparative social history from the University of Warwick in England. Tr. 2717:24-2718:3; DIX2693 (Blankenhorn CV). After Blankenhorn completed his education, he served as a community organizer in low-income communities, where he developed an interest in community and family institutions after “seeing the weakened state” of those institutions firsthand, “especially how children were living without their fathers.” Tr.

185a
2719:3-18. This experience led Blankenhorn in 1987 to found the Institute for American Values, which he describes as “a nonpartisan think tank” that focuses primarily on “issues of marriage, family, and child well-being.” Tr. 2719:20-25. The Institute commissions research and releases reports on issues relating to “fatherhood, marriage, family structure [and] child well-being.” Tr. 2720:6-19. The Institute also produces an annual report “on the state of marriage in America.” Tr. 2720:24-25.
Blankenhorn has published two books on the subjects of marriage, fatherhood and family structure: Fatherless America: Confronting Our Most Urgent Social Problem (HarperCollins 1995), DIX0108, and The Future of Marriage (Encounter Books 2006), DIX0956. Tr. 2722:2-12. Blankenhorn has edited four books about family structure and marriage, Tr. 2728:13-22, and has co-edited or co-authored several publications about marriage. Doc. # 302 at 21.
Plaintiffs challenge Blankenhorn’s qualifications as an expert because none of his relevant publications has been subject to a traditional peer-review process, Tr. 2733:2-2735:4, he has no degree in sociology, psychology or anthropology despite the importance of those fields to the subjects of marriage, fatherhood and family structure, Tr. 2735:15-2736:9, and his study of the effects of same-sex marriage involved “read[ing] articles and ha[ving] conversations with people, and tr[ying] to be an informed person about it,” Tr. 2736:13-2740:3. See also Doc. # 285 (plaintiffs’ motion in limine). Plaintiffs argue that Blankenhorn’s

186a
conclusions are not based on “objective data or discernible methodology,” Doc. # 285 at 25, and that Blankenhorn’s conclusions are instead based on his interpretation of selected quotations from articles and reports, id at 26.
The court permitted Blankenhorn to testify but reserved the question of the appropriate weight to give to Blankenhorn’s opinions. Tr. 2741:24-2742:3. The court now determines that Blankenhorn’s testimony constitutes inadmissible opinion testimony that should be given essentially no weight.
Federal Rule of Evidence 702 provides that a witness may be qualified as an expert “by knowledge, skill, experience, training, or education.” The testimony may only be admitted if it “is based upon sufficient facts or data” and “is the product of reliable principles and methods.” Id. Expert testimony must be both relevant and reliable, with a “basis in the knowledge and experience of [the relevant] discipline.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 149, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (citing Daubert v. Merrell Dow Pharm., 509 U.S. 579, 589, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)).
While proponents correctly assert that formal training in the relevant disciplines and peer-reviewed publications are not dispositive of expertise, education is nevertheless important to ensure that “an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the

187a
practice of an expert in the relevant field.” Kumho Tire, 526 U.S. at 152, 119 S.Ct. 1167. Formal training shows that a proposed expert adheres to the intellectual rigor that characterizes the field, while peerreviewed publications demonstrate an acceptance by the field that the work of the proposed expert displays “at least the minimal criteria” of intellectual rigor required in that field. Daubert v. Merrell Dow Pharm., 43 F.3d 1311, 1318 (9th Cir.1995) (on remand) (“Daubert II”).
The methodologies on which expert testimony may be based are “not limited to what is generally accepted,” Daubert II, at 1319 n. 11, but “nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.” General Electric Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). The party proffering the evidence “must explain the expert’s methodology and demonstrate in some objectively verifiable way that the expert has both chosen a reliable * * * method and followed it faithfully.” Daubert II, 43 F.3d at 1319 n. 11.
Several factors are relevant to an expert’s reliability: (1) “whether [a method] can be (and has been) tested”; (2) “whether the [method] has been subjected to peer review and publication”; (3) “the known or potential rate of error”; (4) “the existence and maintenance of standards controlling the [method’s] operation”; (5) “a * * * degree of acceptance” of the method within “a relevant * * * community,” Daubert, 509

188a
U.S. at 593-94, 113 S.Ct. 2786; (6) whether the expert is “proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation,” Daubert II, 43 F.3d at 1317; (7) whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion, see Joiner, 522 U.S. at 145-146, 118 S.Ct. 512; (8) whether the expert has adequately accounted for obvious alternative explanations, see generally Claar v. Burlington Northern RR Co, 29 F.3d 499 (9th Cir.1994); (9) whether the expert “employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field,” Kumho Tire, 526 U.S. at 152, 119 S.Ct. 1167; and (10) whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give, see id. at 151, 119 S.Ct. 1167.
Blankenhorn offered opinions on the definition of marriage, the ideal family structure and potential consequences of state recognition of marriage for same-sex couples. None of Blankenhorn’s opinions is reliable.
Blankenhorn’s first opinion is that marriage is “a socially-approved sexual relationship between a man and a woman.” Tr. 2742:9-10. According to Blankenhorn, the primary purpose of marriage is to “regulate filiation.” Tr. 2742:18. Blankenhorn testified that the alternative and contradictory definition of marriage is that “marriage is fundamentally a private adult commitment.” Tr. 2755:25-2756:1; Tr. 2756:4-2757:17

189a
(DIX0093 Law Commission of Canada, Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships (2001)). He described this definition as focused on “the tender feelings that spouses have for one another,” Tr. 2761:5-6. Blankenhorn agrees this “affective dimension” of marriage exists but asserts that marriage developed independently of affection. Tr. 2761:9-2762:3.
Blankenhorn thus sets up a dichotomy for the definition of marriage: either marriage is defined as a socially approved sexual relationship between a man and a woman for the purpose of bearing and raising children biologically related to both spouses, or marriage is a private relationship between two consenting adults. Blankenhorn did not address the definition of marriage proposed by plaintiffs’ expert Cott, which subsumes Blankenhorn’s dichotomy. Cott testified that 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.” Tr. 201:9-14. There is nothing in Cott’s definition that limits marriage to its “affective dimension” as defined by Blankenhorn, and yet Cott’s definition does not emphasize the biological relationship linking dependents to both spouses.
Blankenhorn relied on the quotations of others to define marriage and provided no explanation of the meaning of the passages he cited or their sources. Tr. 2744:4-2755:16. Blankenhorn’s mere recitation of text

190a
in evidence does not assist the court in understanding the evidence because reading, as much as hearing, “is within the ability and experience of the trier of fact.” Beech Aircraft Corp. v. United States, 51 F.3d 834, 842 (9th Cir.1995).
Blankenhorn testified that his research has led him to conclude there are three universal rules that govern marriage: (1) the rule of opposites (the “man/ woman” rule); (2) the rule of two; and (3) the rule of sex. Tr. 2879:17-25. Blankenhorn explained that there are “no or almost no exceptions” to the rule of opposites, Tr. 2882:14, despite some instances of ritualized same-sex relationships in some cultures, Tr. 2884:252888:16. Blankenhorn explained that despite the widespread practice of polygamy across many cultures, the rule of two is rarely violated, because even within a polygamous marriage, “each marriage is separate.” Tr. 2892:1-3; Tr. 2899:16-2900:4 (“Q: Is it your view that that man who has married one wife, and then another wife, and then another wife, and then another wife, and then another wife, and now has five wives, and they are all his wives at the same time, that that marriage is consistent with your rule of two? * * * A: I concur with Bronislaw Malinowski, and others, who say that that is consistent with the two rule of marriage.”). Finally, Blankenhorn could only hypothesize instances in which the rule of sex would be violated, including where “[h]e’s in prison for life, he’s married, and he is not in a system in which any conjugal visitation is allowed.” Tr. 2907:1319.

191a
Blankenhorn’s interest and study on the subjects of marriage, fatherhood and family structure are evident from the record, but nothing in the record other than the “bald assurance” of Blankenhorn, Daubert II, 43 F.3d at 1316, suggests that Blankenhorn’s investigation into marriage has been conducted to the “same level of intellectual rigor” characterizing the practice of anthropologists, sociologists or psychologists. See Kumho Tire, 526 U.S. at 152, 119 S.Ct. 1167. Blankenhorn gave no explanation of the methodology that led him to his definition of marriage other than his review of others’ work. The court concludes that Blankenhorn’s proposed definition of marriage is “connected to existing data only by the ipse dixit” of Blankenhorn and accordingly rejects it. See Joiner, 522 U.S. at 146, 118 S.Ct. 512.
Blankenhorn’s second opinion is that a body of evidence supports the conclusion that children raised by their married, biological parents do better on average than children raised in other environments. Tr. 2767:11-2771:11. The evidence Blankenhorn relied on to support his conclusion compares children raised by married, biological parents with children raised by single parents, unmarried mothers, step families and cohabiting parents. Tr. 2769:14-24 (referring to DIX0026 Kristin Anderson Moore, Susan M Jekielek, and Carol Emig, Marriage from a Child’s Perspective: How Does Family Structure Affect Children, and What Can We Do about It, Child Trends (June 2002)); Tr. 2771:1-11 (referring to DIX0124 Sara McLanahan

192a
and Gary Sandefur, Growing Up with a Single Parent: What Hurts, What Helps (Harvard 1994)).
Blankenhorn’s conclusion that married biological parents provide a better family form than married non-biological parents is not supported by the evidence on which he relied because the evidence does not, and does not claim to, compare biological to non-biological parents. Blankenhorn did not in his testimony consider any study comparing children raised by their married biological parents to children raised by their married adoptive parents. Blankenhorn did not testify about a study comparing children raised by their married biological parents to children raised by their married parents who conceived using an egg or sperm donor. The studies Blankenhorn relied on compare various family structures and do not emphasize biology. Tr. 2768:9-2772:6. The studies may well support a conclusion that parents’ marital status may affect child outcomes. The studies do not, however, support a conclusion that the biological connection between a parent and his or her child is a significant variable for child outcomes. The court concludes that “there is simply too great an analytical gap between the data and the opinion proffered.” Joiner, 522 U.S. at 146, 118 S.Ct. 512. Blankenhorn’s reliance on biology is unsupported by evidence, and the court therefore rejects his conclusion that a biological link between parents and children influences children’s outcomes.
Blankenhorn’s third opinion is that recognizing same-sex marriage will lead to the deinstitutionalization of marriage. Tr. 2772:21-2775:23. Blankenhorn

193a
described deinstitutionalization as a process through which previously stable patterns and rules forming an institution (like marriage) slowly erode or change. Tr. 2773:4-24. Blankenhorn identified several manifestations of deinstitutionalization: out-of-wedlock childbearing, rising divorce rates, the rise of non-marital cohabitation, increasing use of assistive reproductive technologies and marriage for same-sex couples. Tr. 2774:20-2775:23. To the extent Blankenhorn believes that same-sex marriage is both a cause and a symptom of deinstitutionalization, his opinion is tautological. Moreover, no credible evidence supports Blankenhorn’s conclusion that same-sex marriage could lead to the other manifestations of deinstitutionalization.
Blankenhorn relied on sociologist Andrew Cherlin (DIX0049 The Deinstitutionalization of American Marriage, 66 J Marriage & Family 848 (Nov. 2004)) and sociologist Norval Glen (DIX0060 The Struggle for Same-Sex Marriage, 41 Society 25 (Sept/Oct.2004)) to support his opinion that same-sex marriage may speed the deinstitutionalization of marriage. Neither of these sources supports Blankenhorn’s conclusion that same-sex marriage will further deinstitutionalize marriage, as neither source claims same-sex marriage as a cause of divorce or single parenthood. Nevertheless, Blankenhorn testified that “the further deinstitutionalization of marriage caused by the legalization of same-sex marriage,” Tr. 2782:3-5, would likely manifest itself in “all of the consequences [already discussed].” Tr. 2782:15-16.

194a
Blankenhorn’s book, The Future of Marriage, DIX0956, lists numerous consequences of permitting same-sex couples to marry, some of which are the manifestations of deinstitutionalization listed above. Blankenhorn explained that the list of consequences arose from a group thought experiment in which an idea was written down if someone suggested it. Tr. 2844:1-12; DIX0956 at 202. Blankenhorn’s group thought experiment began with the untested assumption that “gay marriage, like almost any major social change, would be likely to generate a diverse range of consequences.” DIX0956 at 202. The group failed to consider that recognizing the marriage of same-sex couples might lead only to minimal, if any, social consequences.
During trial, Blankenhorn was presented with a study that posed an empirical question whether permitting marriage or civil unions for same-sex couples would lead to the manifestations Blankenhorn described as indicative of deinstitutionalization. After reviewing and analyzing available evidence, the study concludes that “laws permitting same-sex marriage or civil unions have no adverse effect on marriage, divorce, and abortion rates, the percent of children born out of wedlock, or the percent of households with children under 18 headed by women.” PX2898 (Laura Langbein & Mark A Yost, Jr, Same-Sex Marriage and Negative Externalities, 90 Soc Sci Q 2 (June 2009) at 305-306). Blankenhorn had not seen the study before trial and was thus unfamiliar with its methods and conclusions. Nevertheless, Blankenhorn dismissed the

195a
study and its results, reasoning that its authors “think that [the conclusion is] so self-evident that anybody who has an opposing point of view is not a rational person.” Tr. 2918:19-21.
Blankenhorn’s concern that same-sex marriage poses a threat to the institution of marriage is further undermined by his testimony that same-sex marriage and opposite-sex marriage operate almost identically. During cross-examination, Blankenhorn was shown a report produced by his Institute in 2000 explaining the six dimensions of marriage: (1) legal contract; (2) financial partnership; (3) sacred promise; (4) sexual union; (5) personal bond; and (6) family-making bond. PX2879 (Coalition for Marriage, Family and Couples Education, et al, The Marriage Movement: A Statement of Principles (Institute for American Values 2000)). Blankenhorn agreed that same-sex marriages and opposite-sex marriages would be identical across these six dimensions. Tr. 2913:8-2916:18. When referring to the sixth dimension, a family-making bond, Blankenhorn agreed that same-sex couples could “raise” children. Tr. 2916:17.
Blankenhorn gave absolutely no explanation why manifestations of the deinstitutionalization of marriage would be exacerbated (and not, for example, ameliorated) by the presence of marriage for samesex couples. His opinion lacks reliability, as there is simply too great an analytical gap between the data and the opinion Blankenhorn proffered. See Joiner, 522 U.S. at 146, 118 S.Ct. 512.

196a
Blankenhorn was unwilling to answer many questions directly on cross-examination and was defensive in his answers. Moreover, much of his testimony contradicted his opinions. Blankenhorn testified on cross-examination that studies show children of adoptive parents do as well or better than children of biological parents. Tr. 2794:12-2795:5. Blankenhorn agreed that children raised by same-sex couples would benefit if their parents were permitted to marry. Tr. 2803:6-15. Blankenhorn also testified he wrote and agrees with the statement “I believe that today the principle of equal human dignity must apply to gay and lesbian persons. In that sense, insofar as we are a nation founded on this principle, we would be more American on the day we permitted same-sex marriage than we were the day before.” DIX0956 at 2; Tr. 2805:6-2806:1.
Blankenhorn stated he opposes marriage for same-sex couples because it will weaken the institution of marriage, despite his recognition that at least thirteen positive consequences would flow from state recognition of marriage for same-sex couples, including: (1) by increasing the number of married couples who might be interested in adoption and foster care, same-sex marriage might well lead to fewer children growing up in state institutions and more children growing up in loving adoptive and foster families; and (2) same-sex marriage would signify greater social acceptance of homosexual love and the worth and validity of same-sex intimate relationships. Tr. 2839:16-2842:25; 2847:1-2848:3; DIX0956 at 203-205.

197a
Blankenhorn’s opinions are not supported by reliable evidence or methodology and Blankenhorn failed to consider evidence contrary to his view in presenting his testimony. The court therefore finds the opinions of Blankenhorn to be unreliable and entitled to essentially no weight.
Kenneth P. Miller
Proponents called Kenneth P Miller, a professor of government at Claremont McKenna College, as an expert in American and California politics. Tr. 2427:10-12. Plaintiffs conducted voir dire to examine whether Miller had sufficient expertise to testify authoritatively on the subject of the political power of gays and lesbians. Tr. 2428:3-10. Plaintiffs objected to Miller’s qualification as an expert in the areas of discrimination against gays and lesbians and gay and lesbian political power but did not object to his qualification as an expert on initiatives. Tr. 2435:212436:4.
Miller received a PhD from the University of California (Berkeley) in 2002 in political science and is a professor of government at Claremont McKenna College. Doc. # 280-6 at 39-44 (Miller CV). Plaintiffs contend that Miller lacks sufficient expertise to offer an opinion on the relative political power of gay men and lesbians. Having considered Miller’s background, experience and testimony, the court concludes that, while Miller has significant experience with politics generally, he is not sufficiently familiar with gay and

198a
lesbian politics specifically to offer opinions on gay and lesbian political power.
Miller testified that factors determining a group’s political power include money, access to lawmakers, the size and cohesion of a group, the ability to attract allies and form coalitions and the ability to persuade. Tr. 2437:7-14. Miller explained why, in his opinion, these factors favor a conclusion that gays and lesbians have political power. Tr. 2442-2461.
Miller described religious, political and corporate support for gay and lesbian rights. Miller pointed to failed initiatives in California relating to whether public school teachers should be fired for publicly supporting homosexuality and whether HIV-positive individuals should be quarantined or reported as examples of political successes for gays and lesbians. Tr. 2475:21-2477:16. Miller testified that political powerlessness is the inability to attract the attention of lawmakers. Tr. 2487:1-2. Using that test, Miller concluded that gays and lesbians have political power both nationally and in California. Tr. 2487:10-21.
Plaintiffs cross-examined Miller about his knowledge of the relevant scholarship and data underlying his opinions. Miller admitted that proponents’ counsel provided him with most of the “materials considered” in his expert report. Tr. 2497:13-2498:22; PX0794A (annotated index of materials considered). See also Doc. # 280 at 23-35 (Appendix to plaintiffs’ motion in limine listing 158 sources that appear on both Miller’s list of materials considered and the list of

199a
proponents’ withdrawn expert, Paul Nathanson, including twenty-eight websites listing the same “last visited” date). Miller stated that he did not know at the time of his deposition the status of antidiscrimination provisions to protect gays and lesbians at the state and local level, Tr. 2506:3-2507:1, could only identify Don’t Ask, Don’t Tell and the federal Defense of Marriage Act as examples of official discrimination against gays and lesbians, Tr. 2524:4-2525:2, and that he has read no or few books or articles by George Chauncey, Miriam Smith, Shane Phelan, Ellen Riggle, Barry Tadlock, William Eskridge, Mark Blasius, Urvashi Vaid, Andrew Sullivan and John D’Emilio, Tr. 2518:15-2522:25.
Miller admitted he had not investigated the scope of private employment discrimination against gays and lesbians and had no reason to dispute the data on discrimination presented in PX0604 (The Employment Non-Discrimination Act of 2009, Hearings on HR 3017 before the House Committee on Education and Labor, 111 Cong, 1st Sess (Sept. 23, 2009) (testimony of R Bradley Sears, Executive Director of the Williams Institute)). Tr. 2529:15-2530:24. Miller did not know whether gays and lesbians have more or less political power than African Americans, either in California or nationally, because he had not researched the question. Tr. 2535:9-2539:13.
Plaintiffs questioned Miller on his earlier scholarship criticizing the California initiative process because initiatives eschew compromise and foster polarization, undermine the authority and flexibility

200a
of representative government and violate norms of openness, accountability, competence and fairness. Tr. 2544:10-2547:7. In 2001 Miller wrote that he was especially concerned that initiative constitutional amendments undermine representative democracy. Tr. 2546:14-2548:15.
Plaintiffs questioned Miller on data showing 84 percent of those who attend church weekly voted yes on Proposition 8, 54 percent of those who attend church occasionally voted no on Proposition 8 and 83 percent of those who never attend church voted no on Proposition 8. Tr. 2590:10-2591:7; PX2853 at 9 Proposition 8 Local Exit Polls – Election Center 2008, CNN). Plaintiffs also asked about polling data showing 56 percent of those with a union member in the household voted yes on Proposition 8. Tr. 2591:252592:6; PX2853 at 13. Miller stated he had no reason to doubt the accuracy of the polling data. Tr. 2592:7-8. Miller did not explain how the data in PX2853 are consistent with his conclusion that many religious groups and labor unions are allies of gays and lesbians.
Miller testified that he did not investigate the extent of anti-gay harassment in workplaces or schools. Tr. 2600:7-17, 2603:9-24. Miller stated he had not investigated the ways in which anti-gay stereotypes may have influenced Proposition 8 voters. Tr. 2608:19-2609:1. Miller agreed that a principle of political science holds that it is undesirable for a religious majority to impose its religious views on a minority. Tr. 2692:16-2693:7.

201a
Miller explained on redirect that he had reviewed “most” of the materials listed in his expert report and that he “tried to review all of them.” Tr. 2697:11-16. Miller testified that he believes initiatives relating to marriage for same-sex couples arise as a check on the courts and do not therefore implicate a fear of the majority imposing its will on the minority. Tr. 2706:17-2707:6. Miller explained that prohibiting same-sex couples from marriage “wasn’t necessarily invidious discrimination against” gays and lesbians. Tr. 2707:20-24.
The credibility of Miller’s opinions relating to gay and lesbian political power is undermined by his admissions that he: (1) has not focused on lesbian and gay issues in his research or study; (2) has not read many of the sources that would be relevant to forming an opinion regarding the political power of gays and lesbians; (3) has no basis to compare the political power of gays and lesbians to the power of other groups, including African-Americans and women; and (4) could not confirm that he personally identified the vast majority of the sources that he cited in his expert report, see PX0794A. Furthermore, Miller undermined the credibility of his opinions by conceding that gays and lesbians currently face discrimination and that current discrimination is relevant to a group’s political power.
Miller’s credibility was further undermined because the opinions he offered at trial were inconsistent with the opinions he expressed before he was retained as an expert. Specifically, Miller previously

202a
wrote that gays and lesbians, like other minorities, are vulnerable and powerless in the initiative process, see PX1869 (Kenneth Miller, Constraining Populism: The Real Challenge of Initiative Reform, 41 Santa Clara L Rev 1037 (2001)), contradicting his trial testimony that gays and lesbians are not politically vulnerable with respect to the initiative process. Miller admitted that at least some voters supported Proposition 8 based on anti-gay sentiment. Tr. 2606:112608:18.
For the foregoing reasons, the court finds that Miller’s opinions on gay and lesbian political power are entitled to little weight and only to the extent they are amply supported by reliable evidence.
II FINDINGS OF FACT2
Having considered the evidence presented at trial, the credibility of the witnesses and the legal arguments presented by counsel, the court now makes the following findings of fact pursuant to FRCP 52(a). The court relies primarily on the testimony and exhibits cited herein, although uncited cumulative documentary evidence in the record and considered by the court also supports the findings.
2 To the extent any of the findings of fact should more properly be considered conclusions of law, they shall be deemed as such.

203a
THE PARTIES Plaintiffs
1. Kristin Perry and Sandra Stier reside together in Alameda County, California and are raising four children. They are lesbians in a committed relationship who seek to marry.
2. On May 21, 2009, Perry and Stier applied for a marriage license from defendant O’Connell, the Alameda County Clerk-Recorder, who denied them a license due to Proposition 8 because they are of the same sex.
3. Paul Katami and Jeffrey Zarrillo reside together in Los Angeles County, California. They are gay men in a committed relationship who seek to marry.
4. On May 20, 2009, Katami and Zarrillo applied for a marriage license from defendant Logan, the Los Angeles County Clerk, who denied them a license due to Proposition 8 because they are of the same sex.
Plaintiff-Intervenor
5. San Francisco is a charter city and county under the California Constitution and laws of the State of California. Cal. Const. Art. XI, § 5(a); SF Charter Preamble.
6. San Francisco is responsible for issuing marriage licenses, performing civil marriage ceremonies and maintaining vital records of marriages. Cal. Fam. Code §§ 350(a), 401(a), 400(b).

204a
Defendants
7. Arnold Schwarzenegger is the Governor of California.
8. Edmund G Brown, Jr is the Attorney General of California.
9. Mark B Horton is the Director of the California Department of Public Health and the State Registrar of Vital Statistics of the State of California. In his official capacity, Horton is responsible for prescribing and furnishing the forms for marriage license applications, the certificate of registry of marriage, including the license to marry, and the marriage 26 certificate. See Doc. # 46 ¶ 15 (admitting Doc. # 1 ¶ 15).
10. Linette Scott is the Deputy Director of Health Information & Strategic Planning for the California Department of Public Health. Scott reports to Horton and is the official responsible for prescribing and furnishing the forms for marriage license applications, the certificate of registry of marriage, including the license to marry, and the marriage certificate. See Doc. # 46 ¶ 16 (admitting Doc. # 1 ¶ 16).
11. Patrick O’Connell is the Alameda County ClerkRegistrar and is responsible for maintaining vital records of marriages, issuing marriage licenses and performing civil marriage ceremonies. See Doc. # 42 ¶ 17 (admitting Doc. # 1 ¶ 17).
12. Dean C Logan is the Los Angeles County RegistrarRecorder/County Clerk and is responsible for maintaining vital records of marriages, issuing marriage

205a
licenses and performing civil marriage ceremonies. Doc. # 41 ¶ 13 (admitting Doc. # 1 ¶ 18).
Defendant-Intevenors (Proponents)
13. Dennis Hollingsworth, Gail J Knight, Martin F Gutierrez, Hak-Shing William Tam and Mark A Jansson are the “official proponents” of Proposition 8 under California law.
a. Doc. # 8-6 at ¶ 19 (Decl. of David Bauer);
b. Doc. # 8 at 14 (Proponents’ motion to intervene: “Proponents complied with a myriad of legal requirements to procure Proposition 8’s enactment, such as (1) filing forms prompting the State to prepare Proposition 8’s Title and Summary, (2) paying the initiative filing fee, (3) drafting legally compliant signature petitions, (4) overseeing the collection of more than 1.2 million signatures, (5) instructing signature-collectors on state-law guidelines, and (6) obtaining certifications from supervising signature-gatherers.”).
14. Proponents dedicated substantial time, effort, reputation and personal resources in campaigning for Proposition 8.
a. Tr. 1889:23-1893:15: Tam spent the majority of his hours in 2008 working to pass Proposition 8;
b. Doc. # 8-1 at ¶ 27 (Decl. of Dennis Hollingsworth);
c. Doc. # 8-2 at ¶ 27 (Decl. of Gail J Knight);

206a
d. Doc. # 8-3 (Decl. of Martin F Gutierrez: describing activities to pass and enforce Proposition 8);
e. Doc. # 8-4 at ¶ 27 (Decl. of Hak-Shing William Tam);
f. Doc. # 8-5 at ¶ 27 (Decl. of Mark A Jansson).
15. Proponents established ProtectMarriage.com – Yes on 8, a Project of California Renewal (“Protect Marriage”) as a “primarily formed ballot measure committee” under California law.
a. Doc. # 8-1 at ¶ 13 (Decl. of Dennis Hollingsworth);
b. Doc. # 8-2 at ¶ 13 (Decl. of Gail J Knight);
c. Doc. # 8-3 at ¶ 13 (Decl. of Martin F Gutierrez);
d. Doc. # 8-4 at ¶ 13 (Decl. of Hak-Shing William Tam);
e. Doc. # 8-5 at ¶ 13 (Decl. of Mark A Jansson).
16. The Protect Marriage Executive Committee includes Ron Prentice, Edward Dolejsi, Mark A Jansson and Doug Swardstrom. Andrew Pugno acts as General Counsel. David Bauer is the Treasurer and officer of record for Protect Marriage.
a. Doc. # 372 at 4 (identifying the above individuals based on the declaration of Ron Prentice, submitted under seal on November 6, 2009);
b. PX0209 Letter from Protect Marriage to Jim Abbott (Oct. 20, 2008): Letter to a business that

207a
donated money to a group opposing Proposition 8 demanding “a donation of a like amount” to Protect Marriage. The letter is signed by: Ron Prentice, Protect Marriage Chairman; Andrew Pugno, Protect Marriage General Counsel; Edward Dolejsi, Executive Director, California Catholic Conference; and Mark Jansson, a Protect Marriage Executive Committee Member.
17. Protect Marriage was responsible for all aspects of the campaign to qualify Proposition 8 for the ballot and enact it into law.
a. Doc. # 8-6 at ¶¶ 4, 6, 10, 11 (Decl. of David Bauer);
b. PX2403 Email from Kenyn Cureton, VicePresident, Family Research Council, to Prentice at 1 (Aug 25, 2008): Cureton attaches a kit to be distributed to Christian voters through churches to help them promote Proposition 8. Cureton explains to Prentice that Family Research Council (“FRC”) found out from Pugno that FRC “need[s] to take FRC logos off of the CA version of the videos (legal issues) and just put ProtectMarriage. com on everything” and FRC is “making those changes.”;
c. PX2640 Email from Pugno to Tam (Feb. 5, 2008) at 2: “I do not think it is likely, but in the event you are contacted by the media or anyone else regarding the Marriage Amendment [Proposition 8], I would encourage you to please refer all calls to the campaign phone number. * * * It is crucial that our public message be very specific.”;

208a
d. PX2640 Email from Pugno to Tam (Feb. 5, 2008) at 2: Pugno explains that Tam is “an exception” to Protect Marriage’s press strategy and should speak on behalf of the campaign directly to the Chinese press. See Tr. 1906:9-12;
e. Tr. 1892:9-12 (Tam: In October 2007, Tam was waiting for instructions from Protect Marriage regarding when he should start collecting signatures to place Proposition 8 on the ballot.);
f. Tr. 1904:3-5 (Tam: Tam participated in a debate because Protect Marriage told him to do so.);
g. Tr. 1998:23-1999:11 (Tam: Protect Marriage reimbursed individuals who ran print and television ads in support of Proposition 8.);
h. Tr. 1965:15-1966:4 (Tam: Tam signed a “Statement of Unity with respect to the Proposition 8 campaign” both “[o]n behalf of [him]self and on behalf of the Traditional Family Coalition.”);
i. PX2476 Email from Tam to list of supporters (Oct. 22, 2007): “I’m still waiting for ProtectMarriage. com for instructions of when we would start the signature collection for [Proposition 8].”
18. Protect Marriage is a “broad coalition” of individuals and organizations, including the Church of Jesus Christ of Latter-Day Saints (the “LDS Church”), the California Catholic Conference and a large number of evangelical churches.
a. PX2310 About ProtectMarriage.com, Protect Marriage (2008): Protect Marriage “about” page identifies a “broad-based coalition” in support of Proposition 8;

209a
b. PX0577 Frank Schubert and Jeff Flint, Passing Prop 8, Politics (Feb. 2009) at 47: “We had the support of virtually the entire faith community in California.”;
c. Tr. 1585:20-1590:2 (Segura: Churches, because of their hierarchical structure and ability to speak to congregations once a week, have a “very strong communication network” with churchgoers. A network of “1700 pastors” working with Protect Marriage in support of Proposition 8 is striking because of “the sheer breadth of the [religious] organization and its level of coordination with Protect Marriage.”);
d. Tr. 1590:23-1591:12 (Segura: An “organized effort” and “formal association” of religious groups formed the “broad-based coalition” of Protect Marriage.);
e. Tr. 1609:12-1610:6 (Segura: The coalition between the Catholic Church and the LDS Church against a minority group was “unprecedented.”);
f. PX2597 Email from Prentice to Lynn Vincent (June 19, 2008): Prentice explains that “[f]rom the initial efforts in 1998 for the eventual success of Prop 22 in 2000, a coalition of many organizations has existed, including evangelical, Catholic and Mormon groups” and identifies Catholic and evangelical leaders working to pass Proposition 8;
g. PX0390A Video, Ron Prentice Addressing Supporters of Proposition 8, Excerpt: Prentice explains the importance of contributions from the

210a
LDS Church, Catholic bishops and evangelical ministers to the Protect Marriage campaign;
h. PX0577 Frank Schubert and Jeff Flint, Passing Prop 8, Politics at 46 (Feb. 2009): “By this time, leaders of the Church of Jesus Christ of Latter Day Saints had endorsed Prop 8 and joined the campaign executive committee. Even though the LDS were the last major denomination to join the campaign, their members were immensely helpful in early fundraising, providing muchneeded contributions while we were busy organizing Catholic and Evangelical fundraising efforts.”
WHETHER ANY EVIDENCE SUPPORTS CALIFORNIA’S REFUSAL TO RECOGNIZE
MARRIAGE BETWEEN TWO PEOPLE BECAUSE OF THEIR SEX
19. Marriage in the United States has always been a civil matter. Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage. Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law.
a. Tr. 195:13-196:21 (Cott: “[C]ivil law has always been supreme in defining and regulating marriage. * * * [Religious practices and ceremonies] have no particular bearing on the validity of marriages. Any clerics, ministers, rabbis, et cetera, that were accustomed to * * * performing

211a
marriages, only do so because the state has given them authority to do that.”);
b. Cal. Fam. Code §§ 400, 420.
20. A person may not marry unless he or she has the legal capacity to consent to marriage.
a. Tr. 202:2-15 (Cott: Marriage “is a basic civil right. It expresses the right of a person to have the liberty to be able to consent validly.”);
b. Cal. Fam. Code §§ 300, 301.
21. California, like every other state, has never required that individuals entering a marriage be willing or able to procreate.
a. Cal. Fam. Code § 300 et seq.;
b. In re Marriage Cases, [43 Cal.4th 757, 76 Cal.Rptr.3d 683] 183 P.3d 384, 431 (Cal.2008) (“This contention [that marriage is limited to opposite-sex couples because only a man and a woman can produce children biologically related to both] is fundamentally flawed[.]”);
c. Lawrence v. Texas, 539 U.S. 558, 604-05 [123 S.Ct. 2472, 156 L.Ed.2d 508] (2003) (Scalia, J, dissenting) (“If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct * * * what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.”);

212a
d. Tr. 222:22-223:22 (Cott: “There has never been a requirement that a couple produce children in order to have a valid marriage. Of course, people beyond procreative age have always been allowed to marry. * * * [P]rocreative ability has never been a qualification for marriage.”).
22. When California became a state in 1850, marriage was understood to require a husband and a wife. See Cal. Const., Art. XI § 14 (1849); In re Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at 407.
23. The states have always required the parties to give their free consent to a marriage. Because slaves were considered property of others at the time, they lacked the legal capacity to consent and were thus unable to marry. After emancipation, former slaves viewed their ability to marry as one of the most important new rights they had gained. Tr. 202:2-203:12 (Cott).
24. Many states, including California, had laws restricting the race of marital partners so that whites and non-whites could not marry each other.
a. Tr. 228:9-231:3 (Cott: In “[a]s many as 41 states and territories,” laws placed restrictions on “marriage between a white person and a person of color.”);
b. Tr. 236:17-238:23 (Cott: Racially restrictive marriage laws “prevented individuals from having complete choice on whom they married, in a way that designated some groups as less worthy than other groups[.]” Defenders of race restrictions argued the laws were “naturally-based and

213a
God’s plan just being put into positive law, the efforts to undo them met extreme alarm among those who thought these laws were correct. * * * [P]eople who supported [racially restrictive marriage laws] saw these as very important definitional features of who could and should marry, and who could not and should not.”);
c. Tr. 440:9-13 (Chauncey: Jerry Falwell criticized Brown v. Board of Education, because school integration could “lead to interracial marriage, which was then sort of the ultimate sign of black and white equality.”);
d. PX2547 (Nathanson Nov. 12, 2009 Dep. Tr. 108:12-23: Defenders of race restrictions in marriage argued that such discrimination was protective of the family); PX2546 (video of same);
e. Pace v. Alabama, 106 U.S. 583, 585 [1 S.Ct. 637, 27 L.Ed. 207] (1883) (holding that antimiscegenation laws did not violate the Constitution because they treated African-Americans and whites the same);
f. PX0710 at RFA No 11: Attorney General admits that California banned interracial marriage until the California Supreme Court invalidated the prohibition in Perez v. Sharp, [32 Cal.2d 711] 198 P.2d 17 (Cal.1948);
g. PX0707 at RFA No 11: Proponents admit that California banned certain interracial marriages from early in its history as a state until the California Supreme Court invalidated those restrictions in Perez, 198 P.2d 17.

214a
25. Racial restrictions on an individual’s choice of marriage partner were deemed unconstitutional under the California Constitution in 1948 and under the United States Constitution in 1967. An individual’s exercise of his or her right to marry no longer depends on his or her race nor on the race of his or her chosen partner.
a. Loving v. Virginia, 388 U.S. 1 [87 S.Ct. 1817, 18 L.Ed.2d 1010] (1967);
b. Perez v. Sharp, [32 Cal.2d 711] 198 P.2d 17 (Cal.1948).
26. Under coverture, a woman’s legal and economic identity was subsumed by her husband’s upon marriage. The husband was the legal head of household. Coverture is no longer part of the marital bargain.
a. PX0710 at RFA No 12: Attorney General admits that the doctrine of coverture, under which women, once married, lost their independent legal identity and became the property of their husbands, was once viewed as a central component of the civil institution of marriage;
b. Tr. 240:11-240:15 (Cott: Under coverture, “the wife was covered, in effect, by her husband’s legal and economic identity. And she – she lost her independent legal and economic individuality.”);
c. Tr. 240:22-241:6 (Cott: Coverture “was the marital bargain to which both spouses consented. And it was a reciprocal bargain in which the husband had certain very important * * * obligations that were enforced by the state. His obligation

215a
was to support his wife, provide her with the basic material goods of life, and to do so for their dependents. And her part of the bargain was to serve and obey him, and to lend to him all of her property, and also enable him to take all of her earnings, and represent her in court or in any sort of legal or economic transaction.”);
d. Tr. 241:7-11 (Cott: Coverture “was a highlyasymmetrical bargain that, to us today, appears to enforce inequality. * * * But I do want to stress it was not simply domination and submission. It was a mutual bargain, a reciprocal bargain joined by consent.”);
e. Tr. 243:5-244:10 (Cott: The sexual division of roles of spouses began to shift in the late nineteenth century and came fully to an end under the law in the 1970s. Currently, the state’s assignment of marital roles is gender-neutral. “[B]oth spouses are obligated to support one another, but they are not obligated to one another with a specific emphasis on one spouse being the provider and the other being the dependent.”);
f. Follansbee v. Benzenberg, 122 Cal.App.2d 466, 476 [265 P.2d 183] (2d Dist. 1954) (“The legal status of a wife has changed. Her legal personality is no longer merged in that of her husband.”).
27. Marriage between a man and a woman was traditionally organized based on presumptions of a division of labor along gender lines. Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family.

216a
a. Tr. 239:25-245:8, 307:14-308:9, 340:14-342:12 (Cott: Marriage laws historically have been used to dictate the roles of spouses. Under coverture, a wife’s legal and economic identity was merged into that of her husband’s. The coverture system was based on assumptions of what was then considered a natural division of labor between men and women.);
b. Tr. 241:19-23 (Cott: “[A]ssumptions were, at the time, that men were suited to be providers * * * whereas, women, the weaker sex, were suited to be dependent.”);
c. PX1245 Letitia Anne Peplau and Adam W Fingerhut, The Close Relationships of Lesbians and Gay Men, 58 Annual Rev. Pschol. 405, 408 (2007): “Traditional heterosexual marriage is organized around two basic principles: a division of labor based on gender and a norm of greater male power and decision-making authority.”;
d. PX2547 (Nathanson Nov. 12, 2009 Dep. Tr. 108:24-109:9: Defenders of prejudice or stereotypes against women argued that such discrimination was meant to be protective of the family. (PX2546 video of same); see also PX2545 (Young Nov. 13, 2009 Dep. Tr. 214:19-215:13: same, PX2544 video of same);
e. PX1319 Hendrik Hartog, Lecture, Marital Exits and Marital Expectations in Nineteenth Century America, 80 Georgetown L. J. 95, 101, 128-129 (1991): “Even in equity, a wife could not usually sue under her own name.” And “the most important feature of marriage was the public assumption of a relationship of rights and duties,

217a
of men acting as husbands and women acting as wives.”;
f. PX1328 Note, A Reconsideration of Husband’s Duty to Support and Wife’s Duty to Render Services, 29 Va. L. Rev. 857, 858 (1943): “Marriage deprived [the wife] of her legal capacity in most matters affecting property.”
28. The development of no-fault divorce laws made it simpler for spouses to end marriages and allowed spouses to define their own roles within a marriage.
a. Tr. 338:5-14 (Cott: No-fault divorce “was an indication of the shift * * * [that] spousal roles used to be dictated by the state. Now they are dictated by the couple themselves. There’s no requirement that they do X or Y if they are one spouse or the other.”);
b. Tr. 339:10-14 (Cott: The move to no-fault divorce underlines the fact that marriage no longer requires specific performance of one marital role or another based on gender.);
c. PX1319 Hendrik Hartog, Lecture, Marital Exits and Marital Expectations in Nineteenth Century America, 80 Georgetown L J 95, 97, 121 (1991): In nineteenth century America, marriage was permanent, spousal roles were nonnegotiable and divorce “punished the guilty for criminal conduct” and “provided a form of public punishment for a spouse who had knowingly and criminally violated his or her public vows of marriage.”;

218a
d. PX1308 Betsey Stevenson and Justin Wolfers, Marriage and Divorce: Changes and their Driving Forces, Institute for the Study of Labor at 2-3, Fig 1 (Feb. 2007): Current divorce rates are consistent with trends that developed before states adopted no-fault divorce.
29. In 1971, California amended Cal. Civ. Code § 4101, which had previously set the age of consent to marriage at twenty-one years for males and eighteen years for females, to read “[a]ny unmarried person of the age of 18 years or upwards, and not otherwise disqualified, is capable of consenting to and consummating marriage.” Cal. Civ. Code § 4101 (1971); In re Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at 408.
30. In the 1970s, several same-sex couples sought marriage licenses in California, relying on the amended language in Cal. Civ. Code § 4101. In re Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at 409. In response, the legislature in 1977 amended the marriage statute, former Cal. Civ. Code § 4100, to read “[m]arriage is a personal relation arising out of a civil contract between a man and a woman * * * .” Id. That provision became Cal. Fam. Code § 300. The legislative history of the enactment supports a conclusion that unique roles of a man and a woman in marriage motivated legislators to enact the amendment. See In re Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at 409.
31. In 2008, the California Supreme Court held that certain provisions of the Family Code violated the California Constitution to the extent the statutes

219a
reserve the designation of marriage to opposite-sex couples. In re Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at 452. The language “between a man and a woman” was stricken from section 300, and section 308.5 (Proposition 22) was stricken in its entirety. Id., 76 Cal.Rptr.3d 683, 183 P.3d at 453.
32. California has eliminated marital obligations based on the gender of the spouse. Regardless of their sex or gender, marital partners share the same obligations to one another and to their dependants. As a result of Proposition 8, California nevertheless requires that a marriage consist of one man and one woman.
a. Cal. Const. Art., I § 7.5 (Proposition 8);
b. Cal. Fam. Code § 720.
33. Eliminating gender and race restrictions in marriage has not deprived the institution of marriage of its vitality.
a. PX0707 at RFA No 13: Proponents admit that eliminating the doctrine of coverture has not deprived marriage of its vitality and importance as a social institution;
b. PX0710 at RFA No 13: Attorney General admits that gender-based reforms in civil marriage law have not deprived marriage of its vitality and importance as a social institution;
c. Tr. 245:9-247:3 (Cott: “[T]he primacy of the husband as the legal and economic representative of the couple, and the protector and provider

220a
for his wife, was seen as absolutely essential to what marriage was” in the nineteenth century. Gender restrictions were slowly removed from marriage, but “because there were such alarms about it and such resistance to change in this what had been seen as quite an essential characteristic of marriage, it took a very very long time before this trajectory of the removal of the state from prescribing these rigid spousal roles was complete.” The removal of gender inequality in marriage is now complete “to no apparent damage to the institution. And, in fact, I think to the benefit of the institution.”);
d. PX0707 at RFA No 13: Proponents admit that eliminating racial restrictions on marriage has not deprived marriage of its vitality and importance as a social institution;
e. PX0710 at RFA No 13: Attorney General admits that race-based reforms in civil marriage law have not deprived marriage of its vitality and importance as a social institution;
f. Tr. 237:9-239:24 (Cott: When racial restrictions on marriage across color lines were abolished, there was alarm and many people worried that the institution of marriage would be degraded and devalued. But “there has been no evidence that the institution of marriage has become less popular because * * * people can marry whoever they want.”).
34. Marriage is the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household

221a
based on their own feelings about one another and to join in an economic partnership and support one another and any dependents. Tr. 187:11-16; 188:16189:2; 201:9-14 (Cott).
35. The state has many purposes in licensing and fostering marriage. Some of the state’s purposes benefit the persons married while some benefit the state:
a. Facilitating governance and public order by organizing individuals into cohesive family units. Tr. 222:13-17 (Cott: “[T]he purpose of the state in licensing and incentivizing marriage is to create stable households in which the adults who reside there and are committed to one another by their own consents will support one another as well as their dependents.”);
b. Developing a realm of liberty, intimacy and free decision-making by spouses, Tr. 189:7-15 (Cott: “[T]he realm created by marriage, that private realm has been repeatedly reiterated as a – as a realm of liberty for intimacy and free decision making by the parties[.]”);
c. Creating stable households. Tr. 226:8-15 (Cott: The government’s aim is “to create stable and enduring unions between couples.”);
d. Legitimating children. Tr. 225:16-227:4 (Cott: Historically, legitimating children was a very important function of marriage, especially among propertied families. Today, legitimation is less important, although unmarried couples’ children still have to show “that they deserve these

222a
inheritance rights and other benefits of their parents.”);
e. Assigning individuals to care for one another and thus limiting the public’s liability to care for the vulnerable. Tr. 226:8-227:4 (Cott: Marriage gives private actors responsibility over dependents.); Tr. 222:18-20 (“The institution of marriage has always been at least as much about supporting adults as it has been about supporting minors.”);
f. Facilitating property ownership. Tr. 188:20-22 (Marriage is “the foundation of the private realm of * * * property transmission.”).
36. States and the federal government channel benefits, rights and responsibilities through marital status. Marital status affects immigration and citizenship, tax policy, property and inheritance rules and social benefit programs.
a. Tr. 1341:2-16 (Badgett: Specific tangible economic harms flow from being unable to marry, including lack of access to health insurance and other employment benefits, higher income taxes and taxes on domestic partner benefits.);
b. Tr. 235:24-236:16 (Cott: The government has historically channeled many benefits through marriage; as an example, the Social Security Act had “a very distinct marital advantage for those who were married couples as compared to either single individuals or unmarried couples.”);
c. PX1397 U.S. General Accounting Office Report at 1, Jan 23, 2004: Research identified “a

223a
total of 1138 federal statutory provisions classified in the United States Code in which marital status is a factor in determining or receiving benefits, rights, and privileges.”.
37. Marriage creates economic support obligations between consenting adults and for their dependents.
a. Tr. 222:13-17 (Cott: “[T]he purpose of the state in licensing and incentivizing marriage is to create stable households in which the adults who reside there and are committed to one another by their own consents will support one another as well as their dependents.”);
b. Cal. Fam. Code § 720.
38. Marriage benefits both spouses by promoting physical and psychological health. Married individuals are less likely to engage in behaviors detrimental to health, like smoking or drinking heavily. Married individuals live longer on average than unmarried individuals.
a. Tr. 578:11-579:9 (Peplau: A recent, large-scale study by the Centers for Disease Control found that married individuals, on average, fare better on “virtually every measure” of health compared to non-married individuals.);
b. PX0708 at RFA No 84: Proponents admit that opposite-sex couples who are married experience, on average, less anxiety and depression and greater happiness and satisfaction with life than do non-married opposite-sex couples or persons not involved in an intimate relationship;

224a
c. Tr. 578:2-10 (Peplau: “[T]he very consistent findings from [a very large body of research on the impact of marriage on health] are that, on average, married individuals fare better. They are physically healthier. They tend to live longer. They engage in fewer risky behaviors. They look better on measures of psychological well-being.”);
d. Tr. 688:10-12 (Egan: “[M]arried individuals are healthier, on average, and, in particular, behave themselves in healthier ways than single individuals.”);
e. PX1043 Charlotte A Schoenborn, Marital Status and Health: United States, 1999-2002, U.S. Department of Health and Human Services at 1 (Dec. 15, 2004): “Regardless of population subgroup (age, sex, race, Hispanic origin, education, income, or nativity) or health indicator (fair or poor health, limitations in activities, low back pain, headaches, serious psychological distress, smoking, or leisure-time physical inactivity), married adults were generally found to be healthier than adults in other marital status categories.”;
f. PX0803 California Health Interview Survey (2009): Married individuals are less likely to have psychological distress than individuals who are single and never married, divorced, separated, widowed or living with their partner;
g. PX0807 Press Release, Agency for Healthcare Research and Quality, Marriage Encourages Healthy Behaviors among the Elderly, Especially Men (Oct. 26, 1998): Marriage encourages healthy behaviors among the elderly.

225a
39. Material benefits, legal protections and social support resulting from marriage can increase wealth and improve psychological well-being for married spouses.
a. PX0809 Joseph Lupton and James P Smith, Marriage, Assets, and Savings, RAND (Nov. 1999): Marriage is correlated with wealth accumulation;
b. Tr. 1332:19-1337:2 (Badgett: Marriage confers numerous economic benefits, including greater specialization of labor and economies of scale, reduced transactions costs, health and insurance benefits, stronger statement of commitment, greater validation and social acceptance of the relationship and more positive workplace outcomes. Some benefits are not quantifiable but are nevertheless substantial.);
c. PX0708 at RFA No 85: Proponents admit that societal support is central to the institution of marriage and that marital relationships are typically entered in the presence of family members, friends and civil or religious authorities;
d. PX0708 at RFA No 87: Proponents admit that marriage between a man and a woman can be a source of relationship stability and commitment, including by creating barriers and constraints on dissolving the relationship.
40. The long-term nature of marriage allows spouses to specialize their labor and encourages spouses to increase household efficiency by dividing labor to increase productivity.
a. Tr. 1331:15-1332:9; 1332:25-1334:17 (Badgett);

226a
b. PX0708 at RFA No 88: Proponents admit that marriage between a man and a woman encourages spouses to increase household efficiency, including by dividing their labor in ways that increase the family’s productivity in producing goods and services for family members.
41. The tangible and intangible benefits of marriage flow to a married couple’s children.
a. Tr. 1042:20-1043:8 (Lamb: explaining that when a couple marries, that marriage can improve the outcomes of the couple’s child because of “the that accrue to marriage.”);
b. PX0886 Position Statement, American Psychiatric Association, Support of Legal Recognition of Same-Sex Civil Marriage (July 2005): Marriage benefits children of that couple.
WHETHER ANY EVIDENCE SHOWS CALIFORNIA HAS AN INTEREST IN DIFFERENTIATING BETWEEN SAMESEX AND OPPOSITE-SEX UNIONS
42. Same-sex love and intimacy are well-documented in human history. The concept of an identity based on object desire; that is, whether an individual desires a relationship with someone of the opposite sex (heterosexual), same sex (homosexual) or either sex (bisexual), developed in the late nineteenth century.
a. Tr. 531:25-533:24 (Chauncey: The categories of heterosexual and homosexual emerged in the late nineteenth century, although there were people at all time periods in American history

227a
whose primary erotic and emotional attractions were to people of the same sex.);
b. Tr. 2078:10-12 (Herek: “[H]eterosexual and homosexual behaviors alike have been common throughout human history[.]”);
c. Tr. 2064:22-23 (Herek: In practice, we generally refer to three groups: homosexuals, heterosexuals and bisexuals.);
d. Tr. 2027:4-9 (Herek: “[S]exual orientation is at its heart a relational construct, because it is all about a relationship of some sort between one individual and another, and a relationship that is defined by the sex of the two persons involved[.] ” ).
43. Sexual orientation refers to an enduring pattern of sexual, affectional or romantic desires for and attractions to men, women or both sexes. An individual’s sexual orientation can be expressed through self-identification, behavior or attraction. The vast majority of people are consistent in self-identification, behavior and attraction throughout their adult lives.
a. Tr. 2025:3-12 (Herek: “Sexual orientation is a term that we use to describe an enduring sexual, romantic, or intensely affectional attraction to men, to women, or to both men and women. It’s also used to refer to an identity or a sense of self that is based on one’s enduring patterns of attraction. And it’s also sometimes used to describe an enduring pattern of behavior.”);
b. Tr. 2060:7-11 (Herek: Most social science and behavioral research has assessed sexual

228a
orientation in terms of attraction, behavior or identity, or some combination thereof.);
c. Tr. 2072:19-2073:4 (Herek: “[T]he vast majority of people are consistent in their behavior, their identity, and their attractions.”);
d. Tr. 2086:13-21 (Herek: The Laumann study (PX0943 Edward O Laumann, et al, The Social Organization of Sexuality: Sexual Practices in the United States (Chicago 1994)) shows that 90 percent of people in Laumann’s sample were consistently heterosexual in their behavior, identity and attraction, and a core group of one to two percent of the sample was consistently lesbian, gay or bisexual in their behavior, identity and attraction.);
e. Tr. 2211:8-10 (Herek: “[I]f I were a betting person, I would say that you would do well to bet that [a person’s] future sexual behavior will correspond to [his or her] current identity.”).
44. Sexual orientation is commonly discussed as a characteristic of the individual. Sexual orientation is fundamental to a person’s identity and is a distinguishing characteristic that defines gays and lesbians as a discrete group. Proponents’ assertion that sexual orientation cannot be defined is contrary to the weight of the evidence.
a. Tr. 2026:7-24 (Herek: In his own research, Herek has asked ordinary people if they are heterosexual, straight, gay, lesbian or bisexual, and that is a question people generally are able to answer.);

229a
b. Tr. 858:24-859:5 (Meyer: Sexual orientation is perceived as “a core thing about who you are.” People say: “This is who I am. * * * [I]t is a central identity that is important.”);
c. Tr. 2027:14-18 (Herek: These sorts of relationships, that need for intimacy and attachment is a very core part of the human experience and a very fundamental need that people have.);
d. Tr. 2324:8-13 (Herek: If two women wish to marry each other, it is reasonable to assume that they are lesbians. And if two men want to marry each other, it is reasonable to assume that they are gay.);
e. Tr. 2304:9-2309:1 (Herek: Researchers may define sexual orientation based on behavior, identity or attraction based on the purpose of a study, so that an individual studying sexually transmitted infections may focus on behavior while a researcher studying child development may focus on identity. Researchers studying racial and ethnic minorities similarly focus their definition of the population to be studied based on the purpose of the study. Most people are nevertheless consistent in their behavior, identity and attraction.);
f. Tr. 2176:23-2177:14 (Herek, responding to cross-examination that sexual orientation is a socially constructed classification and not a “valid concept”: “[Social constructionists] are talking about the construction of [sexual orientation] at the cultural level, in the same way that we have cultural constructions of race and ethnicity and social class. * * * But to say that there’s no such

230a
thing as class or race or ethnicity or sexual orientation is to, I think, minimize the importance of that construction.);
g. Tr. 1372:10-1374:7 (Badgett: DIX1108 The Williams Institute, Best Practices for Asking Questions about Sexual Orientation on Surveys (Nov. 2009), includes a discussion about methods for conducting surveys; it does not conflict with the substantial evidence demonstrating that sexual orientation is a distinguishing characteristic that defines gay and lesbian individuals as a discrete group.).
45. Proponents’ campaign for Proposition 8 assumed voters understood the existence of homosexuals as individuals distinct from heterosexuals.
a. PX0480A Video supporting Proposition 8: Supporters of Proposition 8 identified “homosexuals and those sympathetic to their demands” as supporters of marriage for same-sex couples;
b. PX2153 Advertisement, Honest Answers to Questions Many Californians Are Asking About Proposition 8, Protect Marriage (2008): “The 98% of Californians who are not gay should not have their religious freedoms and freedom of expression be compromised to afford special legal rights for the 2% of Californians who are gay.”;
c. PX2156 Protect Marriage, Myths and Facts About Proposition 8: “Proposition 8 does not interfere with gays living the lifestyle they choose. However, while gays can live as they want, they should not have the right to redefine marriage for the rest of society.”;

231a
d. PX0021 Leaflet, California Family Council, The California Marriage Protection Act (“San Diego County’s ‘Tipping Point’ ”) at 2: The leaflet asserts that “homosexuals” do not want to marry; instead, the goal of the “homosexual community” is to annihilate marriage;
e. PX0577 Frank Schubert and Jeff Flint, Passing Prop 8, Politics at 45 (Feb. 2009): The Proposition 8 campaign was organized in light of the fact that many Californians are “tolerant” of gays;
f. PX0001 California Voter Information Guide, California General Election, Tuesday, November 4, 2008 at PM 3365: “[W]hile gays have the right to their private lives, they do not have the right to redefine marriage for everyone else” (emphasis in original).
46. Individuals do not generally choose their sexual orientation. No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.
a. Tr. 2032:15-22 (Herek: Herek has conducted research in which he has found that the vast majority of lesbians and gay men, and most bisexuals as well, when asked how much choice they have about their sexual orientation say that they have “no choice” or “very little choice” about it.);
b. Tr. 2054:12-2055:24 (Herek: PX0928 at 39 contains a table that reports data on approximately 2,200 people who responded to questions about how much choice they had about being

232a
lesbian, gay or bisexual. Among gay men, 87 percent said that they experienced no or little choice about their sexual orientation. Among lesbians, 70 percent said that they had no or very little choice about their sexual orientation.); Tr. 2056:425 (Herek: PX0930 demonstrates that 88 percent of gay men reported that they had “no choice at all” about their sexual orientation, and 68 percent of lesbians said they had “no choice at all,” and another 15 percent reported a small amount of choice.);
c. Tr. 2252:1-10 (Herek: “It is certainly the case that there have been many people who, most likely because of societal stigma, wanted very much to change their sexual orientation and were not able to do so.”);
d. Tr. 2314:3-17 (Herek: Herek agrees with Peplau’s statement that “[c]laims about the potential erotic plasticity of women do not mean that most women will actually exhibit change over time. At a young age, many women adopt patterns of heterosexuality that are stable across their lifetime. Some women adopt enduring patterns of same-sex attractions and relationships.”);
e. Tr. 2202:8-22 (Herek: “[M]ost people are brought up in society assuming that they will be heterosexual. Little boys are taught that they will grow up and marry a girl. Little girls are taught they will grow up and marry a boy. And growing up with those expectations, it is not uncommon for people to engage in sexual behavior with someone of the other sex, possibly before

233a
they have developed their real sense of who they are, of what their sexual orientation is. And I think that’s one of the reasons why * * * [gay men and lesbians have] experience[d] heterosexual intercourse. * * * [I]t is not part of their identity. It’s not part of who they are, and not indicative of their current attractions.”);
f. Tr. 2033:6-2034:20 (Herek: Therapies designed to change an individual’s sexual orientation have not been found to be effective in that they have not been shown to consistently produce the desired outcome without causing harm to the individuals involved.); Tr. 2039:1-3 (Herek: Herek is not aware of any major mental health organizations that have endorsed the use of such therapies.);
g. Tr. 140:6, 141:14-19 (Perry: Perry is a lesbian and feels that she was born with her sexual orientation. At 45 years old, she does not think that it might somehow change.);
h. Tr. 166:24-167:9 (Stier: Stier is 47 years old and has fallen in love one time in her life – with Perry.);
i. Tr. 77:4-5 (Zarrillo: Zarrillo has been gay “as long as [he] can remember.”);
j. Tr. 91:15-17 (Katami: Katami has been a “natural-born gay” “as long as he can remember.”);
k. Tr. 1506:2-11 (Kendall: “When I was a little kid, I knew I liked other boys. But I didn’t realize that meant I was gay until I was, probably, 11 or 12 years old. * * * I ended up looking up the word ‘homosexual’ in the dictionary. And I remember

234a
reading the definition[.] * * * And it slowly dawned on me that that’s what I was.”);
l. Tr. 1510:6-8 (Kendall: “I knew I was gay just like I knew I’m short and I’m half Hispanic. And I just never thought that those facts would change.”).
47. California has no interest in asking gays and lesbians to change their sexual orientation or in reducing the number of gays and lesbians in California.
a. PX0707 at RFA No 21: Proponents admit that same-sex sexual orientation does not result in any impairment in judgment or general social and vocational capabilities;
b. PX0710 at RFA No 19: Attorney General admits that sexual orientation bears no relation to a person’s ability to perform in or contribute to society;
c. PX0710 at RFA No 22: Attorney General admits that the laws of California recognize no relationship between a person’s sexual orientation and his or her ability to raise children; to his or her capacity to enter into a relationship that is analogous to marriage; or to his or her ability to participate fully in all economic and social institutions, with the exception of civil marriage;
d. Tr. 1032:6-12 (Lamb: Gay and lesbian sexual orientations are “normal variation[s] and are considered to be aspects of well-adjusted behavior.”);
e. Tr. 2027:19-2028:2 (Herek: Homosexuality is not considered a mental disorder. The American

235a
Psychiatric Association, the American Psychological Association and other major professional mental health associations have all gone on record affirming that homosexuality is a normal expression of sexuality and that it is not in any way a form of pathology.);
f. Tr. 2530:25-2532:25 (Miller: Miller agrees that “[c]ourts and legal scholars have concluded that sexual orientation is not related to an individual’s ability to contribute to society or perform in the workplace.”).
48. Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions. Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners. Standardized measures of relationship satisfaction, relationship adjustment and love do not differ depending on whether a couple is same-sex or opposite-sex.
a. PX0707 at RFA No 65: Proponents admit that gay and lesbian individuals, including plaintiffs, have formed lasting, committed and caring relationships with persons of the same sex and samesex couples share their lives and participate in their communities together;
b. PX0707 at RFA No 58: Proponents admit that many gay men and lesbians have established loving and committed relationships;
c. PX0710 at RFA No 65: Attorney General admits that gay men and lesbians have formed

236a
lasting, committed and caring same-sex relationships and that same-sex couples share their lives and participate in their communities together;
d. PX0710 at RFA No 58: Attorney General admits that California law implicitly recognizes an individual’s capacity to establish a loving and long-term committed relationship with another person that does not depend on the individual’s sexual orientation;
e. Tr. 583:12-585:21 (Peplau: Research that has compared the quality of same-sex and oppositesex relationships and the processes that affect those relationships consistently shows “great similarity across couples, both same-sex and heterosexual.”);
f. Tr. 586:22-587:1 (Peplau: Reliable research shows that “a substantial proportion of lesbians and gay men are in relationships, that many of those relationships are long-term.”);
g. PX2545 (Young Nov. 13 2009 Dep. Tr. 122:17123:1: Young agrees with the American Psychoanalytic Association’s statement that “gay men and lesbians possess the same potential and desire for sustained loving and lasting relationships as heterosexuals.”); PX2544 at 12:40-14:15 (video of same);
h. PX2545 (Young Nov. 13, 2009 Dep. Tr. 100:17101:5: Young agrees that love and commitment are reasons both gay people and heterosexuals have for wanting to marry.); PX2544 at 10:3510:55 (video of same);

237a
i. Tr. 1362:17-21 (Badgett: Same-sex couples wish to marry for many of the same reasons that opposite-sex couples marry.);
j. Tr. 1362:5-10 (Badgett: Same-sex couples have more similarities than differences with oppositesex couples, and any differences are marginal.);
k. PX2096 Adam Romero, et al, Census Snapshot: California, The Williams Institute at 1 (Aug 2008): “In many ways, the more than 107,000 same-sex couples living in California are similar to married couples. According to Census 2000, they live throughout the state, are racially and ethnically diverse, have partners who depend upon one another financially, and actively participate in California’s economy. Census data also show that 18% of same-sex couples in California are raising children.”
49. California law permits and encourages gays and lesbians to become parents through adoption, foster parenting or assistive reproductive technology. Approximately eighteen percent of same-sex couples in California are raising children.
a. PX0707 at RFA No 66: Proponents admit that gay and lesbian individuals raise children together;
b. PX0710 at RFA No 22: Attorney General admits that the laws of California recognize no relationship between a person’s sexual orientation and his or her ability to raise children;
c. PX0709 at RFA No 22: Governor admits that California law does not prohibit individuals from

238a
raising children on the basis of sexual orientation;
d. PX0710 at RFA No 57: Attorney General admits that California law protects the right of gay men and lesbians in same-sex relationships to be foster parents and to adopt children by forbidding discrimination on the basis of sexual orientation;
e. Cal. Welf. & Inst. Code § 16013(a): “It is the policy of this state that all persons engaged in providing care and services to foster children * * * shall not be subjected to discrimination or harassment on the basis of their clients’ or their own actual or perceived * * * sexual orientation.”;
f. Cal. Fam. Code § 297.5(d): “The rights and obligations of registered domestic partners with respect to a child of either of them shall be the same as those of spouses.”;
g. Elisa B v. Superior Court, [37 Cal.4th 108, 33 Cal.Rptr.3d 46] 117 P.3d 660, 670 (Cal.2005) (holding that under the Uniform Parentage Act, a parent may have two parents of the same sex);
h. PX2096 Adam Romero, et al, Census Snapshot: California, The Williams Institute at 2 (Aug 2008): “18% of same-sex couples in California are raising children under the age of 18.”;
i. Tr. 1348:23-1350:2 (Badgett: Same-sex couples in California are raising 37,300 children under the age of 18.).

239a
50. Same-sex couples receive the same tangible and intangible benefits from marriage that opposite-sex couples receive.
a. Tr. 594:17-20 (Peplau: “My opinion, based on the great similarities that have been documented between same-sex couples and heterosexual couples, is th [at] if same-sex couples were permitted to marry, that they also would enjoy the same benefits [from marriage].”);
b. Tr. 598:1-599:19 (Peplau: Married same-sex couples in Massachusetts have reported various benefits from marriage including greater commitment to the relationship, more acceptance from extended family, less worry over legal problems, greater access to health benefits and benefits for their children.);
c. PX0787 Position Statement, American Psychiatric Association, Support of Legal Recognition of Same-Sex Civil Marriage at 1 (July 2005): “In the interest of maintaining and promoting mental health, the American Psychiatric Association supports the legal recognition of same-sex civil marriage with all rights, benefits, and responsibilities conferred by civil marriage, and opposes restrictions to those same rights, benefits, and responsibilities.”
51. Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals.
a. PX0707 at RFA No 9: Proponents admit that for many gay and lesbian individuals, marriage to an individual of the opposite sex is not a meaningful alternative;

240a
b. PX0710 at RFA No 9: Attorney General admits that for gay men and lesbians, opposite-sex marriage may not be a meaningful alternative to same-sex marriage to the extent that it would compel them to negate their sexual orientation and identity;
c. Tr. 85:9-21 (Zarrillo: “I have no attraction, desire, to be with a member of the opposite sex.”);
d. Tr. 2042:14-25 (Herek: While gay men and lesbians in California are permitted to marry, they are only permitted to marry a member of the opposite sex. For the vast majority of gay men and lesbians, that is not a realistic option. This is true because sexual orientation is about the relationships people form – it defines the universe of people with whom one is able to form the sort of intimate, committed relationship that would be the basis for marriage.);
e. Tr. 2043:1-2044:10 (Herek: Some gay men and lesbians have married members of the opposite sex, but many of those marriages dissolve, and some of them experience considerable problems simply because one of the partners is gay or lesbian. A gay or lesbian person marrying a person of the opposite sex is likely to create a great deal of conflict and tension in the relationship.).
52. Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States.

241a
a. PX0707 at RFA No 38: Proponents admit that there is a significant symbolic disparity between domestic partnership and marriage;
b. PX0707 at RFA No 4: Proponents admit that the word “marriage” has a unique meaning;
c. Tr. 207:9-208:6 (Cott, describing the social meaning of marriage in our culture: Marriage has been the “happy ending to the romance.” Marriage “is the principal happy ending in all of our romantic tales”; the “cultural polish on marriage” is “as a destination to be gained by any couple who love one another.”);
d. Tr. 208:9-17 (Cott: “Q. Let me ask you this. How does the cultural value and the meaning, social meaning of marriage, in your view, compare with the social meaning of domestic partnerships and civil unions? A. I appreciate the fact that several states have extended – maybe it’s many states now, have extended most of the material rights and benefits of marriage to people who have civil unions or domestic partnerships. But there really is no comparison, in my historical view, because there is nothing that is like marriage except marriage.”);
e. Tr. 611:1-7 (Peplau: “I have great confidence that some of the things that come from marriage, believing that you are part of the first class kind of relationship in this country, that you are * * * in the status of relationships that this society most values, most esteems, considers the most legitimate and the most appropriate, undoubtedly has benefits that are not part of domestic partnerships.”);

242a
f. Tr. 1342:14-1343:12 (Badgett: Some same-sex couples who might marry would not register as domestic partners because they see domestic partnership as a second class status.);
g. Tr. 1471:1-1472:8 (Badgett: Same-sex couples value the social recognition of marriage and believe that the alternative status conveys a message of inferiority.);
h. Tr. 1963:3-8 (Tam: “If ‘domestic partner’ is defined as it is now, then we can explain to our children that, yeah, there are some same-sex person wants to have a lifetime together as committed partners, and that is called ‘domestic partner,’ but it is not ‘marriage.’ ” (as stated)).
53. Domestic partners are not married under California law. California domestic partnerships may not be recognized in other states and are not recognized by the federal government.
a. Cal. Fam. Code §§ 297-299.6 (establishing domestic partnership as separate from marriage);
b. Compare Doc. # 686 at 39 with Doc. # 687 at 47: The court asked the parties to identify which states recognize California domestic partnerships. No party could identify with certainty the states that recognize them. Plaintiffs and proponents agree only that Connecticut, New Jersey and Washington recognize California domestic partnerships. See also # 688 at 2: “To the best of the Administrative Defendants’ knowledge,” Connecticut, Washington DC, Washington, Nevada, New Hampshire and New Jersey recognize California domestic partnerships;

243a
c. Gill v. Office of Personnel Management et al, No. 09-10309-JLT at Doc. # 70 [699 F.Supp.2d 374] ([D.Mass.] July 8, 2010) (holding the federal Defense of Marriage Act (“DOMA”) unconstitutional as applied to plaintiffs who are married under state law. (Domestic partnerships are not available in Massachusetts and thus the court did not address whether a person in a domestic partnership would have standing to challenge DOMA.)); see also In re Karen Golinski, 587 F.3d 901, 902 (9th Cir.2009) (finding that Golinski could obtain coverage for her wife under the Federal Employees Health Benefits Act without needing to consider whether the result would be the same for a federal employee’s domestic partner).
54. The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships.
a. Tr. 613:23-614:12 (Peplau: There is a significant symbolic disparity between marriage and domestic partnerships; a domestic partnership is “not something that is necessarily understood or recognized by other people in your environment.”);
b. Tr. 659:8-15 (Peplau: As a result of the different social meanings of a marriage and a domestic partnership, there is a greater degree of an enforceable trust in a marriage than a domestic partnership.);

244a
c. Tr. 2044:20-2045:22 (Herek: The difference between domestic partnerships and marriage is much more than simply a word. “[J]ust the fact that we’re here today suggests that this is more than just a word * * * clearly, [there is] a great deal of strong feeling and emotion about the difference between marriage and domestic partnerships.”);
d. Tr. 964:1-3 (Meyer: Domestic partnerships reduce the value of same-sex relationships.);
e. PX0710 at RFA No 37: Attorney General admits that establishing a separate legal institution for state recognition and support of lesbian and gay families, even if well-intentioned, marginalizes and stigmatizes gay families;
f. Tr. 142:2-13 (Perry: When you are married, “you are honored and respected by your family. Your children know what your relationship is. And when you leave your home and you go to work or you go out in the world, people know what your relationship means.”);
g. Tr. 153:4-155:5 (Perry: Stier and Perry completed documents to register as domestic partners and mailed them in to the state. Perry views domestic partnership as an agreement; it is not the same as marriage, which symbolizes “maybe the most important decision you make as an adult, who you choose [as your spouse].”);
h. Tr. 170:12-171:14 (Stier: To Stier, domestic partnership feels like a legal agreement between two parties that spells out responsibilities and duties. Nothing about domestic partnership

245a
indicates the love and commitment that are inherent in marriage, and for Stier and Perry, “it doesn’t have anything to do * * * with the nature of our relationship and the type of enduring relationship we want it to be. It’s just a legal document.”);
i. Tr. 172:6-21 (Stier: Marriage is about making a public commitment to the world and to your spouse, to your family, parents, society and community. It is the way to tell them and each other that this is a lifetime commitment. “And I have to say, having been married for 12 years and been in a domestic partnership for 10 years, it’s different. It’s not the same. I want – I don’t want to have to explain myself.”);
j. Tr. 82:9-83:1 (Zarrillo: “Domestic partnership would relegate me to a level of second class citizenship. * * * It’s giving me part of the pie, but not the whole thing * * * [I]t doesn’t give due respect to the relationship that we have had for almost nine years.”);
k. Tr. 115:3-116:1 (Katami: Domestic partnerships “make[ ] you into a second, third, and * * * fourth class citizen now that we actually recognize marriages from other states. * * * None of our friends have ever said, ‘Hey, this is my domestic partner.’ ”).
55. Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.

246a
a. Tr. 596:13-597:3 (Peplau: Data from Massachusetts on the “annual rates for marriage and for divorce” for “the four years prior to same-sex marriage being legal and the four years after” show “that the rates of marriage and divorce are no different after [same-sex] marriage was permitted than they were before.”);
b. Tr. 605:18-25 (Peplau: Massachusetts data are “very consistent” with the argument that permitting same-sex couples to marry will not have an adverse effect on the institution of marriage.);
c. Tr. 600:12-602:15 (Peplau: Allowing same-sex couples to marry will have “no impact” on the stability of marriage.);
d. PX1145 Matthew D Bramlett and William D Mosher, First Marriage Dissolution, Divorce, and Remarriage: United States, U.S. Department of Health and Human Services at 2 (May 31, 2001): Race, employment status, education, age at marriage and other similar factors affect rates of marriage and divorce;
e. PX1195 Matthew D Bramlett and William D Mosher, Cohabitation, Marriage, Divorce, and Remarriage in the United States, Vital and Health Statistics 23:22, U.S. Department of Health and Human Services at 12 (July 2002): Race and socioeconomic status, among other factors, are correlated with rates of marital stability;
f. PX0754 American Anthropological Association, Statement on Marriage and the Family: The viability of civilization or social order does not

247a
depend upon marriage as an exclusively heterosexual institution.
56. The children of same-sex couples benefit when their parents can marry.
a. Tr. 1332:19-1337:25 (Badgett: Same-sex couples and their children are denied all of the economic benefits of marriage that are available to married couples.);
b. PX0787 Position Statement, American Psychiatric Association, Support of Legal Recognition of Same-Sex Civil Marriage at 1 (July 2005): “The children of unmarried gay and lesbian parents do not have the same protection that civil marriage affords the children of heterosexual couples.”;
c. Tr. 1964:17-1965:2 (Tam: It is important to children of same-sex couples that their parents be able to marry.);
d. Tr. 599:12-19 (Peplau: A survey of same-sex couples who married in Massachusetts shows that 95 percent of same-sex couples raising children reported that their children had benefitted from the fact that their parents were able to marry.).
WHETHER THE EVIDENCE SHOWS THAT PROPOSITION 8 ENACTED A PRIVATE MORAL VIEW WITHOUT ADVANCING A LEGITIMATE GOVERNMENT INTEREST
57. Under Proposition 8, whether a couple can obtain a marriage license and enter into marriage

248a
depends on the genders of the two parties relative to one another. A man is permitted to marry a woman but not another man. A woman is permitted to marry a man but not another woman. Proposition 8 bars state and county officials from issuing marriage licenses to same-sex couples. It has no other legal effect.
a. Cal. Const. Art. I, § 7.5 (Proposition 8);
b. PX0001 California Voter Information Guide, California General Election, Tuesday, November 4, 2008: Proposition 8 “eliminates right of samesex couples to marry.”
58. Proposition 8 places the force of law behind stigmas against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society.
a. Tr. 611:13-19 (Peplau: “[B]eing prevented by the government from being married is no different than other kinds of stigma and discrimination that have been studied, in terms of their impact on relationships.”);
b. Tr. 529:21-530:23 (Chauncey: The campaign for Proposition 8 presented marriage for samesex couples as an adult issue, although children are frequently exposed to romantic fairy tales or weddings featuring opposite-sex couples.);
c. Tr. 854:5-14 (Meyer: “Proposition 8, in its social meaning, sends a message that gay relationships

249a
are not to be respected; that they are of secondary value, if of any value at all; that they are certainly not equal to those of heterosexuals.”);
d. Tr. 2047:13-2048:13 (Herek: In 2004, California enacted legislation that increased the benefits and responsibilities associated with domestic partnership, which became effective in 2005. In the second half of 2004, the California Secretary of State mailed a letter to all registered domestic partners advising them of the changes and telling recipients to consider whether to dissolve their partnership. Herek “find[s] it difficult to imagine that if there were changes in tax laws that were going to affect married couples, that you would have the state government sending letters to people suggesting that they consider whether or not they want to get divorced before this new law goes into effect. I think that – that letter just illustrates the way in which domestic partnerships are viewed differently than marriage.”);
e. PX2265 Letter from Kevin Shelley, California Secretary of State, to Registered Domestic Partners: Shelley explains domestic partnership law will change on January 1, 2005 and suggests that domestic partners dissolve their partnership if they do not wish to be bound by the new structure of domestic partnership;
f. Tr. 972:14-17 (Meyer: “Laws are perhaps the strongest of social structures that uphold and enforce stigma.”);
g. Tr. 2053:8-18 (Herek: Structural stigma provides the context and identifies which members

250a
of society are devalued. It also gives a level of permission to denigrate or attack particular groups, or those who are perceived to be members of certain groups in society.);
h. Tr. 2054:7-11 (Herek: Proposition 8 is an instance of structural stigma.).
59. Proposition 8 requires California to treat samesex couples differently from opposite-sex couples.
a. See PX0710 at RFA No 41: Attorney General admits that because two types of relationships – one for same-sex couples and one for opposite-sex couples – exist in California, a gay or lesbian individual may be forced to disclose his or her sexual orientation when responding to a question about his or her marital status;
b. Compare Cal. Fam. Code §§ 300-536 (marriage) with Cal. Fam. Code §§ 297-299.6 (registered domestic partnerships).
60. Proposition 8 reserves the most socially valued form of relationship (marriage) for opposite-sex couples.
a. Tr. 576:15-577:14 (Peplau: Study by Gary Gates, Lee Badgett and Deborah Ho suggests that same-sex couples are “three times more likely to get married than to enter into” domestic partnerships or civil unions.);
b. PX1273 M V Lee Badgett, When Gay People Get Married at 58, 59, 60 (N.Y.U 2009): “Many Dutch couples saw marriage as better because it had an additional social meaning that registered partnership, as a recent political invention,

251a
lacked.” “In some places, the cultural and political trappings of statuses that are not marriage send a very clear message of difference and inferiority to gay and lesbian couples.” “[W]hen compared to marriage, domestic partnerships may become a mark of second-class citizenship and are less understood socially. In practice, these legal alternatives to marriage are limited because they do not map onto a well-developed social institution that gives the act of marrying its social and cultural meaning.”;
c. Tr. 2044:20-2045:22 (Herek: The difference between domestic partnerships and marriage is more than simply a word. If we look at public opinion data, for example, there is a sizable proportion of the public, both in California and the United States, who say that they are willing to let same-sex couples have domestic partnerships or civil unions, but not marriage. This suggests a distinction in the minds of a large number of Americans – it is not simply a word. In addition, looking at the recent history of California, when it became possible for same-sex couples to marry, thousands of them did. And many of those were domestic partners. So, clearly, they thought there was something different about being married.);
d. PX0504B Video, Satellite Simulcast in Defense of Marriage, Excerpt at 0:38-0:56: Speaker warns that if Proposition 8 does not pass, children will be taught “that gay marriage is not just a different type of a marriage, they’re going to be taught that it’s a good thing.”

252a
61. Proposition 8 amends the California Constitution to codify distinct and unique roles for men and women in marriage.
a. Tr. 1087:5-18 (Lamb: The “traditional family” refers to a family with a married mother and father who are both biologically related to their children where the mother stays at home and the father is the bread winner.);
b. PX0506 Protect Marriage, The Fine Line Transcript (Oct. 1, 2008) at 13: “Children need a loving family and yes they need a mother and father. Now going on what Sean was saying here about the consequences of this, if Prop 8 doesn’t pass then it will be illegal to distinguish between heterosexual and same sex couples when it comes to adoption. Um Yvette just mentioned some statistics about growing up in families without a mother and father at home. How important it is to have that kind of thing. I’m not a sociologist. I’m not a psychologist. I’m just a human being but you don’t need to be wearing a white coat to know that kids need a mom and dad. I’m a dad and I know that I provide something different than my wife does in our family and my wife provides something entirely different than I do in our family and both are vital.”;
c. PX0506 Protect Marriage, The Fine Line Transcript at 6 (Oct. 1, 2008): “When moms are in the park taking care of their kids they always know where those kids are. They have like a, like a radar around them. They know where those kids are and there’s just a, there’s a bond between a mom and a kid different from a dad.

253a
I’m not saying dads don’t have that bond but they don’t. It’s just different. You know middle of the night mom will wake up. Dad will just sleep you know if there’s a little noise in the room. And, and when kids get scared they run to mommy. Why? They spent 9 months in mommy. They go back to where they came.”;
d. PX390 Video, Ron Prentice Addressing Supporters of Proposition 8, Part I at 5:25-6:04: Prentice tells people at a religious rally that marriage is not about love but instead about women civilizing men: “Again, because it’s not about two people in love, it’s about men becoming civilized frankly, and I can tell you this from personal experience and every man in this audience can do the same if they’ve chosen to marry, because when you do find the woman that you love you are compelled to listen to her, and when the woman that I love prior to my marrying her told me that my table manners were less than adequate I became more civilized; when she told me that my rust colored corduroy were never again to be worn, I became more civilized.”;
e. PX0506 Protect Marriage, The Fine Line Transcript (Oct. 1, 2008) at 15: “Skin color is morally trivial as you pointed out but sex is fundamental to everything. There is no difference between a white or a black human being but there’s a big difference between a man and a woman.”;
f. PX1867 Transcript, ABC Protecting Marriage at 27:6-9: Dr. Jennifer Roback Morse states that “[t]he function of marriage is to attach mothers

254a
and fathers to one another and mothers and fathers to their children, especially fathers to children.”;
g. PX0480A Video supporting Proposition 8 at 2:00-2:24: Prentice states that “[c]hildren need the chance to have both mother love and father love. And that moms and dads, male and female, complement each other. They don’t bring to a marriage and to a family the same natural set of skills and talents and abilities. They bring to children the blessing of both masculinity and femininity.”;
h. PX2403 Email from Kenyn Cureton, VicePresident, Family Research Council, to Prentice at 3 (Aug 25, 2008): Attached to the email is a kit to be distributed to Christian voters through churches to help them promote Proposition 8 which states: “Thank God for the difference between men and women. In fact, the two genders were meant to complete each other physically, emotionally, and in every other way. Also, both genders are needed for a healthy home. As Dr. James Dobson notes, ‘More than ten thousand studies have concluded that kids do best when they are raised by mothers and fathers.’ ”;
i. PX1868 Transcript, Love, Power, Mind (CCN simulcast Sept. 25, 2008) at 43:19-24: “Same sex marriage, it will unravel that in a significant way and say that really male and female, mother and father, husband and wife are just really optional for the family, not necessary. And that is a radically anti-human thing to say.”;

255a
j. PX1867 Transcript, ABC Protecting Marriage at 28:18-23: “And we know that fatherlessness has caused significant problems for a whole generation of children and same-sex marriage would send us more in that direction of intentionally fatherless homes.”;
k. PX0506 Protect Marriage, The Fine Line Transcript at 5 (Oct. 1, 2008): Miles McPherson states that it is a truth “that God created the woman bride as the groom’s compatible marriage companion.”
62. Proposition 8 does not affect the First Amendment rights of those opposed to marriage for same-sex couples. Prior to Proposition 8, no religious group was required to recognize marriage for same-sex couples.
a. In re Marriage Cases, [76 Cal.Rptr.3d 683] 189 [183] P.3d at 451-452 (“[A]ffording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.”) (Citing Cal. Const. Art. I, § 4);
b. Tr. 194:24-196:21 (Cott: Civil law, not religious custom, is supreme in defining and regulating marriage in the United States.);
c. Cal. Fam. Code §§ 400, 420.

256a
63. Proposition 8 eliminates the right to marry for gays and lesbians but does not affect any other substantive right under the California Constitution. Strauss, 93 Cal.Rptr.3d 591, 207 P.3d at 102 (“Proposition 8 does not eliminate the substantial substantive [constitutional] protections afforded to same-sex couples[.]”) (emphasis in original).
64. Proposition 8 has had a negative fiscal impact on California and local governments.
a. Tr. 1330:23-25 (Badgett: “Proposition 8 has imposed some economic losses on the State of California and on counties and municipalities.”);
b. Tr. 1364:16-1369:4 (Badgett: Denying samesex couples the right to marry imposes costs on local governments such as loss of tax revenue, higher usage of means-tested programs, higher costs for healthcare of uninsured same-sex partners and loss of skilled workers.);
c. Tr. 720:1-12 (Egan: “What we’re really talking about in the nonquantifiable impacts are the long-term advantages of marriage as an institution, and the long-term costs of discrimination as a way that weakens people’s productivity and integration into the labor force. Whether it’s weakening their education because they’re discriminated against at school, or leading them to excessive reliance on behavioral and other health services, these are impacts that are hard to quantify, but they can wind up being extremely powerful. How much healthier you are over your lifetime. How much wealth you generate because you are in a partnership.”);

257a
d. Tr. 1367:5-1368:1 (Badgett: Denying samesex couples the right to marry tends to reduce same-sex couples’ income, which “will make them more likely to need and be eligible for those means-tested programs that are paid for by the state.” Similarly, to the extent that same-sex couples cannot obtain health insurance for their partners and children, there will be more people who might need to sign up for the state’s sponsored health programs.).
65. CCSF would benefit economically if Proposition 8 were not in effect.
a. CCSF would benefit immediately from increased wedding revenue and associated expenditures and an increased number of county residents with health insurance. Tr. 691:24-692:3; Tr. 708:16-20 (Egan);
b. CCSF would benefit economically from decreased discrimination against gays and lesbians, resulting in decreased absenteeism at work and in schools, lower mental health costs and greater wealth accumulation. Tr. 685:10-14; Tr. 689:4-10; Tr. 692:12-19; Tr. 720:1-12 (Egan);
c. CCSF enacted the Equal Benefits Ordinance to mandate that city contractors and vendors provide same-sex partners of employees with benefits equal to those provided to opposite-sex spouses of employees. CCSF bears the cost of enforcing the ordinance and defending it against legal challenges. Tr. 714:15-715:10 (Egan).
66. Proposition 8 increases costs and decreases wealth for same-sex couples because of increased tax

258a
burdens, decreased availability of health insurance and higher transactions costs to secure rights and obligations typically associated with marriage. Domestic partnership reduces but does not eliminate these costs.
a. Tr. 1330:14-16 (Badgett: Proposition 8 has “inflicted substantial economic harm on same-sex couples and their children who live here in California.”);
b. Tr. 1331:12-1337:25 (Badgett: Marriage confers economic benefits including greater specialization of labor, reduced transactions costs, health and insurance benefits and more positive workplace outcomes.);
c. Tr. 1341:2-1342:13 (Badgett: Couples that would marry but would not enter into a domestic partnership suffer tangible economic harm such as higher taxes and limited access to health insurance.);
d. PX1259 MV Lee Badgett, Unequal Taxes on Equal Benefits: The Taxation of Domestic Partner Benefits, The Williams Institute at 1 (Dec. 2007): “[W]orkers who have an unmarried domestic partner are doubly burdened: Their employers typically do not provide coverage for domestic partners; and even when partners are covered, the partner’s coverage is taxed as income to the employee.”;
e. PX2898 Laura Langbein and Mark A Yost, Same-Sex Marriage and Negative Externalities, 490 Soc. Sci Q 293, 307 (2009): “For example, the ban on gay marriage induces failures in insurance and financial markets. Because spousal

259a
benefits do not transfer (in most cases) to domestic partners, there are large portions of the population that should be insured, but instead receive inequitable treatment and are not insured properly. * * * This is equally true in the treatment of estates on the death of individuals. In married relationships, it is clear to whom an estate reverts, but in the cases of homosexual couples, there is no clear right of ownership, resulting in higher transactions costs, widely regarded as socially inefficient.”;
f. PX0188 Report of the Council on Science and Public Health, Health Care Disparities in SameSex Households, C Alvin Head (presenter) at 9: “Survey data confirm that same-sex households have less access to health insurance. If they have health insurance, they pay more than married heterosexual workers, and also lack other financial protections. * * * [C]hildren in same-sex households lack the same protections afforded children in heterosexual households.”;
g. PX0189 American Medical Association Policy: Health Care Disparities in Same-Sex Partner Households, Policy D160.979 at 1: “[E]xclusion from civil marriage contributes to health care disparities affecting same-sex households.”;
h. PX1261 California Employer Health Benefits Survey, California HealthCare Foundation at 7 (Dec. 2008): Only 56 percent of California firms offered health insurance to unmarried same-sex couples in 2008;
i. PX1266 National Center for Lesbian Rights and Equality California, The California Domestic

260a
Partnership Law: What it Means for You and Your Family at 13 (2009): Domestic partnerships create more transactions costs than exist in marriage. “Despite * * * automatic legal protection for children born to registered domestic partners, [the National Center for Lesbian Rights] is strongly recommending that all couples obtain a court judgment declaring both partners to be their child’s legal parents, either an adoption or a parentage judgment.”;
j. PX1269 Michael Steinberger, Federal Estate Tax Disadvantages for Same-Sex Couples, The Williams Institute at 1 (July 2009): “Using data from several government data sources, this report estimates the dollar value of the estate tax disadvantage faced by same-sex couples. In 2009, the differential treatment of same-sex and married couples in the estate tax code will affect an estimated 73 same-sex couples, costing each of them, on average, more than $3.3 million.”
67. Proposition 8 singles out gays and lesbians and legitimates their unequal treatment. Proposition 8 perpetuates the stereotype that gays and lesbians are incapable of forming long-term loving relationships and that gays and lesbians are not good parents.
a. Tr. 2054:7-11 (Herek: In “a definitional sense,” Proposition 8 is an instance of structural stigma against gays and lesbians.);
b. Tr. 826:21-828:4 (Meyer: Domestic partnership does not eliminate the structural stigma of Proposition 8 because it does not provide the symbolic or social meaning of marriage.);

261a
c. Tr. 820:23-822:5 (Meyer: One of the stereotypes that is part of the stigma surrounding gay men and lesbians is that gay men and lesbians are incapable of, uninterested in and not successful at having intimate relationships.);
d. Tr. 407:8-408:4 (Chauncey: The fear of homosexuals as child molesters or as recruiters continues to play a role in debates over gay rights, and with particular attention to gay teachers, parents and married couples – people who might have close contact with children.);
e. PX0001 California Voter Information Guide, California General Election, Tuesday, November 4, 2008 at PM 3365: “TEACHERS COULD BE REQUIRED to teach young children that there is no difference between gay marriage and traditional marriage.” (emphasis in original);
f. Tr. 854:5-22 (Meyer: Proposition 8 “sends a message that gay relationships are not to be respected; that they are of secondary value, if of any value at all; that they are certainly not equal to those of heterosexuals. * * * [So] in addition to achieving the literal aims of not allowing gay people to marry, it also sends a strong message about the values of the state; in this case, the Constitution itself. And it sends a message that would, in [Meyer’s] mind, encourage or at least is consistent with holding prejudicial attitudes. So that doesn’t add up to a very welcoming environment.”).
68. Proposition 8 results in frequent reminders for gays and lesbians in committed long-term relationships

262a
that their relationships are not as highly valued as opposite-sex relationships.
a. Tr. 846:22-847:12 (Meyer: When gay men and lesbians have to explain why they are not married, they “have to explain, I’m really not seen as equal. I’m – my status is – is not respected by my state or by my country, by my fellow citizens.”);
b. Tr. 1471:1-1472:8 (Badgett: Badgett’s interviews with same-sex couples indicate that couples value the social recognition of marriage and believe that the alternative status conveys a message of inferiority.);
c. Tr. 151:20-24 (Perry: A passenger on a plane once assumed that she could take the seat that Perry had been saving for Stier because Perry referred to Stier as her “partner.”);
d. Tr. 174:3-175:4 (Stier: It has been difficult to explain to others her relationship with Perry because they are not married.);
e. Tr. 175:5-17 (Stier: It is challenging to fill out forms in doctor’s offices that ask whether she is single, married or divorced because “I have to find myself, you know, scratching something out, putting a line through it and saying ‘domestic partner’ and making sure I explain to folks what that is to make sure that our transaction can go smoothly.”);
f. Tr. 841:17-844:11; 845:7-10 (Meyer: For lesbians and gay men, filling out a form requiring them to designate their marital status can be significant because the form-filler has no box to

263a
check. While correcting a form is a minor event, it is significant for the gay or lesbian person because the form evokes something much larger for the person – a social disapproval and rejection. “It’s about, I’m gay and I’m not accepted here.”).
69. The factors that affect whether a child is welladjusted are: (1) the quality of a child’s relationship with his or her parents; (2) the quality of the relationship between a child’s parents or significant adults in the child’s life; and (3) the availability of economic and social resources. Tr. 1010:13-1011:13 (Lamb).
70. The gender of a child’s parent is not a factor in a child’s adjustment. The sexual orientation of an individual does not determine whether that individual can be a good parent. Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted. The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology.
a. Tr. 1025:4-23 (Lamb: Studies have demonstrated “very conclusively that children who are raised by gay and lesbian parents are just as likely to be well-adjusted as children raised by heterosexual parents.” These results are “completely consistent with our broader understanding of the factors that affect children’s adjustment.”);
b. PX2565 American Psychological Association, Answers to Your Questions: For a Better Understanding of Sexual Orientation and Homosexuality at 5 (2008): “[S]ocial science has shown that the

264a
concerns often raised about children of lesbian and gay parents – concerns that are generally grounded in prejudice against and stereotypes about gay people – are unfounded.”;
c. PX2547 (Nathanson Nov. 12, 2009 Dep. Tr. 49:05-49:19: Sociological and psychological peerreviewed studies conclude that permitting gay and lesbian individuals to marry does not cause any problems for children); PX2546 at 2:20-3:10 (video of same).
71. Children do not need to be raised by a male parent and a female parent to be well-adjusted, and having both a male and a female parent does not increase the likelihood that a child will be well-adjusted. Tr. 1014:25-1015:19; 1038:23-1040:17 (Lamb).
72. The genetic relationship between a parent and a child is not related to a child’s adjustment outcomes. Tr. 1040:22-1042:10 (Lamb).
73. Studies comparing outcomes for children raised by married opposite-sex parents to children raised by single or divorced parents do not inform conclusions about outcomes for children raised by same-sex parents in stable, long-term relationships. Tr. 1187:131189:6 (Lamb).
74. Gays and lesbians have been victims of a long history of discrimination.
a. Tr. 3080:9-11 (Proponents’ counsel: “We have never disputed and we have offered to stipulate that gays and lesbians have been the victims of a long and shameful history of discrimination.”);

265a
b. Tr. 361:11-15 (Chauncey: Gays and lesbians “have experienced widespread and acute discrimination from both public and private authorities over the course of the twentieth century. And that has continuing legacies and effects.”); see also Tr. 361-390 (Chauncey: discussing details of discrimination against gays and lesbians);
c. PX2566 Letter from John W Macy, Chairman, Civil Service Commission, to the Mattachine Society of Washington (Feb. 25, 1966) at 2-4: The Commission rejected the Mattachine Society’s request to rescind the policy banning active homosexuals from federal employment. “Pertinent considerations here are the revulsion of other employees by homosexual conduct and the consequent disruption of service efficiency, the apprehension caused other employees of homosexual advances, solicitations or assaults, the unavoidable subjection of the sexual deviate to erotic stimulation through on-the-job use of the common toilet, shower and living facilities, the offense to members of the public who are required to deal with a known or admitted sexual deviate to transact Government business, the hazard that the prestige and authority of a Government position will be used to foster homosexual activity, particularly among the youth, and the use of Government funds and authority in furtherance of conduct offensive both to the mores and the law of our society.”;
d. PX2581 Letter from E D Coleman, Exempt Organizations Branch, IRS, to the Pride Foundation at 1, 4-5 (Oct. 8, 1974): The Pride Foundation is not entitled to an exemption under

266a
Internal Revenue Code § 501(c)(3) because the organization’s goal of “advanc[ing] the welfare of the homosexual community” was “perverted or deviate behavior” “contrary to public policy and [is] therefore, not ‘charitable.’ ”
75. Public and private discrimination against gays and lesbians occurs in California and in the United States.
a. PX0707 at RFA No 29: Proponents admit that gays and lesbians continue to experience instances of discrimination;
b. PX0711 at RFA Nos 3, 8, 13, 18, 23: Attorney General admits 263 hate crime events based on sexual orientation bias occurred in California in 2004, 255 occurred in 2005, 246 occurred in 2006, 263 occurred in 2007 and 283 occurred in 2008;
c. PX0672 at 18; PX0673 at 20; PX0674 at 20; PX0675 at 3; PX0676 at 1 (California Dept of Justice, Hate Crime in California, 2004-2008): From 2004 to 2008, between 17 and 20 percent of all hate crime offenses in California were motivated by sexual orientation bias;
d. PX0672 at 26; PX0673 at 28; PX0674 at 28; PX0675 at 26; PX0676 at 20 (California Dept of Justice, Hate Crime in California, 2004-2008): From 2004 to 2008, between 246 and 283 hate crime events motivated by sexual orientation bias occurred each year in California;
e. Tr. 548:23 (Chauncey: There is still significant discrimination against lesbians and gay men in the United States.);

267a
f. Tr. 1569:11-1571:5 (Segura: “[O]ver the last five years, there has actually been an increase in violence directed toward gay men and lesbians”; “gays and lesbians are representing a larger and larger portion of the number of acts of bias motivated violence” and “are far more likely to experience violence”; “73 percent of all the hate crimes committed against gays and lesbians also include an act of violence * * * we are talking about the most extreme forms of hate based violence”; the hate crimes accounted for “71 percent of all hate-motivated murders” and “[f]ifty-five percent of all hate-motivated rapes” in 2008; “There is simply no other person in society who endures the likelihood of being harmed as a consequence of their identity than a gay man or lesbian.”);
g. PX0605 The Williams Institute, et al, Documenting Discrimination on the Basis of Sexual Orientation and Gender Identity in State Employment at 1 (Sept. 2009): “There is a widespread and persistent pattern of unconstitutional discrimination on the basis of sexual orientation and gender identity against [California] government employees” and the pattern of discrimination is similar for private sector employees in California;
h. PX0619 The Williams Institute, Chapter 14: Other Indicia of Animus against LGBT People by State and Local Officials, 1980-Present at 14-8 (2009): Statements made by legislators, judges, governors and other officials in all fifty states show hostility towards gays and lesbians, including a 1999 statement by California State Senator Richard Mountjoy that “being gay ‘is a sickness

268a
* * * an uncontrolled passion similar to that which would cause someone to rape.’ ”;
i. Tr. 2510:23-2535:7 (Miller: Miller agrees that “there has been severe prejudice and discrimination against gays and lesbians” and “widespread and persistent” discrimination against gays and lesbians and that “there is ongoing discrimination in the United States” against gays and lesbians.);
j. Tr. 2572:11-16 (Miller: Gays and lesbians are still the “object of prejudice and stereotype.”);
k. Tr. 2599:17-2604:7 (Miller: Miller agrees that “there are some gays and lesbians who are fired from their jobs, refused work, paid less, and otherwise discriminated against in the workplace because of their sexual orientation.”).
76. Well-known stereotypes about gay men and lesbians include a belief that gays and lesbians are affluent, self-absorbed and incapable of forming long-term intimate relationships. Other stereotypes imagine gay men and lesbians as disease vectors or as child molesters who recruit young children into homosexuality. No evidence supports these stereotypes.
a. DIX1162 Randy Albelda, et al, Poverty in the Lesbian, Gay, and Bisexual Community, The Williams Institute at 1 (Mar 2009): “A popular stereotype paints lesbians and gay men as an affluent elite * * * . [T]he misleading myth of affluence steers policymakers, community organizations service providers, and the media away from fully understanding poverty among LGBT people.”;

269a
b. Tr. 474:12-19 (Chauncey: Medical pronouncements that were hostile to gays and lesbians provided a powerful source of legitimation to anti-homosexual sentiment and were themselves a manifestation of discrimination against gays and lesbians.);
c. Tr. 820:23-822:5 (Meyer: One of the stereotypes that is part of the stigma surrounding gay men and lesbians is that gay men and lesbians are incapable of, uninterested in and not successful at having intimate relationships. Gay men and lesbians have been described as social isolates, as unconnected to society and people who do not participate in society the way everyone else does – as “a pariah, so to speak.”);
d. PX1011 David Reuben, Everything You Always Wanted to Know About Sex (But Were Afraid to Ask) 129-151 at 143 (Van Rees 1969): “What about all of the homosexuals who live together happily for years? What about them? They are mighty rare birds among the homosexual flock. Moreover, the ‘happy’ part remains to be seen. The bitterest argument between husband and wife is a passionate love sonnet by comparison with a dialogue between a butch and his queen. Live together? Yes. Happily? Hardly.”;
e. Tr. 361:23-363:9 (Chauncey: Even though not all sodomy laws solely penalized homosexual conduct, over the course of the twentieth century, sodomy laws came to symbolize the criminalization of homosexual sex in particular. This was most striking in Bowers v. Hardwick, which reads as though the law at issue simply bears on

270a
homosexual sex when in fact the Georgia law at issue criminalized both homosexual and heterosexual sodomy.);
f. Tr. 484:24-485:5 (Chauncey: The federal government was slow to respond to the AIDS crisis, and this was in part because of the association of AIDS with a “despised group.”);
g. Tr. 585:22-586:8 (Peplau: There is no empirical support for the negative stereotypes that gay men and lesbians have trouble forming stable relationships or that those relationships are inferior to heterosexual relationships.);
h. PX2337 Employment of Homosexuals and Other Sex Perverts in Government, S Rep No 81241, 81st Congress, 2d Sess (1950) at 4: “Most of the authorities agree and our investigation has shown that the presence of a sex pervert in a Government agency tends to have a corrosive influence on his fellow employees. These perverts will frequently attempt to entice normal individuals to engage in perverted practices. This is particularly true in the case of young and impressionable people who might come under the influence of a pervert. Government officials have the responsibility of keeping this type of corrosive influence out of the agencies under their control. It is particularly important that the thousands of young men and women who are brought into Federal jobs not be subjected to that type of influence while in the service of the Government. One homosexual can pollute a Government office.”;

271a
i. Tr. 395:6-25 (Chauncey: Like most outsider groups, there have been stereotypes associated with gay people; indeed, a range of groups, including medical professionals and religious groups, have worked in a coordinated way to develop stereotypical images of gay people.);
j. Tr. 397:2-6; Tr. 397:25-398:5 (Chauncey: “[I]n some ways, the most dangerous stereotypes for homosexuals really developed between the 1930s and ’50s, when there were a series of press and police campaigns that identified homosexuals as child molesters.” These press campaigns against assaults on children focused on sex perverts or sex deviants. Through these campaigns, the homosexual emerged as a sex deviant.);
k. PX2281 George Chauncey, The Postwar Sex Crime Panic, in William Graebner, ed, True Stories from the Past 160, 171 (McGraw-Hill 1993): Contains excerpts from wide-circulation Coronet Magazine, Fall 1950: “Once a man assumes the role of homosexual, he often throws off all moral restraints. * * * Some male sex deviants do not stop with infecting their often-innocent partners: they descended through perversions to other forms of depravity, such as drug addiction, burglary, sadism, and even murder.”;
l. Tr. 400:18-401:8 (Chauncey: This excerpt from Coronet Magazine, PX2281 at 171, depicts homosexuals as subjects of moral decay. In addition, there is a sense of homosexuality as a disease in which the carriers infect other people. And the term “innocent” pretty clearly indicates that the authors are talking about children.);

272a
m. PX2281 Chauncey, The Postwar Sex Crime Panic, at 170-171: Contains a statement made by a Special Assistant Attorney General of California in 1949: “The sex pervert, in his more innocuous form, is too frequently regarded as merely a ‘queer’ individual who never hurts anyone but himself. * * * All too often we lose sight of the fact that the homosexual is an inveterate seducer of the young of both sexes * * * and is ever seeking for younger victims.”;
n. Tr. 402:21-24 (Chauncey: These articles (in PX2281) were mostly addressed to adults who were understandably concerned about the safety of their children, and who “were being taught to believe that homosexuals posed a threat to their children.”);
o. Tr. 407:8-408:4 (Chauncey: One of the most enduring legacies of the emergence of these stereotypes is the creation and then reenforcement of a series of demonic images of homosexuals that stay with us today. This fear of homosexuals as child molesters or as recruiters continues to play a role in debates over gay rights, and with particular attention to gay teachers, parents and married couples – people who might have close contact with children.);
p. Tr. 1035:13-1036:19 (Lamb: Social science studies have disproven the hypothesis that gays and lesbians are more likely to abuse children.).
77. Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.

273a
a. PX2547 (Nathanson Nov. 12, 2009 Dep. Tr. 102:3-8: Religions teach that homosexual relations are a sin and that contributes to gay bashing); PX2546 (video of same);
b. PX2545 (Young Nov. 13, 2009 Dep. Tr. 55:1555:20, 56:21-57:7: There is a religious component to the bigotry and prejudice against gay and lesbian individuals); see also id at 61:18-22, 62:13-17 (Catholic Church views homosexuality as “sinful.”); PX2544 (video of same);
c. Tr. 1565:2-1566:6 (Segura: “[R]eligion is the chief obstacle for gay and lesbian political progress, and it’s the chief obstacle for a couple of reasons. * * * [I]t’s difficult to think of a more powerful social entity in American society than the church. * * * [I]t’s a very powerful organization, and in large measure they are arrayed against the interests of gays and lesbians. * * * [B]iblical condemnation of homosexuality and the teaching that gays are morally inferior on a regular basis to a huge percentage of the public makes the * * * political opportunity structure very hostile to gay interests. It’s very difficult to overcome that.”);
d. PX0390 Video, Ron Prentice Addressing Supporters of Proposition 8, Part I at 0:20-0:40: Prentice explains that “God has led the way” for the Protect Marriage campaign and at 4:00-4:30: Prentice explains that “we do mind” when samesex couples want to take the name “marriage” and apply it to their relationships, because “that’s not what God wanted. * * * It’s real basic. * * * It starts at Genesis 2.”;

274a
e. Tr. 395:14-18 (Chauncey: Many clergy in churches considered homosexuality a sin, preached against it and have led campaigns against gay rights.);
f. Tr. 440:19-441:2 (Chauncey: The religious arguments that were mobilized in the 1950s to argue against interracial marriage and integration as against God’s will are mirrored by arguments that have been mobilized in the Proposition 8 campaign and many of the campaigns since Anita Bryant’s “Save Our Children” campaign, which argue that homosexuality itself or gay people or the recognition of their equality is against God’s will.);
g. PX2853 Proposition 8 Local Exit Polls – Election Center 2008, CNN at 8: 84 percent of people who attended church weekly voted in favor of Proposition 8;
h. PX0005 Leaflet, James L Garlow, The Ten Declarations For Protecting Biblical Marriage at 1 (June 25, 2008): “The Bible defines marriage as a covenantal union of one male and one female. * * * We will avoid unproductive arguments with those who, through the use of casuistry and rationalization, revise biblical passages in order to condone the practice of homosexuality or other sexual sins.”;
i. PX0770 Congregation for the Doctrine of Faith, Considerations Regarding Proposals to Give Legal Recognition to Unions Between Homosexual Persons at 2: “Sacred Scripture condemns homosexual acts as ‘a serious depravity.’ ”;

275a
j. PX0301 Catholics for the Common Good, Considerations Regarding Proposals to Give Legal Recognition to Unions Between Homosexual Persons, Excerpts from Vatican Document on Legal Recognition of Homosexual Unions (Nov. 22, 2009): There are absolutely no grounds for considering homosexual unions to be “in any way similar or even remotely analogous to God’s plan for marriage and family”; “homosexual acts go against the natural moral law” and “[u]nder no circumstances can * * * be approved”; “[t]he homosexual inclination is * * * objectively disordered and homosexual practices are sins gravely contrary to chastity”; “[a]llowing children to be adopted by persons living in such unions would actually mean doing violence to these children”; and “legal recognition of homosexual unions * * * would mean * * * the approval of deviant behavior.”;
k. PX0168 Southern Baptist Convention, SBC Resolution, On Same-Sex Marriage at 1 (June 2003): “Legalizing ‘same-sex marriage’ would convey a societal approval of a homosexual lifestyle, which the Bible calls sinful and dangerous both to the individuals involved and to society at large.”;
l. PX0771 Southern Baptist Convention, Resolution on President Clinton’s Gay and Lesbian Pride Month Proclamation (June 1999): “The Bible clearly teaches that homosexual behavior is an abomination and shameful before God.”;
m. PX2839 Evangelical Presbyterian Church, Position Paper on Homosexuality at 3: “[H]omosexual

276a
practice is a distortion of the image of God as it is still reflected in fallen man, and a perversion of the sexual relationship as God intended it to be.”;
n. PX2840 The Christian Life – Christian Conduct: As Regards the Institutions of God, Free Methodist Church at 5: “Homosexual behavior, as all sexual deviation, is a perversion of God’s created order.”;
o. PX2842 A L Barry, What About * * * Homosexuality, The Lutheran Church-Missouri Synod at 1: “The Lord teaches us through His Word that homosexuality is a sinful distortion of His desire that one man and one woman live together in marriage as husband and wife.”;
p. PX2844 On Marriage, Family, Sexuality, and the Sanctity of Life, Orthodox Church of America at 1: “Homosexuality is to be approached as the result of humanity’s rebellion against God.”;
q. Tr. 1566:18-22 (Segura: “[Proponents’ expert] Dr. Young freely admits that religious hostility to homosexuals [plays] an important role in creating a social climate that’s conducive to hateful acts, to opposition to their interest in the public sphere and to prejudice and discrimination.”);
r. Tr. 2676:8-2678:24 (Miller: Miller agrees with his former statement that “the religious characteristics of California’s Democratic voters” explain why so many Democrats voted for Barack Obama and also for Proposition 8.).
78. Stereotypes and misinformation have resulted in social and legal disadvantages for gays and lesbians.

277a
a. Tr. 413:22-414:6 (Chauncey: The “Save Our Children” campaign in Dade County, Florida in 1977 was led by Anita Bryant, a famous Baptist singer. It sought to overturn an enactment that added sexual orientation to an antidiscrimination law, and it drew on and revived earlier stereotypes of homosexuals as child molesters.);
b. Tr. 1554:14-19 (Segura: Ballot initiatives banning marriage equality have been passed in thirtythree states.);
c. Tr. 2608:16-18 (Miller: “My view is that at least some people voted for Proposition 8 on the basis of anti-gay stereotypes and prejudice.”);
d. Tr. 538:15-539:10 (Chauncey: Chauncey is less optimistic now that same-sex marriage will become common in the United States than he was in 2004. Since 2004, when Chauncey wrote Why Marriage? The History Shaping Today’s Debate over Gay Equality, the majority of states have enacted legislation or constitutional amendments that would prohibit same-sex couples from marrying. Some have been enacted by legislative vote, but a tremendous number of popular referenda have enacted these discriminatory measures.);
e. Tr. 424:18-23 (Chauncey: “[T]he wave of campaigns that we have seen against gay marriage rights in the last decade are, in effect, the latest stage and cycle of anti-gay rights campaigns of a sort that I have been describing; that they continue with a similar intent and use some of the same imagery.”);

278a
f. Tr. 412:20-413:1 (Chauncey: The series of initiatives we have seen since the mid-to-late 1970s over gay rights are another example of continuing prejudice and hostility.);
g. Tr. 564:4-16 (Chauncey: The term “the gay agenda” was mobilized particularly effectively in the late 1980s and early 1990s in support of initiatives designed to overturn gay rights laws. The term tries to construct the idea of a unitary agenda and that picks up on long-standing stereotypes.);
h. Tr. 1560:22-1561:9 (Segura: “[T]he role of prejudice is profound. * * * [I]f the group is envisioned as being somehow * * * morally inferior, a threat to children, a threat to freedom, if there’s these deeply-seated beliefs, then the range of compromise is dramatically limited. It’s very difficult to engage in the give-and-take of the legislative process when I think you are an inherently bad person. That’s just not the basis for compromise and negotiation in the political process.”);
i. Tr. 1563:5-1564:21 (Segura: “[T]he American public is not very fond of gays and lesbians.” Warmness scores for gays and lesbians are as much as 16 to 20 points below the average score for religious, racial and ethnic groups; over 65 percent of respondents placed gays and lesbians below the midpoint, below the score of 50, whereas a third to 45 percent did the same for other groups. When “two-thirds of all respondents are giving gays and lesbians a score below 50, that’s telling elected officials that they can say bad things about gays and lesbians, and that could be

279a
politically advantageous to them because * * * many parts of the electorate feel the same way.” Additionally, “the initiative process could be fertile ground to try to mobilize some of these voters to the polls for that cause.”);
j. PX0619 The Williams Institute, Chapter 14: Other Indicia of Animus against LGBT People by State and Local Officials, 1980-Present at 9 (2009): The Williams Institute collected negative comments made by politicians about gays and lesbians in all fifty states. An Arizona state representative compared homosexuality to “bestiality, human sacrifice, and cannibalism.” A California state senator described homosexuality as “a sickness * * * an uncontrolled passion similar to that which would cause someone to rape.”;
k. PX0796 Kenneth P Miller, The Democratic Coalition’s Religious Divide: Why California Voters Supported Obama but Not Same-Sex Marriage, 119 Revue Française d’Études Américaines 46, 52 (2009): “In the decade between 1998 and 2008, thirty states held statewide elections on state constitutional amendments defining marriage as a union between a man and a woman. * * * Voters approved marriage amendments in all thirty states where they were able to vote on the question, usually by large margins.”
79. The Proposition 8 campaign relied on fears that children exposed to the concept of same-sex marriage may become gay or lesbian. The reason children need to be protected from same-sex marriage was never articulated in official campaign advertisements. Nevertheless, the advertisements insinuated that

280a
learning about same-sex marriage could make a child gay or lesbian and that parents should dread having a gay or lesbian child.
a. Tr. 424:24-429:6 (Chauncey: Proposition 8 Official Voter Guide evoked fears about and contained stereotypical images of gay people.);
b. PX0710 at RFA No 51: Attorney General admits that some of the advertising in favor of Proposition 8 was based on fear of and prejudice against homosexual men and women;
c. Tr. 2608:16-18 (Miller: “My view is that at least some people voted for Proposition 8 on the basis of anti-gay stereotypes and prejudice.”);
d. PX0577 Frank Schubert and Jeff Flint, Passing Prop 8, Politics at 45-47 (Feb. 2009): “[P]assing Proposition 8 would depend on our ability to convince voters that same-sex marriage had broader implications for Californians and was not only about the two individuals involved in a committed gay relationship.” “We strongly believed that a campaign in favor of traditional marriage would not be enough to prevail.” “We probed long and hard in countless focus groups and surveys to explore reactions to a variety of consequences our issue experts identified” and they decided to create campaign messaging focusing on “how this new ‘fundamental right’ would be inculcated in young children through public schools.” “[T]here were limits to the degree of tolerance Californians would afford the gay community. They would entertain allowing gay marriage, but not if doing so had significant

281a
implications for the rest of society.” “The Prop 8 victory proves something that readers of Politics magazine know very well: campaigns matter.”;
e. PX2150 Mailing leaflet, Protect Marriage: “[F]our activist judges on the Supreme Court in San Francisco ignored four million voters and imposed same-sex marriage on California. Their ruling means it is no longer about ‘tolerance.’ Acceptance of Gay Marriage is Now Mandatory.”;
f. PX0015 Video, Finally the Truth; PX0016 Video, Have You Thought About It?; and PX0091 Video, Everything to Do With Schools: Protect Marriage television ads threatening unarticulated consequences to children if Proposition 8 does not pass;
g. PX0513 Letter from Tam to “friends”: “This November, San Francisco voters will vote on a ballot to ‘legalize prostitution.’ This is put forth by the SF city government, which is under the rule of homosexuals. They lose no time in pushing the gay agenda – after legalizing same-sex marriage, they want to legalize prostitution. What will be next? On their agenda list is: legalize having sex with children * * * We can’t lose this critical battle. If we lose, this will very likely happen * * * 1. Same-Sex marriage will be a permanent law in California. One by one, other states would fall into Satan’s hand. 2. Every child, when growing up, would fantasize marrying someone of the same sex. More children would become homosexuals. Even if our children is safe, our grandchildren may not. What about our children’s grandchildren? 3. Gay activists

282a
would target the big churches and request to be married by their pastors. If the church refuse, they would sue the church.” (as written);
h. Tr. 553:23-554:14 (Chauncey: Tam’s “What If We Lose” letter is consistent in its tone with a much longer history of anti-gay rhetoric. It reproduces many of the major themes of the anti-gay rights campaigns of previous decades and a longer history of anti-gay discrimination.);
i. PX0116 Video, Massachusetts Parents Oppose Same-Sex Marriage: Robb and Robin Wirthlin, Massachusetts parents, warn that redefining marriage has an impact on every level of society, especially on children, and claim that in Massachusetts homosexuality and gay marriage will soon be taught and promoted in every subject, including math, reading, social studies and spelling;
j. Tr. 530:24-531:11 (Chauncey: The Wirthlins’ advertisement implies that the very exposure to the idea of homosexuality threatens children and threatens their sexual identity, as if homosexuality were a choice. In addition, it suggests that the fact that gay people are being asked to be recognized and have their relationships recognized is an imposition on other people, as opposed to an extension of fundamental civil rights to gay and lesbian people.);
k. PX0391 Ron Prentice Addressing Supporters of Proposition 8, Part II at 1:25-1:40: “It’s all about education, and how it will be completely turned over, not just incrementally now, but whole hog to the other side.”;

283a
l. Tr. 1579:5-21 (Segura: “[O]ne of the enduring * * * tropes of anti-gay argumentation has been that gays are a threat to children. * * * [I]n the Prop 8 campaign [there] was a campaign advertisement saying, * * * ‘At school today, I was told that I could marry a princess too.’ And the underlying message of that is that * * * if Prop 8 failed, the public schools are going to turn my daughter into a lesbian.”);
m. PX0015 Video, Finally the Truth; PX0099 Video, It’s Already Happened; PX0116 Video, Massachusetts Parents Oppose Same-Sex Marriage; PX0401 Video, Tony Perkins, Miles McPherson and Ron Prentice Asking for Support of Proposition 8: Proposition 8 campaign videos focused on the need to protect children;
n. PX0079 Asian American Empowerment Council, Asian American Community Newsletter & Voter Guide (Oct./Nov. 2008): Children need to be protected from gays and lesbians;
o. Tr. 1913:17-1914:12 (Tam: Tam supported Proposition 8 because he thinks “it is very important that our children won’t grow up to fantasize or think about, Should I marry Jane or John when I grow up? Because this is very important for Asian families, the cultural issues, the stability of the family.”);
p. Tr. 558:16-560:12 (Chauncey: Tam’s deposition testimony displays the deep fear about the idea that simple exposure to homosexuality or to marriages of gay and lesbian couples would lead children to become gay. And the issue is not just marriage equality itself – it is sympathy to

284a
homosexuality. They oppose the idea that children could be introduced in school to the idea that there are gay people in the world. It is also consistent with the idea that homosexuality is a choice and there is an association between homosexuality and disease.);
q. PX0480A Video supporting Proposition 8 at 0:58-1:12: Prentice states that “[i]f traditional marriage goes by the wayside, then in every public school, children will be indoctrinated with a message that is absolutely contrary to the values that their family is attempting to teach them at home.”
80. The campaign to pass Proposition 8 relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships.
a. Tr. 429:15-430:8, 431:17-432:11, 436:25-437:15, 438:8-439:6, 529:25-531:11; PX0015 Video, Finally the Truth; PX0016 Video, Have You Thought About It?; PX0029 Video, Whether You Like It Or Not; PX0091 Video, Everything to Do With Schools; PX0099 Video, It’s Already Happened; PX1775 Photo leaflet, Protect Marriage (black and white); PX1775A Photo leaflet, Protect Marriage (color); PX1763 Poster with Phone Number, Protect Marriage: (Chauncey: The campaign television and print ads focused on protecting children and the concern that people of faith and religious groups would somehow be harmed by the recognition of gay marriage. The campaign conveyed a message that gay people and relationships are inferior, that homosexuality is undesirable and that children need to be protected from exposure

285a
to gay people and their relationships. The most striking image is of the little girl who comes in to tell her mom that she learned that a princess can marry a princess, which strongly echoes the idea that mere exposure to gay people and their relationships is going to lead a generation of young people to become gay, which voters are to understand as undesirable. The campaign conveyed a message used in earlier campaigns that when gay people seek any recognition this is an imposition on other people rather than simply an extension of civil rights to gay people.);
b. Compare above with Tr. 412:23-413:1, 418:11419:22, 420:3-20; PX1621 Pamphlet, Save Our Children; PX0864 Dudley Clendinen and Adam Nagourney, Out for Good: The Struggle to Build a Gay Rights Movement in America at 303 (Touchstone 1999): (Chauncey: One of the earliest antigay initiative campaigns used overt messaging of content similar to the Proposition 8 campaign.);
c. PX0008 Memorandum, Protect Marriage, New YouTube Video Clarifies Yes on 8 Proponents’ Concerns: Education and Protection of Children is [sic] at Risk (Oct. 31, 2008); PX0025 Leaflet, Protect Marriage, Vote YES on Prop 8 (Barack Obama: “I’m not in favor of gay marriage * * * .”); PX1565 News Release, Protect Marriage, First Graders Taken to San Francisco City Hall for Gay Wedding (Oct. 11, 2008): Proposition 8 campaign materials warn that unless Proposition 8 passes, children will be exposed to indoctrination on gay lifestyles. These materials invoke fears about the gay agenda.

286a
III CONCLUSIONS OF LAW3 Plaintiffs challenge Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.
DUE PROCESS The Due Process Clause provides that no “State
[shall] deprive any person of life, liberty, or property, without due process of law.” US Const. Amend. XIV, § 1. Due process protects individuals against arbitrary governmental intrusion into life, liberty or property. See Washington v. Glucksberg, 521 U.S. 702, 719-720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). When legislation burdens the exercise of a right deemed to be fundamental, the government must show that the intrusion withstands strict scrutiny. Zablocki v. Redhail, 434 U.S. 374, 388, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978).
3 To the extent any of the conclusions of law should more properly be considered findings of fact, they shall be deemed as such.

287a
THE RIGHT TO MARRY PROTECTS AN INDIVIDUAL’S CHOICE OF MARITAL PARTNER REGARDLESS OF GENDER
The freedom to marry is recognized as a fundamental right protected by the Due Process Clause. See, for example, Turner v. Safley, 482 U.S. 78, 95, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (“[T]he decision to marry is a fundamental right” and marriage is an “expression[ ] of emotional support and public commitment.”); Zablocki, 434 U.S. at 384, 98 S.Ct. 673 (1978) (“The right to marry is of fundamental importance for all individuals.”); Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-40, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974) (“This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”); Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (The “freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”); Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (“Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”).

288a
The parties do not dispute that the right to marry is fundamental. The question presented here is whether plaintiffs seek to exercise the fundamental right to marry; or, because they are couples of the same sex, whether they seek recognition of a new right.
To determine whether a right is fundamental under the Due Process Clause, the court inquires into whether the right is rooted “in our Nation’s history, legal traditions, and practices.” Glucksberg, 521 U.S. at 710, 117 S.Ct. 2258. Here, because the right to marry is fundamental, the court looks to the evidence presented at trial to determine: (1) the history, tradition and practice of marriage in the United States; and (2) whether plaintiffs seek to exercise their right to marry or seek to exercise some other right. Id.
Marriage has retained certain characteristics throughout the history of the United States. See FF 19, 34-35. Marriage requires two parties to give their free consent to form a relationship, which then forms the foundation of a household. FF 20, 34. The spouses must consent to support each other and any dependents. FF 34-35, 37. The state regulates marriage because marriage creates stable households, which in turn form the basis of a stable, governable populace. FF 35-37. The state respects an individual’s choice to build a family with another and protects the relationship because it is so central a part of an individual’s life. See Bowers v. Hardwick, 478 U.S. 186, 204-205, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) (Blackmun, J, dissenting).

289a
Never has the state inquired into procreative capacity or intent before issuing a marriage license; indeed, a marriage license is more than a license to have procreative sexual intercourse. FF 21. “[I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.” Lawrence, 539 U.S. at 567, 123 S.Ct. 2472. The Supreme Court recognizes that, wholly apart from procreation, choice and privacy play a pivotal role in the marital relationship. See Griswold, 381 U.S. at 485486, 85 S.Ct. 1678.
Race restrictions on marital partners were once common in most states but are now seen as archaic, shameful or even bizarre. FF 23-25. When the Supreme Court invalidated race restrictions in Loving, the definition of the right to marry did not change. 388 U.S. at 12, 87 S.Ct. 1817. Instead, the Court recognized that race restrictions, despite their historical prevalence, stood in stark contrast to the concepts of liberty and choice inherent in the right to marry. Id.
The marital bargain in California (along with other states) traditionally required that a woman’s legal and economic identity be subsumed by her husband’s upon marriage under the doctrine of coverture; this once-unquestioned aspect of marriage now is regarded as antithetical to the notion of marriage as a union of equals. FF 26-27, 32. As states moved to recognize the equality of the sexes, they eliminated laws and practices like coverture that had made gender a proxy for a spouse’s role within a marriage.

290a
FF 26-27, 32. Marriage was thus transformed from a male-dominated institution into an institution recognizing men and women as equals. Id. Yet, individuals retained the right to marry; that right did not become different simply because the institution of marriage became compatible with gender equality.
The evidence at trial shows that marriage in the United States traditionally has not been open to samesex couples. The evidence suggests many reasons for this tradition of exclusion, including gender roles mandated through coverture, FF 26-27, social disapproval of same-sex relationships, FF 74, and the reality that the vast majority of people are heterosexual and have had no reason to challenge the restriction, FF 43. The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from statemandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. FF 21. Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.
The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. FF 1920, 34-35. Race and gender restrictions shaped marriage during eras of race and gender inequality, but

291a
such restrictions were never part of the historical core of the institution of marriage. FF 33. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. FF 48. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.
Plaintiffs seek to have the state recognize their committed relationships, and plaintiffs’ relationships are consistent with the core of the history, tradition and practice of marriage in the United States. Perry and Stier seek to be spouses; they seek the mutual obligation and honor that attend marriage, FF 52. Zarrillo and Katami seek recognition from the state that their union is “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” Griswold, 381 U.S. at 486, 85 S.Ct. 1678. Plaintiffs’ unions encompass the historical purpose and form of marriage. Only the plaintiffs’ genders relative to one another prevent California from giving their relationships due recognition.
Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy – namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.

292a
DOMESTIC PARTNERSHIPS DO NOT SATISFY CALIFORNIA’S OBLIGATION TO ALLOW PLAINTIFFS TO MARRY
Having determined that plaintiffs seek to exercise their fundamental right to marry under the Due Process Clause, the court must consider whether the availability of Registered Domestic Partnerships fulfills California’s due process obligation to same-sex couples. The evidence shows that domestic partnerships were created as an alternative to marriage that distinguish same-sex from opposite-sex couples. FF 53-54; In re Marriage Cases, 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384, 434 (2008) (One of the “core elements of th[e] fundamental right [to marry] is the right of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other officially recognized family relationships.”); id., 76 Cal.Rptr.3d 683, 183 P.3d at 402, 434, 445 (By “reserving the historic and highly respected designation of marriage exclusively to opposite-sex couples while offering same-sex couples only the new and unfamiliar designation of domestic partnership,” the state communicates the “official view that [same-sex couples’] committed relationships are of lesser stature than the comparable relationships of opposite-sex couples.”). Proponents do not dispute the “significant symbolic disparity between domestic partnership and marriage.” Doc. # 159-2 at 6.
California has created two separate and parallel institutions to provide couples with essentially the

293a
same rights and obligations. Cal. Fam. Code § 297.5(a). Domestic partnerships are not open to opposite-sex couples unless one partner is at least sixty-two years old. Cal. Fam. Code § 297(b)(5)(B). Apart from this limited exception – created expressly to benefit those eligible for benefits under the Social Security Act – the sole basis upon which California determines whether a couple receives the designation “married” or the designation “domestic partnership” is the sex of the spouses relative to one another. Compare Cal. Fam. Code §§ 297-299.6 (domestic partnership) with §§ 300-536 (marriage). No further inquiry into the couple or the couple’s relationship is required or permitted. Thus, California allows almost all oppositesex couples only one option – marriage – and all same-sex couples only one option – domestic partnership. See id, FF 53-54.
The evidence shows that domestic partnerships do not fulfill California’s due process obligation to plaintiffs for two reasons. First, domestic partnerships are distinct from marriage and do not provide the same social meaning as marriage. FF 53-54. Second, domestic partnerships were created specifically so that California could offer same-sex couples rights and benefits while explicitly withholding marriage from same-sex couples. Id, Cal. Fam. Code § 297 (Gov Davis 2001 signing statement: “In California, a legal marriage is between a man and a woman. * * * This [domestic partnership] legislation does nothing to contradict or undermine the definition of a legal marriage.”).

294a
The evidence at trial shows that domestic partnerships exist solely to differentiate same-sex unions from marriages. FF 53-54. A domestic partnership is not a marriage; while domestic partnerships offer same-sex couples almost all of the rights and responsibilities associated with marriage, the evidence shows that the withholding of the designation “marriage” significantly disadvantages plaintiffs. FF 5254. The record reflects that marriage is a culturally superior status compared to a domestic partnership. FF 52. California does not meet its due process obligation to allow plaintiffs to marry by offering them a substitute and inferior institution that denies marriage to same-sex couples.
PROPOSITION 8 IS UNCONSTITUTIONAL BECAUSE IT DENIES PLAINTIFFS A FUNDAMENTAL RIGHT WITHOUT A LEGITIMATE (MUCH LESS COMPELLING) REASON
Because plaintiffs seek to exercise their fundamental right to marry, their claim is subject to strict scrutiny. Zablocki, 434 U.S. at 388, 98 S.Ct. 673. That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.” West Virginia State Board of Education v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). Under strict scrutiny, the state bears the burden of producing evidence to show that Proposition 8 is narrowly tailored to a compelling government interest. Carey v. Population Services

295a
International, 431 U.S. 678, 686, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977). Because the government defendants declined to advance such arguments, proponents seized the role of asserting the existence of a compelling California interest in Proposition 8.
As explained in detail in the equal protection analysis, Proposition 8 cannot withstand rational basis review. Still less can Proposition 8 survive the strict scrutiny required by plaintiffs’ due process claim. The minimal evidentiary presentation made by proponents does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest. Proposition 8 cannot, therefore, withstand strict scrutiny. Moreover, proponents do not assert that the availability of domestic partnerships satisfies plaintiffs’ fundamental right to marry; proponents stipulated that “[t]here is a significant symbolic disparity between domestic partnership and marriage.” Doc. # 159-2 at 6. Accordingly, Proposition 8 violates the Due Process Clause of the Fourteenth Amendment.
EQUAL PROTECTION
The Equal Protection Clause of the Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” US Const. Amend. XIV, § 1. Equal protection is “a pledge of the protection of equal laws.” Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). The guarantee of equal protection

296a
coexists, of course, with the reality that most legislation must classify for some purpose or another. See Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). When a law creates a classification but neither targets a suspect class nor burdens a fundamental right, the court presumes the law is valid and will uphold it as long as it is rationally related to some legitimate government interest. See, for example, Heller v. Doe, 509 U.S. 312, 319-320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993).
The court defers to legislative (or in this case, popular) judgment if there is at least a debatable question whether the underlying basis for the classification is rational. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464, 101 S.Ct. 715, 66 L.Ed.2d 659 (1981). Even under the most deferential standard of review, however, the court must “insist on knowing the relation between the classification adopted and the object to be attained.” Romer, 517 U.S. at 632, 116 S.Ct. 1620; Heller, 509 U.S. at 321, 113 S.Ct. 2637 (basis for a classification must “find some footing in the realities of the subject addressed by the legislation”). The court may look to evidence to determine whether the basis for the underlying debate is rational. Plyler v. Doe, 457 U.S. 202, 228, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) (finding an asserted interest in preserving state resources by prohibiting undocumented children from attending public school to be irrational because “the available evidence suggests that illegal aliens underutilize public services, while contributing their labor to the local economy and tax

297a
money to the state fisc”). The search for a rational relationship, while quite deferential, “ensure[s] that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” Romer, 517 U.S. at 633, 116 S.Ct. 1620. The classification itself must be related to the purported interest. Plyler, 457 U.S. at 220, 102 S.Ct. 2382 (“It is difficult to conceive of a rational basis for penalizing [undocumented children] for their presence within the United States,” despite the state’s interest in preserving resources.).
Most laws subject to rational basis easily survive equal protection review, because a legitimate reason can nearly always be found for treating different groups in an unequal manner. See Romer, 517 U.S. at 633, 116 S.Ct. 1620. Yet, to survive rational basis review, a law must do more than disadvantage or otherwise harm a particular group. United States Department of Agriculture v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973).
SEXUAL ORIENTATION OR SEX DISCRIMINATION
Plaintiffs challenge Proposition 8 as violating the Equal Protection Clause because Proposition 8 discriminates both on the basis of sex and on the basis of sexual orientation. Sexual orientation discrimination can take the form of sex discrimination. Here, for example, Perry is prohibited from marrying Stier, a woman, because Perry is a woman. If Perry were a

298a
man, Proposition 8 would not prohibit the marriage. Thus, Proposition 8 operates to restrict Perry’s choice of marital partner because of her sex. But Proposition 8 also operates to restrict Perry’s choice of marital partner because of her sexual orientation; her desire to marry another woman arises only because she is a lesbian.
The evidence at trial shows that gays and lesbians experience discrimination based on unfounded stereotypes and prejudices specific to sexual orientation. Gays and lesbians have historically been targeted for discrimination because of their sexual orientation; that discrimination continues to the present. FF 74-76. As the case of Perry and the other plaintiffs illustrates, sex and sexual orientation are necessarily interrelated, as an individual’s choice of romantic or intimate partner based on sex is a large part of what defines an individual’s sexual orientation. See FF 42-43. Sexual orientation discrimination is thus a phenomenon distinct from, but related to, sex discrimination.
Proponents argue that Proposition 8 does not target gays and lesbians because its language does not refer to them. In so arguing, proponents seek to mask their own initiative. FF 57. Those who choose to marry someone of the opposite sex – heterosexuals – do not have their choice of marital partner restricted by Proposition 8. Those who would choose to marry someone of the same sex – homosexuals – have had their right to marry eliminated by an amendment to the state constitution. Homosexual conduct and

299a
identity together define what it means to be gay or lesbian. See FF 42-43. Indeed, homosexual conduct and attraction are constitutionally protected and integral parts of what makes someone gay or lesbian. Lawrence, 539 U.S. at 579, 123 S.Ct. 2472; FF 42-43; see also Christian Legal Society v. Martinez, 561 U.S. ___, 130 S.Ct. 2971, 2990, 177 L.Ed.2d 838 (“Our decisions have declined to distinguish between status and conduct in [the context of sexual orientation].”) (June 28, 2010) (citing Lawrence, 539 U.S. at 583, 123 S.Ct. 2472 (O’Connor, J, concurring)).
Proposition 8 targets gays and lesbians in a manner specific to their sexual orientation and, because of their relationship to one another, Proposition 8 targets them specifically due to sex. Having considered the evidence, the relationship between sex and sexual orientation and the fact that Proposition 8 eliminates a right only a gay man or a lesbian would exercise, the court determines that plaintiffs’ equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex.
STANDARD OF REVIEW
As presently explained in detail, the Equal Protection Clause renders Proposition 8 unconstitutional under any standard of review. Accordingly, the court need not address the question whether laws classifying on the basis of sexual orientation should be subject to a heightened standard of review.

300a
Although Proposition 8 fails to possess even a rational basis, the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976) (noting that strict scrutiny may be appropriate where a group has experienced a “ ‘history of purposeful unequal treatment’ or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities”) (quoting San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973)). See FF 42-43, 46-48, 74-78. Proponents admit that “same-sex sexual orientation does not result in any impairment in judgment or general social and vocational capabilities.” PX0707 at RFA No 21.
The court asked the parties to identify a difference between heterosexuals and homosexuals that the government might fairly need to take into account when crafting legislation. Doc. # 677 at 8. Proponents pointed only to a difference between same-sex couples (who are incapable through sexual intercourse of producing offspring biologically related to both parties) and opposite-sex couples (some of whom are capable through sexual intercourse of producing such offspring). Doc. # 687 at 32-34. Proponents did not, however, advance any reason why the government may use sexual orientation as a proxy for fertility or why the government may need to take into account fertility when legislating. Consider, by contrast, City of

301a
Cleburne v. Cleburne Living Center, 473 U.S. 432, 444, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (Legislation singling out a class for differential treatment hinges upon a demonstration of “real and undeniable differences” between the class and others); see also United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (“Physical differences between men and women * * * are enduring.”). No evidence at trial illuminated distinctions among lesbians, gay men and heterosexuals amounting to “real and undeniable differences” that the government might need to take into account in legislating.
The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation. All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation. FF 47. Here, however, strict scrutiny is unnecessary. Proposition 8 fails to survive even rational basis review.
PROPOSITION 8 DOES NOT SURVIVE RATIONAL BASIS
Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause, as excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest. One example of a legitimate state interest in not issuing marriage licenses to a particular group might be a scarcity of

302a
marriage licenses or county officials to issue them. But marriage licenses in California are not a limited commodity, and the existence of 18,000 same-sex married couples in California shows that the state has the resources to allow both same-sex and opposite-sex couples to wed. See Background to Proposition 8 above.
Proponents put forth several rationales for Proposition 8, see Doc. # 605 at 12-15, which the court now examines in turn: (1) reserving marriage as a union between a man and a woman and excluding any other relationship from marriage; (2) proceeding with caution when implementing social changes; (3) promoting opposite-sex parenting over same-sex parenting; (4) protecting the freedom of those who oppose marriage for same-sex couples; (5) treating same-sex couples differently from opposite-sex couples; and (6) any other conceivable interest.
PURPORTED INTEREST # 1: RESERVING MARRIAGE AS A UNION BETWEEN A MAN AND A WOMAN AND EXCLUDING ANY OTHER RELATIONSHIP
Proponents first argue that Proposition 8 is rational because it preserves: (1) “the traditional institution of marriage as the union of a man and a woman”; (2) “the traditional social and legal purposes, functions, and structure of marriage”; and (3) “the traditional meaning of marriage as it has always been defined in the English language.” Doc. # 605 at

303a
12-13. These interests relate to maintaining the definition of marriage as the union of a man and a woman for its own sake.
Tradition alone, however, cannot form a rational basis for a law. Williams v. Illinois, 399 U.S. 235, 239, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970). The “ancient lineage” of a classification does not make it rational. Heller, 509 U.S. at 327, 113 S.Ct. 2637. Rather, the state must have an interest apart from the fact of the tradition itself.
The evidence shows that the tradition of restricting an individual’s choice of spouse based on gender does not rationally further a state interest despite its “ancient lineage.” Instead, the evidence shows that the tradition of gender restrictions arose when spouses were legally required to adhere to specific gender roles. See FF 26-27. California has eliminated all legally-mandated gender roles except the requirement that a marriage consist of one man and one woman. FF 32. Proposition 8 thus enshrines in the California Constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life.
The tradition of restricting marriage to oppositesex couples does not further any state interest. Rather, the evidence shows that Proposition 8 harms the state’s interest in equality, because it mandates that men and women be treated differently based only on antiquated and discredited notions of gender. See FF 32, 57.

304a
Proponents’ argument that tradition prefers opposite-sex couples to same-sex couples equates to the notion that opposite-sex relationships are simply better than same-sex relationships. Tradition alone cannot legitimate this purported interest. Plaintiffs presented evidence showing conclusively that the state has no interest in preferring opposite-sex couples to same-sex couples or in preferring heterosexuality to homosexuality. See FF 48-50. Moreover, the state cannot have an interest in disadvantaging an unpopular minority group simply because the group is unpopular. Moreno, 413 U.S. at 534, 93 S.Ct. 2821.
The evidence shows that the state advances nothing when it adheres to the tradition of excluding same-sex couples from marriage. Proponents’ asserted state interests in tradition are nothing more than tautologies and do not amount to rational bases for Proposition 8.
PURPORTED INTEREST # 2: PROCEEDING WITH CAUTION WHEN IMPLEMENTING SOCIAL CHANGES
Proponents next argue that Proposition 8 is related to state interests in: (1) “[a]cting incrementally and with caution when considering a radical transformation to the fundamental nature of a bedrock social institution”; (2) “[d]ecreasing the probability of weakening the institution of marriage”; (3) “[d]ecreasing the probability of adverse consequences that could result from weakening the institution of marriage”;

305a
and (4) “[d]ecreasing the probability of the potential adverse consequences of same-sex marriage.” Doc. # 605 at 13-14.
Plaintiffs presented evidence at trial sufficient to rebut any claim that marriage for same-sex couples amounts to a sweeping social change. See FF 55. Instead, the evidence shows beyond debate that allowing same-sex couples to marry has at least a neutral, if not a positive, effect on the institution of marriage and that same-sex couples’ marriages would benefit the state. Id. Moreover, the evidence shows that the rights of those opposed to homosexuality or same-sex couples will remain unaffected if the state ceases to enforce Proposition 8. FF 55, 62.
The contrary evidence proponents presented is not credible. Indeed, proponents presented no reliable evidence that allowing same-sex couples to marry will have any negative effects on society or on the institution of marriage. The process of allowing same-sex couples to marry is straightforward, and no evidence suggests that the state needs any significant lead time to integrate same-sex couples into marriage. See Background to Proposition 8 above. Consider, by contrast, Cooper v. Aaron, 358 U.S. 1, 7, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958) (recognizing that a school district needed time to implement racial integration but nevertheless finding a delay unconstitutional because the school board’s plan did not provide for “the earliest practicable completion of desegregation”). The evidence shows that allowing same-sex couples to marry will be simple for California to implement

306a
because it has already done so; no change need be phased in. California need not restructure any institution to allow same-sex couples to marry. See FF 55.
Because the evidence shows same-sex marriage has and will have no adverse effects on society or the institution of marriage, California has no interest in waiting and no practical need to wait to grant marriage licenses to same-sex couples. Proposition 8 is thus not rationally related to proponents’ purported interests in proceeding with caution when implementing social change.
PURPORTED INTEREST # 3: PROMOTING OPPOSITE-SEX PARENTING OVER SAME-SEX PARENTING
Proponents’ largest group of purported state interests relates to opposite-sex parents. Proponents argue Proposition 8:(1) promotes “stability and responsibility in naturally procreative relationships”; (2) promotes “enduring and stable family structures for the responsible raising and care of children by their biological parents”; (3) increases “the probability that natural procreation will occur within stable, enduring, and supporting family structures”; (4) promotes “the natural and mutually beneficial bond between parents and their biological children”; (5) increases “the probability that each child will be raised by both of his or her biological parents”; (6) increases “the probability that each child will be raised by both a father and a mother”; and (7) increases “the

307a
probability that each child will have a legally recognized father and mother.” Doc. # 605 at 13-14.
The evidence supports two points which together show Proposition 8 does not advance any of the identified interests: (1) same-sex parents and opposite-sex parents are of equal quality, FF 69-73, and (2) Proposition 8 does not make it more likely that opposite-sex couples will marry and raise offspring biologically related to both parents, FF 43, 46, 51.
The evidence does not support a finding that California has an interest in preferring opposite-sex parents over same-sex parents. Indeed, the evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes. FF 70. Moreover, Proposition 8 has nothing to do with children, as Proposition 8 simply prevents same-sex couples from marrying. FF 57. Same-sex couples can have (or adopt) and raise children. When they do, they are treated identically to opposite-sex parents under California law. FF 49. Even if California had an interest in preferring opposite-sex parents to same-sex parents – and the evidence plainly shows that California does not – Proposition 8 is not rationally related to that interest, because Proposition 8 does not affect who can or should become a parent under California law. FF 49, 57.
To the extent California has an interest in encouraging sexual activity to occur within marriage (a debatable proposition in light of Lawrence, 539 U.S. at 571, 123 S.Ct. 2472) the evidence shows

308a
Proposition 8 to be detrimental to that interest. Because of Proposition 8, same-sex couples are not permitted to engage in sexual activity within marriage. FF 53. Domestic partnerships, in which sexual activity is apparently expected, are separate from marriage and thus codify California’s encouragement of non-marital sexual activity. Cal. Fam. Code §§ 297299.6. To the extent proponents seek to encourage a norm that sexual activity occur within marriage to ensure that reproduction occur within stable households, Proposition 8 discourages that norm because it requires some sexual activity and child-bearing and child-rearing to occur outside marriage.
Proponents argue Proposition 8 advances a state interest in encouraging the formation of stable households. Instead, the evidence shows that Proposition 8 undermines that state interest, because same-sex households have become less stable by the passage of Proposition 8. The inability to marry denies same-sex couples the benefits, including stability, attendant to marriage. FF 50. Proponents failed to put forth any credible evidence that married opposite-sex households are made more stable through Proposition 8. FF 55. The only rational conclusion in light of the evidence is that Proposition 8 makes it less likely that California children will be raised in stable households. See FF 50, 56.
None of the interests put forth by proponents relating to parents and children is advanced by Proposition 8; instead, the evidence shows Proposition 8 disadvantages families and their children.

309a
PURPORTED INTEREST # 4: PROTECTING THE FREEDOM OF THOSE WHO OPPOSE MARRIAGE FOR SAME-SEX COUPLES
Proponents next argue that Proposition 8 protects the First Amendment freedom of those who disagree with allowing marriage for couples of the same sex. Proponents argue that Proposition 8:(1) preserves “the prerogative and responsibility of parents to provide for the ethical and moral development and education of their own children”; and (2) accommodates “the First Amendment rights of individuals and institutions that oppose same-sex marriage on religious or moral grounds.” Doc. # 605 at 14.
These purported interests fail as a matter of law. Proposition 8 does not affect any First Amendment right or responsibility of parents to educate their children. See In re Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d at 451-452. Californians are prevented from distinguishing between same-sex partners and opposite-sex spouses in public accommodations, as California antidiscrimination law requires identical treatment for same-sex unions and opposite-sex marriages. Koebke v. Bernardo Heights Country Club, 36 Cal.4th 824, 31 Cal.Rptr.3d 565, 115 P.3d 1212, 1217-1218 (2005). The evidence shows that Proposition 8 does nothing other than eliminate the right of same-sex couples to marry in California. See FF 57, 62. Proposition 8 is not rationally related to an interest in protecting the rights of those opposed to same-sex couples because, as a matter of law, Proposition 8 does not affect the rights of those opposed to

310a
homosexuality or to marriage for couples of the same sex. FF 62.
To the extent proponents argue that one of the rights of those morally opposed to same-sex unions is the right to prevent same-sex couples from marrying, as explained presently those individuals’ moral views are an insufficient basis upon which to enact a legislative classification.
PURPORTED INTEREST # 5: TREATING SAMESEX COUPLES DIFFERENTLY FROM OPPOSITESEX COUPLES
Proponents argue that Proposition 8 advances a state interest in treating same-sex couples differently from opposite-sex couples by: (1) “[u]sing different names for different things”; (2) “[m]aintaining the flexibility to separately address the needs of different types of relationships”; (3) “[e]nsuring that California marriages are recognized in other jurisdictions”; and (4) “[c]onforming California’s definition of marriage to federal law.” Doc. # 605 at 14.
Here, proponents assume a premise that the evidence thoroughly rebutted: rather than being different, same-sex and opposite-sex unions are, for all purposes relevant to California law, exactly the same. FF 47-50. The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples. See FF 48, 76-80. The evidence fatally undermines any purported state interest in treating

311a
couples differently; thus, these interests do not provide a rational basis supporting Proposition 8.
In addition, proponents appear to claim that Proposition 8 advances a state interest in easing administrative burdens associated with issuing and recognizing marriage licenses. Under precedents such as Craig v. Boren, “administrative ease and convenience” are not important government objectives. 429 U.S. 190, 198, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). Even assuming the state were to have an interest in administrative convenience, Proposition 8 actually creates an administrative burden on California because California must maintain a parallel institution for same-sex couples to provide the equivalent rights and benefits afforded to married couples. See FF 53. Domestic partnerships create an institutional scheme that must be regulated separately from marriage. Compare Cal. Fam. Code §§ 297-299.6 with Cal. Fam. Code §§ 300-536. California may determine whether to retain domestic partnerships or eliminate them in the absence of Proposition 8; the court presumes, however, that as long as Proposition 8 is in effect, domestic partnerships and the accompanying administrative burden will remain. Proposition 8 thus hinders rather than advances administrative convenience.
PURPORTED INTEREST # 6: THE CATCHALL INTEREST
Finally, proponents assert that Proposition 8 advances “[a]ny other conceivable legitimate interests

312a
identified by the parties, amici, or the court at any stage of the proceedings.” Doc. # 605 at 15. But proponents, amici and the court, despite ample opportunity and a full trial, have failed to identify any rational basis Proposition 8 could conceivably advance. Proponents, represented by able and energetic counsel, developed a full trial record in support of Proposition 8. The resulting evidence shows that Proposition 8 simply conflicts with the guarantees of the Fourteenth Amendment.
Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples. Those interests that are legitimate are unrelated to the classification drawn by Proposition 8. The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal. FF 47-50. Proposition 8 violates the Equal Protection Clause because it does not treat them equally.
A PRIVATE MORAL VIEW THAT SAME-SEX COUPLES ARE INFERIOR TO OPPOSITE-SEX COUPLES IS NOT A PROPER BASIS FOR LEGISLATION
In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply

313a
are not as good as opposite-sex couples. FF 78-80. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate. See Romer, 517 U.S. at 633, 116 S.Ct. 1620; Moreno, 413 U.S. at 534, 93 S.Ct. 2821; Palmore v. Sidoti, 466 U.S. 429, 433, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984) (“[T]he Constitution cannot control [private biases] but neither can it tolerate them.”).
The evidence shows that Proposition 8 was a hard-fought campaign and that the majority of California voters supported the initiative. See Background to Proposition 8 above, FF 17-18, 79-80. The arguments surrounding Proposition 8 raise a question similar to that addressed in Lawrence, when the Court asked whether a majority of citizens could use the power of the state to enforce “profound and deep convictions accepted as ethical and moral principles” through the criminal code. 539 U.S. at 571, 123 S.Ct. 2472. The question here is whether California voters can enforce those same principles through regulation of marriage licenses. They cannot. California’s obligation is to treat its citizens equally, not to “mandate [its] own moral code.” Id. (citing Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992)). “[M]oral disapproval, without any other asserted state interest,” has never been a rational basis for legislation. Lawrence,

314a
539 U.S. at 582, 123 S.Ct. 2472 (O’Connor, J, concurring). Tradition alone cannot support legislation. See Williams, 399 U.S. at 239, 90 S.Ct. 2018; Romer, 517 U.S. at 635, 116 S.Ct. 1620; Lawrence, 539 U.S. at 579, 123 S.Ct. 2472.
Proponents’ purported rationales are nothing more than post-hoc justifications. While the Equal Protection Clause does not prohibit post-hoc rationales, they must connect to the classification drawn. Here, the purported state interests fit so poorly with Proposition 8 that they are irrational, as explained above. What is left is evidence that Proposition 8 enacts a moral view that there is something “wrong” with same-sex couples. See FF 78-80.
The evidence at trial regarding the campaign to pass Proposition 8 uncloaks the most likely explanation for its passage: a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples. FF 79-80. The campaign relied heavily on negative stereotypes about gays and lesbians and focused on protecting children from inchoate threats vaguely associated with gays and lesbians. FF 79-80; See PX0016 Video, Have You Thought About It? (video of a young girl asking whether the viewer has considered the consequences to her of Proposition 8 but not explaining what those consequences might be).
At trial, proponents’ counsel attempted through cross-examination to show that the campaign wanted to protect children from learning about same-sex marriage in school. See PX0390A Video, Ron Prentice

315a
Addressing Supporters of Proposition 8, Excerpt; Tr. 132:25-133:3 (proponents’ counsel to Katami: “But the fact is that what the Yes on 8 campaign was pointing at, is that kids would be taught about same-sex relationships in first and second grade; isn’t that a fact, that that’s what they were referring to?”). The evidence shows, however, that Proposition 8 played on a fear that exposure to homosexuality would turn children into homosexuals and that parents should dread having children who are not heterosexual. FF 79; PX0099 Video, It’s Already Happened (mother’s expression of horror upon realizing her daughter now knows she can marry a princess).
The testimony of George Chauncey places the Protect Marriage campaign advertisements in historical context as echoing messages from previous campaigns to enact legal measures to disadvantage gays and lesbians. FF 74, 77-80. The Protect Marriage campaign advertisements ensured California voters had these previous fear-inducing messages in mind. FF 80. The evidence at trial shows those fears to be completely unfounded. FF 47-49, 68-73, 76-80.
Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples. FF 76, 79-80; Romer, 517 U.S. at 634, 116 S.Ct. 1620 (“[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”).

316a
Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.
CONCLUSION
Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.
REMEDIES
Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8. California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same-sex couples and has not suffered any demonstrated harm as a result, see FF 64-66; moreover, California officials have chosen not to defend Proposition 8 in these proceedings.

317a
Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8. The clerk is DIRECTED to enter judgment without bond in favor of plaintiffs and plaintiff-intervenors and against defendants and defendant-intervenors pursuant to FRCP 58.
IT IS SO ORDERED.

318a
52 Cal.4th 1116 Supreme Court of California
Kristin M. PERRY et al., Plaintiffs and Respondents,
v. Edmund G. BROWN, Jr., as Governor, etc., et al.,
Defendants; City and County of San Francisco, Intervener and Respondent; Dennis Hollingsworth et al., Interveners and Appellants.
No. S189476. | Nov. 17, 2011.
Law Offices of Andrew P. Pugno, Andrew P. Pugno; Alliance Defense Fund, Brian W. Raum, James A. Campbell; Cooper and Kirk, Charles J. Cooper, David H. Thompson, Howard C. Neilson, Jr., Nicole J. Moss and Peter A. Patterson for Interveners and Appellants.
Edwin Meese III; John C. Eastman and Karen J. Lugo for Center of Constitutional Jurisprudence as Amicus Curiae on behalf of Interveners and Appellants.
Sharon L. Browne, Harold E. Johnson and Damien M. Schiff, Sacramento, for Pacific Legal Foundation, Ward Connerly, Glynn Custred, Ron Unz and The Howard Jarvis Taxpayers Association as Amici Curiae on behalf of Interveners and Appellants.
Pacific Justice Institute, Sacramento, Kevin T. Snider, Matthew B. McReynolds and Kelly A. Way for Dr. Joshua Beckley as Amicus Curiae on behalf of Interveners and Appellants.

319a
James Joseph Lynch, Jr., Sacramento, for Margie Reilly as Amicus Curiae on behalf of Interveners and Appellants.
Julie B. Axelrod for Judicial Watch, Inc., as Amicus Curiae on behalf of Interveners and Appellants.
Boies, Schiller & Flexner, Oakland, David Boies, Jeremy M. Goldman, Theodore H. Uno; Gibson, Dunn & Crutcher, San Francisco, Theodore B. Olson, Matthew D. McGill, Amir C. Tayrani, Theodore J. Boutrous, Jr., Christopher D. Dussealt and Enrique A. Monagas for Plaintiffs and Respondents.
Kendall Brill & Klieger, Los Angeles, Laura W. Brill, Nicholas F. Daum, Clifford S. Davidson and Ashlee R. Lynn for Jon B. Eisenberg and Professor Laurie L. Levenson as Amici Curiae on behalf of Plaintiffs and Respondents.
Miguel Márquez, County Counsel (Santa Clara), Lori E. Pegg, Assistant County Counsel, Juniper L. Downs, Acting Lead Deputy County Counsel, Jenny S. Yelin, Impact Litigation Fellow; Atchison, Barisone, Condotti & Kovacevich, John G. Barisone, City Attorney (Santa Cruz); John A. Russo, City Attorney (Oakland), Barbara J. Parker, Chief Assistant City Attorney; John C. Beiers, County Counsel (Orange), Glenn M. Levy, Deputy County Counsel; Eric Danly; Dana McRae, County Counsel (Santa Cruz); and Bruce D. Goldstein County Counsel (Sonoma), for County of Santa Clara, County of Santa Cruz, City of Oakland, City of Cloverdale, County of San Mateo, City of Santa Cruz and County of Sonoma

320a
as Amici Curiae on behalf of Plaintiffs and Respondents.
Dennis J. Herrera, City Attorney, Therese M. Stewart, Chief Deputy City Attorney, Danny Chou, Chief of Complex and Special Litigation, Vince Chhabria, Mollie M. Lee and Christine Van Aken, Deputy City Attorneys, for Intervener and Respondent.
Caldwell, Leslie & Proctor, Los Angeles, David C. Codell, Albert Giang, Alastair Agcaoili; Sharon P. Minter; and Jon W. Davidson for Equality California, National Center for Lesbian Rights and Lambda Legal Defense and Education Fund, Inc., as Amici Curiae on behalf of Intervener and Respondent.
Greines, Martin, Stein & Richland, Los Angeles, Robin Meadow and Cynthia E. Tobisman for League of California Women Voters of California as Amicus Curiae on behalf of Intervener and Respondent.
Eric Alan Isaacson, San Diego; Susan Kay Weaver; Stacey M. Kaplan; and Rev. Silvo Nardoni for California Faith for Equality, California Council of Churches, General Synod of the United Church of Christ, Universal Fellowship of Metropolitan Community Churches, The Episcopal Bishops of California and Los Angeles, Progressive Jewish Alliance, Pacific Association of Reform Rabbis, Unitarian Universalist Association and Unitarian Universalist Legislative Ministry California as Amici Curiae on behalf of Intervener and Respondent.

321a
Kamala D. Harris, Attorney General, Manuel M. Medeiros, State Solicitor General, David Chaney, Chief Assistant Attorney General, Douglas J. Woods, Acting Assistant Attorney General, Michael Troncoso, Senior Counsel, Constance L. LeLouis and Tamar Pachter, Deputy Attorneys General, as Amici Curiae.
Opinion
CANTIL-SAKAUYE, C.J.
At the request of the United States Court of Appeals for the Ninth Circuit, we agreed to decide a question of California law that is relevant to the underlying lawsuit in this matter now pending in that federal appellate court. (Perry v. Brown (9th Cir. No. 10-16696); see Cal. Rules of Court, rule 8.548.) As posed by the Ninth Circuit, the question to be decided is “[w]hether under article II, section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.”
In addressing this issue, we emphasize at the outset that although in this case the question posed by the Ninth Circuit happens to arise in litigation challenging the validity, under the United States

322a
Constitution, of the initiative measure (Proposition 8) that added a section to the California Constitution providing that “[o]nly marriage between a man and a woman is valid or recognized in California” (Cal. Const., art. I, § 7.5), the state law issue that has been submitted to this court is totally unrelated to the substantive question of the constitutional validity of Proposition 8. Instead, the question before us involves a fundamental procedural issue that may arise with respect to any initiative measure, without regard to its subject matter. The same procedural issue regarding an official initiative proponent’s standing to appear as a party in a judicial proceeding to defend the validity of a voter-approved initiative or to appeal a judgment invalidating it when the public officials who ordinarily provide such a defense or file such an appeal decline to do so, could arise with regard to an initiative measure that, for example, (1) limited campaign contributions that may be collected by elected legislative or executive officials, or (2) imposed term limits for legislative and executive offices, or (3) prohibited government officials from accepting employment after leaving office with companies or individuals that have benefited from the officials’ discretionary governmental decisions while in office. (Cf., e.g., Prop. 73 (Primary Elec. (June 7, 1988)), invalidated in part in Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 47 Cal.Rptr.2d 108, 905 P.2d 1248 [campaign contribution limits]; Prop. 140 (Gen. Elec.(Nov. 6, 1990)), upheld in Legislature v. Eu (1991) 54 Cal.3d 492, 286 Cal.Rptr. 283, 816 P.2d 1309 [term limits]; City of Santa Monica’s ballot

323a
measure Prop. LL (Consolidated Gen. Mun. Elec. (Nov. 7, 2000)), upheld in City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 24 Cal.Rptr.3d 72 [postgovernment employment limits].) The resolution of this procedural question does not turn on the substance of the particular initiative measure at issue, but rather on the purpose and integrity of the initiative process itself.
As we discuss more fully below, in the past official proponents of initiative measures in California have uniformly been permitted to participate as parties – either as interveners or as real parties in interest – in numerous lawsuits in California courts challenging the validity of the initiative measure the proponents sponsored. Such participation has routinely been permitted (1) without any inquiry into or showing that the proponents’ own property, liberty, or other personal legally protected interests would be specially affected by invalidation of the measure, and (2) whether or not the government officials who ordinarily defend a challenged enactment were also defending the measure in the proceeding. This court, however, has not previously had occasion fully to explain the basis upon which an official initiative proponent’s ability to participate as a party in such litigation rests.
As we shall explain, because the initiative process is specifically intended to enable the people to amend the state Constitution or to enact statutes when current government officials have declined to adopt (and often have publicly opposed) the measure

324a
in question, the voters who have successfully adopted an initiative measure may reasonably harbor a legitimate concern that the public officials who ordinarily defend a challenged state law in court may not, in the case of an initiative measure, always undertake such a defense with vigor or with the objectives and interests of those voters paramount in mind. As a consequence, California courts have routinely permitted the official proponents of an initiative to intervene or appear as real parties in interest to defend a challenged voter-approved initiative measure in order “to guard the people’s right to exercise initiative power” (Building Industry Assn. v. City of Camarillo (1986) 41 Cal.3d 810, 822, 226 Cal.Rptr. 81, 718 P.2d 68 (Building Industry Assn.)) or, in other words, to enable such proponents to assert the people’s, and hence the state’s, interest in defending the validity of the initiative measure. Allowing official proponents to assert the state’s interest in the validity of the initiative measure in such litigation (along with any public officials who may also be defending the measure) (1) assures voters who supported the measure and enacted it into law that any residual hostility or indifference of current public officials to the substance of the initiative measure will not prevent a full and robust defense of the measure to be mounted in court on the people’s behalf, and (2) ensures a court faced with the responsibility of reviewing and resolving a legal challenge to an initiative measure that it is aware of and addresses the full range of legal arguments that reasonably may be proffered in the measure’s defense. In this manner, the official

325a
proponents’ general ability to appear and defend the state’s interest in the validity of the initiative measure and to appeal a lower court judgment invalidating the measure serves to enhance both the fairness of the judicial process and the appearance of fairness of that process.
We have cautioned that in most instances it may well be an abuse of discretion for a court to fail to permit the official proponents of an initiative to intervene in a judicial proceeding to protect the people’s right to exercise their initiative power even when one or more government defendants are defending the initiative’s validity in the proceeding. (See Building Industry Assn., supra, 41 Cal.3d at p. 822, 226 Cal.Rptr. 81, 718 P.2d 68.) Thus, in an instance – like that identified in the question submitted by the Ninth Circuit – in which the public officials have totally declined to defend the initiative’s validity at all, we conclude that, in light of the nature and purpose of the initiative process embodied in article II, section 8 of the California Constitution (hereafter article II, section 8) and the unique role of initiative proponents in the constitutional initiative process as recognized by numerous provisions of the Elections Code, it would clearly constitute an abuse of discretion for a court to deny the official proponents of an initiative the opportunity to participate as formal parties in the proceeding, either as interveners or as real parties in interest, in order to assert the people’s and hence the state’s interest in the validity of the measure and to appeal a judgment invalidating the

326a
measure. In other words, because it is essential to the integrity of the initiative process embodied in article II, section 8 that there be someone to assert the state’s interest in an initiative’s validity on behalf of the people when the public officials who normally assert that interest decline to do so, and because the official proponents of an initiative (in light of their unique relationship to the initiative measure under art. II, § 8 and the relevant provisions of the Elec. Code) are the most obvious and logical persons to assert the state’s interest in the initiative’s validity on behalf of the voters who enacted the measure, we conclude that California law authorizes the official proponents, under such circumstances, to appear in the proceeding to assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure. Neither the Governor, the Attorney General, nor any other executive or legislative official has the authority to veto or invalidate an initiative measure that has been approved by the voters. It would exalt form over substance to interpret California law in a manner that would permit these public officials to indirectly achieve such a result by denying the official initiative proponents the authority to step in to assert the state’s interest in the validity of the measure or to appeal a lower court judgment invalidating the measure when those public officials decline to assert that interest or to appeal an adverse judgment.
Accordingly, we respond to the question posed by the Ninth Circuit in the affirmative. In a postelection

327a
challenge to a voter-approved initiative measure, the official proponents of the initiative are authorized under California law to appear and assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so.
I. Factual and Procedural Background
We begin with a brief summary of the factual and procedural background of the current proceeding.
In May 2008, a majority of this court concluded that the California statutes limiting the designation of marriage to opposite-sex couples violated the right of same-sex couples to the equal protection of the laws as guaranteed by the then-governing provisions of the California Constitution. (In re Marriage Cases (2008) 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384.) Thereafter, in the general election held in California in November 2008, a majority of voters approved Proposition 8, an initiative measure that amended the California Constitution by adding a new section – section 7.5 – to article I of the California Constitution. Section 7.5 of article I of the California Constitution provides in full: “Only marriage between a man and a woman is valid or recognized in California.”
Proposition 8 was submitted to the Attorney General, circulated for signature, and formally filed with the Secretary of State for submission to the

328a
voters by five California electors – Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Hak – Shing William Tam, and Mark A. Jansson – who are the official proponents of the initiative measure under California law. (Elec.Code, §§ 342, 9001.) Shortly after commencing the initiative petition process, the proponents established ProtectMarriage.com – Yes on 8, a Project of California Renewal (hereafter ProtectMarriage.com) as a “ballot measure committee” (see Gov.Code, § 84107) to supervise all aspects of the campaign to qualify the measure for the ballot and to seek to obtain its adoption at the ensuing election.
One day after the November 2008 election at which Proposition 8 was approved by a majority of voters, opponents of the measure filed three petitions for an original writ of mandate in this court, challenging the validity of Proposition 8 under the California Constitution. (The three petitions were ultimately consolidated and decided together in Strauss v. Horton (2009) 46 Cal.4th 364, 93 Cal.Rptr.3d 591, 207 P.3d 48 (Strauss).) The petitions contended primarily that Proposition 8 constituted a constitutional revision, which under the California Constitution could not properly be adopted through the initiative process, rather than a constitutional amendment, which could be adopted by initiative; one petition also contended that Proposition 8 violated the separation of powers doctrine embodied in the California Constitution.

329a
While those petitions were pending, and before this court decided whether to accept the matters for decision, the official proponents of Proposition 8 filed motions to intervene in each of the proceedings, to defend the validity of Proposition 8. Shortly thereafter, this court agreed to hear and decide the petitions and, in the same order, granted the official proponents’ motions to intervene in the proceedings.1
After briefing and oral argument, this court, on May 26, 2009, handed down its decision in Strauss, supra, 46 Cal.4th 364, 93 Cal.Rptr.3d 591, 207 P.3d 48, concluding (1) that, under the California Constitution, Proposition 8 was a constitutional amendment, rather than a constitutional revision, and thus could be adopted through the initiative process, and (2) that the measure did not violate the separation of powers doctrine embodied in the California Constitution.
On May 22, 2009, just a few days before the decision in Strauss, supra, 46 Cal.4th 364, 93 Cal.Rptr.3d 591, 207 P.3d 48, was filed, plaintiffs Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo – two same-sex couples who,
1 The order in Strauss, supra, 46 Cal.4th 364, 93 Cal.Rptr.3d 591, 207 P.3d 48, while granting the motion to intervene filed by the official proponents of Proposition 8, simultaneously denied a motion to intervene that had been filed by a separate pro-Proposition 8 advocacy organization, Campaign for California Families, that was not an official proponent of the challenged initiative measure.

330a
after the adoption of Proposition 8, had sought but had been denied marriage licenses in Alameda County and Los Angeles County respectively – filed the underlying action in the current matter in federal district court in San Francisco. (Perry v. Schwarzenegger (N.D.Cal. No. 3:09-cv-02292-VRW).)2 Plaintiffs’ complaint in Perry named as defendants in their official capacities the Governor of California, the Attorney General of California, the Director and the Deputy Director of the State Department of Public Health, the Alameda County Clerk – Recorder, and the Los Angeles County Registrar – Recorder/County Clerk. The complaint alleged that Proposition 8 violates the due process and equal protection clauses of the federal Constitution and sought injunctive and declaratory relief.3
2 The decision rendered by the federal district court after trial was published as Perry v. Schwarzenegger (N.D.Cal.2010) 704 F.Supp.2d 921 and, for convenience, will hereafter be referred to in this opinion as Perry I. The Ninth Circuit order submitting the question of standing to this court was published as Perry v. Schwarzenegger (9th Cir.2011) 628 F.3d 1191, and will hereafter be referred to in this opinion as Perry II. After the Ninth Circuit filed its order, a new Governor of California took office and the matter was subsequently retitled Perry v. Brown, the current title of the proceeding in this court.
Hereafter, except when specifically referring to either the district court’s decision or the Ninth Circuit’s order, this opinion will refer to the federal lawsuit simply as the Perry action.
3 In the Strauss litigation filed in this court, the petitioners challenged the validity of Proposition 8 only on state constitutional grounds, and did not raise the question of the constitutional validity of the measure under the federal Constitution.
(Continued on following page)

331a
On May 28, 2009, the proponents of Proposition 8 and ProtectMarriage.com (hereafter Proponents) filed a motion to intervene in the Perry proceeding, maintaining that the existing parties in the action would not adequately represent the interests of those who wished to defend the measure.
On June 12, 2009, all named defendants filed answers to the complaint. In their answers, the named defendants other than the Attorney General refused to take a position on the merits of plaintiffs’ constitutional challenge and declined to defend the validity of Proposition 8. The answer filed by the Attorney General also declined to defend the initiative, but went further and affirmatively took the position that Proposition 8 is unconstitutional.
On July 2, 2009, the district court held a hearing on a number of matters, including the motion to intervene filed by Proponents. At that hearing, the district court observed that “under California law, as I understand it, proponents of initiative measures have standing to represent proponents and to defend an enactment that is brought into law by the initiative process” and suggested that such intervention by the official initiative proponents was particularly appropriate “where the authorities, the defendants who ordinarily would defend the proposition or the
(See Strauss, supra, 46 Cal.4th at p. 412, fn. 11, 93 Cal.Rptr.3d 591, 207 P.3d 48.) Our opinion in Strauss did not address the federal constitutional issue.

332a
enactment that is being challenged here, are taking the position that, in fact, it is constitutionally infirm[ ].” Neither plaintiffs nor any of the named defendants objected to Proponents’ motion to intervene and the district court granted the motion.4
Thereafter, Proponents participated as interveners in the district court trial in Perry. Indeed, Proponents were the only party in the district court to present witnesses and legal argument in defense of the challenged initiative measure.5
4 The relevant portion of the transcript of the July 2, 2009 hearing reads: “[W]ith respect to the motion to intervene, that basically is unopposed and, it does seem to me, substantially justified in this case, particularly where the authorities, the defendants who ordinarily would defend the proposition or the enactment that is being challenged here, are taking the position that, in fact, it is constitutionally infirm[ ]. And so, it seems to me, both for practical reasons and reasons of proceeding in this case in an orderly and judicial fashion that intervention is appropriate. [¶] Certainly, under California law, as I understand it, proponents of initiative measures have the standing to represent proponents and to defend an enactment that is brought into law by the initiative process. [¶] . . . [A]re there any objections to granting the motion to intervene? (No response.) Hearing none, that motion will be granted.”
5 The district court in Perry also granted a motion filed by the City and County of San Francisco (San Francisco) to intervene in the action on behalf of plaintiffs. As an intervener, San Francisco has participated as a party in these proceedings in the district court, in the Ninth Circuit, and in this court. Although plaintiffs and San Francisco have filed separate briefs in this court, the legal arguments raised by these parties largely overlap and for convenience we shall refer to the arguments presented by either of these parties as plaintiffs’ arguments.
(Continued on following page)

333a
At the conclusion of the trial, the district court issued a lengthy opinion, setting forth numerous findings of fact and conclusions of law and determining that Proposition 8 violates both the due process and equal protection clauses of the federal Constitution. (Perry I, supra, 704 F.Supp.2d 921.) The district court issued an order enjoining defendants in their official capacities, and all persons under their supervision or control, from applying or enforcing Proposition 8. (704 F.Supp.2d at p. 1003.) The Ninth Circuit subsequently issued an order staying the district
At a later stage of the district court proceedings, the County of Imperial, the Imperial County Board of Supervisors, and the Imperial County Deputy County Clerk/Recorder moved to intervene in the action to defend the validity of Proposition 8. The district court did not rule on the Imperial County motion to intervene until after the trial was completed and the court had handed down its ruling on the merits. At that point, the district court denied the intervention motion. Thereafter, Imperial County, its board of supervisors and its deputy county clerk/ recorder appealed the denial of their motion to intervene to the Ninth Circuit. On the same day the Ninth Circuit filed its order submitting the question of Proponents’ standing to this court, the Ninth Circuit issued an opinion affirming the district court’s denial of intervention by Imperial County, its board of supervisors and its deputy county clerk/recorder. In affirming the denial of intervention, the Ninth Circuit opinion relied in part on the fact that intervention had been sought by the deputy county clerk/recorder rather than the county clerk/recorder herself; the opinion left open the question whether a county clerk/recorder would have standing to intervene. On February 25, 2011, the newly elected County Clerk/Recorder of Imperial County filed a motion in the Ninth Circuit seeking to intervene in the action. That motion is currently pending in the Ninth Circuit.

334a
court’s judgment pending appeal, and as a result Proposition 8 remains in effect at the present time.
Proponents, as interveners in the district court, filed in the Ninth Circuit a timely appeal of the district court judgment invalidating Proposition 8.6 None of the named defendants at whom the district court’s injunction was directed appealed from the district court judgment, however, and, in an early order establishing a schedule for considering the appeal, the Ninth Circuit specifically requested the parties to brief the question whether Proponents have standing to appeal the district court’s ruling.7
6 Initially, all five of the individual proponents of Proposition 8 moved to intervene in the Perry litigation. In the course of the district court litigation, one of the individual proponents – Hak-Shing William Tam (Tam) – moved to withdraw as a defendant intervener. The district court did not rule on Tam’s motion to withdraw until after it issued its decision on the merits, and at that point the district court denied the motion to withdraw as moot.
Tam did not join in the appeal from the district court judgment that was filed in the Ninth Circuit by the other four individual proponents and ProtectMarriage.com. For convenience, further references to “Proponents” refer collectively to the four individual proponents and ProtectMarriage.com who filed the appeal in the Ninth Circuit and have participated in the present proceeding in this court.
7 Under federal law, a party who has been permitted to intervene in a lower court proceeding is entitled to appeal a judgment in the absence of the party on whose side intervention was permitted only upon a showing that the intervener independently fulfills the case or controversy requirements of article III of the federal Constitution. (See, e.g., Diamond v. Charles
(Continued on following page)

335a
In the briefs filed in the Ninth Circuit on that issue, plaintiffs argued that Proponents lacked standing to appeal and that, as a consequence, the appeal in Perry should be dismissed. Proponents vigorously contested plaintiffs’ contention, pointing out that they had been permitted to intervene and participate as parties in defense of Proposition 8 both by this court in Strauss, supra, 46 Cal.4th 364, 93 Cal.Rptr.3d 591, 207 P.3d 48, and by the district court in Perry, and asserting that they possessed the requisite standing under both California and federal law.8
(1986) 476 U.S. 54, 68, 106 S.Ct. 1697, 90 L.Ed.2d 48.) Under California law, by contrast, a party who has been permitted to intervene in a lower court proceeding to defend an action may appeal from an adverse judgment despite the failure of the original defendant to file an appeal. (See, e.g., People v. Perris Irrigation District (1901) 132 Cal. 289, 290-291, 64 P. 399.)
8 In addition to disagreeing as to whether Proponents have standing to appeal, in their briefs and oral argument before the Ninth Circuit plaintiffs and Proponents disagreed on the consequences that would flow from a determination by the Ninth Circuit that Proponents lack standing to appeal and the dismissal of their appeal. Plaintiffs contended that a dismissal of the appeal would leave the district court judgment in effect and that the district court ruling would be binding on the named state officers and on the two named county clerks. Proponents contended, by contrast, that if the Ninth Circuit determines they lack standing to appeal, that court would be required not only to dismiss the appeal but also to vacate the district court judgment. (See Perry II, supra, 628 F.3d at p. 1195 & fn. 2.) Because it submitted the question of Proponents’ standing under state law to this court, the Ninth Circuit did not indicate its view as to the effect on the district court judgment of a determination that Proponents lack standing to appeal.

336a
After conducting oral argument, the three-judge panel of the Ninth Circuit assigned to this case issued an order on January 4, 2011, requesting this court to answer the question of California law set forth above; namely, whether, under California law, the official proponents of an initiative measure that has been approved by the voters possess either “a particularized interest in the initiative’s validity” or “the authority to assert the State’s interest in the initiative’s validity” so as to afford the proponents standing to defend the constitutionality of the initiative or to appeal a judgment invalidating the initiative when the public officials who ordinarily would provide such a defense or file such an appeal decline to do so. (Perry II, supra, 628 F.3d at p. 1193.) In its order, the Ninth Circuit indicated that the answer to this question of California law may well be determinative of the issue of standing for federal law purposes. (Id. at p. 1196.)
In explaining its reason for submitting this question to this court, the Ninth Circuit stated in part: “Although the Governor has chosen not to defend Proposition 8 in these proceedings, it is not clear whether he may, consistent with the California Constitution, achieve through a refusal to litigate what he may not do directly: effectively veto the initiative by refusing to defend it or appeal a judgment invalidating it, if no one else – including the initiative’s proponents – is qualified to do so. Proponents argue that such a harsh result is avoided if the balance of power provided in the California

337a
Constitution establishes that proponents of an initiative are authorized to defend that initiative, as agents of the People, in lieu of public officials who refuse to do so. Similarly, under California law, the proponents of an initiative may possess a particularized interest in defending the constitutionality of their initiative upon its enactment; the Constitution’s purpose in reserving the initiative power to the People would appear to be ill-served by allowing elected officials to nullify either proponents’ efforts to ‘propose statutes and amendments to the Constitution’ or the People’s right ‘to adopt or reject’ such propositions. Cal. Const., art. II, § 8(a). Rather than rely on our own understanding of this balance of power under the California Constitution, however, we certify the question so that the [California Supreme] Court may provide an authoritative answer as to the rights, interests, and authority under California law of the official proponents of an initiative measure to defend its validity upon its enactment in the case of a challenge to its constitutionality, where the state officials charged with that duty refuse to execute it.” (Perry II, supra, 628 F.3d at p. 1197.)
On February 16, 2011, we agreed to decide the question of California law as requested by the Ninth Circuit and established an expedited briefing schedule that would permit this court to conduct oral argument in this matter as early as September 2011. All parties and numerous amici curiae timely filed briefs in this matter, and oral argument was held on September 6, 2011.

338a
II. Relevance of State Law to Standing Under Federal Law
Decisions of the United States Supreme Court establish that the determination whether an individual or entity seeking to participate as a party in a federal court proceeding or to appeal from an adverse judgment entered in such a proceeding possesses the requisite standing to satisfy the “case or controversy” provisions of article III of the United States Constitution is ultimately a question of federal law upon which the federal courts have the final say. (See, e.g., Phillips Petroleum Co. v. Shutts (1985) 472 U.S. 797, 804, 105 S.Ct. 2965, 86 L.Ed.2d 628.) As a consequence, many readers of this opinion may reasonably be uncertain why the Ninth Circuit has asked this court to advise it whether initiative proponents possess authority under California law to defend the validity of an initiative measure in a court proceeding in which the measure is challenged and, if so, the basis of such authority. In light of this potential confusion, we believe that it is useful and appropriate briefly to set forth, at the outset, our understanding of the federal decisions that discuss the role that state law plays in determining whether, under federal law, an individual or entity possesses standing to participate as a party in a federal proceeding. We emphasize that our discussion of federal decisions is not intended to, and does not purport to, decide any issue of federal law, and we fully recognize that the effect that this opinion’s clarification of the authority official proponents possess under California law may

339a
have on the question of standing under federal law is a matter that ultimately will be decided by the federal courts.
As the question posed by the Ninth Circuit indicates, in the present case two potential bases for standing are implicated: (1) The official proponents of a successful initiative measure may have authority to appear in court to assert the state’s interest in defending the validity of a duly enacted state law,9 or (2) the official proponents may have their own personal “particularized “ interest in the initiative’s validity. We briefly discuss the federal decisions that analyze the effect of state law on each of these potential bases for standing in federal court.
A. Standing to Assert the State’s Interest in an Initiative’s Validity
With respect to the question of who possesses standing to assert the state’s interest in defending the validity of a state constitutional provision or statute when the state measure is challenged in a federal proceeding, we believe the United States Supreme Court’s decision in Karcher v. May (1987)
9 Decisions of the United States Supreme Court clearly establish that “a State has standing to defend the constitutionality of its statute.” (Diamond v. Charles, supra, 476 U.S. 54, 62, 106 S.Ct. 1697; see also Maine v. Taylor (1986) 477 U.S. 131, 136-137, 106 S.Ct. 2440, 91 L.Ed.2d 110 [“a State clearly has a legitimate interest in the continued enforceability of its own statutes”].)

340a
484 U.S. 72, 108 S.Ct. 388, 98 L.Ed.2d 327 (Karcher) strongly indicates that a federal court will look to state law to determine whom the state has authorized to assert the state’s interest in the validity of the challenged measure.
In Karcher, a lawsuit was filed in federal district court contending that a recently enacted New Jersey statute that required primary and secondary public schools in that state to observe a minute of silence at the start of each school day was unconstitutional as a violation of the establishment clause of the First Amendment of the federal Constitution. When it became apparent at the outset of the litigation that neither the current New Jersey Attorney General nor any of the named government defendants – the New Jersey Department of Education, the department’s commissioner, and two local boards of education – would defend the validity of the challenged statute, the then Speaker of the New Jersey General Assembly (Karcher) and the then President of the New Jersey Senate (Orechio) sought and were granted the right to intervene as defendants to defend the challenged statute on behalf of the state legislature. In the proceedings in district court, the legislature, through its presiding officers, carried the entire burden of defending the statute. The district court ultimately concluded that the statute was unconstitutional and entered judgment invalidating the statute.
Karcher and Orechio, acting in their official capacities as Speaker of the New Jersey General Assembly and President of the New Jersey Senate,

341a
appealed the district court judgment to the Court of Appeals for the Third Circuit. The Third Circuit heard the appeal on the merits and ultimately affirmed the district court decision invalidating the statute.
After the Third Circuit handed down its decision, Karcher and Orechio lost their posts as presiding legislative officers and were replaced by other legislators in those legislative posts. Despite this change in status, Karcher and Orechio filed an appeal of the Third Circuit decision in the United States Supreme Court. The new state legislative presiding officers who had replaced Karcher and Orechio notified the United States Supreme Court that they were withdrawing the legislature’s appeal, but at the same time informed the court that Karcher wanted to continue his appeal of the Third Circuit decision in the Supreme Court. Karcher confirmed that position.
The United States Supreme Court postponed consideration of the jurisdictional issue pending its hearing of the case, and, after oral argument, the high court issued its decision, concluding that because Karcher and Orechio were no longer the legislative leaders of the respective houses of the New Jersey Legislature, they lacked standing to appeal. The court explained: “Karcher and Orechio intervened in this lawsuit in their official capacities as presiding officers on behalf of the New Jersey Legislature. They do not appeal the judgment in those capacities. Indeed, they could not, for they no longer hold those offices. The authority to pursue the

342a
lawsuit on behalf of the legislature belongs to those who succeeded Karcher and Orechio in office.” (Karcher, supra, 484 U.S. at p. 77, 108 S.Ct. 388.)
Karcher and Orechio further argued that if, as the high court concluded, their appeal was to be dismissed for want of jurisdiction, the court should also vacate the judgments of the district court and the Third Circuit that had invalidated the statute at issue. In rejecting this claim, the Supreme Court relied explicitly on the fact that New Jersey law permitted the current presiding legislative officers, acting on behalf of the state legislature, to represent the state’s interest in defending a challenged state law. The court observed: “The New Jersey Supreme Court has granted applications of the Speaker of the General Assembly and the President of the Senate to intervene as parties-respondent on behalf of the legislature in defense of a legislative enactment. In re Forsythe, 91 N.J. 141, 144, 450 A.2d 499, 500 (1982). Since the New Jersey Legislature had authority under state law to represent the State’s interests in both the District Court and the Court of Appeals, we need not vacate the judgments below for lack of a proper defendant-appellant.” (Karcher, supra, 484 U.S. at p. 82, 108 S.Ct. 388, italics added.)10
10 In In re Forsythe (1982) 91 N.J. 141, 450 A.2d 499 – the decision of the New Jersey Supreme Court that was cited and relied upon in Karcher for the proposition that under New Jersey law the legislature, through the Speaker of the General Assembly and the President of the Senate, had authority to
(Continued on following page)

343a
As the foregoing emphasized passage demonstrates, in Karcher the Supreme Court looked to state law to determine whether a prospective litigant had authority to assert the state’s interest in defending a challenged state measure in federal court. Upon reflection this result is not surprising, inasmuch as logic suggests that a state should have the power to determine who is authorized to assert the state’s own interest in defending a challenged state law.
As plaintiffs accurately point out, Karcher, supra, 484 U.S. 72, 108 S.Ct. 388, did not involve a challenge to an initiative measure and did not address the question whether the official proponents of an initiative could properly assert the state’s interest in defending the validity of such an initiative. Plaintiffs
represent the state’s interests in defending a challenged state law – the New Jersey Supreme Court very briefly explained the participation of the Speaker of the General Assembly and the President of the Senate in that litigation, stating: “The initial adversary parties in the case were the petitioners and the Attorney General. In addition, the Court granted the applications of the Speaker of the General Assembly and the General Assembly, and the President of the Senate and the Senate to intervene as parties-respondent, all of whom, with the Attorney General, defend the validity of the enactment.” (450 A.2d at p. 500.)
Thus, in Forsythe, the parties who the United States Supreme Court in Karcher subsequently concluded had authority under state law to represent the state’s interest in defending a challenged statute were permitted to intervene in a New Jersey Supreme Court case to defend the validity of a challenged statute alongside the New Jersey Attorney General who was also defending the statute.

344a
also note that in its subsequent decision in Arizonans for Off. Eng. v. Arizona (1997) 520 U.S. 43, 117 S.Ct. 1055, 137 L.Ed.2d 170 (Arizonans for Official English), which did involve the question of official initiative proponents’ standing under federal law to appeal a judgment invalidating an initiative measure, the United States Supreme Court expressed “grave doubts” (id. at p. 66, 117 S.Ct. 1055) whether the initiative proponents in that case possessed the requisite standing and distinguished its earlier decision in Karcher. A close review of the relevant portion of the opinion in Arizonans for Official English, however, indicates that the doubts expressed by the high court in that case apparently arose out of the court’s uncertainty concerning the authority of official initiative proponents to defend the validity of a challenged initiative under Arizona law. The relevant passage does not suggest that if a state’s law does authorize the official proponents of an initiative to assert the state’s interest in the initiative measure’s validity when public officials have declined to defend the measure, the proponents would lack standing to assert that interest in a federal proceeding.
In addressing the standing issue in Arizonans for Official English, supra, 520 U.S. 43, 117 S.Ct. 1055, the high court stated in relevant part: “Petitioners argue primarily that, as initiative proponents, they have a quasi-legislative interest in defending the constitutionality of the measure they successfully sponsored. [The initiative proponents] stress the funds and effort they expended to achieve adoption of

345a
[the initiative]. We have recognized that state legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State’s interests. See Karcher v. May, 484 U.S. 72, 82 [108 S.Ct. 388, 98 L.Ed.2d 327] (1987). [The initiative proponents], 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. Nor has this Court ever identified initiative proponents as Article – III – qualified defenders of the measures they advocated. Cf. Don’t Bankrupt Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 460 U.S. 1077 [103 S.Ct. 1762, 76 L.Ed.2d 338] (1983) (summarily dismissing for lack of standing appeal by an initiative proponent from a decision holding the initiative unconstitutional).” (520 U.S. at p. 65, 117 S.Ct. 1055, italics added, fn. omitted.)
Although for the foregoing reasons the court expressed “grave doubts” whether the initiative proponents in question had standing under article III to pursue appellate review (Arizonans for Official English, supra, 520 U.S. at p. 66, 117 S.Ct. 1055), the court went on conclude that “we need not definitely resolve the issue” of the initiative proponents’ standing (ibid.) because it concluded that, in any event, a change in the status of the plaintiff in that case rendered the litigation moot and justified vacating the lower federal court rulings that had invalidated

346a
the initiative measure. (See id. at pp. 67-80, 117 S.Ct. 1055.)
As the emphasized portion of the passage from Arizonans for Official English quoted above indicates, the high court’s doubts as to the official initiative proponents’ standing in that case were based, at least in substantial part, on the fact that the court was not aware of any “Arizona law appointing initiative sponsors as agents of the people of Arizona to defend . . . the constitutionality of initiatives made law of the State.” (Arizonans for Official English, supra, 520 U.S. at p. 65, 117 S.Ct. 1055.) In our view, nothing in that decision indicates that if a state’s law does authorize the official proponents of an initiative to assert the state’s interest in the validity of a challenged state initiative when the public officials who ordinarily assert that interest have declined to do so, the proponents would not have standing to assert the state’s interest in the initiative’s validity in a federal lawsuit in which state officials have declined to provide such a defense.11
11 We note that unlike in Karcher, supra, 484 U.S. 72, 108 S.Ct. 388, in Arizonans for Official English the government officials named as defendants in the federal lawsuit did defend the constitutional validity of the challenged state provision in the district court proceedings. (Arizonans for Official English, supra, 520 U.S. at pp. 51-53, 117 S.Ct. 1055.) And, again unlike in Karcher, in Arizonans for Official English the official initiative proponents did not seek to intervene in the litigation until after the district court already had issued its judgment striking
(Continued on following page)

347a
We note in this regard that in its order submitting the present question to this court, the Ninth Circuit stated explicitly that, in its view, if the official proponents of an initiative have authority under California law to assert the state’s interest in the initiative measure’s validity in such a case, then, under federal law, the proponents would have standing in a federal proceeding to assert the state’s interest in defending the challenged initiative and to appeal a judgment invalidating the initiative. (Perry II, supra, 628 F.3d at p. 1196.) Furthermore, although the parties before us emphatically disagree as to whether California law authorizes the official proponents of an initiative to assert the state’s interest in the validity of a voter-approved initiative measure, in
down the initiative measure on constitutional grounds. (520 U.S. at p. 56, 117 S.Ct. 1055.)
As the passage from Arizonans for Official English quoted above (ante, 134 Cal.Rptr.3d at p. 514-515, 265 P.3d at p. 1015) indicates, the high court in that case also cited Don’t Bankrupt Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago, supra, 460 U.S. 1077, 103 S.Ct. 1762, a summary order that dismissed an appeal from a Ninth Circuit decision for lack of standing. As in Arizonans for Official English, in Don’t Bankrupt Washington Committee the named government defendants defended the challenged initiative on behalf of the state in the lower courts (see Continental Ill. Nat. Bank, etc. v. State of Wash. (9th Cir.1983) 696 F.2d 692, 697-702), and there is no indication that the official initiative proponents in that matter established that, under the applicable state law (there, the law of the State of Washington), an initiative measure’s official proponents have standing to defend the measure when the named state defendants in the litigation have undertaken such a defense.

348a
the briefs filed both in the Ninth Circuit and in this court all parties agree with the Ninth Circuit’s statement that if the official proponents do have authority under California law to assert the state’s interest in such a case, then under federal law the proponents would have standing in a federal proceeding to defend the initiative and to appeal a judgment invalidating it.
B. Standing Based on “Particularized Interest”
Under the controlling federal authorities, the role that state law plays in determining whether an official proponent of a successful initiative measure has a sufficient personal “particularized interest” in the validity of the measure to support the proponent’s standing under federal law appears to be more complex than the role played by state law when the official proponent is authorized by state law to assert the state’s interest in the validity of the initiative.
Under the particularized interest standard, federal decisions establish that a federal court considers whether a prospective party is able to demonstrate “an invasion of a legally protected interest which is (a) concrete and particularized, . . . and (b) ‘actual or imminent, not “conjectural” or “hypothetical.” ’ ” (Lujan v. Defenders of Wildlife (1992) 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351.) In Lujan, the high court further explained that “[b]y particularized, we mean that the injury must affect the plaintiff

349a
in a personal and individual way.” (Id. at p. 560, fn. 1, 112 S.Ct. 2130.) Although the United States Supreme Court has recognized that a state “has the power to create new interests, the invasion of which may confer standing” under federal law (Diamond v. Charles, supra, 476 U.S. 54, 65, fn. 17, 106 S.Ct. 1697), not every interest that state law recognizes as conferring standing on an individual or entity to institute or to defend a particular kind of lawsuit in state court will be sufficient to establish that the individual or entity has a particularized interest to bring or defend an analogous lawsuit in federal court. (Compare Code Civ. Proc., § 526a [state law recognizing standing of taxpayer to challenge illegal expenditure of public funds in state court] with DaimlerChrysler Corp. v. Cuno (2006) 547 U.S. 332, 342-346, 126 S.Ct. 1854, 164 L.Ed.2d 589 [state taxpayer lacks standing to challenge the constitutionality of state tax credit in federal court].) Under the governing federal cases, whether a right created by state law is sufficient to support federal standing under the particularized interest test necessarily depends upon the nature of the right conferred by the state and the nature of the injury that may be suffered by the would-be litigant. (Cf. Warth v. Seldin (1975) 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343.)
In the present case, the parties disagree as to whether an official initiative proponent possesses a special or distinct interest in the validity of an initiative measure the proponent has sponsored once the

350a
initiative has been approved by the voters and adopted as state law, and, even if so, whether the nature of that interest and of the injury the proponent would suffer if the initiative measure is invalidated are sufficient to accord the proponent standing for federal law purposes under the particularized interest standard.
Proponents maintain that because they possess a fundamental right under the California Constitution to propose statutory or constitutional changes through the initiative process (see, e.g., Costa v. Superior Court (2006) 37 Cal.4th 986, 1007, 39 Cal.Rptr.3d 470, 128 P.3d 675), they possess a personal, particularized interest in the validity of an initiative measure that they have proposed and that has been approved by the voters, an interest that would go undefended if they are not permitted to provide such a defense when the public officials who ordinarily defend a challenged state law decline to do so. Proponents argue that their personal, fundamental right guaranteed by the initiative provision would be nullified if a voter-approved measure they have sponsored is improperly and incorrectly invalidated because public officials who are hostile to the measure have failed to mount a defense or to appeal a lower court judgment striking down the initiative.
Plaintiffs, by contrast, assert that although the official proponents of an initiative may possess a personal, particularized interest under the California Constitution and the applicable statutory provisions

351a
in having an initiative measure they have proposed submitted to the voters, once an initiative measure has been approved by the voters the official proponents have no greater personal legally protected interest in the measure’s validity than any other member of the public. Accordingly, plaintiffs argue that once an initiative measure has been enacted into law, its official proponents do not possess a distinct, particularized interest in the initiative’s validity.
As we explain, we need not decide whether the official proponents of an initiative measure possess a particularized interest in the initiative’s validity once the measure has been approved by the voters. For the reasons discussed below, we conclude that when public officials decline to defend a voter-approved initiative or assert the state’s interest in the initiative’s validity, under California law the official proponents of an initiative measure are authorized to assert the state’s interest in the validity of the initiative and to appeal a judgment invalidating the measure. Because that conclusion is sufficient to support an affirmative response to the question posed by the Ninth Circuit, we need not decide whether, under California law, the official proponents also possess a particularized interest in a voter-approved initiative’s validity.

352a
III. Analysis of Initiative Proponents’ Standing Under California Law
A. Basis of Initiative Proponents’ Standing
Article II, section 1 of the California Constitution proclaims: “All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require.” As this court noted in Strauss, supra, 46 Cal.4th 364, 412-413, 93 Cal.Rptr.3d 591, 207 P.3d 48: “This provision originated in one of the initial sections of the Declaration of Rights contained in California’s first Constitution (Cal. Const. of 1849, art. I, § 2), and reflects a basic precept of our governmental system: that the people have the constitutional right to alter or reform their government.” (Fn. omitted.)
Although California’s original 1849 Constitution declared that “[a]ll political power is inherent in the people,” it was not until 60 years later – in 1911 – that the California Constitution was amended to afford the voters of California the authority to directly propose and adopt state constitutional amendments and statutory provisions through the initiative power. In Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 591, 135 Cal.Rptr. 41, 557 P.2d 473 (Associated Home Builders), we briefly described the history, significance, and consistent judicial interpretation of the constitutionally based initiative power in California: “The amendment of the California Constitution in 1911 to provide for

353a
the initiative and referendum signifies one of the outstanding achievements of the progressive movement of the early 1900’s. Drafted in light of the theory that all power of government ultimately resides in the people, the amendment speaks of the initiative and referendum, not as a right granted the people, but as a power reserved by them. Declaring it ‘the duty of the courts to jealously guard this right of the people’ . . . , the courts have described the initiative and referendum as articulating ‘one of the most precious rights of our democratic process. . . .’ ‘[I]t has long been our judicial policy to apply a liberal construction to this power wherever it is challenged in order that the right be not improperly annulled. If doubts can reasonably be resolved in favor of the use of this reserve power, courts will preserve it.’ ” (Italics added, citations & fns. omitted.)
As a number of our past decisions have explained, the progressive movement in California that introduced the initiative power into our state Constitution grew out of dissatisfaction with the thengoverning public officials and a widespread belief that the people had lost control of the political process. (See, e.g., Independent Energy Producers Assn. v. McPherson (2006) 38 Cal.4th 1020, 1041-1043, 44 Cal.Rptr.3d 644, 136 P.3d 178; Strauss, supra, 46 Cal.4th 364, 420-421, 93 Cal.Rptr.3d 591, 207 P.3d 48.) In this setting, “[t]he initiative was viewed as one means of restoring the people’s rightful control over their government, by providing a method that would permit the people to propose and adopt statutory

354a
provisions and constitutional amendments.” (Strauss, supra, at p. 421, 93 Cal.Rptr.3d 591, 207 P.3d 48.) The primary purpose of the initiative was to afford the people the ability to propose and to adopt constitutional amendments or statutory provisions that their elected public officials had refused or declined to adopt. The 1911 ballot pamphlet argument in favor of the measure described the initiative as “that safeguard which the people should retain for themselves, to supplement the work of the legislature by initiating those measures which the legislature either viciously or negligently fails or refuses to enact. . . .” (Sect. of State, Proposed Amends. to Const. with Legis. Reasons, Gen. Elec. (Oct. 10, 1911) Reasons why Sen. Const. Amend. No. 22 should be adopted, italics added.)
The California constitutional provisions setting forth the initiative power do not explicitly refer to or fully prescribe the authority or responsibilities of the official proponents of an initiative measure,12 but the
12 The constitutional provisions relating to the initiative power are currently set forth in article II, sections 8 and 10, article IV, section 1, and article XVIII, sections 3 and 4 of the California Constitution.
Article II, section 8, provides in relevant part: “(a) The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.
“(b) An initiative measure may be proposed by presenting to the Secretary of State a petition that sets forth the text of the proposed statute or amendment to the Constitution and is certified to have been signed by electors equal in number to 5 percent in the case of a statute, and 8 percent in the case of an
(Continued on following page)

355a
Legislature, in adopting statutes to formalize and facilitate the initiative process, has enacted a number of provisions that explicitly identify who the official
amendment to the Constitution, of the votes for all candidates for Governor at the last gubernatorial election.
“(c) The Secretary of State shall then submit the measure at the next general election held at least 131 days after it qualifies or at any special statewide election held prior to that general election. The Governor may call a special statewide election for the measure.”
Article II, section 10 provides in relevant part: “(a) An initiative statute . . . approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise. [¶] . . . [¶]
“(c) The Legislature . . . may amend or repeal an initiative statute by another statute that become effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval.
“(d) Prior to circulation of an initiative . . . petition for signatures, a copy shall be submitted to the Attorney General who shall prepare a title and summary of the measure as provided by law.
“(e) The Legislature shall provide the manner in which petitions shall be circulated, presented, and certified, and measures submitted to the electors.”
Article IV, section 1 provides in full: “The legislative power of this State is vested in the California Legislature which consists of the Senate and Assembly, but the people reserve to themselves the powers of initiative and referendum.”
Article XVIII, section 3 provides in full: “The electors may amend the Constitution by initiative.”
Article XVIII, section 4 provides in relevant part: “A proposed amendment . . . shall be submitted to the electors and if approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise.”

356a
proponents of an initiative measure are and describe their authority and duties.
Elections Code section 342 defines the proponent of an initiative measure as “the elector or electors who submit the text of a proposed initiative or referendum to the Attorney General with a request that he or she prepare a circulating title and summary of the chief purpose and points of the proposed measure. . . .” Similarly, Elections Code section 9001 states that “[t]he electors presenting the request [to the Attorney General] shall be known as the ‘proponents’ ” and requires that prior to the circulation of an initiative petition for signature the text of the proposed measure must be submitted to the Attorney General with a request that “a circulating title and summary of the chief purpose and points of the proposed measure be prepared.”13 Elections Code sections 9607, 9608, and 9609 place an obligation upon the official proponents of an initiative measure to manage and supervise the process by which signatures for the initiative petition are obtained, and Elections Code section 9032 specifies that, after signatures have been collected, “[t]he right to file the petition [with the designated election officials] shall be reserved to its proponents, and any section thereof presented for
13 Elections Code section 9001 also requires the proponents of an initiative measure, in submitting their request for a title and summary, to pay a fee which is to be refunded to the proponents if the measure qualifies for the ballot within two years from the date the summary is furnished to the proponents.

357a
filing by any person or persons other than the proponents of a measure or by persons duly authorized in writing by one or more of the proponents shall be disregarded by the elections official.” (Italics added.)
Once an initiative measure has qualified for the ballot, several provisions of the Elections Code vest proponents with the power to control the arguments in favor of an initiative measure. Although any voter can file with the Secretary of State an argument for or against the initiative (Elec.Code, § 9064), a ballot argument shall not be accepted unless it has been “authorized by the proponent” (Elec.Code, § 9065, subd. (d)). If more than one argument is filed, Elections Code section 9067 provides that in preparing the ballot pamphlet “preference and priority” shall be given to the ballot argument submitted by the official proponents of the initiative measure. Proponents similarly control the rebuttal arguments in favor of an initiative. (See Elec.Code, § 9069.) Moreover, proponents retain the power to withdraw a ballot argument at any time before the deadline for filing arguments. (See Elec.Code, § 9601.)
Under these and related statutory provisions (see, e.g., Elec.Code, §§ 9002, 9004, 9604), the official proponents of an initiative measure are recognized as having a distinct role – involving both authority and responsibilities that differ from other supporters of the measure – with regard to the initiative measure the proponents have sponsored.

358a
Neither the state constitutional provisions relating to the initiative power, nor the statutory provisions relating to the official proponents of an initiative measure, expressly address the question whether, or in what circumstances, the official proponents are authorized to appear in court to defend the validity of an initiative measure the proponents have sponsored. Nonetheless, since the adoption of the initiative power a century ago, decisions of both this court and the Courts of Appeal have repeatedly and uniformly permitted the official proponents of initiative measures to participate as parties – either as interveners or as real parties in interest – in both preelection and postelection litigation challenging the initiative measure they have sponsored. Furthermore, the participation by official initiative proponents as formal parties in such litigation has routinely been permitted whether or not the Attorney General or other public officials were also defending the challenged initiative measure in the judicial proceeding in question.
The decisions in which official initiative proponents (or organizations that have been directly involved in drafting and sponsoring the initiative measure) have been permitted to participate as parties in California proceedings involving challenges to an initiative measure are legion. (See, e.g., Strauss, supra, 46 Cal.4th 364, 399, 93 Cal.Rptr.3d 591, 207 P.3d 48 [postelection challenge]; Independent Energy Producers Assn. v. McPherson, supra, 38 Cal.4th 1020, 44 Cal.Rptr.3d 644, 136 P.3d 178 (Independent

359a
Energy Producers) [preelection challenge]; Costa v. Superior Court, supra, 37 Cal.4th 986, 1001, 39 Cal.Rptr.3d 470, 128 P.3d 675 (Costa) [preelection challenge]; Senate of the State of Cal. v. Jones (1999) 21 Cal.4th 1142, 1146, 90 Cal.Rptr.2d 810, 988 P.2d 1089 [preelection challenge]; Hotel Employees & Restaurant Employees Internat. Union v. Davis (1999) 21 Cal.4th 585, 590, 88 Cal.Rptr.2d 56, 981 P.2d 990 (Hotel Employees Union) [postelection challenge]; Amwest Sur. Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1250, 48 Cal.Rptr.2d 12, 906 P.2d 1112 (Amwest) [postelection challenge]; 20th Century Ins. Co. v. Garamendi (1994) 8 Cal.4th 216, 241, 32 Cal.Rptr.2d 807, 878 P.2d 566 (20th Century Ins. Co.) [postelection challenge]; Legislature v. Eu, supra, 54 Cal.3d 492, 500, 286 Cal.Rptr. 283, 816 P.2d 1309 [postelection challenge]; Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805, 812, 258 Cal.Rptr. 161, 771 P.2d 1247 [postelection challenge]; People ex rel. Deukmejian v. County of Mendocino (1984) 36 Cal.3d 476, 480 & fn. 1, 204 Cal.Rptr. 897, 683 P.2d 1150 [postelection challenge]; Legislature v. Deukmejian (1983) 34 Cal.3d 658, 663, 194 Cal.Rptr. 781, 669 P.2d 17 [preelection challenge]; Brosnahan v. Eu (1982) 31 Cal.3d 1, 3, 181 Cal.Rptr. 100, 641 P.2d 200 [preelection challenge]; City of Santa Monica v. Stewart, supra, 126 Cal.App.4th 43, 53, 24 Cal.Rptr.3d 72 [postelection challenge]; Citizens for Jobs & the Economy v. County of Orange (2002) 94 Cal.App.4th 1311, 1316 & fn. 2, 115 Cal.Rptr.2d 90 [postelection challenge]; City of Westminster v. County of Orange (1988) 204 Cal.App.3d 623, 626, 251

360a
Cal.Rptr. 511 [postelection challenge]; Community Health Assn. v. Board of Supervisors (1983) 146 Cal.App.3d 990, 992, 194 Cal.Rptr. 557 [postelection challenge]; Simac Design Inc. v. Alciati (1979) 92 Cal.App.3d 146, 153, 154 Cal.Rptr. 676 [postelection challenge]; see also Assembly v. Deukmejian (1982) 30 Cal.3d 638, 644-645, 180 Cal.Rptr. 297, 639 P.2d 939 [referendum proponent permitted to participate as real party in interest in preelection challenge to a proposed referendum].)14 Moreover, the cases have not
14 Past decisions have frequently drawn a distinction, for purposes of intervention, between, on the one hand, the official proponents of an initiative measure or organizations that were directly involved in drafting and sponsoring the measure, and, on the other hand, other advocacy groups that ideologically support the measure.
As noted above (ante, 134 Cal.Rptr.3d at p. 505, fn. 1, 265 P.3d at p. 1007, fn. 1), in the Strauss litigation our court granted the motion filed by the official proponents of Proposition 8 to intervene as formal parties in defending the initiative measure, but at the same time denied a motion to intervene that had been filed by another pro-Proposition 8 advocacy group. (See also Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 11781179, 39 Cal.Rptr.3d 788, 129 P.3d 1 [contrasting the status of an amicus curiae advocacy group with that of official proponents of a ballot measure in concluding that the amicus curiae could not properly be held liable for attorney fees awarded under Code Civ. Proc., § 1021.5].)
In light of this distinction, plaintiffs’ reliance upon the Court of Appeal decision in City and County of San Francisco v. State of California (2005) 128 Cal.App.4th 1030, 27 Cal.Rptr.3d 722 lacks merit. In that case, the Court of Appeal affirmed a trial court order denying a motion filed by an advocacy organization – the Proposition 22 Legal Defense and Education Fund – seeking to intervene in an action challenging the validity of
(Continued on following page)

361a
only permitted official initiative proponents to appear as formal parties but have also permitted the proponents to appeal from an adverse judgment. (See, e.g., Amwest, supra, 11 Cal.4th at p. 1250, 48 Cal.Rptr.2d 12, 906 P.2d 1112; 20th Century Ins. Co., supra, 8 Cal.4th at p. 269, 32 Cal.Rptr.2d 807, 878 P.2d 566; People ex rel. Deukmejian v. County of Mendocino, supra, 36 Cal.3d at p. 480, 204 Cal.Rptr. 897, 683 P.2d 1150; Simac Design, supra, 92 Cal.App.3d at p. 153, 154 Cal.Rptr. 676.)
Proposition 22. In upholding the trial court order denying intervention, however, the Court of Appeal explicitly stated that “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” (128 Cal.App.4th at p. 1038, 27 Cal.Rptr.3d 722), and explained 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” (128 Cal.App.4th at p. 1038, 27 Cal.Rptr.3d 722). Thus, contrary to plaintiffs’ contention, that decision is not inconsistent with the numerous decisions both of this court and the Courts of Appeal that have permitted the official proponents of an initiative measure to intervene in actions challenging the validity of the initiative measure. For the same reason, this court’s subsequent determination in In re Marriage Cases, supra, 43 Cal.4th 757, 789-791, 76 Cal.Rptr.3d 683, 183 P.3d 384, that the same advocacy group – the Proposition 22 Legal Defense and Education Fund – lacked standing to maintain a lawsuit to obtain a declaratory judgment upholding the validity of Proposition 22 does not support plaintiffs’ claims regarding the nature and scope of the authority possessed by the official proponents of an initiative measure.

362a
Although in most of these cases the official initiative proponent’s participation as a formal party – either as an intervener or as a real party in interest – was not challenged and, as a consequence, this court’s prior decisions (with the exception of the Building Industry Assn. decision discussed below) have not had occasion to analyze the question of the official proponent’s authority to so participate, the prevalence and uniformity of this court’s practice of permitting official proponents to appear as formal parties to defend the initiative measure they have sponsored nonetheless is significant. As Chief Justice Marshall explained in an early decision of the United States Supreme Court, the existence of numerous decisions that have permitted a judicial procedure without explicitly discussing the procedure’s validity are properly viewed to “have much weight, as they show that [the asserted flaw in the procedure] neither occurred to the bar or the bench.” (Bank of the United States v. Deveaux (1809) 9 U.S. (5 Cranch) 61, 88, 3 L.Ed. 38; see also Brown Shoe Co. v. United States (1962) 370 U.S. 294, 307, 82 S.Ct. 1502, 8 L.Ed.2d 510.)
Plaintiffs acknowledge that California trial and appellate courts have repeatedly and consistently permitted the official proponents of an initiative to appear as formal parties to defend the initiative measure they have sponsored. Plaintiffs maintain, however, that in all of the prior cases the official proponents were permitted to intervene or to appear as real parties in interest only by virtue of a liberal

363a
exercise of judicial discretion and then only to represent the proponents’ own personal interest rather than to assert the state’s interest in the validity of the measure.
Plaintiffs’ characterization of the precedents, however, is not based on the text of those decisions. As already noted, in all but one of this court’s prior decisions we have not been called upon to address the basis of our uniform practice of permitting official initiative proponents to intervene or to appear as real parties in interest in such litigation, and, in particular, to explain whether the proponents’ participation was to assert the state’s interest in the validity of the measure or to defend the proponents’ own particularized personal interest in the validity of the measure (or perhaps in both capacities).15 The
15 Neither the statutory provision relating to intervention nor the provision pertaining to the status of a real party in interest addresses the question whether a would-be party’s proposed participation is to assert its own interest or to assert the state’s interest.
Code of Civil Procedure section 387 – the intervention statute – provides in relevant part: “(a) Upon timely application, any person, who has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both, may intervene in the action or proceeding. . . . [¶] (b) If any provision of law confers an unconditional right to intervene or if the person seeking intervention claims an interest relating to the property or transaction which is the subject of the action and that person is so situated that the disposition of the action may as a practical matter impair or impede that person’s ability to protect that interest, unless that person’s interest is adequately
(Continued on following page)

364a
present proceeding affords us the opportunity to address this point.16
In analyzing the legal basis upon which an official initiative proponent’s authority to participate in such litigation rests, we believe it is useful to draw a distinction between legal challenges to an initiative
represented by existing parties, the court shall, upon timely application, permit that person to intervene.”
Code of Civil Procedure section 367 – the real party in interest statute – provides simply: “Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.”
16 Although past California decisions have generally not had occasion to explicitly address the rationale or basis underlying the authority of official initiative proponents to participate as interveners or real parties in interest, the Ninth Circuit’s question to this court demonstrates that the underlying basis for proponents’ participation under California law is potentially determinative of the question whether the proponents have standing under federal law to appeal a lower federal court judgment invalidating a California voter-approved initiative when the public officials who ordinarily would pursue such an appeal have declined to do so. Because, as we have seen, it is well established that California courts have an obligation to liberally construe the provisions of the California Constitution relating to the initiative power to assure that the initiative process is not directly or indirectly annulled (see Associated Home Builders, supra, 18 Cal.3d at p. 591, 135 Cal.Rptr. 41, 557 P.2d 473), and because the California initiative process may be undermined if a California initiative goes undefended in a federal proceeding because federal courts lack a proper understanding of the basis of the authority possessed by an initiative measure’s official proponents under California law, it is entirely appropriate that we resolve the issue posed by the Ninth Circuit.

365a
measure that precede the voters’ approval of an initiative measure and legal challenges to an initiative measure that are brought after the initiative has been approved by the voters and adopted into law. (For convenience, we refer to the former category as “preelection” cases and the latter category as “postelection” cases.)
Prior to an election, litigation involving an initiative measure may arise with regard to a wide variety of issues, including, for example, (1) whether the proposed measure may not be submitted to the voters through the initiative process in light of its subject matter (see Independent Energy Producers, supra, 38 Cal.4th 1020, 44 Cal.Rptr.3d 644, 136 P.3d 178) or because it embodies more than one subject (see Senate of the State of Cal. v. Jones, supra, 21 Cal.4th 1142, 90 Cal.Rptr.2d 810, 988 P.2d 1089), (2) whether there have been prejudicial procedural irregularities in the process of submitting the matter to the Attorney General or gathering signatures on the initiative petition (see Costa, supra, 37 Cal.4th 986, 39 Cal.Rptr.3d 470, 128 P.3d 675), or (3) whether a sufficient number of valid signatures has been obtained to qualify the matter for the ballot (see Brosnahan v. Eu, supra, 31 Cal.3d 1, 181 Cal.Rptr. 100, 641 P.2d 200). In the preelection setting, when a proposed initiative measure has not yet been adopted as state law, the official proponents of an initiative measure who intervene or appear as real parties in interest are properly viewed as asserting their own personal right and interest – under article II, section

366a
8 of the California Constitution and the California statutes relating to initiative proponents – to propose an initiative measure and have the measure submitted to the voters for approval or rejection. In preelection cases, the official initiative proponents possess a distinct interest in defending the proposed initiative because they are acting to vindicate their own right under the relevant California constitutional and statutory provisions to have their proposed measure – a measure they have submitted to the Attorney General, have circulated for signature, and have the exclusive right to submit to the Secretary of State after signatures have been collected – put to a vote of the people. Because in the preelection context the initiative measure has not been approved and enacted into law, the state’s interest in defending the validity of an enacted state law does not come into play.17
Once an initiative measure has been approved by the requisite vote of electors in an election, however, the measure becomes a duly enacted constitutional amendment or statute. At that point, in the absence of a showing that the particular initiative in question will differentially affect the official proponents’ own
17 This does not mean that state officials cannot participate in such litigation and take a position on whether the preelection challenge has merit. (See, e.g., Schmitz v. Younger (1978) 21 Cal.3d 90, 93, 145 Cal.Rptr. 517, 577 P.2d 652.) Because the measure has not yet been adopted, however, public officials would not be representing the state’s interest in defending a duly enacted law.

367a
property, liberty or other individually possessed legal right or legally protected interest, it is arguably less clear that the official proponents possess a personal legally protected stake in the initiative’s validity that differs from that of each individual who voted for the measure or, indeed, from that of the people of the state as a whole. Although the matter is subject to reasonable debate, one may question whether the official proponents of a successful initiative measure, any more than legislators who have introduced and successfully shepherded a bill through the legislative process, can properly claim any distinct or personal legally protected stake in the measure once it is enacted into law. Nonetheless, as we have seen, the decisions of this court and the Courts of Appeal in postelection challenges to voter-approved initiative measures have uniformly permitted the official proponents of an initiative measure to intervene, or to appear as real parties in interest, to defend the validity of the challenged initiative measure. In the postelection setting, the ability of official initiative proponents to intervene or to appear as a real parties in interest has never been contingent upon the proponents’ demonstration that their own personal property, liberty, reputation, or other individually possessed, legally protected interests would be adversely or differentially affected by a judicial decision invalidating the initiative measure. (See, e.g., Brosnahan v. Eu, supra, 31 Cal.3d 1, 181 Cal.Rptr. 100, 641 P.2d 200 [initiative measure imposing legislative term limits and limiting legislative budget]; City of Santa Monica v. Stewart, supra, 126

368a
Cal.App.4th 43, 24 Cal.Rptr.3d 72 [initiative measure limiting employment by public officials after leaving public service].) Plaintiffs have not cited, and our research has not disclosed, any decision in which the official proponents of an initiative measure were precluded from intervening or appearing as real parties in interest in a postelection case challenging the measure’s validity, even when they did not have the type of distinct personal, legally protected interest in the subject matter of the initiative measure that would ordinarily support intervention or real party in interest status on a particularized interest basis. Instead, they have been permitted to participate as parties in such litigation simply by virtue of their status as official proponents of the challenged measure.
As already noted, although most of our prior cases have not had occasion to discuss or analyze the source of the authority possessed by the official proponents of an initiative to intervene in a postelection challenge to defend the initiative measure the proponents have sponsored, one case – Building Industry Assn., supra, 41 Cal.3d 810, 226 Cal.Rptr. 81, 718 P.2d 68 – does illuminate this court’s uniform practice of permitting official initiative proponents to participate as parties in such postelection cases.
In Building Industry Assn., supra, 41 Cal.3d 810, 226 Cal.Rptr. 81, 718 P.2d 68, the issue before the court concerned the validity and proper interpretation of a then recently enacted statutory provision – Evidence Code section 669.5 – that, among other

369a
things, placed the burden of proof on any city, county, or city and county that adopted an ordinance limiting future residential development to show, in any proceeding challenging the validity of the ordinance, that the ordinance “is necessary for the protection of the [municipality’s] public health, safety, or welfare” (Evid.Code, § 669.5, subd. (b)). The specific question before the court was whether the new provision – shifting to the municipality the burden of proof on this issue – applied to a growth control ordinance that had been adopted through the initiative process or whether the new provision applied only to ordinances enacted by the local legislative body.
In the course of its opinion, the court in Building Industry Assn., supra, 41 Cal.3d 810, 226 Cal.Rptr. 81, 718 P.2d 68, addressed a legal argument advanced by an amicus curiae to support the position that the statute could not properly be interpreted to apply to an ordinance adopted through the initiative process. The court stated: “Amicus [curiae] . . . argues that section 669.5 substantially impairs the ability of the people to exercise initiative power because the proponents of the initiative would not have an effective way to defend it. Despite the fact that the city or county would have a duty to defend the ordinance, a city or county might not do so with vigor if it has underlying opposition to the ordinance. Furthermore, the proponents of the initiative have no guarantee of being permitted to intervene in the action, a matter which is discretionary with the trial court. (See Code Civ. Proc., § 387.) This argument would have merit if

370a
intervention was unavailable. But when a city or county is required to defend an initiative ordinance and, because of Evidence Code section 669.5, must shoulder the burden of proving reasonable relationship to public health, safety or welfare, we believe the trial court in most instances should allow intervention by proponents of the initiative. To fail to do so may well be an abuse of discretion. Permitting intervention by the initiative proponents under these circumstances would serve to guard the people’s right to exercise initiative power, a right that must be jealously defended by the courts.” (41 Cal.3d at p. 822, 226 Cal.Rptr. 81, 718 P.2d 68.)
Although this passage in Building Industry Assn., supra, 41 Cal.3d 810, 226 Cal.Rptr. 81, 718 P.2d 68, was directed at the specific context at issue in that case – involving the burden-shifting provision of Evidence Code section 669.5 – in our view the passage is properly understood as more broadly instructive in a number of respects.
First, the passage recognizes that although public officials ordinarily have the responsibility of defending a challenged law, in instances in which the challenged law has been adopted through the initiative process there is a realistic risk that the public officials may not defend the approved initiative measure “with vigor.” (Building Industry Assn., supra, 41 Cal.3d at p. 822, 226 Cal.Rptr. 81, 718 P.2d 68.) This enhanced risk is attributable to the unique nature and purpose of the initiative power, which gives the people the right to adopt into law measures

371a
that their elected officials have not adopted and may often oppose.
Second, the passage explains that because of the risk that public officials may not defend an initiative’s validity with vigor, a court should ordinarily permit the official proponents of an initiative measure to intervene in an action challenging the validity of the measure in order “to guard the people’s right to exercise initiative power.” (Building Industry Assn., supra, 41 Cal.3d at p. 822, 226 Cal.Rptr. 81, 718 P.2d 68.) Because official initiative proponents are permitted to intervene in order to supplement the efforts of public officials who may not defend the measure with vigor, it is appropriate to view the proponents as acting in an analogous and complementary capacity to those public officials, namely as asserting the people’s interest (or, in other words, the state’s interest) in the validity of a duly enacted law. And because the passage clearly states that “[p]ermitting intervention by the initiative proponents . . . would serve to guard the people’s right to exercise initiative power” (ibid., italics added), it is apparent that the official proponents of the initiative are participating on behalf of the people’s interest, and not solely on behalf of the proponents’ own personal interest.
Third, contrary to plaintiffs’ contention that the numerous decisions permitting initiative proponents to intervene or to appear as real parties in interest in postelection litigation challenging an initiative measure simply reflect unfettered discretionary judgments in favor of the proponents’ participation, the passage

372a
in Building Industry Assn., supra, 41 Cal.3d 810, 226 Cal.Rptr. 81, 718 P.2d 68, states that even when public officials are defending a challenged initiative in pending litigation, “the trial court in most instances should allow intervention by proponents of the initiative” (id. at p. 822, 226 Cal.Rptr. 81, 718 P.2d 68), and that “[t]o fail to do so may well be an abuse of discretion.” (Ibid.) Because Building Industry Assn. indicates that in most instances it would be an abuse of discretion for a court to preclude intervention by the official initiative proponents even in instances in which the named government defendants are defending the measure, in our view there can be no question but that it would be an abuse of discretion for a court to preclude the official proponents from intervening to defend a challenged initiative measure when the named government defendants have declined to defend the initiative measure. In the latter setting, the official proponents’ ability to intervene indisputably is necessary “to guard the people’s right to exercise initiative power.” (Ibid.)
Plaintiffs argue that the passage in Building Industry Assn., supra, 41 Cal.3d 810, 226 Cal.Rptr. 81, 718 P.2d 68, we have been analyzing should properly be considered dictum and should not be followed. Plaintiffs apparently rely on the fact there is no indication in the Building Industry Assn. decision that the official proponents who had sponsored the initiative ordinance at issue in that case had sought and been denied the right to intervene in the underlying action challenging the ordinance. Proponents take

373a
issue with plaintiffs’ characterization of this passage as dictum, pointing out that the passage explicitly states that the argument advanced by the amicus curiae – that is, that Evidence Code section 669.5 could not constitutionally be interpreted to apply to ordinances enacted through the initiative process because such application would substantially impair the initiative process – “would have merit if intervention was unavailable.” (41 Cal.3d at p. 822, 226 Cal.Rptr. 81, 718 P.2d 68.) Proponents maintain that this statement demonstrates that the discussion of the ability of official initiative proponents to intervene in such actions was essential to the court’s conclusion that the statute could constitutionally be applied to ordinances enacted through the initiative process.
In our view, there is no need to decide whether the passage in Building Industry Assn. is properly considered a holding or dictum, because in any event we believe that the passage accurately describes at least one fundamental basis of this court’s uniform practice of permitting the official proponents of an initiative to intervene or to appear as real parties in interest in cases challenging the validity of a voterapproved initiative measure. The statement in Building Industry Assn. that permitting intervention by such proponents serves to guard the people’s right to exercise the initiative power finds support in numerous cases in which official initiative proponents advanced many of the most substantial legal theories that were raised in support of the challenged measure

374a
and were discussed in this court’s opinion. (See, e.g., Strauss, supra, 46 Cal.4th 364, 465-469, 93 Cal.Rptr.3d 591, 207 P.3d 48; Hotel Employees Union, supra, 21 Cal.4th 585, 605-612, 88 Cal.Rptr.2d 56, 981 P.2d 990; Amwest, supra, 11 Cal.4th 1243, 12561265, 48 Cal.Rptr.2d 12, 906 P.2d 1112; Calfarm Ins. Co. v. Deukmejian, supra, 48 Cal.3d 805, 819-821, 258 Cal.Rptr. 161, 771 P.2d 1247; see also Citizens for Jobs & the Economy v. County of Orange, supra, 94 Cal.App.4th 1311, 1316-1323, 115 Cal.Rptr.2d 90; Community Health Assn. v. Board of Supervisors, supra, 146 Cal.App.3d 990, 991-993, 194 Cal.Rptr. 557.) These decisions highlight the different perspectives regarding the validity or proper interpretation of a voter-approved initiative measure often held by the official proponents of the initiative measure and by the voters who enacted the measure into law, as contrasted with those held by the elected officials who ordinarily defend challenged state laws, and demonstrate that the role played by the proponents in such litigation is comparable to the role ordinarily played by the Attorney General or other public officials in vigorously defending a duly enacted state law and raising all arguable legal theories upon which a challenged provision may be sustained.
The experience of California courts in reviewing challenges to voter-approved initiative measures over many years thus teaches that permitting the official proponents of an initiative to participate as parties in postelection cases, even when public officials are also defending the initiative measure, often is essential to

375a
ensure that the interests and perspective of the voters who approved the measure are not consciously or unconsciously subordinated to other public interests that may be championed by elected officials, and that all viable legal arguments in favor of the initiative’s validity are brought to the court’s attention. Although the legal arguments advanced by the official proponents of an initiative are not always the strongest or most persuasive arguments regarding the validity or proper interpretation of the initiative measure that are brought to a court’s attention, past decisions demonstrate the importance of affording such proponents the opportunity to participate, along with elected officials, in asserting the state’s interest in the validity of a challenged initiative measure. Such participation by the official initiative proponents enhances both the substantive fairness and completeness of the judicial evaluation of the initiative’s validity and the appearance of procedural fairness that is essential if a court decision adjudicating the validity of a voter-approved initiative measure is to be perceived as legitimate by the initiative’s supporters.
Moreover, although our past decisions have not had occasion to discuss or identify the specific source of the authority possessed by the official proponents of an initiative measure to assert the state’s interest in the initiative’s validity, we conclude that at least in those circumstances in which the government officials who ordinarily defend a challenged statute or constitutional amendment have declined to provide

376a
such a defense or to appeal a lower court decision striking down the measure, the authority of the official proponents of the initiative to assert the state’s interest in the validity of the initiative is properly understood as arising out of article II, section 8 of the California Constitution and the provisions of the Elections Code relating to the role of initiative proponents. The initiative power would be significantly impaired if there were no one to assert the state’s interest in the validity of the measure when elected officials decline to defend it in court or to appeal a judgment invalidating the measure.18 Under article II, section 8 and the Elections Code, the official proponents of an initiative measure have a unique relationship to the voter-approved measure that makes them especially likely to be reliable and
18 Plaintiffs point out that the invalidation of Proposition 8 in the underlying federal litigation did not result from any action or inaction by the Governor or Attorney General but from a decision by the federal district court after a contested trial. Ordinarily, however, public officials who are defending a state law against a constitutional challenge can be expected to appeal an adverse trial court judgment to an appellate court. Indeed, from the outset of the federal district court proceedings in the underlying case, the district court itself emphasized its expectation that its decision would constitute only the first stage of proceedings that would lead to an appellate court determination of the significant constitutional question at issue in the proceeding. The inability of the official proponents of an initiative measure to appeal a trial court judgment invalidating the measure, when the public officials who ordinarily would file such an appeal decline to do so, would significantly undermine the initiative power.

377a
vigorous advocates for the measure and to be so viewed by those whose votes secured the initiative’s enactment into law. As we have seen, the Legislature has recognized the unique role played by official proponents in the initiative process embodied in article II, section 8, by enacting numerous provisions placing upon the proponents the direct responsibility to manage and control the ballot-qualifying and petition-filing process, as well as authorizing proponents to control the arguments in favor of the initiative that appear in the official voter information guide published by the Secretary of State. (See, e.g., Elec.Code, §§ 9607, 9608, 9609, 9032, 9064, 9065, subd. (d), 9069, 9601.) Thus, regardless of the initiative’s effect on their personal and particularized legally protected interests, the official proponents are the most logical and appropriate choice to assert the state’s interest in the validity of the initiative measure on behalf of the electors who voted in favor of the measure.19
19 Because the Ninth Circuit has asked us to determine only whether the official proponents of an initiative measure have authority under California law to assert the state’s interest in the validity of an initiative when the public officials who ordinarily defend the measure decline to do so, we have no occasion to address the hypothetical question whether in a case in which public officials have declined to defend the measure and the official initiative proponents are not available or do not seek to assert the state’s interest in the validity of the measure, other individuals or entities would be entitled to intervene in the proceeding to assert the state’s interest in the validity of the initiative. We express no opinion on that question.

378a
Accordingly, we conclude that when the public officials who ordinarily defend a challenged measure decline to do so, article II, section 8 of the California Constitution and the applicable provisions of the Elections Code authorize the official proponents of an initiative measure to intervene or to participate as real parties in interest in a judicial proceeding to assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure.
B. Plaintiffs’ Objections to Official Initiative Proponents’ Authority to Assert the State’s Interest in the Validity of a Voter-approved Initiative
Plaintiffs advance a number of objections to a determination that the official proponents of an initiative are authorized to assert the state’s interest in the validity of a voter-approved initiative when the public officials who ordinarily defend a challenged state law decline to do so. For the reasons discussed below, we conclude that none of the objections has merit.
1.
Plaintiffs initially rely upon the provisions of the California Constitution setting forth the authority and obligation of the Governor and the Attorney General with regard to the enforcement of the law

379a
(Cal. Const., art. V, §§ 1, 13),20 and upon the California statutory provisions designating the Attorney General’s role in court actions against the state. (Gov.Code, §§ 12511, 12512; Code Civ. Proc., § 902.1.)21 Plaintiffs maintain that these constitutional and statutory provisions mean that the Attorney General is the only person who can assert the state’s interest in defending a challenged law and preclude initiative proponents from asserting the state’s interest in the validity of a challenged law. Plaintiffs insist that when the Attorney General declines to provide such a defense, the sole remedy of those who object to the Attorney General’s action is “at the ballot box.”
20 Article V, section 1 of the California Constitution provides in full: “The supreme executive power of this State is vested in the Governor. The Governor shall see that the law is faithfully executed.”
Article V, section 13 of the California Constitution provides in relevant part: “Subject to the powers and duties of the Governor, the Attorney General shall be the chief law officer of the State. It shall be the duty of the Attorney General to see that the laws of the State are uniformly and adequately enforced.”
21 Government Code section 12511 provides in relevant part: “The Attorney General has charge, as attorney, of all legal matters in which the State is interested. . . .”
Government Code, section 12512 provides: “The Attorney General shall attend the Supreme Court and prosecute or defend all causes to which the State, or any State officer is a party in his or her official capacity.”
Code of Civil Procedure, section 902.1 authorizes the Attorney General to intervene and participate in any appeal in any proceeding in which a state statute or regulation has been declared unconstitutional by a court.

380a
The constitutional and statutory provisions to which plaintiffs point establish that in a judicial proceeding in which the validity of a state law is challenged, the state’s interest in the validity of the law is ordinarily asserted by the state Attorney General. These constitutional and statutory provisions, however, have never been interpreted to mean that the Attorney General is the only person or entity that may assert the state’s interest in the validity of a state law in a proceeding in which the law’s validity is at issue.
The State of California, of course, is composed of three branches of government, a great number of elected and appointed public officials, and myriad state and local agencies, boards, and public entities. In many instances the interests of two or more public officials or entities may conflict and give rise to differing official views as to the validity or proper interpretation of a challenged state law. In such instances, it is not uncommon for different officials or entities to appear in a judicial proceeding as distinct parties and to be represented by separate counsel, each official or entity presenting its own perspective of the state’s interest with regard to the constitutional challenge or proposed interpretation at issue in the case.
The case of Amwest, supra, 11 Cal.4th 1243, 48 Cal.Rptr.2d 12, 906 P.2d 1112, provides an apt illustration. In Amwest, shortly after the voters approved Proposition 103 – a broad insurance reform initiative measure that, among other things, required

381a
a rollback of insurance rates – the plaintiff insurer filed a petition for writ of mandate in superior court, alleging that application of the rate rollback provisions of Proposition 103 to surety insurers would violate the constitutional rights of such insurers. The petition named the Governor, the Attorney General, the State Board of Equalization, and the Insurance Commissioner as defendants. While the proceeding was pending in superior court, the Legislature enacted a statute – Insurance Code section 1861.135 – that purported to exempt surety insurers from the rate rollback provisions of Proposition 103. The validity of the new statute was called into question in the Amwest proceeding, because there was a dispute whether the statute was a constitutionally impermissible attempt to revise Proposition 103 without submitting the revision to a vote of the people (see Cal. Const., art. II, § 10, subd. (c)) or instead whether the statute furthered the purpose of Proposition 103 and thus was permissible under the explicit terms of Proposition 103 itself. (See Amwest, supra, at p. 1247, 48 Cal.Rptr.2d 12, 906 P.2d 1112.)
Although Amwest is one of the many California cases, cited above, in which an initiative proponent was permitted to intervene as a formal party and to appeal an adverse decision (see ante, 134 Cal.Rptr.3d at pp. 522-524, 265 P.3d at pp. 1021-1023), Amwest is also a case in which the named government defendants themselves took conflicting positions regarding the validity of the new statute. In that case, the Governor, the Attorney General, and the

382a
State Board of Equalization – all represented by the Attorney General – maintained that the new statute was constitutionally valid. By contrast, the Insurance Commissioner – represented by separate counsel – took the position that the new statute did not further the purpose of Proposition 103 and was invalid. (See Amwest, supra, 11 Cal.4th at p. 1251, fn. 8, 48 Cal.Rptr.2d 12, 906 P.2d 1112.) Although some of the government defendants in Amwest (the Governor, the Attorney General and the State Board of Equalization) were defending the validity of the new statutory measure adopted by the Legislature whereas the remaining government defendant (the Insurance Commissioner) was defending the integrity of the voter-approved initiative measure, each government defendant could accurately be described as asserting the state’s interest in the validity and proper application and interpretation of a duly enacted state law. In that proceeding, the Attorney General was not the sole or exclusive representative of the state’s interest in the validity and proper interpretation of a duly enacted state statute.
As Amwest illustrates, it is hardly uncommon for public officials or entities to take different legal positions with regard to the validity or proper interpretation of a challenged state law. (See, e.g., In re Marriage Cases, supra, 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384 [Prop. 22]; Legislature v. Eu, supra, 54 Cal.3d 492, 500, 286 Cal.Rptr. 283, 816 P.2d 1309 [Prop. 140]; Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22

383a
Cal.3d 208, 149 Cal.Rptr. 239, 583 P.2d 1281 [Prop. 13].)
Moreover, even when there is neither a conflict of interest nor a difference of opinion among the government officials or entities named in the litigation, in those instances in which the Attorney General or another public official declines to defend a state statute or constitutional provision in a court proceeding because of that official’s view that the challenged provision is unconstitutional, other public officials or entities, represented by separate counsel, have been permitted to assert the state’s interest in defending the challenged law. (See, e.g., Connerly v. State Personnel Bd., supra, 37 Cal.4th 1169, 1174, 39 Cal.Rptr.3d 788, 129 P.3d 1.) Permitting other officials to present legal arguments in defense of a challenged state law when the Attorney General has declined to do so does not mean that the Attorney General has violated his or her duty or acted improperly in declining to defend the law. Even when the Attorney General has discretion to decline to defend a challenged law or to appeal a lower court ruling invalidating the law, the Attorney General’s decision to exercise discretion in that fashion does not preclude other officials or entities from defending the challenged law or appealing an adverse judgment. Although the Attorney General’s legal judgment may appropriately guide that official’s own discretionary actions, the validity or proper interpretation of a challenged state constitutional provision or statute is, of course, ultimately a matter to be determined by the

384a
courts, not the Attorney General. (Cf., e.g., Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055, 17 Cal.Rptr.3d 225, 95 P.3d 459.) We are aware of no case that has held or suggested that the Attorney General may preclude others from defending a challenged state law or from appealing a judgment invalidating the law when the Attorney General has declined to provide such a defense or take an appeal.22
Thus, the constitutional and statutory provisions relating to the Attorney General’s authority and responsibilities do not preclude others from asserting the state’s interest in the validity of a challenged law.
2.
Plaintiffs next argue that appearing in court to assert the state’s interest in the validity of a challenged law or to appeal a judgment invalidating the law is exclusively an executive branch function. Because the authority to propose and adopt state
22 Plaintiffs’ reliance on the Court of Appeal’s ruling in Beckley v. Schwarzenegger (Sept. 1, 2010, No. C065920), summarily denying a petition for writ of mandate that sought to compel the Governor and the Attorney General to file notices of appeal from the federal district court’s decision in Perry, is misplaced. The question whether the Governor or the Attorney General has discretion to decline to defend a challenged law or to appeal a lower court ruling invalidating the law is totally distinct from the issue whether some other official or individual has standing to do so, and thus the order in Beckley has no bearing on the determination whether the official proponents of an initiative have standing to file such an appeal.

385a
constitutional amendments or statutes embodied in the initiative provisions of the California Constitution is essentially a legislative authority (see, e.g., Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016, 1038, 56 Cal.Rptr.3d 814, 155 P.3d 226; AFL-CIO v. Eu (1984) 36 Cal.3d 687, 715, 206 Cal.Rptr. 89, 686 P.2d 609), plaintiffs maintain that it would violate the separation of powers doctrine to permit the official proponents of an initiative to assert the state’s interest in defending a challenged measure.
Past authority, however, does not support plaintiffs’ claim that appearing as a party in court to assert the state’s interest in the validity of a challenged law is exclusively an executive function. In INS v. Chadha (1983) 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (Chadha), for example, the United States Supreme Court stated emphatically: “We have long held that Congress is the proper party to defend the validity of a statute when an agency of government, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is inapplicable or unconstitutional.”23 (Chadha, at p. 940, 103 S.Ct.
23 In Chadha, a federal statutory provision that authorized either house of Congress, by resolution of that house alone, to invalidate a decision by the Immigration and Naturalization Service (INS) to allow a particular deportable alien to remain in the United States was challenged as a violation of the separation of powers doctrine. In that proceeding, the INS – represented by the United States Attorney General – agreed with the petitioner alien’s claim that the one-house veto provision was
(Continued on following page)

386a
2764.) And, as discussed earlier in this opinion, the United States Supreme Court held in Karcher, supra, 484 U.S. 72, 108 S.Ct. 388, that, when authorized by state law, leaders of a state’s legislative branch are permitted to appear as parties to assert the state’s interest in the validity of a challenged statute when the state’s executive officials decline to do so.24
Although we are not aware of any California case in which the Legislature has appeared as a formal party to defend a challenged state law when the
unconstitutional, and Congress was permitted to intervene in the Court of Appeals to defend the challenged statute. When the case reached the Supreme Court, the high court explicitly held that “Congress is both a proper party to defend the constitutionality of [the challenged statute] and a proper petitioner under 28 U.S.C. § 1254(1).” (Chadha, supra, 462 U.S. at p. 939, 103 S.Ct. 2764.)
24 The propriety of congressional or legislative participation in court proceedings in defense of a challenged statute is also illustrated by the circumstances surrounding the United States Attorney General’s recent decision to cease defending the validity of a provision of the federal Defense of Marriage Act (1 U.S.C. § 7) in court actions challenging that statute. At the same time the Attorney General announced that he would no longer defend the statute in question because he and the President of the United States had concluded that the measure was unconstitutional, the Attorney General stated: “I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option. The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation.” (Statement of the Atty. Gen. on Litigation Involving the Defense of Marriage Act (Feb. 23, 2011) <http://www.justice.gov/opa/pr/ 2011/February/11-ag-222.html> [as of Nov. 17, 2011].)

387a
Attorney General or other public officials have declined to do so, plaintiffs have cited no case that supports the claim that it would violate the separation of powers doctrine embodied in the California Constitution for the Legislature to provide such a defense when other public officials decline to do so. In a number of California cases, the Legislature or one of its constituent houses has appeared as a party in litigation challenging the validity of a proposed or adopted initiative or referendum measure (see, e.g., Senate of the State of Cal. v. Jones, supra, 21 Cal.4th 1142, 1156, fn. 9, 90 Cal.Rptr.2d 810, 988 P.2d 1089; Legislature v. Eu, supra, 54 Cal.3d 492, 286 Cal.Rptr. 283, 816 P.2d 1309; Legislature v. Deukmejian, supra, 34 Cal.3d 658, 194 Cal.Rptr. 781, 669 P.2d 17; Assembly v. Deukmejian, supra, 30 Cal.3d 638, 180 Cal.Rptr. 297, 639 P.2d 939) – often in instances in which the Attorney General or other executive officials took a position contrary to the Legislature’s regarding the validity of the measure (see, e.g., Legislature v. Eu, supra, 54 Cal.3d 492, 286 Cal.Rptr. 283, 816 P.2d 1309; Legislature v. Deukmejian, supra, 34 Cal.3d 658, 194 Cal.Rptr. 781, 669 P.2d 17; Assembly v. Deukmejian, supra, 30 Cal.3d 638, 180 Cal.Rptr. 297, 639 P.2d 939). These cases belie any suggestion that such action by the Legislature in any way usurped or interfered with the executive officials’ performance of their executive function. (See also Californians for an Open Primary v. McPherson (2006) 38 Cal.4th 735, 43 Cal.Rptr.3d 315, 134 P.3d 299 [Legislature, represented by separate counsel, appeared as real party in interest to defend validity

388a
of voter-approved constitutional amendments submitted to electorate by Legislature]; Kopp v. Fair Pol. Practices Com., supra, 11 Cal.4th 607, 614, 47 Cal.Rptr.2d 108, 905 P.2d 1248 [Legislature permitted to intervene to defend the validity of the defendant commission’s actions when the commission itself took a neutral position with respect to the challenge to its actions].)
Accordingly, we find no merit in plaintiffs’ claim that appearing in court to assert the state’s interest in the validity of a challenged law is exclusively an executive function or that it would violate the separation of powers doctrine to permit the official proponents of an initiative to assert the state’s interest in the validity of the initiative in a judicial proceeding in which the validity of the measure is challenged. Furthermore, because there is no reason to doubt that the California Legislature, like the United States Congress in Chadha, supra, 462 U.S. 919, 103 S.Ct. 2764, or the New Jersey Legislature in Karcher, supra, 484 U.S. 72, 108 S.Ct. 388, would have authority to step in to assert the state’s interest in the validity of a statute enacted by the Legislature if the state’s executive officials have declined to defend the statute’s validity in a court proceeding, we conclude that the people are no less entitled to have the state’s interest in the validity of a voter-approved initiative asserted on their behalf when public officials decline to defend the measure.

389a
3.
Plaintiffs also raise another, somewhat related, separation of powers claim, contending that permitting an initiative proponent to assert the state’s interest in the validity of a challenged initiative measure will interfere with the Attorney General’s exercise of the powers of his or her office in representing the state’s interest. Our recognition that official initiative proponents are authorized to assert the state’s interest in an initiative’s validity when public officials have declined to defend the measure, however, does not mean, as plaintiffs suggest, that the proponents are authorized to “override” the Attorney General’s or other public officials’ authority to make their own decisions regarding the defense of the measure. As we have discussed, in many past cases initiative proponents have been permitted to participate as formal parties defending an initiative measure along with the public officials named as defendants, and in those instances each party has been permitted to proffer its own arguments and control its own actions in defense of the initiative.
Similarly, the ability of official initiative proponents to defend a challenged initiative measure on behalf of the state is not inconsistent with the discretion the Attorney General may possess to decline to defend a challenged measure or to decline to appeal from an adverse judgment when the Attorney General is of the view that a challenged initiative measure is unconstitutional. (Cf. State of California v. Superior Court (1986) 184 Cal.App.3d 394, 229

390a
Cal.Rptr. 74.) As already discussed, even when the Attorney General has discretion to decline to defend a state constitutional provision or statute in a court proceeding challenging the measure, the Attorney General does not have authority to prevent others from mounting a defense on behalf of the state’s interest in the validity of the measure. For example, in the underlying proceedings in the Perry litigation, had any of the other public officials who were named as defendants chosen to present a substantive defense of the challenged measure or to appeal the adverse judgment entered by the trial court, the Attorney General could not have prevented that public official from presenting a defense or filing an appeal and could not persuasively maintain that the presentation of such a defense or the filing of such an appeal by another defendant would constitute an improper interference with the Attorney General’s exercise of his or her official authority. By the same token, the authority of official initiative proponents to participate as a formal party to defend a challenged initiative, and to appeal a judgment invalidating the measure, does not improperly interfere with the Attorney General’s authority and does not violate the separation of powers doctrine.
4.
Plaintiffs also contend that because the official proponents of an initiative measure are private individuals who have not been elected to public office, take no oath to uphold the California Constitution or

391a
laws, cannot be recalled or impeached, and are not subject to the conflict of interest rules or other ethical standards that apply to public officials, they cannot properly assert the state’s interest in the validity of a challenged initiative measure.
Our determination that the official proponents of an initiative are authorized to assert the state’s interest in the validity of the initiative measure when public officials have declined to defend the measure, however, does not mean that the proponents become de facto public officials or possess any official authority to enact laws or regulations or even to directly enforce the initiative measure in question. Rather, the authority the proponents possess in this context is simply the authority to participate as a party in a court action and to assert legal arguments in defense of the state’s interest in the validity of the initiative measure when the public officials who ordinarily would assert the state’s interest in the validity of the measure have not done so. This authority is extremely narrow and limited and does not imply any authority to act on behalf of the state in other respects. Because of the limited nature of the proponents’ authority, they are properly subject to the same ethical constraints that apply to all other parties in a legal proceeding.
As discussed above, we recognized in Building Industry Assn., supra, 41 Cal.3d at page 822, 226 Cal.Rptr. 81, 718 P.2d 68, that because of the fundamental purpose and unique nature of the initiative process – a process designed to give the people of

392a
California the authority to directly adopt constitutional amendments or statutes that their elected officials have refused or declined to adopt and may often oppose – there is an increased risk, even when public officials are defending a challenged initiative measure, that the public officials may fail to defend the measure with vigor. As a consequence, we indicated in Building Industry Assn. that even in such circumstances a court generally should permit the official proponents of an initiative to intervene in the proceeding “to guard the people’s exercise of initiative power.” (Ibid.) When public officials totally decline to defend a challenged initiative measure, the state’s interest in the initiative’s validity would go completely undefended, and the voters who enacted the initiative measure into law would be entirely deprived of having the state’s interest in the initiative’s validity asserted on their behalf, unless some private individual or entity is permitted to assert that interest on the voters’, that is to say, the people’s, behalf. Because of their special relationship to the initiative measure, the official proponents of the measure are the most obvious and logical private individuals to ably and vigorously defend the validity of the challenged measure on behalf of the interests of the voters who adopted the initiative into law, and thus to assert the state’s interest in the initiative’s validity when public officials have declined to do so.
Moreover, even outside the initiative context it is neither unprecedented nor particularly unusual under California law for persons other than public

393a
officials to be permitted to participate as formal parties in a court action to assert the public’s or the state’s interest in upholding or enforcing a duly enacted law. For example, under the so-called “public interest” exception in mandate actions, private citizens have long been authorized to bring a mandate action to enforce a public duty involving the protection of a public right in order to ensure that no government body impairs or defeats the purpose of legislation establishing such a right. (See, e.g., Green v. Obledo (1981) 29 Cal.3d 126, 144-145, 172 Cal.Rptr. 206, 624 P.2d 256; Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 439, 261 Cal.Rptr. 574, 777 P.2d 610; see generally 8 Witkin, Cal. Procedure (5th ed. 2008) Extraordinary Writs, § 84, pp. 970973.) Similarly, under the well-established private attorney general doctrine, private individuals are permitted to act in support of the public interest by bringing lawsuits to enforce state constitutional or statutory provisions in circumstances in which enforcement by public officials may not be sufficient. (See, e.g., Serrano v. Priest (1977) 20 Cal.3d 25, 42-47, 141 Cal.Rptr. 315, 569 P.2d 1303; Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 933, 941-942, 154 Cal.Rptr. 503, 593 P.2d 200.)25
25 We note that in both the public interest and private attorney general contexts, the authority of private individuals to act on behalf of the public interest under California law was initially recognized by judicial decision notwithstanding the absence of any specific constitutional or statutory provision expressly granting such authority. (See, e.g., Green v. Obledo,
(Continued on following page)

394a
Indeed, the authority of the official proponents of an initiative to assert the state’s interest in the present context is a more modest authority than the authority exercised by private individuals under either the public-interest mandate exception or the private attorney general doctrine, because under those doctrines private individuals are authorized to act affirmatively on behalf of the public and institute proceedings to enforce a public right, whereas the authority possessed by the official initiative proponents in the present context is simply a passive, defensive authority to step in to assert the state’s interest in the validity of a challenged measure when the initiative has been challenged by others in a judicial proceedings and public officials have declined to defend the measure.
In sum, even though the official proponents of an initiative measure are not public officials the role they play in asserting the state’s interest in the validity of an initiative measure in this judicial setting does not threaten the democratic process or the proper governance of the state, but, on the contrary, serves to safeguard the unique elements and integrity of the initiative process.
supra, 29 Cal.3d at pp. 144-145, 172 Cal.Rptr. 206, 624 P.2d 256, and cases cited; Serrano v. Priest, supra, 20 Cal.3d at pp. 45-47, 141 Cal.Rptr. 315, 569 P.2d 1303.)

395a
5.
Finally, plaintiffs suggest that a determination that the official proponents of an initiative are authorized to assert the state’s interest in the validity of a challenged initiative in a court proceeding will result in untoward consequences in other contexts.
For example, plaintiffs contend that if official initiative proponents are permitted to assert the state’s interest in an initiative’s validity and to appeal an adverse judgment when the Attorney General and other public officials have declined to do so, the proponents’ action in filing an appeal may subject the state to substantial monetary liability for attorney fees should the proponents’ efforts in support of the challenged measure prove unsuccessful. The question of who should bear responsibility for any attorney fee award in such circumstances, however, is entirely distinct from the question whether the official proponents of an initiative are authorized to assert the state’s interest in the validity of a challenged initiative measure and is not before us in this proceeding. Our conclusion that official initiative proponents are authorized to assert the state’s interest in the validity of a challenged initiative measure when public officials decline to do so does not mean that any monetary liability incurred as a result of the proponents’ actions should or must be borne by the state. The attorney fee issue can properly be addressed if and when the question arises in the future. (Cf. Connerly v. State Personnel Bd., supra, 37 Cal.4th at pp. 11781179, 39 Cal.Rptr.3d 788, 129 P.3d 1 [distinguishing

396a
status of intervener initiative proponents from that of amicus curiae in concluding that amicus curiae could not properly be held liable for private-attorneygeneral attorney fee award].)
Similarly, we have no occasion in this case to address other legal questions that may arise in future cases if there is a conflict between the positions taken by initiative proponents and by other defendants who are appearing on behalf of the state. The issue before us is limited to the question whether official initiative proponents are authorized to appear as parties to assert the state’s interest in the validity of an initiative measure when the public officials who ordinarily provide such a defense have declined to do so. The numerous cases discussed above in which initiative proponents, Congress, or state legislative leaders have been permitted to intervene to present legal arguments regarding the validity and proper interpretation of a challenged law refute the claim that permitting an initiative’s official proponents to participate on this basis is unworkable or will inevitably result in detrimental consequences.
C. Out-of-state Decisions
As the foregoing discussion indicates, in reaching the conclusion that the official proponents of an initiative are authorized under California law to defend a challenged initiative measure and to appeal from a judgment invalidating the measure when public officials decline to defend the initiative, we

397a
have relied upon the history and purpose of the initiative provisions of the California Constitution and upon the numerous California decisions that have uniformly permitted the official proponents of initiative measures to appear as parties and defend the validity of the measures they have sponsored.
In addition, we note that in recent years each of the two other state supreme courts that has addressed the question whether the official proponents of an initiative measure have standing under state law to intervene in an action challenging the validity of the initiative measure has concluded that, under each state’s respective law, initiative proponents generally are authorized to intervene as of right in such an action in state court.
1.
In Alaskans for a Common Language v. Kritz (Alaska 2000) 3 P.3d 906 (Alaskans for a Common Language), the issue of standing arose in an action challenging the validity of a voter-approved initiative measure that – like the Arizona initiative involved in Arizonans for Official English, supra, 520 U.S. 43, 117 S.Ct. 1055 (see ante, 134 Cal.Rptr.3d at pp. 514515, 265 P.3d at pp. 1014-1016) – provided that English shall be used by all public agencies in all government functions and actions and in the preparation of all official public documents and records. Two organizations – the first, the official proponents of the initiative measure in Alaska, and the second, a

398a
national organization (U.S. English) that supported the Alaska measure – sought to intervene as formal parties in the trial court proceedings, but the trial court denied both requests on the ground that the interests of the would-be interveners were adequately represented by the government defendants who were defending the initiative measure in the proceeding. Both organizations appealed the trial court’s ruling denying intervention. On appeal, the Alaska Supreme Court reversed the trial court’s ruling insofar as it denied intervention by the official proponents of the measure but affirmed the lower court ruling insofar as it denied intervention by the other organization.
In analyzing the question of the official proponents’ right to intervene, the Alaska Supreme Court noted that prior to the vote on the initiative measure at issue in that case, the Attorney General’s Office had raised potential questions regarding the constitutionality of the measure and the Governor had personally opposed the measure during the election campaign. (Alaskans for a Common Language, supra, 3 P.3d at pp. 909-910.) Nonetheless, observing that courts generally “recognize a presumption of adequate representation when government entities are parties to a lawsuit because those entities are charged by law with representing the interests of the people” (id. at p. 913), the Alaska Supreme Court stated that “[b]ased on the presumption of adequate government representation, we presume the Attorney General’s Office would not fail to defend the constitutionality of the initiative energetically and capably.

399a
Based on that same presumption, we also presume that the governor would not interfere.” (Id. at p. 914.)
The court in Alaskans for a Common Language, supra, 3 P.3d 906, went on to explain, however, that despite the court’s presumption that the government defendants would energetically and capably defend the challenged measure, inasmuch as the initiative proponents had “used the process of direct legislation to enact a law that the executive branch questioned and opposed[,] [t]hey cannot be faulted for wanting to guarantee that the initiative is defended zealously or for trying to ensure that the credibility of institutional arguments in favor of the initiative is not diminished by the previous comments from the executive branch. To them, and to the public in sympathy with the initiative, the governor’s opposition and the Attorney General Office’s questions . . . during the campaign, could create an appearance of adversity. Every strategic decision made by the Attorney General’s Office in defending the legislation might be publicly questioned and second-guessed by the initiative’s sympathizers. That this suspicion may be unfounded does not make it less inevitable.” (3 P.3d at p. 914.)
The Alaska Supreme Court went on to conclude: “Here, because of the nature of direct legislation through the initiative process, the possible appearance of adversity of interest is sufficient to overcome the presumption of adequate representation. Indeed, we believe that an [initiative] sponsor’s direct interest in legislation enacted through the initiative process

400a
and the concomitant need to avoid the appearance of adversity will ordinarily preclude courts from denying intervention as of right to a sponsoring group.” (Alaskans for a Common Language, supra, 3 P.3d at p. 914, italics added.)26 Accordingly, the court held that the trial court erred in denying intervention by the official proponents of the initiative measure and reversed that portion of the trial court’s ruling.
The Alaska Supreme Court reached a contrary conclusion, however, with respect to the other organization that had sought intervention in the trial court. Pointing out that “[t]he record fails to show, and U.S. English has not asserted, that its directors, officers, or incorporators were sponsors of the initiative in Alaska or were members of the initiative committee” (Alaskans for a Common Language, supra, 3 P.3d at p. 916), the court found that “U.S. English has not established that its interest is any greater than a generalized interest of a political nature” (ibid.). It
26 The court added a narrow qualification to its broad holding that initiative proponents are entitled to intervene in such litigation as a matter of right, explaining that “Alaska courts should retain discretion to deny intervention in exceptional cases, because [the relevant Alaska statute relating to initiative sponsors] places no limit on the number of initiative sponsors and therefore potentially opens the door to an unlimited number of motions for intervention. As an alternative to limiting intervention in those cases, courts may instead choose to reduce duplication by requiring those sponsors with substantially similar interests to consolidate their briefing and to participate through lead counsel.” (Alaskans for a Common Language, supra, 3 P.3d at p. 914.)

401a
held that the organization did not qualify for intervention as a matter of right and that the trial court did not abuse its discretion in denying permissive intervention. (Ibid.)
2.
In Sportsmen for I-143 v. Fifteenth Jud. Court (2002) 308 Mont. 189, 40 P.3d 400 (Sportsmen for I-143), the Montana Supreme Court similarly addressed the general issue “whether the primary proponent of a ballot initiative has a legally protectable interest sufficient to allow it to intervene in a case challenging the resulting statute.” (Id. at p. 402.) As in Alaskans for a Common Language, supra, 3 P.3d 906, in Sportsmen for I-143 the trial court had denied a motion to intervene by the sponsors of the challenged initiative measure on the ground that the government defendant named in the proceeding – there, the Montana Department of Fish, Wildlife, and Parks – could adequately defend the measure. Although in that instance there was little reason to suspect that the named government defendant would not vigorously defend the initiative measure and the resulting legislation the initiative had engendered, the Montana Supreme Court nonetheless observed that the initiative proponents “who actively drafted and supported I-143 may be in the best position to defend their interpretation of the resulting legislation” (40 P.3d at p. 403) and held that, as a general matter, initiative proponents “are entitled to intervene as a matter of right “ in an action challenging

402a
the validity of the measure they have sponsored. (Ibid., italics added.)27
IV. Conclusion
In response to the question submitted by the Ninth Circuit, we conclude, for the reasons discussed above, that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.
WE CONCUR: KENNARD, BAXTER, WERDEGAR, CHIN, CORRIGAN, and LIU, JJ.
27 We note that both Alaskans for a Common Language, supra, 3 P.3d 906, and Sportsmen for I-143, supra, 308 Mont. 189, 40 P.3d 400, were decided after the United States Supreme Court’s decision in Arizonans for Official English, supra, 520 U.S. 43, 117 S.Ct. 1055. Those decisions confirm that the federal high court’s decision in Arizonans for Official English imposes no impediment to a state court’s determination that, under state law, an initiative proponent has the authority to intervene as of right in an action in state court challenging the validity of an initiative measure.

403a
Concurring Opinion by KENNARD, J.
While joining fully in the court’s unanimous opinion authored by the Chief Justice, I write separately to highlight the historical and legal events that have led to today’s decision and to explain why I concur in that decision.
I
This case marks the fourth time in recent years that this court has addressed issues related to the ongoing political and legal struggle about whether same-sex marriages should be recognized as valid in California. In 2004, this court held that San Francisco public officials exceeded their authority when they issued marriage licenses to same-sex couples without a prior judicial determination of the constitutionality of a California statute restricting marriage to heterosexual couples. (Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055, 17 Cal.Rptr.3d 225, 95 P.3d 459 (Lockyer).) Agreeing with the majority that, within our state government, determining the constitutional validity of state statutes is a task reserved to the judicial branch, I joined in that decision, except insofar as it declared void some 4,000 same-sex marriages performed in reliance on licenses issued in San Francisco. (Id. at p. 1125, 17 Cal.Rptr.3d 225, 95 P.3d 459 (conc. & dis. opn. of Kennard, J.).) My separate opinion in Lockyer explained that because the persons whose marriages were at issue were not before this court, and because judicial proceedings to determine the constitutionality

404a
of California laws barring same-sex marriage were then pending in other California courts, I would have refrained from determining the validity of those marriages. (Ibid.)
Thereafter, in May 2008, this court held that California’s statutory law denying same-sex couples the right to marry violated the privacy, due process, and equal protection provisions of our state Constitution as it then read. (In re Marriage Cases (2008) 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384 (Marriage Cases).) In addition to signing the majority opinion there, I wrote separately to explain in my own words why I rejected the argument that whether same-sex couples should be allowed to marry presented essentially “a social or political issue inappropriate for judicial consideration.” (Id. at p. 859, 76 Cal.Rptr.3d 683, 183 P.3d 384 (conc. opn. of Kennard, J.).) I wrote that “courts alone must decide whether excluding individuals from marriage because of sexual orientation can be reconciled with our state Constitution’s equal protection guarantee.” (Id. at p. 860, 76 Cal.Rptr.3d 683, 183 P.3d 384.)
Six months later, in November 2008, California’s voters approved Proposition 8, an initiative that amended California’s Constitution by adding a new provision expressly limiting marriage to heterosexual couples. (Cal. Const., art. I, § 7.5.) In May 2009, this court rejected state constitutional challenges to Proposition 8, determining that it had been validly enacted by the procedures prescribed for constitutional amendments, rather than the more rigorous procedures prescribed for constitutional revisions,

405a
and determining also that Proposition 8 did not violate the separation of powers doctrine. (Strauss v. Horton (2009) 46 Cal.4th 364, 93 Cal.Rptr.3d 591, 207 P.3d 48 (Strauss).) This court in that case also decided that Proposition 8 did not invalidate any marriages performed before its effective date. (Strauss, at p. 474, 93 Cal.Rptr.3d 591, 207 P.3d 48.) I signed the court’s opinion and wrote a concurring opinion in which I explained that although interpreting existing state constitutional provisions is a judicial responsibility, the voters retain legislative authority to alter the California Constitution’s language and thereby to “enlarge or reduce the personal rights that the state Constitution as so amended will thereafter guarantee and protect.” (Id. at p. 476, 93 Cal.Rptr.3d 591, 207 P.3d 48 (conc. opn. of Kennard, J.).)
In May 2009, shortly before this court issued its opinion rejecting the state-law challenges to Proposition 8 (Strauss, supra, 46 Cal.4th 364, 93 Cal.Rptr.3d 591, 207 P.3d 48), four individuals brought an action in federal district court challenging Proposition 8 on federal constitutional grounds. Named as defendants were the Governor, California’s Attorney General, and California’s Director of Public Health. None of those state public officials, however, litigated in defense of Proposition 8. The Governor and the Director of Public Health declined to take any position on the merits, while the Attorney General took the position that Proposition 8 violates the United States Constitution. The federal district court permitted Proposition 8’s official proponents to intervene, and it was they, and they alone, who defended the measure

406a
during the ensuing nonjury trial. (See maj. opn., ante, 134 Cal.Rptr.3d at pp. 505-509, 265 P.3d at pp. 10071010.)
After the trial, the federal district court issued an opinion concluding that Proposition 8 violates both the due process and the equal protection clauses of the federal Constitution. Only the initiative proponents appealed, to the United States Court of Appeals for the Ninth Circuit, which issued an order asking this court to decide, as a matter of state law, whether proponents of an initiative that the voters approved have either a “particularized interest” in the initiative’s validity or the authority to “assert the state’s interest” in defending the initiative. (See maj. opn., ante, 134 Cal.Rptr.3d at pp. 508-511, 265 P.3d at pp. 1010-1012.) Without deciding whether initiative proponents have a “particularized interest” in the initiative’s validity, this court’s unanimous opinion holds that under California law the official proponents of a voter-approved initiative have authority to “assert the state’s interest” in the validity of that initiative, and to appeal a judgment invalidating the initiative, when state officials have declined to do so. (Maj. opn., ante, at pp. 504, 502, 265 P.3d at pp. 1006, 1004.)
II
I agree with today’s holding and with the reasoning of the court’s unanimous opinion. I briefly explain why.

407a
As the majority opinion in Strauss pointed out, this court’s decisions in the three earlier same-sex marriage cases illustrate the proper roles of, and the limitations imposed upon, each branch of California’s government – the executive, the legislative, and the judicial – under our state Constitution. (Strauss, supra, 46 Cal.4th 364, 385, 93 Cal.Rptr.3d 591, 207 P.3d 48.) Lockyer shows that the role of California’s executive branch officials is to enforce statutory laws, which they must treat as valid, regardless of their personal views, unless and until the judiciary has determined otherwise. (Lockyer, supra, 33 Cal.4th 1055, 1068, 17 Cal.Rptr.3d 225, 95 P.3d 459.) Marriage Cases shows that the role of California’s legislative branch is to enact statutes that are consistent with California’s Constitution, which among other things guarantees the rights to privacy, due process, and equal protection of the laws. (Marriage Cases, supra, 43 Cal.4th 757, 779-785, 855-856, 76 Cal.Rptr.3d 683, 183 P.3d 384.) Strauss shows that the role of California’s judicial branch is to interpret existing state statutory and constitutional provisions, a power and responsibility that is subject to the limitation that the electorate, through the power of the initiative, can amend the state Constitution to override, from that time forward, the court’s ruling. (Strauss, supra, at pp. 385, 391-392, 93 Cal.Rptr.3d 591, 207 P.3d 48.)
This case raises an issue of similar importance to a proper understanding of our state governmental structure under California’s Constitution: When the

408a
voters, through the exercise of their constitutionally guaranteed initiative power, have enacted a new statute or have amended the state Constitution, and the validity of that initiative is challenged in a judicial proceeding, who may appear in court to defend the initiative?
California’s state trial and appellate courts have routinely permitted initiative proponents to defend an initiative’s validity, and to appeal from a judgment holding an initiative invalid, particularly when state officials have declined to do so. (See maj. opn., ante, 134 Cal.Rptr.3d at pp. 522-524, 265 P.3d at pp. 10211023.) The two main reasons for this standard practice are easily stated.
First, the validity of a duly enacted state initiative measure (particularly one that amends the state Constitution, as Proposition 8 does) is a matter of great public importance that can be determined only through judicial proceedings. Such proceedings are most likely to produce a result that will be reliable, and that the public will find acceptable, if the issues are thoroughly and vigorously litigated. As the court’s opinion notes (maj. opn., ante, 134 Cal.Rptr.3d at pp. 530-532, 265 P.3d at pp. 1027-1029), initiative proponents generally have the motivation and the resources to litigate thoroughly and vigorously in defense of initiative measures they have sponsored (particularly when state officials have declined to do so), and thereby to assist the courts in a way that is vital to the integrity of the entire process.

409a
Second, the initiative power was added to the state Constitution in 1911 (Cal. Const., art. II, §§ 8, 10) because of the view, widely held among California’s voters, that the Legislature and state officials had become so dependent on special interests that they were unable or unwilling to take actions that the public interest required. To give those same state officials sole authority to decide whether or not a duly enacted initiative will be defended in court would be inconsistent with the purpose and rationale of the initiative power, because it would allow public officials, through inaction, effectively to annul initiatives that they dislike.28 (See Building Industry Assn. v. City of Camarillo (1986) 41 Cal.3d 810, 822, 226 Cal.Rptr. 81, 718 P.2d 68.)
28 At this point a note of caution is in order. When the named defendant in a lawsuit brought in a California state court declines to present a defense, and no party intervenes to assert a defense to the plaintiff ’s claim, two different and opposite results are possible, depending on the particular circumstances. The plaintiff may win by default, resulting in entry of a default judgment or stipulated judgment granting the requested relief. (See, e.g., Code Civ. Proc., §§ 585 et seq., 664.6.) But the trial court may decide instead that without a genuine dispute between the parties, judicial action is unnecessary and inappropriate, resulting in a dismissal of the action without entry of any judgment. (See id., § 1061; Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 439, 261 Cal.Rptr. 574, 777 P.2d 610; Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170-171, 188 Cal.Rptr. 104, 655 P.2d 306.) Because the present matter concerns only the narrowly framed question posed by the Ninth Circuit, which of these two approaches should apply in any particular case is an issue not before this court here.

410a
Is this explanation sufficient to answer the question that the Ninth Circuit posed to this court, which is whether proponents of an initiative that the voters approved have either a “particularized interest” in the initiative’s validity or the authority to “assert the state’s interest” in defending the initiative? More specifically, does it show, as this court’s opinion holds, that initiative proponents have authority to “assert the state’s interest” in the initiative’s validity? The answer is “Yes.”
The word “authority” implies that initiative proponents have a right to defend an initiative in court. Although California’s state courts generally have discretion to grant or deny intervention, it would be an abuse of discretion for a court to deny an initiative proponent’s motion to intervene when the validity of the initiative measure is being challenged and California state officials are not actively defending it. (See maj. opn., ante, 134 Cal.Rptr.3d at p. 529, 265 P.3d at p. 1027.) In that situation at least, it is accurate to state that initiative proponents have authority to intervene so that the integrity of the initiative process may be preserved and the validity of the initiative measure may be reliably determined through vigorous litigation at both the trial and appellate levels of California’s judicial system.
III
The authority possessed by the official proponents of an initiative measure to assert the state’s

411a
interest in that initiative’s validity complements the judiciary’s authority to make the final decision on whether the initiative is valid. As I have stressed in my separate opinions in the earlier same-sex marriages cases, interpreting state statutes and state constitutional provisions, and determining their validity, are the responsibility of the government’s judicial branch. (Strauss, supra, 46 Cal.4th 364, 476, 93 Cal.Rptr.3d 591, 207 P.3d 48 (conc. opn. of Kennard, J.); Marriage Cases, supra, 43 Cal.4th 757, 860, 76 Cal.Rptr.3d 683, 183 P.3d 384 (conc. opn. of Kennard, J.); Lockyer, supra, 33 Cal.4th 1055, 1125, 17 Cal.Rptr.3d 225, 95 P.3d 459 (conc. & dis. opn. of Kennard, J.).)
The judicial system is designed to operate through public proceedings in which adversaries litigate factual and legal issues thoroughly and vigorously. When an initiative measure is challenged in court, the integrity and effectiveness of the judicial process require that a competent and spirited defense be presented. If public officials refuse to provide that defense, the ability of the initiative proponents to intervene in the pending litigation, and to appeal an adverse judgment, is inherent in, and essential to the effective exercise of, the constitutional initiative power. To hold otherwise not only would undermine that constitutional power, it also would allow state executive branch officials to effectively annul voterapproved initiatives simply by declining to defend them, thereby permitting those officials to exceed

412a
their proper role in our state government’s constitutional structure.
For these reasons, I agree that, when state officials refuse to defend a voter-approved initiative measure in court, or to appeal a judgment invalidating that initiative, its official proponents have authority, as a matter of state law, to assert the state’s interest in the initiative’s validity.

413a
628 F.3d 1191 United States Court of Appeals,
Ninth Circuit.
Kristin M. PERRY; Sandra B. Stier; Paul T. Katami; Jeffrey J. Zarrillo, Plaintiffs-Appellees, City and County of San Francisco, Plaintiff-Intervenor-Appellee, v.
Arnold SCHWARZENEGGER, in his official capacity as Governor of California; Edmund G. Brown, Jr., in his official capacity as Attorney General of California; Mark B. Horton, in his official capacity as Director of the California Department of Public Health & State Registrar of Vital Statistics; Linette Scott, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health; Patrick O’Connell, in his official capacity as Clerk-Recorder for the County of Alameda; Dean C. Logan, in his
official capacity as Registrar-Recorder/County Clerk for the County of Los Angeles, Defendants, and
Dennis Hollingsworth; Gail J. Knight; Martin F. Gutierrez; Hak-Shing William Tam; Mark A. Jansson;
ProtectMarriage.com – Yes On 8, a Project of California Renewal, as official proponents of Proposition 8, Defendants-Intervenors-Appellants.
No. 10-16696. | Jan. 4, 2011.
David Boies, Rosanne C. Baxter, Esquire, Counsel, Boies, Schiller & Flexner, Armonk, NY, Theodore Olson, Theodore J. Boutrous, Jr., Esquire, Matthew McGill, Amir C. Tayrani, Gibson Dunn & Crutcher, LLP, Washington, DC, Ethan Douglas Dettmer,

414a
Esquire, Enrique Antonio Monagas, Sarah E. Piepmeier, Esquire, Gibson, Dunn & Crutcher LLP, San Francisco, CA, Christopher D. Dusseault, Theane Evangelis Kapur, Gibson Dunn & Crutcher, LLP, Los Angeles, CA, Jeremy Michael Goldman, Esquire, Boies, Schiller & Flexner, LLP, Oakland, CA, Theodore H. Uno, Boies Schiller & Flexner LLP, Hollywood, FL, for Plaintiffs-Appellees.
Ronald P. Flynn, Therese Stewart, Chief Deputy City, Christine Van Aken, Deputy City, Erin Bernstein, Deputy City, Mollie Mindes Lee, Deputy City, San Francisco City Attorney’s Office, Vince Chhabria, Esquire, Dennis J. Herrera, City, Office of the City Attorney, Danny Chou, San Francisco, CA, for Plaintiff-Intervenor-Appellee.
Tamar Pachter, Deputy Attorney General, Daniel Powell, Deputy Attorney General, California Department of Justice, San Francisco, CA, Kenneth C. Mennemeier, Jr., Mennemeier, Glassman & Stroud LLP, Sacramento, CA, Claude Franklin Kolm, Esquire, Oakland, CA, Judy W. Whitehurst, Principal Deputy County Counsel, Los Angeles County Counsel, Los Angeles, CA, for Defendants.
Terry L. Thompson, Law Office of Terry L. Thompson, Alamo, CA, for Defendants-Intervenors-Appellants.
D.C. No. 3:09-cv-02292-VRW.
Before: STEPHEN REINHARDT, MICHAEL DALY HAWKINS, and N. RANDY SMITH, Circuit Judges.

415a
Opinion
ORDER CERTIFYING A QUESTION TO THE SUPREME COURT OF CALIFORNIA
Before this panel of the United States Court of Appeals for the Ninth Circuit is an appeal concerning the constitutionality under the United States Constitution of Article I, § 7.5 of the California Constitution (“Proposition 8”). Because we cannot consider this important constitutional question unless the appellants before us have standing to raise it, and in light of Arizonans for Official English v. Arizona, 520 U.S. 43, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (“Arizonans”), it is critical that we be advised of the rights under California law of the official proponents of an initiative measure to defend the constitutionality of that measure upon its adoption by the People when the state officers charged with the laws’ enforcement, including the Attorney General, refuse to provide such a defense or appeal a judgment declaring the measure unconstitutional. As we are aware of no controlling state precedent on this precise question, we respectfully ask the Supreme Court of California to exercise its discretion to accept and decide the certified question below.
I. Question Certified
Pursuant to Rule 8.548 of the California Rules of Court, we request that the Court answer the following question:

416a
Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.
We understand that the Court may reformulate our question, and we agree to accept and follow the Court’s decision. Cal. R. Ct. 8.548(b)(2), (f)(5).
II. Background
A
This appeal concerns a subject that is familiar to the Supreme Court of California: the constitutionality of excluding same-sex couples from the institution of marriage in California. In May 2008, the Court declared that California statutes limiting marriage to opposite-sex couples were unconstitutional under the equal protection clause of the California Constitution. The Court then invalidated those statutes and prohibited their enforcement. In re Marriage Cases, 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384, 452453 (2008). In the months that followed, California issued approximately 18,000 marriage licenses to same-sex couples.

417a
Then, in November 2008, the People of the State of California voted to adopt Proposition 8, an initiative constitutional amendment that “added a new section – section 7.5 – to article I of the California Constitution, providing: ‘Only marriage between a man and a woman is valid or recognized in California.’ ” Strauss v. Horton, 46 Cal.4th 364, 93 Cal.Rptr.3d 591, 207 P.3d 48, 59 (2009). Proposition 8 had been placed on the ballot by five Californians, Defendants-Intervenors-Appellants Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, HakShing William Tam, and Mark A. Jansson, whom California law recognizes as the official “proponents” of the measure.1 Cal. Elec.Code § 342.
1 As the official “proponents,” the intervenors were responsible for paying the initiative filing fee (Cal. Elec.Code § 9001), requesting that the Attorney General prepare a “circulating title and summary” of the initiative for the intervenors to present to electors when circulating a petition to qualify the initiative for the ballot (Cal. Elec.Code § 9001), preparing petition forms to collect signatures to qualify the initiative for the ballot (Cal. Elec.Code §§ 9001, 9012, 9014), managing signature gatherers (Cal. Elec.Code §§ 9607, 9609), filing the petitions for signature verification (Cal. Elec.Code § 9032), and designating arguments in favor of the initiative for the voter information guide (Cal. Elec.Code § 9067, 9600). Proponents also established “ProtectMarriage.com – Yes on 8, a Project of California Renewal,” also a defendant-intervenor-appellant here, as a “ballot measure committee” to support Proposition 8 under Cal. Gov’t Code section 84107. ProtectMarriage.com was responsible for all aspects of the campaign to qualify Proposition 8 for the ballot, including the collection of 1.2 million signatures. The committee spent $37 million to qualify Proposition 8 for the ballot and to
(Continued on following page)

418a
After Proposition 8 was enacted, opponents of the measure brought an original action for a writ of mandate in the Supreme Court of California, seeking invalidation of Proposition 8 as an improper attempt by the People to revise, rather than amend, the California Constitution through exercise of the initiative power. The three named respondents in that proceeding, Mark D. Horton, Linette Scott, and Edmund G. Brown, Jr. – also defendants here – refused to defend the measure’s constitutionality under state law, but remained parties to the proceeding; Proponents were permitted to intervene and defended Proposition 8 as a lawful initiative constitutional amendment. The Court then upheld Proposition 8 against the opponents’ challenge, but preserved the 18,000 marriages of same-sex couples that had already been performed. Strauss, 93 Cal.Rptr.3d 591, 207 P.3d at 114, 119, 122.
B
Days before Strauss was decided, plaintiffsappellees filed this action in the United States District Court for the Northern District of California, alleging that Proposition 8 violates the Fourteenth Amendment to the United States Constitution and seeking declaratory and injunctive relief. The named defendants – the three officers who were respondents
campaign in its favor in order to ensure its adoption. See Perry v. Schwarzenegger, 704 F.Supp.2d 921, 954-955 (N.D.Cal.2010).

419a
in Strauss, plus the Governor and the County Clerks of Alameda and Los Angeles Counties – filed answers to the complaint but declined to defend the measure’s constitutionality. Proponents were then permitted to intervene to do so. After a twelve-day bench trial, the district court made findings of fact, and “conclude[d] that Proposition 8 is unconstitutional” under both the Due Process Clause and the Equal Protection Clause. Perry v. Schwarzenegger, 704 F.Supp.2d. 921, 1003 (N.D.Cal.2010). The court then entered the following injunction:
Defendants in their official capacities, and all persons under the control or supervision of defendants, are permanently enjoined from applying or enforcing Article I, § 7.5 of the California Constitution.
This court stayed the injunction pending appeal; Proposition 8 remains in effect in California pending our final decision. Plaintiffs and Proponents disagree as to the legal status of Proposition 8 should it be determined that we are without jurisdiction to hear this appeal.2
2 Plaintiffs argue that Proponents have no standing and therefore ask us to simply dismiss this appeal. At oral argument, Plaintiffs contended that were we to do so, the district court decision would be binding on the named state officers and on the county clerks in two counties only, Los Angeles and Alameda, and that further litigation in the state courts would be necessary to clarify the legal status of Proposition 8 in the remaining fiftysix counties. Alternatively, they suggested that the Governor, Attorney General, or State Registrar would be required to issue
(Continued on following page)

420a
Proponents appealed the district court order, but the named official defendants did not. We asked the parties to brief, as a preliminary matter, the Proponents’ standing to seek review of the district court order, in light of Arizonans and earlier decisions of the United States Supreme Court. Having considered the parties’ briefs and arguments, we are now convinced that Proponents’ claim to standing depends on Proponents’ particularized interests created by state law or their authority under state law to defend the constitutionality of the initiative, which rights it appears to us have not yet been clearly defined by the Court. We therefore request clarification in order to determine whether we have jurisdiction to decide this case.
III. Explanation of Certification
This court is obligated to ensure that it has jurisdiction over this appeal before proceeding to the important constitutional questions it presents, and we must dismiss the appeal if we lack jurisdiction.
a “legal directive” to the county clerks to cease enforcing Proposition 8.
Proponents argue that if they lack standing to appeal, then we are required not only to dismiss the appeal but also to vacate the district court judgment. In any event, we are required to resolve, nostra sponte, the issue of standing before proceeding further with this matter.

421a
The certified question therefore is dispositive of our very ability to hear this case.3
A
“The standing Article III requires must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.” Arizonans, 520 U.S. at 64, 117 S.Ct. 1055. Having been granted intervention in the district court is not enough to establish standing to appeal; “an intervenor’s right to continue a suit in the absence of the party on whose side intervention was permitted is contingent upon a showing by the intervenor that he fulfills the requirements of Art. III.” Diamond v. Charles, 476 U.S. 54, 68, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986). Where a plaintiff in federal district court must demonstrate “an ‘injury in fact’ – an invasion of a legally protected interest” by the defendant, Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) – so too must an appellant prove his standing by establishing “a concrete injury related to the judgment” he seeks to appeal. W. Watersheds Project v. Kraayenbrink, 620 F.3d 1187,
3 In a separate published opinion filed concurrently with this order, we dismiss for lack of standing the appeal on the merits in a companion case, number 10-16751, that was filed by the County of Imperial, its Board of Supervisors, and a Deputy Clerk of the County. Therefore, we may reach the merits of the constitutional questions presented only if Proponents have standing to appeal.

422a
1196 (9th Cir.2010). States, however, “ha[ve] the power to create new interests, the invasion of which may confer standing.” Diamond, 476 U.S. at 65 n. 17, 106 S.Ct. 1697. “In such a case, the requirements of Article III may be met.” Id.
Proponents contend that they possess such an “interest that is created and secured by California law” – an interest in the validity of the voterapproved initiative they sponsored, which interest is “inva[ded]” by the judgment declaring Proposition 8 unconstitutional. Proponents’ Br. 22. They argue that their interest as the official proponents of the initiative is different in kind than that of the citizens of California generally. If Proponents do possess such a particularized interest, they would have standing to appeal the judgment below.
Proponents also claim an alternative and independent additional basis for standing: The State of California itself has an undisputed interest in the validity of its laws, and Proponents argue that “they may directly assert the State’s interest in defending the constitutionality of its laws.” Proponents’ Br. 19. Proponents allege they are able to represent the State’s interest because they “have ‘authority under state law’ to defend the constitutionality of an initiative they have successfully sponsored . . . acting ‘as agents of the people’ of California ‘in lieu of public officials’ who refuse to do so.” Id. (quoting Karcher v. May, 484 U.S. 72, 82, 108 S.Ct. 388, 98 L.Ed.2d 327 (1987) and Arizonans, 520 U.S. at 65, 117 S.Ct. 1055). If California does grant the official proponents of an

423a
initiative the authority to represent the State’s interest in defending a voter-approved initiative when public officials have declined to do so or to appeal a judgment invalidating the initiative, then Proponents would also have standing to appeal on behalf of the State.
B
The parties agree that “Proponents’ standing” – and therefore our ability to decide this appeal – “ ‘rises or falls’ on whether California law” affords them the interest or authority described in the previous section. Proponents’ Reply Br. at 8 (quoting Plaintiffs’ Br. 30-31). It is not sufficiently clear to us, however, whether California law does so. In the absence of controlling authority from the highest court of California on these important questions of an initiative proponent’s rights and interests in the particular circumstances before us, we believe we are compelled to seek such an authoritative statement of California law. Cf. Arizonans, 520 U.S. at 65, 117 S.Ct. 1055 (“[W]e 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.”) (emphasis added).
We are aware that in California, “All political power is inherent in the people,” Cal. Const. art. II, § 1, and that to that end, Article II, section 8(a) of the California Constitution provides, “The initiative is

424a
the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.” We are also aware that the Supreme Court of California has described the initiative power as “one of the most precious rights of our democratic process,” and indeed, that “the sovereign people’s initiative power” is considered to be a “fundamental right.” Assoc. Home Builders v. City of Livermore, 18 Cal.3d 582, 135 Cal.Rptr. 41, 557 P.2d 473, 477 (1976); Brosnahan v. Brown, 32 Cal.3d 236, 186 Cal.Rptr. 30, 651 P.2d 274, 277 (1982); Costa v. Super. Ct., 37 Cal.4th 986, 39 Cal.Rptr.3d 470, 128 P.3d 675, 686 (2006). Finally, we are aware of California law that the courts have a “solemn duty to jealously guard” that right, Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, 22 Cal.3d 208, 149 Cal.Rptr. 239, 583 P.2d 1281, 1302 (1978) (internal quotation marks omitted), “and to prevent any action which would improperly annul that right,” Martin v. Smith, 176 Cal.App.2d 115, 117, 1 Cal.Rptr. 307 (1959).
The power of the citizen initiative has, since its inception, enjoyed a highly protected status in California. For example, the Legislature may not amend or repeal an initiative statute unless the People have approved of its doing so. Cal. Const. art. II, § 10(c).4
4 See People v. Kelly, 47 Cal.4th 1008, 103 Cal.Rptr.3d 733, 222 P.3d 186, 200 (2010) (“California’s bar on legislative amendment of initiative statutes stands in stark contrast to the analogous constitutional provisions of other states. No other
(Continued on following page)

425a
Most relevant here, “the Governor has no veto power over initiatives,” Kennedy Wholesale, Inc. v. State Bd. of Equalization, 53 Cal.3d 245, 279 Cal.Rptr. 325, 806 P.2d 1360, 1364 n. 5 (1991), and the Attorney General possesses no veto power at all.
Although the Governor has chosen not to defend Proposition 8 in these proceedings, it is not clear whether he may, consistent with the California Constitution, achieve through a refusal to litigate what he may not do directly: effectively veto the initiative by refusing to defend it or appeal a judgment invalidating it, if no one else – including the initiative’s proponents – is qualified to do so.5 Proponents argue that such a harsh result is avoided if the balance of power provided in the California Constitution establishes that proponents of an initiative are authorized to defend that initiative, as agents of the People, in lieu of public officials who refuse to do so. Similarly, under California law, the proponents of an initiative may possess a particularized interest in defending the constitutionality of their initiative upon its enactment; the Constitution’s purpose in reserving the initiative power to the People would appear to be
state in the nation carries the concept of initiatives as ‘written in stone’ to such lengths as to forbid their legislatures from updating or amending initiative legislation.”) (internal quotation marks and citations omitted).
5 Here, of course, the Attorney General was also a defendant and refused to defend the initiative along with the Governor.

426a
ill-served by allowing elected officials to nullify either proponents’ efforts to “propose statutes and amendments to the Constitution” or the People’s right “to adopt or reject” such propositions. Cal. Const. art. II, § 8(a). Rather than rely on our own understanding of this balance of power under the California Constitution, however, we certify the question so that the Court may provide an authoritative answer as to the rights, interests, and authority under California law of the official proponents of an initiative measure to defend its validity upon its enactment in the case of a challenge to its constitutionality, where the state officials charged with that duty refuse to execute it.
Proponents and an amicus, the Center for Constitutional Jurisprudence, have referred us to numerous cases in which proponents of an initiative defended against pre-election challenges to their initiatives,6 defended against post-election challenges
6 See Indep. Energy Producers Ass’n v. McPherson, 38 Cal.4th 1020, 44 Cal.Rptr.3d 644, 136 P.3d 178 (2006) (proponents defended against challenge that subject matter of initiative was improper under the state constitution); Legislature v. Deukmejian, 34 Cal.3d 658, 194 Cal.Rptr. 781, 669 P.2d 17 (1983) (same); see also Costa v.Super. Ct., 37 Cal.4th 986, 39 Cal.Rptr.3d 470, 128 P.3d 675 (2006) (challenge based on differences between the versions of the measure (1) submitted to the Attorney General prior to the circulation of the initiative petition, and (2) printed on the petition that was circulated for signature); Senate v. Jones, 21 Cal.4th 1142, 90 Cal.Rptr.2d 810, 988 P.2d 1089 (1999) (challenge based on single-subject rule for initiatives); Brosnahan v. Eu, 31 Cal.3d 1, 181 Cal.Rptr. 100, 641 P.2d 200 (1982) (challenge to signatures qualifying measure for
(Continued on following page)

427a
concerning the validity of their exercise of the initiative power,7 and proponents of an initiative were permitted to intervene to defend, alongside government defendants, the validity of their initiatives.8 None of those cases explained, however, whether or why proponents have the right to defend the validity of their initiative upon enactment when the state officials charged with the law’s enforcement refuse to
the ballot); Vandeleur v. Jordan, 12 Cal.2d 71, 82 P.2d 455 (1938) (challenge based on format and content of initiative petition).
7 See Strauss v. Horton, 46 Cal.4th 364, 93 Cal.Rptr.3d 591, 207 P.3d 48 (2009) (Proponents permitted to intervene to defend Proposition 8 as a valid exercise of the initiative power to amend, rather than revise, the California Constitution); City of Westminster v. County of Orange, 204 Cal.App.3d 623, 251 Cal.Rptr. 511 (1988) (proponents intervened to defend against challenge that subject matter of initiative – tax levies – was improper under the state constitution); Community Health Ass’n v. Bd. of Supervisors, 146 Cal.App.3d 990, 194 Cal.Rptr. 557 (1983) (same).
8 See Amwest Surety Ins. Co. v. Wilson, 11 Cal.4th 1243, 48 Cal.Rptr.2d 12, 906 P.2d 1112 (1995) (proponents intervened in state official’s challenge to an act of the Legislature that amended, without voter approval, an initiative); 20th Century Ins. Co. v. Garamendi, 8 Cal.4th 216, 32 Cal.Rptr.2d 807, 878 P.2d 566 (1994) (proponents intervened to defend, alongside state official, the implementation of state initiative); Calfarm Ins. Co. v. Deukmejian, 48 Cal.3d 805, 258 Cal.Rptr. 161, 771 P.2d 1247 (1989) (proponents intervened as “real parties in interest” to defend, alongside state officials, challenge that state initiative was unconstitutional); People ex rel. Deukmejian v. County of Mendocino, 36 Cal.3d 476, 204 Cal.Rptr. 897, 683 P.2d 1150 (1984) (proponents intervened to assist county officials in defending against challenge that county initiative ordinance was preempted by state law).

428a
do so, either because proponents have a particularized state-law interest in doing so or because they are authorized to represent the State’s interest in defending the initiative adopted by the People. In particular, Proponents rely on Strauss v. Horton as evidence that “California law authorizes Proponents to defend Proposition 8 on behalf of the State,” because the Supreme Court of California “permitted these very Proponents to defend this very Proposition when the Attorney General would not do so.” Proponents’ Br. 20. But the Court did not explain in Strauss why Proponents were permitted to intervene, and under Arizonans we cannot simply infer from the fact that they were allowed to do so that they have either the particularized state-created interest or the authority under the state constitution or other state law to act as agents of the People that they would need to be proper sole appellants here.
We are aware of only one case presenting circumstances similar to those here (a post-enactment substantive challenge to an initiative) that provides any discussion of official proponents’ rights to appeal a lower court decision regarding a ballot initiative in the absence of the government officials charged with its enforcement: Simac Design, Inc. v. Alciati, 92 Cal.App.3d 146, 154 Cal.Rptr. 676 (1979). We recognize that the issues in that case were in some regard dissimilar, however, and it was decided by only an intermediate court and has not been discussed in subsequent decisions of the Supreme Court of California. We therefore believe that we are required

429a
under Arizonans to request a more definitive statement from the State’s highest court rather than treat that decision as controlling.9
We do not find Building Industry Ass’n v. City of Camarillo, 41 Cal.3d 810, 226 Cal.Rptr. 81, 718 P.2d 68 (1986), to be controlling authority for the question certified here either. That case explained, in dicta, that if government officials failed to defend an initiative-enacted law “with vigor,” then “[p]ermitting intervention by the initiative proponents . . . would serve to guard the people’s right to exercise initiative power, a right that must be jealously defended by the courts.” Id., 226 Cal.Rptr. 81, 718 P.2d at 75. While the statement may accurately express the intent of the California Constitution, it was not a holding, and thus would not appear to satisfy the requirements of Arizonans.10 In addition, because it addresses possible
9 We recognize that the discussion of proponents’ standing in Arizonans is obiter dictum. See 520 U.S. at 65-66, 117 S.Ct. 1055. Nevertheless it is a forceful statement in a decision by a unanimous Court and we believe we would be unwise to disregard it.
10 That the statement in Building Industry Ass’n is dictum was recognized in City & County of San Francisco v. State, 128 Cal.App.4th 1030, 1042 n. 9, 27 Cal.Rptr.3d 722 (2005). That case did not hold to the contrary, however. The Court of Appeal rejected as insufficient the interest in defending Proposition 22 claimed by a group formed one year after its adoption, but noted 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. at 1038, 27 Cal.Rptr.3d 722 (emphasis added). The Court’s
(Continued on following page)

430a
intervention, it does not directly address the authority or interest of initiative proponents. Consequently, although all the cases cited underscore the significant interest initiative proponents have in defending their measures in the courts, we lack an authoritative statement of California law that would establish proponents’ rights to defend the validity of their initiatives, whether because they have a particularized state-created interest in doing so or because under California law they are authorized to assert the State’s interest, on behalf of the People, in defending the constitutionality of an initiative measure or appealing a judgment invalidating that measure, when the state officials charged with that responsibility refuse to do so. We believe that we require such an authoritative determination by the Court before we can determine whether Proponents have standing to maintain this appeal.
C
The question we certify affects the “fundamental right” under the California Constitution of the State’s electors to participate directly in the governance of their State. The answer to that question will also affect our ability to consider the fundamental rights
subsequent decision in In re Marriage Cases did not answer that question either, and it described the Proposition 22 Legal Defense Fund as an “advocacy group” rather than the official proponents of the initiative. 76 Cal.Rptr.3d 683, 183 P.3d at 405406.

431a
under the United States Constitution asserted by Plaintiffs. We therefore pray the Court to accept our request for certification.
IV. Administrative Information
The names and addresses of lead counsel for the parties and intervenors are listed in the appendix at the end of this order. Cal. R. Ct. 8.548(b)(1). A complete listing of all counsel for parties, intervenors, and amici curiae is provided in the unpublished memorandum filed concurrently herewith. If the Supreme Court of California accepts this request, the Defendants-Intervenors-Appellants (Proponents) should be deemed the petitioners.
The Clerk is hereby directed to transmit forthwith to the Court the original and ten copies of this order and accompanying memorandum, as well as a certificate of service on the parties. Cal. R. Ct. 8.548(d). The clerk shall also transmit the following along with this request: ten copies of the district court Findings of Fact/Conclusions of Law/Order (704 F.Supp.2d. 921 (N.D.Cal.2010)); ten copies of the Permanent Injunction issued by the district court (docket entry 728 in No. C 09-2292-VRW (N.D.Cal. Aug. 12, 2010)); a copy of the video recording of the oral argument heard in these appeals on December 6, 2010; the briefs of the parties and intervenors in this appeal; and the briefs amicus curiae filed by (1) the Center for Constitutional Jurisprudence and (2) Equality California in No. 10-16696. The Clerk shall

432a
provide additional record materials if so requested by the Supreme Court of California. Cal. R. Ct. 8.548(c).
The case is withdrawn from submission, and further proceedings in this court are stayed pending final action by the Supreme Court of California. The parties shall notify the Clerk of this Court within three days after the Court accepts or rejects certification, and again within three days if the Court renders an opinion. The panel retains jurisdiction over further proceedings.
IT IS SO ORDERED.
CONCURRENCE TO THE CERTIFICATION ORDER
REINHARDT, Circuit Judge, concurring.
Today we file two orders in the appeals regarding the constitutionality of California’s Proposition 8, which provides, “Only marriage between a man and a woman is valid or recognized in California.” Put differently, the proposition prohibits same-sex marriage. Marriage between individuals of the same sex is a matter that is highly controversial in this country and in which the American people have a substantial interest. Accordingly, these appeals present a question under the Fourteenth Amendment of the United States Constitution that is of importance to the entire public. Oral argument before this court was viewed on television and the Internet by more people than

433a
have ever watched an appellate court proceeding in the history of the Nation,1 and by innumerable law students across the country.2
Today’s two orders involve a procedural question known as “standing.” The public may wonder why that issue is of such great importance, and what the significance of our standing decisions is. For that reason, while I agree entirely with our two dispositions, both of which are filed in the names of all three of us who are considering the appeals and both of which represent our unanimous views, I believe it desirable to set forth a few explanatory remarks of my own.
The standing problem arises out of a trend in our judicial system over the past few decades. It is a trend that emphasizes technical rules over deciding cases on the merits, and indeed over the merits themselves. Our system now increasingly raises obstacles such as standing, mootness, ripeness, abstention, and other procedural bars that preclude courts from deciding cases on the merits, and as a result increasingly limits the access of individuals to
1 See, e.g., Tim Rutten, Monday’s Must-See TV, L.A. TIMES (Dec. 7, 2010); Ashby Jones, On the Prop. 8 Arguments and the Cameras-in-the-Court Debate, WALL STREET J. LAW BLOG (Dec. 7, 2010); Lisa Leff, Televised Gay Marriage Hearing Draws Wide Audience, ASSOCIATED PRESS (Dec. 6, 2010).
2 See, e.g., Public Information Office, U.S. Court of Appeals for the Ninth Circuit, Proposition 8 Arguments: Coming to a Law School Near You (Dec. 1, 2010), available at http://www. ca9.uscourts.gov/datastore/general/2010/12/01/Prop8_LawSchools. pdf.

434a
the courts. Members of the public familiar with cases such as Brown v. Board of Education and Roe v. Wade might have thought that the constitutionality of Proposition 8 could readily be decided when a legal challenge was made to it in federal court. However, in these times, before we are free to decide such important questions the parties must often overcome difficult procedural barriers. Why Congress and the Supreme Court have required them to do so is a subject for another day, although I have made my views on the subject clear elsewhere.3 Here the question is simply whether there is standing.
The standing problem, under current Supreme Court doctrine, affects this case in several ways, all relating to the question of whether there is an intervenor opposed to the district court’s decision that has the right to appeal it. Should it be held ultimately that there is no such intervenor, the consequences are unclear, other than that we would be unable to review the district court decision on the merits; what would follow thereafter could conceivably be a matter for future decision by this court. All I can say now is that
3 See, e.g., Stephen Reinhardt, Life to Death: Our Constitution and How It Grows, 44 U.C. DAVIS L.REV. 391 (2010); Stephen Reinhardt, The Anatomy of an Execution: Fairness vs. Process, 74 N.Y.U.L.REV. 313 (1999); Stephen Reinhardt, The Supreme Court, the Death Penalty, and the Harris Case, 102 YALE L.J. 205 (1992); Stephen Reinhardt, Limiting Access to the Federal Courts: Round Up the Usual Victims, 6 WHITTIER L.REV. 967 (1984).

435a
the issues concerning standing were wholly avoidable in this case.
There can be little doubt that when the Plaintiffs filed this action their purpose was to establish that there was a constitutional right to gay marriage, and to do so by obtaining a decision of the Supreme Court to that effect.4 Yet, according to what their counsel represented to us at oral argument, the complaint they filed and the injunction they obtained determines only that Proposition 8 may not be enforced in two of California’s fifty-eight counties. They next contend that the injunction may not be appealed but that it may be extended to the remaining fifty-six counties, upon the filing of a subsequent lawsuit by the Attorney General in state court against the other County Clerks. Whether Plaintiffs are correct or not, it is clear that all of this would have been unnecessary and Plaintiffs could have obtained a statewide injunction had they filed an action against a broader
4 See, e.g., Margaret Talbot, A Risky Proposal: Is It Too Soon to Petition the Supreme Court on Gay Marriage, THE NEW YORKER, Jan. 18, 2010, at 40; Jo Becker, A Conservative’s Road to Same-Sex Marriage Advocacy, N.Y. TIMES, Aug. 18, 2009, at A1 (“[B]inders stuffed with briefs, case law and notes . . . are filled with arguments Mr. Olson hopes will lead to a Supreme Court decision with the potential to reshape the legal and social landscape along the lines of cases like Brown v. Board of Education and Roe v. Wade: the legalization of same-sex marriage nationwide.”); Jesse McKinley, Bush v. Gore Foes Join to Fight Gay Marriage Ban, N.Y. TIMES, May 27, 2009, at A1 (“In the end, the two lawyers suggested, the case might take them, again, to the United States Supreme Court.”).

436a
set of defendants, a simple matter of pleading. Why preeminent counsel and the major law firms of which they are a part failed to do that is a matter on which I will not speculate.
Next, the problem of standing would have been eliminated had the Governor or the Attorney General defended the initiative, as is ordinarily their obligation. Because they believed Proposition 8 to be unconstitutional, they did not do so here. Whether their decision not to defend the initiative was proper is a matter of some debate, although I sympathize with their view that in extraordinary circumstances they possess that right. Once again, however, I express no ultimate view on the question.
In any event, had Plaintiffs sued a broader class of defendants, there clearly would have been parties who would have had standing to appeal the district court’s decision, and who likely would have done so. Even had they not, it might not have been difficult for those interested in defending the proposition to find an intervenor with standing. Imperial County, one of the counties that voted in favor of Proposition 8, sought to intervene, but for some unknown reason attempted to do so through a deputy clerk who asserted her own rights instead of through the Clerk who might have asserted hers. Again, this was a most puzzling legal decision. While we have not ruled as to whether the Clerk would have had standing, we have held that a deputy clerk does not. There are forty-two counties that voted in favor of Proposition 8. Surely had those seeking an intervenor contacted other of

437a
those counties instead of relying on Imperial County they could have found a Clerk who would have presented the issue whether a Clerk rather than a deputy has standing.
None of this means that ultimately there is no standing in this case. Because of a United States Supreme Court ruling regarding the availability of standing to proponents of initiatives, Arizonans for Official English v. Arizona, 520 U.S. 43, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997), we have certified to the Supreme Court of California the question of an initiative proponent’s authority and interests under California law. Although that matter must be decided by the Supreme Court of California, Proponents advance a strong argument on this point. Thus, in the end, there may well be standing to maintain this appeal, and the important constitutional question before us may, after all, be decided by an appellate court – ours, the Supreme Court, or both – and may apply to California as a whole, instead of by being finally decided by a trial court, or by default, in only two counties or in none. As a result, the technical barriers and the inexplicable manner in which the parties have conducted this litigation may in the end not preclude an orderly review by the federal courts of the critical constitutional question that is of interest to all Americans, and particularly to the millions of Californians who voted for Proposition 8 and the tens of thousands of same-sex couples who wish to marry in that state. In the meantime, while we await further word from the Supreme Court of California, I

438a
hope that the American public will have a better understanding of where we stand today in this case, if not why.
APPENDIX
Lead Counsel for Defendants-Intervenors-Appellants
Charles J. Cooper (argued) COOPER & KIRK, PLLC 1523 New Hampshire Avenue, N.W. Washington, DC 20036
Lead Counsel for Plaintiffs-Appellees
David Boies (argued) BOIES, SCHILLER & FLEXNER 333 Main St. Armonk, NY 10504
Theodore Olson (argued) GIBSON DUNN & CRUTCHER, LLP 1050 Connecticut Ave., NW Washington, DC 20036-5306
Lead Counsel for Plaintiff-Intervenor-Appellee City and County of San Francisco
Therese Stewart, Chief Deputy City Attorney (argued) SAN FRANCISCO CITY ATTORNEY’S OFFICE City Hall 234 One Dr. Carlton B. Goodlett Place San Francisco, CA 94102-4682

439a
Lead Counsel for Defendant Arnold Schwarzenegger, in his official capacity as Governor of California
Tamar Pachter, Deputy Attorney General (no appearance) CALIFORNIA DEPARTMENT OF JUSTICE Suite 11000 455 Golden Gate Ave. San Francisco, CA 94102
Andrew W. Stroud, Attorney (no appearance) Mennemeier, Glassman & Stroud LLP 980 9th Street Suite 1700 Sacramento, CA 95814
Lead Counsel for Defendant Edmund G. Brown, Jr., in his official capacity as Attorney General of California
Tamar Pachter, Deputy Attorney General (no appearance) (see above)
Lead Counsel for Defendants Mark B. Horton, in his official capacity as Director of the California Department of Public Health & State Registrar of Vital Statistics, and Linette Scott, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health
Kenneth C. Mennemeier, Jr. (no appearance) Mennemeier, Glassman & Stroud LLP 980 9th Street Suite 1700 Sacramento, CA 95814

440a
Lead Counsel for Defendant Patrick O’Connell, in his official capacity as Clerk-Recorder for the County of Alameda
Claude Franklin Kolm, Esquire (no appearance) OFFICE OF COUNTY COUNSEL Suite 450 1221 Oak Street Oakland, CA 94612-4296
Lead Counsel for Defendant Dean C. Logan, in his official capacity as Registrar-Recorder/County Clerk for the County of Los Angeles
Judy W. Whitehurst, Principal Deputy County Counsel (no appearance) LOS ANGELES COUNTY COUNSEL 6th Floor 648 Kenneth Hahn Hall of Administration 500 West Temple Street Los Angeles, CA 90012-2713

441a
681 F.3d 1065 United States Court of Appeals,
Ninth Circuit.
Kristin M. PERRY; Sandra B. Stier; Paul T. Katami; Jeffrey J. Zarrillo, Plaintiffs-Appellees, City and County of San Francisco, Intervenor-Plaintiff-Appellee, v.
Edmund G. BROWN, Jr., in his official capacity as Governor of California; Kamala D. Harris, in her official capacity as Attorney General of California; Mark B. Horton, in his official capacity as Director of the California Department of Public Health & State Registrar of Vital Statistics; Linette Scott, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health; Patrick O’Connell, in his official capacity as Clerk-Recorder for the County of Alameda; Dean C. Logan, in his official capacity
as Registrar-Recorder/County Clerk for the County of Los Angeles, Defendants,
Hak-Shing William Tam, Intervenor-Defendant, and
Dennis Hollingsworth; Gail J. Knight; Martin F. Gutierrez; Mark A. Jansson; ProtectMarriage.com –
Yes on 8, A Project of California Renewal, as official proponents of Proposition 8, Intervenor-Defendants-Appellants.
Kristin M. Perry; Sandra B. Stier; Paul T. Katami; Jeffrey J. Zarrillo, Plaintiffs-Appellees, City and County of San Francisco, Intervenor-Plaintiff-Appellee, v.

442a
Edmund G. Brown, Jr., in his official capacity as Governor of California; Kamala D. Harris, in her official capacity as Attorney General of California; Mark B. Horton, in his official capacity as Director of the California Department of Public Health & State Registrar of Vital Statistics; Linette Scott, in her
official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health; Patrick O’Connell, in his official capacity as Clerk-Recorder for the County of Alameda; Dean C. Logan, in his official capacity
as Registrar-Recorder/County Clerk for the County of Los Angeles, Defendants,
Hak-Shing William Tam, Intervenor-Defendant, and
Dennis Hollingsworth; Gail J. Knight; Martin F. Gutierrez; Mark A. Jansson; ProtectMarriage.com –
Yes on 8, A Project of California Renewal, as official proponents of Proposition 8, Intervenor-Defendants-Appellants.
Nos. 10-16696, 11-16577. | June 5, 2012.
David Boies, Rosanne C. Baxter, Esquire, Counsel, Boies, Schiller & Flexner LLP, Armonk, NY, Theodore Olson, Matthew McGill, Amir C. Tayrani, Gibson Dunn & Crutcher, LLP, Washington, DC, Theodore J. Boutrous, Jr., Esquire, Christopher D. Dusseault, Theane Evangelis Kapur, Gibson Dunn & Crutcher, LLP, Los Angeles, CA, Ethan Douglas Dettmer, Esquire, Enrique Antonio Monagas, Gibson, Dunn & Crutcher LLP, San Francisco, CA, Jeremy Michael Goldman, Esquire, Boies, Schiller & Flexner, LLP, Oakland, CA, Theodore H. Uno, Boies Schiller & Flexner LLP, Hollywood, FL, for Plaintiffs-Appellees.

443a
Ronald P. Flynn, Therese Stewart, Chief Deputy City Attorney, Christine Van Aken, Erin Bernstein, Vince Chhabria, Esquire, Danny Chou, Dennis J. Herrera, City Attorney, Mollie Mindes Lee, Deputy City Attorney, San Francisco City Attorney’s Office, San Francisco, CA, for Intervenor-Plaintiff-Appellee.
Tamar Pachter, Daniel Powell, Deputy Attorney General, California Department of Justice, San Francisco, CA, Kenneth C. Mennemeier, Jr., Andrew W. Stroud, for Defendants.
David Thompson, Charles J. Cooper, Nicole Jo Moss, Peter A. Patterson, Cooper & Kirk, PLLC, Washington, DC, James Andrew Campbell, Litigation Staff Counsel, Brian William Raum, Senior Counsel, Alliance Defense Fund, Scottsdale, AZ, Andrew P. Pugno, Law Offices of Andrew P. Pugno, Folsom, CA, for Intervenor-Defendants-Appellants.
Before: STEPHEN REINHARDT, MICHAEL DALY HAWKINS, and N. RANDY SMITH, Circuit Judges.
Opinion Order; Concurrence by Judge REINHARDT; Dissent by Judge O’SCANNLAIN.
ORDER A majority of the panel has voted to deny the petition for rehearing en banc. Judge N.R. Smith would grant the petition.

444a
The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35. The petition for rehearing en banc is DENIED.
The mandate is stayed for ninety days pending the filing of a petition for writ of certiorari in the Supreme Court. If such a petition is filed, the stay shall continue until final disposition by the Supreme Court.
REINHARDT and HAWKINS, Circuit Judges, concurring in the denial of rehearing en banc:
We are puzzled by our dissenting colleagues’ unusual reliance on the President’s views regarding the Constitution, especially as the President did not discuss the narrow issue that we decided in our opinion. We held only that under the particular circumstances relating to California’s Proposition 8, that measure was invalid. In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage. That question may be decided in the near future, but if so, it should be in some other case, at some other time.

445a
O’SCANNLAIN, Circuit Judge, joined by BYBEE and BEA, Circuit Judges, dissenting from the order denying rehearing en banc:
A few weeks ago, subsequent to oral argument in this case, the President of the United States ignited a media firestorm by announcing that he supports same-sex marriage as a policy matter. Drawing less attention, however, were his comments that the Constitution left this matter to the States and that “one of the things that [he]’d like to see is – that [the] conversation continue in a respectful way.”1
Today our court has silenced any such respectful conversation. Based on a two-judge majority’s gross misapplication of Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996), we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia, Perry v. Brown, 671 F.3d 1052, 1082 (9th Cir.2012). Even worse, we have overruled the will of seven million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it. We should not have so roundly trumped California’s
1 Interview by Robin Roberts, ABC News, with Barack Obama, President of the United States, in Washington, D.C. (May 9, 2012).

446a
democratic process without at least discussing this unparalleled decision as an en banc court.
For many of the same reasons discussed in Judge N.R. Smith’s excellent dissenting opinion in this momentous case, I respectfully dissent from the failure to grant the petition for rehearing en banc.

 
 No. 12-144

IN THE
pìéêÉãÉ=`çìêí=çÑ=íÜÉ=råáíÉÇ=pí~íÉë= _______________

DENNIS HOLLINGSWORTH, ET AL., Petitioners,
v.

KRISTIN M. PERRY, ET AL.,

_______________

Respondents.

On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit
_______________

BRIEF IN OPPOSITION
_______________

DAVID BOIES

THEODORE B. OLSON

BOIES, SCHILLER & FLEXNER LLP Counsel of Record

333 Main Street

MATTHEW D. MCGILL

Armonk, N.Y. 10504

AMIR C. TAYRANI

(914) 749-8200

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

THEODORE J. BOUTROUS, JR.

Washington, D.C. 20036

CHRISTOPHER D. DUSSEAULT

(202) 955-8500

THEANE EVANGELIS KAPUR

tolson@gibsondunn.com

ENRIQUE A. MONAGAS

JOSHUA S. LIPSHUTZ

JEREMY M. GOLDMAN

GIBSON, DUNN & CRUTCHER LLP BOIES, SCHILLER & FLEXNER LLP

333 South Grand Avenue

1999 Harrison Street, Suite 900

Los Angeles, CA 90071

Oakland, CA 94612

(213) 229-7804

(510) 874-1000

Counsel for Respondents Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo

QUESTION PRESENTED
Whether it violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment for a State to use the ballot-initiative process to extinguish the state constitutional right of gay men and lesbians to marry a person of the same sex.

ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED...........................................i
TABLE OF AUTHORITIES...................................... iii
OPINIONS BELOW....................................................1
JURISDICTION ..........................................................1
STATEMENT ..............................................................1
REASONS FOR DENYING THE PETITION..........11
I. THE DECISION BELOW IS A CORRECT APPLICATION OF THIS COURT’S DECISION IN ROMER V. EVANS ....................... 12
II. THE NINTH CIRCUIT’S DECISION DOES NOT CONFLICT WITH ANY DECISION OF THIS COURT OR ANY COURT OF APPEALS ...... 20
III. ALTERNATIVE GROUNDS REQUIRE THE SAME OUTCOME REACHED BY THE COURT OF APPEALS ....................................... 26
A. Proponents Lacked Standing To Appeal The District Court’s Decision ..................................................26
B. Denying Gay Men And Lesbians The Fundamental Right To Marry Violates Equal Protection ......................27
C. Denying Gay Men And Lesbians The Fundamental Right To Marry Violates Due Process..............................31
CONCLUSION ..........................................................35

iii
TABLE OF AUTHORITIES
Page(s)
CASES Anderson v. City of Bessemer City,
470 U.S. 564 (1985) ..............................................20 Arizonans for Official English v. Arizona,
520 U.S. 43 (1997)............................................8, 27 Baker v. Nelson,
409 U.S. 810 (1972) ........................................22, 23 Baker v. Nelson,
191 N.W.2d 185 (Minn. 1971)..............................22 Boddie v. Connecticut,
401 U.S. 371 (1971) ..............................................31 Brown v. Bd. of Educ.,
347 U.S. 483 (1954) ................................................6 Carey v. Population Servs. Int’l,
431 U.S. 678 (1977) ........................................31, 33 Citizens for Equal Prot. v. Bruning,
455 F.3d 859 (8th Cir. 2006)....................17, 24, 25 City of Cleburne v. Cleburne Living Ctr., Inc.,
473 U.S. 432 (1985) ..............................................27 Cleburne Living Ctr. v. City of Cleburne,
726 F.2d 191 (5th Cir. 1984)..................................6 Cleveland Bd. of Educ. v. LaFleur,
414 U.S. 632 (1974) ..............................................31 Craig v. Boren,
429 U.S. 190 (1976) ..............................................23

iv
Crawford v. Bd. of Educ., 458 U.S. 527 (1982) ..................................20, 21, 22
Dombrowski v. Pfister, 380 U.S. 479 (1965) ..............................................34
Evans v. Romer, 854 P.2d 1270 (Colo. 1993) ..................................14
Frontiero v. Richardson, 411 U.S. 677 (1973) ..............................................23
Griswold v. Connecticut, 381 U.S. 479 (1965) ........................................31, 32
Gulf, Colo. & Santa Fe Ry. Co. v. Ellis, 165 U.S. 150 (1897) ..............................................13
Hicks v. Miranda, 422 U.S. 332 (1975) ..............................................23
Johnson v. Robison, 415 U.S. 361 (1974) ..............................................24
Lawrence v. Texas, 539 U.S. 558 (2003) ..................................31, 32, 33
Loving v. Virginia, 388 U.S. 1 (1967)......................................29, 31, 32
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..............................................26
M.L.B. v. S.L.J., 519 U.S. 102 (1996) ........................................31, 32
Mandel v. Bradley, 432 U.S. 173 (1977) ..............................................23
In re Marriage Cases, 183 P.3d 384 (Cal. 2008) ....................................4, 5
Mass. Bd. of Ret. v. Murgia, 427 U.S. 307 (1976) ..........................................7, 27

v
Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012) ....................................30
Maynard v. Hill, 125 U.S. 190 (1888) ..............................................31
Meyer v. Nebraska, 262 U.S. 390 (1923) ..............................................31
Moore v. City of East Cleveland, 431 U.S. 494 (1977) ..............................................31
Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) ..............................................27
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) ..............................................31
Plessy v. Ferguson, 163 U.S. 537 (1896) ..............................................12
Plyler v. Doe, 457 U.S. 202 (1982) ..........................................6, 13
Raines v. Byrd, 521 U.S. 811 (1997) ..............................................26
Reitman v. Mulkey, 387 U.S. 369 (1967) ..............................................14
Roe v. Wade, 410 U.S. 113 (1973) ..............................................31
Romer v. Evans, 517 U.S. 620 (1996) ...................................... passim
Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) ..............................................31
Strauss v. Horton, 207 P.3d 48 (Cal. 2009) ......................................4, 5

vi
Turner v. Safley, 482 U.S. 78 (1987)....................................23, 31, 32
U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973) ..............................................15
U.S. Dep’t of Labor v. Triplett, 494 U.S. 715 (1990) ..............................................27
United States v. Virginia, 518 U.S. 515 (1996) ..............................6, 20, 28, 30
Village of Willowbrook v. Olech, 528 U.S. 562 (2000) ..............................................13
Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765 (2000) ..............................................26
Warth v. Seldin, 422 U.S. 490 (1975) ..............................................26
Zablocki v. Redhail, 434 U.S. 374 (1978) ........................................31, 32
CONSTITUTIONAL PROVISIONS Cal. Const. art. I, § 7.5 ................................................4
STATUTES 28 U.S.C. § 1254 ..........................................................1 Cal. Fam. Code § 297 ..................................................5 Cal. Fam. Code § 308.5 ...............................................3
RULES Fed. R. Civ. P. 52 .......................................................20 Sup. Ct. R. 10...............................................................3

vii
OTHER AUTHORITIES David Blankenhorn,
How My View on Gay Marriage Changed, N.Y. Times, June 22, 2012 ..................19

BRIEF IN OPPOSITION
Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo (“Plaintiffs”) respectfully submit this brief in opposition to the petition for a writ of certiorari filed by Dennis Hollingsworth et al., private individuals designated the “official proponents” of Proposition 8 (“Proponents”). Pet. 8.
OPINIONS BELOW
The court of appeals’ opinion is reported at 671 F.3d 1052 (Pet. App. 1a). The court of appeals’ order denying rehearing and rehearing en banc is reported at 681 F.3d 1065 (Pet. App. 441a). The district court’s findings of fact and conclusions of law are reported at 704 F. Supp. 2d 921 (Pet. App. 137a). The court of appeals’ order certifying a question to the California Supreme Court is reported at 628 F.3d 1191 (Pet. App. 413a). The California Supreme Court’s answer is reported at 265 P.3d 1002 (Pet. App. 318a).
JURISDICTION
The court of appeals filed its opinion on February 7, 2012. It denied Proponents’ timely petition for rehearing or rehearing en banc on June 5, 2012. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).
STATEMENT
Proposition 8 enshrined in California’s governing charter a permanent proscription that only marriages between a man and a woman would be valid and recognized in the State and thereby abolished the right to marry that gay men and lesbians in California had previously enjoyed. Applying this Court’s precedents, the court of appeals isolated the particu-

2
lar challenged governmental action—Proposition 8’s withdrawal of the right to marry from gays and lesbians—and examined the various justifications advanced by Proponents. The court concluded that none of those proffered justifications was rationally advanced by the California electorate’s act to permanently withdraw the right to marry from gay men and lesbians. Instead, Proposition 8 served only to proclaim to Californian gay men and lesbians, “through the public law, [the] majority’s disapproval of them and their relationships.” Pet. App. 92a. The court of appeals accordingly held that Proposition 8 violated the Equal Protection Clause of the Fourteenth Amendment.
Proponents now seek review before this Court, disputing the merits of the Ninth Circuit’s equal protection analysis. That issue, of course, is undeniably important—not least to the Plaintiffs in this action but also to the tens of thousands of Californian samesex couples who continue to suffer the daily humiliation of having the State designate their relationships and their families as second-rate. Indeed, it fairly could be maintained that the question whether the States may discriminate against gay men and lesbians in the provision of marriage licenses is the defining civil rights issue of our time.
In some respects, this case is an attractive vehicle for approaching—if not definitively resolving— that issue. This case comes to this Court on a fullydeveloped factual record—indeed, the most comprehensive record ever developed in a case challenging a restriction on the right to marry. Moreover, quite fortuitously, the case comes to the Court contemporaneously with challenges to the federal Defense of Marriage Act (“DOMA”) that will place squarely be-

3
fore the Court the question of which standard of equal protection scrutiny properly applies to laws targeting gay men and lesbians. This coincidence of circumstances could enable the Court to benefit from the extensive records developed in both this case and the DOMA cases as it analyzes the various justifications tendered in support of laws discriminating against gay men and lesbians with respect to their relationships.
Yet, this Court’s traditional standards for the exercise of certiorari jurisdiction lead inexorably to the conclusion that this Court’s review is not warranted. See Sup. Ct. R. 10. The decision below scrupulously applied this Court’s established precedent in Romer v. Evans, 517 U.S. 620 (1996), which invalidated a Colorado ballot initiative that deprived gay men and lesbians of legal protections they previously had enjoyed, to a California ballot initiative that deprived gay men and lesbians of a legal right they previously had enjoyed. That holding, which necessarily is bound up with the particular state action effectuated by Proposition 8 and the legal backdrop of substantive rights otherwise accorded to gay men and lesbians under California law, does not—indeed, could not—conflict with any decision of this Court or any decision of a court of appeals or state court of last resort. Moreover, substantial doubts as to Proponents’ Article III standing to appeal—both to the Ninth Circuit and now this Court—call into question whether this Court could reach Proponents’ question presented at all. The petition should be denied.
1. In 2000, California voters adopted Proposition 22, which amended the Family Code to provide that “[o]nly marriage between a man and a woman is valid or recognized in California.” Cal. Fam. Code

4
§ 308.5. In May 2008, the California Supreme Court struck down Proposition 22, holding that it violated the due process and equal protection guarantees of the California Constitution, and ordered the State to issue marriage licenses without regard to the sex of the prospective spouses. In re Marriage Cases, 183 P.3d 384 (Cal. 2008).
After the California Supreme Court’s decision in the Marriage Cases, Proposition 8’s proponents financed and orchestrated a $40 million campaign to amend the California Constitution to abolish the fundamental right of gay men and lesbians to marry that was recognized by the state supreme court. The measure was placed on the ballot for the November 2008 election, and proposed to add a new Article I, § 7.5 to the California Constitution stating that “[o]nly marriage between a man and a woman is valid or recognized in California.”
The Official Voter Information Guide informed voters that Proposition 8 would “[c]hange[ ] the California Constitution to eliminate the right of same-sex couples to marry in California.” Pet. App. 26a. The Voter Guide’s “Argument in Favor of Proposition 8”—an official statement of the Yes on 8 campaign— urged voters to support the measure because “[w]e should not accept a court decision that may result in public schools teaching our own kids that gay marriage is okay.” Pet. App. 81a, 147a. The Argument asserted that “while gays have the right to their private lives, they do not have the right to redefine marriage for everyone else,” and told Californians that voting YES “protects our children.” Pet. App. 147a.
Proposition 8 passed by a narrow margin, and went into effect on November 5, 2008, the day after the election. See Strauss v. Horton, 207 P.3d 48, 68

5
(Cal. 2009). During the period between the California Supreme Court’s decision in the Marriage Cases on May 15, 2008, and the effective date of Proposition 8, more than 18,000 same-sex couples were married in California. Pet. App. 142a. On May 26, 2009, the California Supreme Court upheld Proposition 8 against a state constitutional challenge, but held that the new amendment to the California Constitution did not invalidate the marriages of same-sex couples that had been performed before its enactment. See Strauss, 207 P.3d 48; see also Pet. App. 143a.
By eliminating the right of individuals of the same sex to marry, Proposition 8 relegated same-sex couples seeking government recognition of their relationships to so-called “domestic partnerships.” Under California law, domestic partners are granted nearly all the substantive rights and obligations of a married couple, but are denied the venerated label of “marriage” and all of the respect, recognition and public acceptance that goes with that institution. See Cal. Fam. Code § 297; see also Marriage Cases, 183 P.3d at 402, 434-35, 444-45.
2. Plaintiffs are gay and lesbian Californians who are in committed, long-term relationships and who wish to marry. As a direct result of Proposition 8, Plaintiffs were denied the right to marry solely because their prospective spouses are of the same sex.
On May 22, 2009, Plaintiffs filed suit to secure the right to marry. They challenged the constitutionality of Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and named as defendants California’s Governor, Attorney General, and other officials involved in the enforcement of Proposition 8. In response, the

6
Attorney General admitted that Proposition 8 is unconstitutional, and the remaining government defendants denied that Plaintiffs were entitled to relief but otherwise declined to defend Proposition 8. Proponents moved to intervene in the case to defend Proposition 8, and the district court granted their motion.
The district court conducted a twelve-day bench trial, during which the parties were “given a full opportunity to present evidence in support of their positions.” Pet. App. 152a. At trial, the parties called 19 witnesses—17 of them by Plaintiffs—and played the video depositions of other witnesses as well. Pet. App. 153a. The court admitted into evidence more than 700 exhibits and took judicial notice of more than 200 other exhibits.1
On August 4, 2010—after hearing more than six hours of closing arguments and considering hundreds of pages of proposed findings of fact and conclusions of law submitted by the parties—the district court found in favor of Plaintiffs. The court declared Proposition 8 unconstitutional under the Equal Protection and Due Process Clauses of the Fourteenth Amendment, and permanently enjoined its enforcement. Pet. App. 316a-317a.
The district court concluded that Proposition 8 violates the Equal Protection Clause because it “cre-
1 The district court’s decision to resolve disputed factual issues through the trial process was consistent with a long line of constitutional cases. See, e.g., United States v. Virginia, 518 U.S. 515, 523 (1996); Plyler v. Doe, 457 U.S. 202, 207 (1982); Brown v. Bd. of Educ., 347 U.S. 483, 494 n.10 (1954); Cleburne Living Ctr. v. City of Cleburne, 726 F.2d 191, 192 nn.1-2 (5th Cir. 1984).

7
ates an irrational classification on the basis of sexual orientation.” Pet. App. 286a. As an initial matter, the district court found that “the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect.” Pet. App. 300a (citing Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313 (1976) (per curiam)). Based on the trial record, the district court concluded that “[a]ll classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation.” Pet. App. 301a.
The court found it unnecessary, however, to evaluate Proposition 8 under strict scrutiny because the measure failed even rational basis review. Pet. App. 301a. In reaching that conclusion, the district court carefully evaluated each of Proponents’ proffered justifications for Proposition 8. Ultimately, the district court concluded that, “despite ample opportunity and a full trial,” Proponents “have failed to identify any rational basis Proposition 8 could conceivably advance.” Pet. App. 312a. And, “[i]n the absence of a rational basis,” the court continued, “what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples.” Pet. App. 312a-313a.
The district court also held that Proposition 8 violates the Due Process Clause because it “unconstitutionally burdens the exercise of the fundamental right to marry” and “cannot withstand rational basis review”—let alone the strict scrutiny required when a measure infringes on a fundamental right. Pet.

8
App. 286a, 295a. The district court found that the right to marry is fundamental for both heterosexuals and for gay men and lesbians, and that unions between individuals of the same sex “encompass the historical purpose and form of marriage.” Pet. App. 291a. Accordingly, Plaintiffs were “not seek[ing] recognition of a new right,” but access to the fundamental right to marry constitutionally guaranteed to all persons. Id.
Having found that “Proponents’ evidentiary presentation was dwarfed by that of plaintiffs” and that Proponents “failed to build a credible factual record to support their claim that Proposition 8 served a legitimate government interest,” Pet. App. 153a, the district court concluded that Plaintiffs were entitled to a permanent injunction against the enforcement of Proposition 8. Pet. App. 317a.
3. Proponents appealed the district court’s decision to the Ninth Circuit after the State defendants elected not to do so, and obtained a stay of the judgment from the Ninth Circuit pending resolution of an expedited appeal. As a preliminary matter, the court asked the parties to address Proponents’ standing to seek review of the district court’s order in light of Arizonans for Official English v. Arizona, 520 U.S. 43 (1997). Pet. App. 420a. After oral argument, the court concluded that Proponents’ “claim to standing depends on [their] particularized interests created by state law or their authority under state law to defend the constitutionality of the initiative.” Pet. App. 420a. Thus, on January 4, 2011, the Ninth Circuit certified to the California Supreme Court the question whether, under California law, “the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or

9
the authority to assert the State’s interest in the initiative’s validity.” Pet. App. 416a.
In response to the Ninth Circuit’s certified question, the California Supreme Court concluded that, “[i]n a postelection challenge to a voter-approved initiative, the official proponents of the initiative are authorized under California law to appear and assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so.” Pet. App. 326a-327a. In so ruling, the court declined to “decide whether the official proponents of an initiative measure possess a particularized interest in the initiative’s validity once the measure has been approved by the voters.” Pet. App. 351a.
4. On February 7, 2012, the Ninth Circuit affirmed the district court’s decision. On the jurisdictional issue, the court ruled that Proponents had standing to appeal. According to the court, “[a]ll that matters, for federal standing purposes, is that the People have an interest in the validity of Proposition 8 and that, under California law, Proponents are authorized to represent the People’s interest. That is the case here.” Pet. App. 40a.
Addressing the merits, the Ninth Circuit did not decide whether heightened scrutiny applies to laws, like Proposition 8, that target gay and lesbian individuals for disfavored treatment. Pet. App. 57a n.13 (citing Romer, 517 U.S. at 631-32). Nor did the court decide whether same-sex couples have a fundamental right to marry under the Due Process Clause. See Pet. App. 60a. Instead the court focused on the “unprecedented” and “unusual” nature of Proposition 8—an initiative it concluded “has no practical effect

10
except to strip” gay men and lesbians of a right that California’s Constitution had previously guaranteed. Pet. App. 59a-60a; see also Pet. App. 53a-54a (“Before Proposition 8, California guaranteed gays and lesbians both the incidents and the status and dignity of marriage. Proposition 8 left the incidents but took away the status and dignity.”). The court of appeals then applied rational basis review to that particular and peculiar state action, framing its inquiry as whether “the People of California ha[d] legitimate reasons for enacting a constitutional amendment that serves only to take away from same-sex couples” the status and dignity state law previously accorded their relationships. Pet. App. 54a.
As the Ninth Circuit explained, because “Proposition 8 is remarkably similar to” the Colorado constitutional amendment struck down by this Court in Romer, 517 U.S. 620, “Romer governs our analysis” and “compels that we affirm the judgment of the district court.” Pet. App. 57a-60a; see also Pet. App. 56a (“This is not the first time the voters of a state have enacted an initiative constitutional amendment that reduces the rights of gays and lesbians under state law.”).
Integral to its analysis was an examination of the various rationales advanced by Proponents and their amici in support of Proposition 8. Pet. App. 69a-85a. After assuming arguendo the legitimacy of the governmental interests supposedly advanced by Proposition 8, the court of appeals determined that Proponents had failed to “explain how rescinding access to the designation of ‘marriage’ is rationally related” to any of those interests. Pet. App. 74a. “As in Romer,” the court therefore concluded that “[Proposition 8] was enacted with only the constitutionally

11
illegitimate basis of ‘animus toward the class it affects,’” Pet. App. 62a (quoting Romer, 517 U.S. at 632), and held “Proposition 8 to be unconstitutional on this ground.” Pet. App. 94a.
5. The Ninth Circuit denied Proponents’ request for rehearing or rehearing en banc on June 5, 2012, over the dissent of Judge O’Scannlain, joined only by Judges Bybee and Bea. Pet. App. 441a-446a. The court ordered that its stay remain in place until final disposition of the case by this Court. Pet. App. 444a.
REASONS FOR DENYING THE PETITION
The petition should be denied because the court of appeals’ decision striking down Proposition 8 does not satisfy any of this Court’s traditional standards for the exercise of certiorari jurisdiction. The Ninth Circuit’s opinion reflects a careful and straightforward application of Romer v. Evans, 517 U.S. 620 (1996), which held that the Constitution does not allow for “laws of this sort” that single out gay men and lesbians for discriminatory treatment. Id. at 633. Reviewing an extensive trial record and reaching the same conclusion as the district court, the Ninth Circuit found that “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.” Pet. App. 17a. That decision does not conflict with any decision of this Court or any other court of appeals. Indeed, it is the only outcome consistent with the Equal Protection Clause and this Court’s precedents.
In addition, this case is, at best, a problematic vehicle for review of Proponents’ claims because their claim of Article III standing to appeal is predicated

12
on a novel legal theory: that a ballot initiative proponent who has suffered no injury personal to himself nevertheless may seek to vindicate the State’s interests in the validity of the initiative. Further, even if this Court were to find that Proponents have standing, any decision rejecting the Ninth Circuit’s invalidation of Proposition 8 under rational basis review would require this Court to consider several alternative grounds for affirmance. As Plaintiffs argued below, Proposition 8 should be subject to heightened scrutiny under the Equal Protection Clause because it imposes a special disability on a disfavored minority group based on two suspect classifications—sexual orientation and sex. Proponents do not even attempt to defend Proposition 8 under heightened scrutiny, as that discriminatory measure is obviously not tailored to serve any important or compelling state interest. Moreover, Proposition 8, which prevents hundreds of thousands of gay and lesbian Californians from exercising their fundamental right to marry the person of their choice, cannot possibly be squared with the protections afforded to all Americans by the Due Process Clause.
I. THE DECISION BELOW IS A CORRECT APPLICATION OF THIS COURT’S DECISION IN ROMER V. EVANS.
Far from conflicting with any of this Court’s case law, the court of appeals’ decision reflects a correct and straightforward application of settled Supreme Court precedent. It has been more than a century since Justice Harlan proclaimed that the Constitution “neither knows nor tolerates classes among citizens.” Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting). Indeed, “[n]o duty rests more imperatively upon the courts than the enforcement of those constitutional provisions intended to

13
secure that equality of rights which is the foundation of free government.” Gulf, Colo. & Santa Fe Ry. Co. v. Ellis, 165 U.S. 150, 160 (1897). The Equal Protection Clause safeguards equality by “secur[ing] every person within the State’s jurisdiction against intentional and arbitrary discrimination.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam).
Proposition 8 is antithetical to the “principles of equality” on which this “Nation . . . prides itself.” Plyler v. Doe, 457 U.S. 202, 219 (1982). It creates a permanent “underclass” of hundreds of thousands of gay and lesbian Californians, id., who are denied the right to marry available to all other Californians simply because a majority of voters deems gay and lesbian relationships inferior, morally reprehensible, religiously unacceptable, threatening to children, or simply not “okay.” In the words of Plaintiffs’ expert witness Ilan Meyer, it is “quite clear that the young children do not aspire to be domestic partners. But, certainly, the word ‘marriage’ is something that many people aspire to.” Trial Tr. 827:14-20. With the full authority of the State behind it, Proposition 8 sends a clear and powerful message to gay men and lesbians: Your relationships are not recognized on the same footing or entitled to the same dignity or respect as those of heterosexuals, they are not “okay,” and they are threatening to children.
A. Proponents claim that “the root of the Ninth Circuit’s error is its assertion that Romer turned on the timing of Colorado’s Amendment 2 rather than its substance.” Pet. 18. But Romer’s plain language belies Proponents’ argument, demonstrating that the relative timing of the Colorado amendment was an important factor in understanding its substance and

14
effect: Just like Proposition 8, Colorado Amendment 2 repealed provisions that previously advanced nondiscriminatory treatment of gay men and lesbians, placing a special disability on those groups and raising the specter that it was motivated by an improper purpose.
In Romer, this Court explained that “[t]he impetus for the amendment and the contentious campaign that preceded its adoption came in large part from ordinances that had been passed in various Colorado municipalities . . . which banned discrimination.” 517 U.S. at 623-24. “Amendment 2 repeals these ordinances to the extent they prohibit discrimination on the basis of” sexual orientation. Id. at 624 (emphasis added); see also id. at 626 (“‘The immediate objective of Amendment 2 is, at a minimum, to repeal existing statutes . . . that barred discrimination based on sexual orientation.’”) (quoting Evans v. Romer, 854 P.2d 1270, 1284 (Colo. 1993) (en banc)). As the Court emphasized, “[t]he amendment withdraws from homosexuals, but no others, specific legal protection” and “imposes a special disability upon those persons alone.” Id. at 627, 631 (emphasis added); see also Reitman v. Mulkey, 387 U.S. 369, 381 (1967) (invalidating a voter-enacted California constitutional provision that extinguished state-law protections that minorities had previously possessed against housing discrimination).
Because “laws of th[is] kind” uniquely reduce the status of a minority group by taking away legal rights and privileges previously accorded, the Court closely examined the various “rationale[s] the State offer[ed]” to justify the constitutional amendment, which included “other citizens’ freedom of association,” “the liberties of landlords or employers who

15
have personal or religious objections to homosexuality,” and the State’s “interest in conserving resources to fight discrimination against other groups.” Romer, 517 U.S. at 634-35. After finding that the amendment was “far removed from these particular justifications,” such that it was “impossible to credit them,” the Court was left with “the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” Id. (citing U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973)); see also id. at 635 (“We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else.”).
In this case, the Ninth Circuit performed the same analysis, and because Proposition 8 made gay men and lesbians “unequal to everyone else” with respect to the availability of civil marriage, reached the same conclusion. The fact that Proposition 8 “rescind[s] access [of same-sex couples] to the designation of ‘marriage,’” Pet. App. 74a, the court reasoned, suggests it was motivated by animus against gay men and lesbians rather than some legitimate governmental aim. See Pet. App. 55a (“The action of changing something suggests a more deliberate purpose than does the inaction of leaving it as it is.”).
The court of appeals then examined the fit between Proposition 8 and the purported state interests that Proponents and their amici claim it serves: “responsible procreation and childrearing,” “encourag[ing] heterosexual couples to enter into matrimony,” “bolster[ing] the stability of families headed by one man and one woman,” “proceed[ing] with caution when considering changes to the definition of marriage,” “protecting religious liberty,” and “pro-

16
tect[ing] our children from being taught in public schools that same-sex marriage is the same as traditional marriage.” Pet. App. 70a, 78a, 81a, 82a (internal quotation marks omitted). After carefully considering the parties’ arguments, the trial court’s factual findings, the California Supreme Court’s findings and interpretation of Proposition 8, and the campaign literature distributed to voters, Pet. App. 69a-85a, 89a-92a, the Ninth Circuit concluded there is no “conceivably plausible” relationship between Proposition 8 and the rationales proffered in its defense by Proponents. Pet. App. 75a; see also Pet. App. 78a (“[T]he People of California could not reasonably have conceived such an argument to be true.”) (internal quotation marks omitted); Pet. App. 78a (Proponents’ argument “lacks any such footing in reality”). The court was therefore left with the same “‘inevitable inference . . . of animosity’” that doomed the amendment in Romer. Pet. App. 86a (quoting Romer, 517 U.S. at 634).
In short, the Ninth Circuit found that eliminating the ability of gay and lesbian couples to have their relationships designated as marriages—and relegating them to separate and unequal domestic partnerships—achieves nothing except the marginalization of gay and lesbian individuals and their relationships, and therefore cannot withstand constitutional scrutiny. That holding is fully consistent with this Court’s jurisprudence, which has long held that marginalizing a group of citizens for its own sake violates the Fourteenth Amendment.
B. Proponents nevertheless argue that two of the governmental interests described above “warrant specific mention” in explaining why, in their opinion, this Court should grant review. Pet. 25.

17
First, Proponents contend that the Ninth Circuit overlooked the origins of marriage and that “the institution of marriage owe[s] its very existence to society’s vital interest in responsible procreation and childbearing.” Pet. 28; see also Pet. at 37-38 (“[S]upport for the traditional definition of marriage is rooted precisely in . . . maintain[ing] the inherent link between the institution and its traditional procreative purposes.”). As the Ninth Circuit held, however, Proponents have never explained the relevance of this history to Proposition 8. It may very well be that the creation of marriage and the government’s decision to “‘extend[ ] a variety of benefits to married couples’” are “‘rationally related to the government interest in steering procreation into marriage.’” Pet. 28 (quoting Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 867 (8th Cir. 2006)). But depriving gay men and lesbians of the uniquely “cherished status of ‘marriage,’” Pet. App. 52a, obviously does not affect the likelihood that heterosexuals will procreate responsibly or raise their children in Proponents’ preferred family structure. It only ensures that gay and lesbian couples will be denied the “worth and dignity” afforded opposite-sex couples and that their children will be raised by parents who cannot marry. Pet. App. 88a; see also Pet. App. 237a (“Approximately eighteen percent of same-sex couples in California are raising children.”).
In addition, Proponents’ argument fails even on its own terms because the line Proposition 8 draws bears no relationship whatsoever to Proponents’ stated objective of channeling procreative activity into marriage. There are many classes of heterosexual persons who cannot procreate unintentionally, including the old, the infertile, and the incarcerated. And there are still other classes of heterosexual per-

18
sons who might have the capacity to procreate, but who have no desire to do so. All of these classes of heterosexual persons are as unlikely to engage in “[ir]responsible procreation and childbearing” as a same-sex couple, yet Proposition 8 leaves these classes of heterosexual persons free to marry. Proposition 8 targets gay men and lesbians for exclusion and them alone. See Pet. App. 76a (“Proposition 8 in no way alters the state laws that govern childrearing and procreation. It makes no change with respect to the laws regarding family structure. As before Proposition 8, those laws apply in the same way to samesex couples in domestic partnerships and to married couples. Only the designation of ‘marriage’ is withdrawn and only from one group of individuals.”).
Second, Proponents assert that “it is not irrational for Californians to proceed cautiously on this sensitive and controversial social issue.” Pet. 36. But that is not what happened here; California voters did not cautiously opt to “observe and assess” the status quo to determine how to proceed. Pet. 36. Rather, they upended the status quo by enshrining a blanket prohibition on same-sex marriage in the State’s charter, preventing the legislature from authorizing same-sex unions. See Pet. App. 79a (“[T]here could be no rational connection between the asserted purpose of ‘proceeding with caution’ and the enactment of an absolute ban, unlimited in time, on same-sex marriage in the state constitution.”). Proponents’ supposedly noteworthy justifications for Proposition 8 thus provide no justification whatsoever.
3. Proponents conclude by asserting that “there is no truth to the panel majority’s charge that Proposition 8 is nothing more than an effort to ‘dishonor a

19
disfavored group’ and to proclaim the ‘lesser worth’ of gays and lesbians as a class.” Pet. 37 (emphasis added). But the time and place for uncovering the “truth” is at trial, and the trial court found otherwise. The trial record, for example, included testimony from Dr. George Chauncey, Professor of History at Yale University, who explained that the public messages disseminated by the Yes on 8 campaign evoked fears of gay people as child molesters and recruiters of children (Pet. App. 279a-284a), and from Hak-Shing William Tam, an official proponent of Proposition 8 called by Plaintiffs as an adverse witness, who testified that the campaign messages were designed to convince people that “legalizing same-sex marriage” “would lead children to become gay” and “fantasize marrying someone of the same sex,” a lifestyle associated with “disease.” Pet. App. 165a, 281a-284a. According to Dr. Tam, there is a “gay agenda” that includes legalizing prostitution and sex with children, and permitting gays and lesbians to marry in California would “cause states one-by-one to fall into Satan’s hands.” Pet. App. 165a, 281a284a.
Even Proponents’ own expert witness—the only witness who purported to provide any rational basis for Proposition 8, and on whose testimony Proponents continue to rely, see Pet. 36—recently concluded that “the time has come for [him] to accept gay marriage and emphasize the good that it can do.” David Blankenhorn, How My View on Gay Marriage Changed, N.Y. Times, June 22, 2012. This decision was driven by Mr. Blankenhorn’s acknowledgement that “to [his] deep regret, much of the opposition to gay marriage seems to stem, at least in part, from an underlying anti-gay animus.” Id.; see also Trial Tr. 2608:16-18 (testimony of Proponents’ expert witness

20
Kenneth Miller, expressing his view that “at least some people voted for Proposition 8 on the basis of anti-gay stereotypes and prejudice”). Indeed, even before his recent change of heart, Mr. Blankenhorn testified at trial that the elimination of Proposition 8 would make us all “more American” by affirming that “the principle of equal human dignity must apply to gay and lesbian persons.” Pet. App. 196a. There is accordingly no reason for this Court to disturb the trial court’s considered factual finding that animus was, indeed, the driving force behind Proposition 8, or the Ninth Circuit’s decision affirming that determination. See Anderson v. City of Bessemer City, 470 U.S. 564, 573-75 (1985); Fed. R. Civ. P. 52(a).2
II. THE NINTH CIRCUIT’S DECISION DOES NOT CONFLICT WITH ANY DECISION OF THIS COURT OR ANY COURT OF APPEALS.
A. Proponents contend that “[t]he Ninth Circuit’s decision cannot be squared with Crawford v. Board of Education, 458 U.S. 527 (1982).” Pet. 15. But Crawford itself demonstrates that Proponents are wrong. In fact, Crawford supports the Ninth Circuit’s approach in this case.
2 Proponents point to “California’s generous domestic partnership laws,” Pet. 34, which they say represent “some of the Nation’s most sweeping and progressive protections of gays and lesbians,” Pet. 6, as proof that California’s “gay-friendly” voters could not have acted with animus in enacting Proposition 8. But there is no “Mostly Equal Protection Clause” or “Separate But Equal Protection Clause” in the U.S. Constitution, and minorities need not be satisfied with mere graciousness from the majority. See United States v. Virginia, 518 U.S. 515, 554 (1996).

21
In Crawford, this Court affirmed the constitutionality of an amendment to the California Constitution instructing state courts to stop ordering the busing of students—which they had previously required as a means of desegregating schools—unless the Fourteenth Amendment of the U.S. Constitution required it. 458 U.S. at 529. Unlike Proposition 8, the amendment at issue in Crawford did not reduce or eliminate the substantive rights of any particular group. This Court was crystal clear on that point:
[T]he Proposition simply removes one means of achieving the state-created right to desegregated education. School districts retain the obligation to alleviate segregation regardless of cause. And the state courts still may order desegregation measures other than pupil school assignment or pupil transportation.
Id. at 544 (emphasis added). Further, the amendment at issue in Crawford could not have violated the U.S. Constitution because, by its own terms, it required state courts to take whatever actions were constitutionally required. See id. at 535 (“It would be paradoxical to conclude that by adopting the Equal Protection Clause of the Fourteenth Amendment, the voters of the State thereby had violated it.”).
Proponents repeatedly point to Crawford’s language “‘reject[ing] the contention that once a State chooses to do ‘more’ than the Fourteenth Amendment requires, it may never recede.’” Pet. 4 (quoting 458 U.S. at 535); Pet. 15 (same). But they ignore the important corollary to that rule: Crawford, even before Romer, recognized that “if the purpose of repealing legislation is to disadvantage a . . . minority, the re-

22
peal is unconstitutional for this reason.” 458 U.S. at 539 n.21. Crawford, just like Romer and the decision below, therefore examined the purposes allegedly served by the amendment—for example, “the educational benefits of neighborhood schooling”—by looking at the state court’s findings and the relevant campaign literature. Id. at 543-44. Unlike Romer and this case, however, there was ample evidence in Crawford to demonstrate that Proposition I was “not motivated by a discriminatory purpose.” Id. at 545. The decision below—based on a different record concerning a different ballot proposition purportedly justified by different interests—does not even implicate, much less contradict, Crawford’s case-specific conclusion.
B. Proponents also claim the decision below conflicts with Baker v. Nelson, 409 U.S. 810 (1972). See Pet. 23-24. The Ninth Circuit panel majority and dissent, however, both agreed that Baker does not control: As Judge N.R. Smith explained in his dissent, “the constitutionality of withdrawing from same-sex couples the right of access to the designation of marriage does not seem to be among the ‘specific challenges’ raised in Baker.” Pet. App. 103a; see also Pet. App. 60a n.14.
The Ninth Circuit panel’s unanimous conclusion that it was not bound by Baker is unquestionably correct. In Baker, this Court dismissed “for want of a substantial federal question,” 409 U.S. at 810, an appeal from a Minnesota Supreme Court decision rejecting federal due process and equal protection challenges to the State’s refusal to issue a marriage license to a same-sex couple, Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971). This Court’s summary dismissals are binding on lower courts only “on the

23
precise issues presented and necessarily decided” by the Court, Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam) (emphasis added), and only to the extent that they have not been undermined by subsequent “doctrinal developments” in the Court’s jurisprudence, Hicks v. Miranda, 422 U.S. 332, 344 (1975) (internal quotation marks omitted); see also Turner v. Safley, 482 U.S. 78, 96 (1987).
The Court’s summary disposition of the equal protection question in Baker does not meet either of these requirements. As an initial matter, Baker presented an equal protection challenge based solely on sex discrimination and therefore cannot conceivably foreclose Plaintiffs’ claim that Proposition 8 discriminates against gay and lesbian individuals on the basis of their sexual orientation. See Jurisdictional Statement at 16, Baker, 409 U.S. 810 (No. 71-1027) (“The discrimination in this case is one of gender.”). In any event, Baker’s summary treatment of the sexbased equal protection challenge to Minnesota’s marriage law cannot survive later doctrinal developments because Baker was decided before this Court recognized that sex is a quasi-suspect classification. See Craig v. Boren, 429 U.S. 190, 197 (1976); Frontiero v. Richardson, 411 U.S. 677, 688 (1973) (plurality). And, to the extent Baker’s equal protection ruling ever applied to classifications involving sexual orientation, that ruling has been undermined by subsequent doctrinal developments, including Romer.
Moreover, the Court’s summary dismissal in Baker addressed an equal protection challenge to a marriage framework that is far different from the one that Plaintiffs are challenging here, and therefore cannot be controlling on any component of Plain-

24
tiffs’ claims. Whereas Baker concerned the constitutionality of an outright refusal by a State to afford any recognition to same-sex relationships, Plaintiffs’ suit challenges California voters’ use of the ballot initiative process to withdraw from unmarried gay and lesbian individuals their preexisting state constitutional right to marry and relegate them to the inherently unequal institution of domestic partnership. Whatever the constitutional flaws in Minnesota’s blanket denial of recognition to same-sex relationships, Proposition 8 is uniquely irrational and discriminatory: California voters used the initiative process to single out unmarried gay and lesbian individuals for a “special disability” (Romer, 517 U.S. at 631) by extinguishing their state constitutional right to marry, while at the same time preserving the 18,000 existing marriages of gay and lesbian couples (but not allowing those individuals to remarry if divorced or widowed) and affording unmarried gay and lesbian individuals the right to enter into domestic partnerships that carry virtually all the same rights and obligations—but not the highly venerated label—associated with opposite-sex marriages (and existing same-sex marriages).3
C. Proponents also incorrectly claim that the court of appeals’ decision conflicts with the Eighth Circuit’s decision in Bruning, 455 F.3d 859. See Pet.
3 Nor does the Ninth Circuit’s decision conflict with Johnson v. Robison, 415 U.S. 361 (1974). See Pet. 30-31. That Congress had a rational basis for declining to extend scarce veterans’ benefits to “conscientious objectors” who refused to “serve their country on active duty in the Armed Forces,” 415 U.S. at 374, does not remotely establish that California had a rational basis for dispossessing members of a discrete minority group of their right to marry.

25
24. The amendment to the Nebraska Constitution at issue in Bruning not only declared that same-sex couples could not be designated as “married,” but, unlike Proposition 8, also prevented the State from recognizing civil unions, domestic partnerships, or any other same-sex relationship. See 455 F.3d at 863. Unlike Proposition 8, it also refused to grant Nebraskan same-sex couples the full “basket of rights and benefits [afforded] to married heterosexual couples.” Id. at 867.
These important differences do not mean “that Proposition 8 would be constitutional if only it had gone further,” Pet. App. 76a, but they do alter the rational basis analysis because they create an entirely distinct means-end fit between Nebraska’s law and its purported purposes. Compare Bruning, 455 F.3d at 868 (“The package of government benefits and restrictions that accompany the institution of formal marriage serve a variety of . . . purposes. The legislature . . . may rationally choose not to expand in wholesale fashion the groups entitled to those benefits.”), with Pet. App. 59a-60a (“A law that has no practical effect except to strip one group of the right to use a state-authorized and socially meaningful designation is all the more ‘unprecedented’ and ‘unusual’ than a law that imposes broader changes, and raises an even stronger inference that the disadvantage imposed is born of animosity toward the class of persons affected.”) (internal quotation marks omitted). Thus, there is no conflict between the decision below and the conclusions reached by the Eighth Circuit under different circumstances in Bruning.

26
III. ALTERNATIVE GROUNDS REQUIRE THE SAME OUTCOME REACHED BY THE COURT OF APPEALS.
This Court should also deny the petition because it requires the Court first to resolve an unsettled threshold question of Article III standing. Then, if it reached the merits and rejected the Ninth Circuit’s reasoning, the Court still would be confronted with several alternative grounds for affirmance upon which the district court relied.
A. Proponents Lacked Standing To Appeal The District Court’s Decision.
If this Court granted review, it would be required to decide whether Proponents had standing to appeal a decision that has no direct effect on them. The California Supreme Court’s ruling that Proponents may represent the State’s interests on appeal does not— and cannot—alter Proponents’ inability to meet the “irreducible constitutional minimum” requirements of standing established by Article III of the United States Constitution. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To satisfy Article III, a party must establish, among other things, that it has suffered an “injury” that is “personal, particularized, concrete, and otherwise judicially cognizable.” Raines v. Byrd, 521 U.S. 811, 820 (1997); see also Lujan, 504 U.S. at 560. In other words, the “‘Art[icle] III judicial power exists only to redress or otherwise to protect against injury to the complaining party.’” Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000) (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)) (emphasis in Stevens).
Proponents would not suffer any personalized injury as a result of the invalidation of Proposition 8

27
and thus are unable to satisfy the requirements of Article III, even if, under state law, they have the right to represent the State’s interests in Proposition 8. See Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997); U.S. Dep’t of Labor v. Triplett, 494 U.S. 715, 720 (1990). Because the California Supreme Court’s decision cannot override Article III, this Court would have to decide, as a threshold matter, whether the Ninth Circuit should have dismissed the appeal for lack of jurisdiction. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804 (1985) (“Standing to sue in any Article III court is . . . a federal question which does not depend on the party’s prior standing in state court.”).
B. Denying Gay Men And Lesbians The Fundamental Right To Marry Violates Equal Protection.
Were this Court to find that Proponents had standing to appeal but disagree with the Ninth Circuit’s rational basis analysis, it would then be required to address whether some form of heightened scrutiny should apply under the Equal Protection Clause.
1. Strict and intermediate equal protection scrutiny apply to classifications based on factors “so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985). This Court has consistently applied heightened scrutiny where a group has experienced a “history of purposeful unequal treatment or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities.” Mass. Bd. of Ret. v. Murgia, 427 U.S.

28
307, 313 (1976) (per curiam) (internal quotation marks omitted); see also United States v. Virginia, 518 U.S. 515, 531-32 (1996) (noting “long and unfortunate history of sex discrimination”) (internal quotation marks omitted).
In this case, the district court found that “the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect.” Pet. App. 300a. That finding follows inexorably from this Court’s equal protection jurisprudence, the extensive trial record, and Proponents’ repeated concessions that gay men and lesbians have faced a history of discrimination based on a trait that has no bearing on their ability to contribute to society. As Plaintiffs’ expert Gary Segura explained, “[t]here is no group in American society who has been targeted by ballot initiatives more than gays and lesbians,” and “[t]hey have essentially lost a hundred percent of the contests over same-sex marriage.” Trial Tr. 1552:6-12. Indeed, the undisputed fact that gay men and lesbians have been subjected to a history of discrimination based on a trait that bears no relationship to their ability to contribute to society is sufficient, in and of itself, to render classifications based on sexual orientation “suspect” (or, at the very least, quasi-suspect) and to give rise to heightened scrutiny.4
4 Among other things, the district court’s findings of fact examine the painful history of discrimination faced by gay men and lesbians, their lack of political power (including the frequent successful targeting of them through ballot initiatives), their ability to contribute equally to society, and the immutability of sexual orientation. See Pet. App. 228a-234a, 264a-279a. Because it applied rational basis review, the court of appeals did not have occasion to address these findings. It thus would

29
Proponents do not even attempt to argue that Proposition 8 would survive heightened scrutiny if sexual orientation were declared to be a suspect classification, as it plainly would not.
2. Heightened scrutiny is also warranted because Proposition 8 discriminates on the basis of sex. Proposition 8 prohibits a man from marrying a person whom a woman would be free to marry, and viceversa. As the district court explained: “Perry is prohibited from marrying Stier, a woman, because Perry is a woman. If Perry were a man, Proposition 8 would not prohibit the marriage. Thus, Proposition 8 operates to restrict Perry’s choice of marital partner because of her sex.” Pet. App. 297a-298a.
The fact that Proposition 8’s discriminatory restrictions apply with equal force to both sexes does not cure its constitutional deficiencies. As this Court held in Loving v. Virginia, the mere “fact” that Virginia’s anti-miscegenation law had “equal application [to both the white and African-American member of the couple] d[id] not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race.” 388 U.S. 1, 9 (1967). “[E]qual application” is thus a plainly insufficient basis for defending discriminatory restrictions on the right to marry.
The district court also found that the sex-based restriction embodied in Proposition 8 is based on, and inextricably intertwined with, outdated and un-
[Footnote continued from previous page]
be left to this Court to determine in the first instance the level of deference to be accorded to the district court’s factual findings on these topics.

30
founded stereotypes about the roles that men and women should play in society and in the family. As the district court explained, “[T]he evidence shows that the tradition of gender restrictions arose when spouses were legally required to adhere to specific gender roles.” Pet. App. 303a. Today, “California has eliminated all legally-mandated gender roles except the requirement that a marriage consist of one man and one woman.” Pet. App. 303a.
Classifications based on sex are unconstitutional unless the State proves that they are “substantially related” to an “important governmental objective[ ].” Virginia, 518 U.S. at 533 (internal quotation marks omitted). As discussed above, Proponents make no serious attempt to satisfy such heightened scrutiny. Proposition 8 is therefore unconstitutional for the additional, independent reason that it impermissibly discriminates on the basis of sex.
3. Even if this Court were to determine that strict and immediate scrutiny are inapplicable to Proposition 8, it would nevertheless need to determine whether a form of heightened rational basis review applies. Indeed, the First Circuit recently applied such a standard in assessing the constitutionality of DOMA, explaining the need for “intensified scrutiny of purported justifications where minorities are subject to discrepant treatment.” Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1, 10 (1st Cir. 2012) (citing Moreno, City of Cleburne, and Romer), petitions for cert. filed, 81 U.S.L.W. 3006 (U.S. June 29, 2012) (No. 12-13), and 81 U.S.L.W. 3006 (U.S. July 3, 2012) (No. 12-15), and 81 U.S.L.W. 3065 (U.S. July 20, 2012) (No. 12-97). That court therefore conducted “a more careful assessment of the justifications [for the law] than the light scrutiny

31
offered by conventional rational basis review,” id. at 11, ruling that “the rationales offered do not provide adequate support for section 3 of DOMA.” Id. at 15. Proposition 8 would likewise fail the version of rational basis review applied by the First Circuit.
C. Denying Gay Men And Lesbians The Fundamental Right To Marry Violates Due Process.
If this Court granted review and rejected the Ninth Circuit’s holding, it would also be confronted with the question whether gay men and lesbians are entitled to the fundamental right to marry that the Court long ago recognized to be inherent in the Due Process Clause. The “freedom of personal choice in matters of marriage” is a well-established fundamental right. Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639 (1974). In more than a dozen cases over the last century, this Court has reaffirmed that the right to marry is “one of the liberties protected by the Due Process Clause,” id.; “essential to the orderly pursuit of happiness by free men,” Loving, 388 U.S. at 12; and “sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.” M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996).5
5 See also Lawrence v. Texas, 539 U.S. 558, 574 (2003); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992); Turner, 482 U.S. at 95-96; Zablocki v. Redhail, 434 U.S. 374, 384 (1978); Carey v. Population Servs. Int’l, 431 U.S. 678, 685 (1977); Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977) (plurality); Roe v. Wade, 410 U.S. 113, 152 (1973); Boddie v. Connecticut, 401 U.S. 371, 376, 383 (1971); Griswold v. Connecticut, 381 U.S. 479, 486 (1965); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942); Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Maynard v. Hill, 125 U.S. 190, 205 (1888).

32
In fact, this Court has characterized the right to marry as one of the most fundamental rights—if not the most fundamental right—of an individual. Loving, 388 U.S. at 12. The Court has defined marriage as a right of liberty (Zablocki v. Redhail, 434 U.S. 374, 384 (1978)), privacy (Griswold v. Connecticut, 381 U.S. 479, 486 (1965)), intimate choice (Lawrence v. Texas, 539 U.S. 558, 574 (2003)), and association (M.L.B., 519 U.S. at 116). “Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” Griswold, 381 U.S. at 486 (emphasis added). The right “is of fundamental importance for all individuals.” Zablocki, 434 U.S. at 384 (emphasis added). Indeed, “[w]hen slaves were emancipated, they flocked to get married” because they believed that “the ability to marry legally, to replace the informal unions in which they had formed families and had children . . . with legal, valid marriage . . . would presumably protect their vows to each other.” Trial Tr. 202:22-203:9 (testimony of Plaintiffs’ witness Nancy Cott, an expert on the history of marriage in the United States (Pet. App. 172a)).
The right to marry has always been based on, and defined by, the constitutional liberty to select the partner of one’s choice—not on the partner chosen. See generally Loving, 388 U.S. 1; Turner, 482 U.S. 78. Thus, just as striking down Virginia’s prohibition on marriage between persons of different races did not require this Court to recognize a new constitutional right to interracial marriage in Loving, invalidating Proposition 8 would not require recognition of a new right to same-sex marriage. Instead, it would vindicate the longstanding right of all persons to exercise freedom of personal choice in deciding whether and whom to marry. See Lawrence, 539

33
U.S. at 566, 574 (invalidating Texas’s criminal prohibition on same-sex intimate conduct because it violated the right to personal sexual autonomy guaranteed by the Due Process Clause, not because it violated a “fundamental right” of “homosexuals to engage in sodomy”) (internal quotation marks omitted).
Because Proposition 8 burdens that fundamental right, it is unconstitutional unless Proponents can demonstrate that it is “narrowly drawn” to further a “compelling state interest[ ],” Carey v. Population Servs. Int’l, 431 U.S. 678, 686 (1977), a showing they do not attempt and could not plausibly make.6
* * *
As shown above, the decision of the court of appeals is correct and reflects a straightforward application of this Court’s decision in Romer. Because the Ninth Circuit’s decision necessarily is bound up with the particular circumstances presented by Proposition 8, that decision does not conflict with any decision of this Court or any other court of appeals. While there are circumstances that might make review of this obviously important issue attractive at this time—particularly the possibility of resolving this case in conjunction with the challenges to
6 This due process argument is not affected by this Court’s summary affirmance in Baker because subsequent doctrinal developments have deprived Baker’s due process holding of any precedential force. This Court’s decision in Lawrence, a case largely ignored by Proponents, confirmed that the Due Process Clause “afford[s] . . . protection to personal decisions relating to marriage, procreation, contraception, family relationships, [and] child rearing” and that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” 539 U.S. at 574 (emphasis added).

34
DOMA—those considerations must be weighed against the substantial and irreparable harm the period of additional review would impose on Plaintiffs and those situated similarly to them. Each day Plaintiffs’ rights to marry are denied is a day that can never be returned to them—a wrong that can never be remedied. See Dombrowski v. Pfister, 380 U.S. 479, 486 (1965) (“substantial loss or impairment” of a constitutional right is an “irreparable injury”). The Ninth Circuit’s decision to vindicate those rights in accordance with this Court’s precedents does not warrant this Court’s review.

35

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari should be denied.
Respectfully submitted.

DAVID BOIES

THEODORE B. OLSON

BOIES, SCHILLER & FLEXNER LLP Counsel of Record

333 Main Street

MATTHEW D. MCGILL

Armonk, N.Y. 10504

AMIR C. TAYRANI

(914) 749-8200

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

THEODORE J. BOUTROUS, JR.

Washington, D.C. 20036

CHRISTOPHER D. DUSSEAULT

(202) 955-8500

THEANE EVANGELIS KAPUR

tolson@gibsondunn.com

ENRIQUE A. MONAGAS

JOSHUA S. LIPSHUTZ

JEREMY M. GOLDMAN

GIBSON, DUNN & CRUTCHER LLP BOIES, SCHILLER & FLEXNER LLP

333 South Grand Avenue

1999 Harrison Street, Suite 900

Los Angeles, CA 90071

Oakland, CA 94612

(213) 229-7804

(510) 874-1000

Counsel for Respondents Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo
August 24, 2012

 
 No. 12-144 ================================================================
In The
Supreme Court of the United States
---------------------------------  ---------------------------------
DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ, MARK A. JANSSON,
PROTECTMARRIAGE.COM – YES ON 8, A PROJECT OF CALIFORNIA RENEWAL,
Petitioners, v.
KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, JEFFREY J. ZARRILLO, CITY AND COUNTY OF SAN FRANCISCO,
Respondents.
---------------------------------  ---------------------------------
On Petition For A Writ Of Certiorari To The United States Court Of Appeals
For The Ninth Circuit
---------------------------------  ---------------------------------
CITY AND COUNTY OF SAN FRANCISCO’S BRIEF IN OPPOSITION
---------------------------------  ---------------------------------
SAN FRANCISCO CITY ATTORNEY’S OFFICE
DENNIS J. HERRERA City Attorney THERESE M. STEWART Chief Deputy City Attorney Counsel of Record VINCE CHHABRIA CHRISTINE VAN AKEN MOLLIE M. LEE AILEEN M. MCGRATH Deputy City Attorneys
City Hall Room 234 One Dr. Carlton B. Goodlett Pl. San Francisco, California 94102 Telephone: (415) 554-4800 Facsimile: (415) 554-4763 E-Mail: therese.stewart@sfgov.org
Counsel for Respondent the City and County of San Francisco
================================================================
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831

i
QUESTION PRESENTED
Prior to November 3, 2008, the California Constitution afforded lesbian and gay couples all of the rights of marriage that opposite-sex couples enjoy, including the title and stature of marriage and its substantive rights and benefits. The question presented is whether California violated the Equal Protection Clause of the Federal Constitution when it removed only the title “marriage” from lesbian and gay couples, without altering their access to its incidents.

ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED................................... i
TABLE OF CONTENTS ...................................... ii
TABLE OF AUTHORITIES ................................. iv
INTRODUCTION ................................................ 1
STATEMENT OF THE CASE.............................. 3
ARGUMENT ........................................................ 10
I. THE NINTH CIRCUIT’S APPLICATION OF SETTLED EQUAL PROTECTION PRINCIPLES DOES NOT CONFLICT WITH OTHER DECISIONS. ..................... 10
II. BAKER V. NELSON HAS NO BEARING ON THIS CASE. ........................................ 18
III. THE COURT’S CONSIDERATION OF THE CONSTITUTIONALITY OF LAWS DENYING MARRIAGE RIGHTS TO LESBIANS AND GAY MEN WILL BENEFIT FROM FURTHER PERCOLATION..... 20
A. The Ninth Circuit’s Decision Does Not Compel Revision To The Marriage Laws Of Any Other State. .......... 20
B. Further Judicial Deliberation Concerning The Marriage Rights Of Same-Sex Couples Can Only Assist In The Court’s Ultimate Consideration Of The Issue. ....................................... 22

iii
TABLE OF CONTENTS – Continued Page
C. A Grant Of Certiorari In The Cases Addressing The Defense Of Marriage Act Would Further Counsel Against Granting The Petition. ........................ 26
IV. THIS CASE IS A FLAWED VEHICLE BECAUSE THIS COURT MUST ADDRESS PETITIONERS’ STANDING. ....... 28
V. THE NINTH CIRCUIT CORRECTLY HELD THAT PROPOSITION 8 SERVED NO LEGITIMATE PURPOSE. .................. 33
CONCLUSION..................................................... 38

iv
TABLE OF AUTHORITIES Page
FEDERAL CASES Arizona v. Evans, 514 U.S. 1 (1995)...........................24 Arizonans for Official English v. Arizona,
520 U.S. 43 (1997).............................................29, 30 Bd. of Trustees of Univ. of Ala. v. Garrett,
531 U.S. 356 (2001) .................................................37
California v. Carney, 471 U.S. 386 (1985) .................23 Christian Legal Soc. etc. v. Martinez,
130 S. Ct. 2971 (2010).............................................19
Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006) ...................................16
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) ...........................................14, 15
Crawford v. Bd. of Educ., 458 U.S. 527 (1982) ...........................................12, 13
Darr v. Burford, 339 U.S. 200 (1950).........................23 Friends of Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 1670 (2000) ..........................29
Hicks v. Miranda, 422 U.S. 332 (1975)......................19 Hunter v. Erickson, 393 U.S. 385 (1969)....................26 Ill. State Bd. of Elections v. Socialist Workers
Party, 440 U.S. 173 (1979) ......................................18 Jackson v. Abercrombie, Civ. No. 11-00734
ACK-KSC, ___ F. Supp. 2d ___, 2012 WL 3255201 (D. Haw. Aug. 8, 2012) .................20, 21, 24 Karcher v. May, 484 U.S. 72 (1987) ...........................30

v
TABLE OF AUTHORITIES – Continued Page
Lawrence v. Texas, 539 U.S. 558 (2003) .....................19 Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) .................................................31 Mandel v. Bradley, 432 U.S. 173 (1977) ....................18 Massachusetts v. EPA, 549 U.S. 497 (2007)...............32 Massachusetts v. U.S. Dep’t of Health &
Human Servs., 682 F.3d 1 (1st Cir. 2012) ..............27 Palmore v. Sidoti, 466 U.S. 429 (1984) ......................36 Perry v. Brown, 630 F.3d 909 (9th Cir. 2011)...............7 Powers v. Ohio, 499 U.S. 400 (1991) ..........................31 Raines v. Byrd, 521 U.S. 811 (1997)...........................32 Reitman v. Mulkey, 387 U.S. 369 (1967) ......... 11, 14, 36 Romer v. Evans, 517 U.S. 620 (1996)................. passim U.S. Dep’t of Agric. v. Moreno,
413 U.S. 528 (1973) .....................................13, 14, 15 Vermont Agency of Nat. Res. v. United States ex
rel. Stevens, 529 U.S. 765 (2000) ............................31 Washington v. Seattle Sch. Dist. No. 1,
458 U.S. 457 (1982) .................................................14
STATE CASES Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) ....17, 18, 19 Dean v. Dist. of Columbia,
653 A.2d 307 (D.C. Ct. App. 1995)..........................17

vi
TABLE OF AUTHORITIES – Continued Page
Elisa B. v. Superior Court, 117 P.3d 660 (Cal. 2005)......................................4, 35
In re Adoption of Luke, 640 N.W.2d 374 (Neb. 2002) ...................................16
In re Marriage Cases, 183 P.3d 384 (Cal. 2008) .........................3, 4, 5, 6, 33
In re Marriage of J.B. & H.B., 327 S.W.3d 654 (Tex. App. 2010) ............................17
In re Marriage of Carney, 598 P.2d 36, 42 (Cal. 1979) ....................................34
Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973) ..........17 S.Y. v. S.B., 201 Cal. App. 4th 1023 (2011) ..................4 Singer v. Hara,
522 P.2d 1187 (Wash. Ct. App. 1974)......................17 Standhardt v. Superior Court,
77 P.3d 451 (Ariz. Ct. App. 2003)............................17 Strauss v. Horton, 207 P.3d 48 (Cal. 2009) ............6, 11
FEDERAL CONSTITUTION & STATUTES 1 U.S.C. § 7 ...................................................................2 U.S. Const. amend. XIV ..................................... passim U.S. Const. art. III ................................................ 29-32
CALIFORNIA CONSTITUTION, STATUTES & CODES Cal. Civ. Code § 51 ........................................................3 Cal. Code Regs., tit. 10, § 2632.4 .................................3

vii
TABLE OF AUTHORITIES – Continued Page
Cal. Const., art. I, § 7.5 ...................................... passim Cal. Ed. Code § 200.......................................................3 Cal. Elec. Code § 342 ....................................................6 Cal. Fam. Code § 297.5.................................................4 Cal. Fam. Code § 9000..................................................4 Cal. Gov. Code § 11135..................................................3 Cal. Gov. Code § 12920 .................................................3 Cal. Health & Safety Code § 1365.5 ............................3 Cal. Health & Safety Code § 1374.58 ..........................3 Cal. Ins. Code § 10140 ..................................................3 Cal. Lab. Code § 4600.6 ................................................3 Cal. Stats. 2003, ch. 421, § 4 ........................................3 Cal. Welf. & Inst. Code § 16013 ...................................4
OTHER REFERENCES 2012 Gallup Values and Beliefs Poll, conducted
May 3-6, 2012 ..........................................................25 2012 Haw. Laws Act 267 (H.B. 2569).........................21 An Act To Allow Marriage Licenses for Same-
sex Couples and Protect Religious Freedom, L.D. 1860, 125th Leg. (Me. 2012) ...........................24 Baker v. Nelson, Jurisdictional Statement, No. 71-1027 (Oct. Term 1972) .......................................18 Benson v. Alverson, No. 27 CV 10 11697 (Minn. Dist. Ct. filed May 11, 2010) ...................................24

viii
TABLE OF AUTHORITIES – Continued Page
Bipartisan Legal Advisory Grp. v. Gill, No. 1213, Brief of the States of Indiana, et al. (filed Aug. 2, 2012) .....................................................27, 34
Bipartisan Legal Advisory Grp. v. Gill, No. 1213, Petition for a Writ of Certiorari..................26, 27
CNN/ORC Poll, conducted May 29-31, 2012 .............25
Darby v. Orr, No. 12-CH-19718 (Ill. Cir. Ct. filed May 30, 2012)..................................................24
David Blankenhorn, How My View on Gay Marriage Changed, N.Y. Times, Jun. 22, 2012 .........................................................................25
Del. Code Ann. tit. 13, § 201.......................................22
Dep’t of Health and Human Servs. v. Massachusetts, No. 12-15, Petition for a Writ of Certiorari ................................................................. 26
Garden State Equality v. Dow, No. MER-L1729-11 (N.J. Superior Ct. filed Jun. 29, 2011) ........................................................................24
H.J. Res. 6, 117th Gen. Assembly, 1st Reg. Sess. (Ind. 2011) ......................................................24
Ill. Stat. Ch. 750 § 751................................................22
Lazaro v. Orr, No. 12-CH-19719 (Ill. Cir. Ct. filed May 30, 2012)..................................................24
Massachusetts v. U.S. Dep’t of Health and Human Servs., No. 12-97, Petition for a Writ of Certiorari.............................................................26
Minn. Stat. § 517.03 ...................................................19

ix
TABLE OF AUTHORITIES – Continued Page
Office of Pers. Mgmt. v. Golinski, No. 12-16, Petition for a Writ of Certiorari..............................26
Pedersen v. Office of Pers. Mgmt., No. 12-231, Petition for a Writ of Certiorari..............................27
Referendum 74, Veto Referendum of S.B. 6239, 62nd Leg., Reg. Sess. (Wash. 2012) ........................24
R.I. Gen. Laws Ann. § 15-3.1-2 ..................................22
S.F. No. 1308, 87th Leg. Sess. (Minn. 2011) ..............24
Samuel Estreicher & John E. Sexton, A Managerial Theory of the Supreme Court’s Responsibilities: An Empirical Study, 59 N.Y.U. L. Rev. 681, 716 (1984) ................................................23
Sevcik v. Sandoval, No. 12-CV-00578 (D. Nev. filed Apr. 10, 2012) ..................................................24
The Freedom to Marry and Religious Freedom Amendment, Initiative Petition No. 273 (Ohio filed Mar. 26, 2012) .......................................24
Veto Referendum of H.B. 438, 431st Gen. Assembly, Reg. Sess. (Md. 2012) ............................24
Windsor v. United States, No. 12-63, Petition for a Writ of Certiorari............................................26

1
INTRODUCTION
In light of the “unique and strictly limited effect of Proposition 8,” which took away the “important and legally significant designation” of marriage for same-sex couples in California “while leaving in place all of its incidents,” the Ninth Circuit addressed Proposition 8 on “narrow grounds” that did not attempt to resolve whether same-sex couples may ever be denied the right to marry. Pet. App. 17a-18a. Instead, the Ninth Circuit reached the unsurprising conclusion that where a State singles out a disfavored group by removing a benefit, without a rational basis for doing so and as a result of a plebiscite campaign steeped in negative stereotypes and insinuations, it violates the Equal Protection Clause. The lower court’s application of settled equal protection principles to the novel facts of Proposition 8 does not warrant this Court’s review.
As reasons for the Court to grant certiorari, Petitioners contend that the Ninth Circuit wrongly applied this Court’s equal protection cases, Pet. 1522, and that its decision conflicts with federal and state court cases concerning the constitutionality of marriage laws that exclude same-sex couples, Pet. 2325, 28-29. But the Ninth Circuit correctly applied Romer v. Evans, 517 U.S. 620 (1996), and other cases of this Court in addressing Proposition 8’s unconstitutionality. Even if the Ninth Circuit had erred in that application, Petitioners’ first argument amounts to a plea for error correction that does not warrant certiorari. The second argument rests on a distortion of the

2
decision below: Only by stretching the Ninth Circuit’s language to apply to marriage laws in other States – which the court of appeals expressly disavowed, Pet. App. 60a – do Petitioners arrive at their argument that this decision creates any conflict.
Petitioners’ remaining argument for certiorari is that this issue is so important that the Court’s immediate intervention is warranted. But that is instead a reason for the Court to reject the petition. The decision below is the first by a federal appellate court to consider a law withdrawing marriage rights from lesbian or gay partners, and the decision had no occasion to address questions of great import to the issue, such as whether heightened scrutiny applies to sexual orientation classifications and whether the Due Process Clause affords gay Americans the fundamental right to marry the person of their choice. Moreover, the landscape of legal rights and recognition for lesbian and gay families continues to mature, meaning that additional federal appellate courts will consider these issues (on varying factual records) in the near future. These developments will allow this Court ultimately to consider the question of marriage equality in a more informed fashion. This is all the more true if this Court issues a ruling on the constitutionality of Section 3 of the Defense of Marriage Act (DOMA), 1 U.S.C. § 7. Any decision this Court reaches concerning DOMA will presumably influence the law in this area.
When a bare majority of voters enacted Proposition 8, they inflicted serious harm on same-sex couples,

3
their children and families, and gay and lesbian individuals throughout California. Proposition 8 stripped lesbians and gay men of a state constitutional guarantee that their relationships would enjoy equal dignity in the eyes of their government and the law. The measure itself and the campaign to enact it declared instead that their relationships were secondclass, and that California’s children would be harmed if they learned that gay relationships were not inferior to heterosexual relationships. The Ninth Circuit’s ruling did nothing more than restore to gay people the equal dignity of which Proposition 8 had divested them, and Petitioners have offered no reason to disturb that ruling.
---------------------------------  ---------------------------------
STATEMENT OF THE CASE
1. Over the decades, California’s legislature and courts have incrementally, and eventually comprehensively, required equal treatment for gay men and lesbians in public and private life. See generally In re Marriage Cases, 183 P.3d 384, 413-17, 428-29 (Cal. 2008); see also Cal. Civ. Code § 51(b); Cal. Ed. Code § 200; Cal. Gov. Code § 11135; id. §§ 12920 et seq.; Cal. Health & Safety Code §§ 1365.5, 1374.58; Cal. Ins. Code § 10140; Cal. Lab. Code § 4600.6(g)(2); Cal. Code Regs., tit. 10, § 2632.4. The guarantee of equal treatment extends to family life, granting gay partners rights but also imposing obligations to each other and their children. See 2003 Cal. Stat., ch. 421,

4
§ 4 (codified at Cal. Fam. Code § 297.5) (stating that registered domestic partners have “the same rights, protections and benefits” and “the same responsibilities . . . as are granted to and imposed upon spouses,” and providing that “[t]he rights and obligations of registered domestic partners with respect to a child of either of them shall be the same as those of spouses”); see also Cal. Fam. Code § 9000(g) (“stepparent adoption includes adoption by a domestic partner”); Cal. Welf. & Inst. Code § 16013(a) (prohibiting sexual orientation discrimination with respect to adoption and foster parenting); S.Y. v. S.B., 201 Cal. App. 4th 1023 (2011) (applying presumed parentage statute to children adopted by domestic partners); Elisa B. v. Superior Court, 117 P.3d 660 (Cal. 2005) (holding that same-sex partners are presumed parents of child born during the relationship).
In 2008, the California Supreme Court recognized that these laws are not mere legislative dispensations but are rights guaranteed by the California Constitution. In re Marriage Cases, 183 P.3d 384. That constitution’s due process and privacy provisions, the court held, secure to same-sex couples the right “to join together to establish an officially recognized family of their own – and, if the couple chooses, to raise children within that family.” Id. at 399; see also id. at 418 n.27. Independently, the court determined that same-sex couples are entitled to use the term “marriage,” with all of its history and stature, to describe their relationships. Id. at 434-35, 444-53. Allowing the State to distinguish “with regard to this

5
most fundamental of relationships,” by denying the term “ ‘marriage’ . . . only to same-sex couples inevitably will cause the new parallel institution that has been made available to those couples to be viewed as of a lesser stature than marriage and, in effect, as a mark of second-class citizenship.” Id. at 445.
2. Shortly after that decision, Petitioners submitted signatures qualifying Proposition 8, an initiative constitutional amendment, for the California ballot. That measure sought to amend the California Constitution to eliminate same-sex couples’ right to the title and stature of marriage, but as Petitioners informed voters in the official ballot guide, “Proposition 8 WILL NOT change” those California laws that provide domestic partners the “same rights, protections, and benefits as married spouses.” Pet. App. 77a n.22 (quotation marks omitted). Petitioners and their supporters conducted a heated campaign to pass Proposition 8, relying on outdated stereotypes about gays and lesbians and the suggestion that children must be protected from gay relationships and gay people. Pet. App. 279a-285a, 314a-315a. Campaign leaders depicted gay relationships as immoral, unnatural, depraved, deviant, and threatening. Pet. App. 274a-276a, 279a-284a; Exs. PX0401 & PX504B (available at https://ecf.cand.uscourts.gov/cand/09cv2292/ evidence/index.html) (last visited Aug. 23, 2012). In November 2008, Proposition 8 passed by a slim majority of California voters.
San Francisco and others challenged whether Proposition 8 was properly enacted by initiative

6
amendment. In rejecting that challenge, the California Supreme Court held that Proposition 8 did not overrule the Marriage Cases but instead “establishe[d] a new substantive state constitutional rule that took effect upon the voters’ approval of Proposition 8.” Strauss v. Horton, 207 P.3d 48, 63 (Cal. 2009). Proposition 8’s new substantive rule “carve[d] out a narrow exception” to the California Constitution’s liberty, privacy and equality guarantees for gay men and lesbians alone, eliminating their right to designate their relationships “marriages” but not repealing other constitutional rights of same-sex couples recognized in the Marriage Cases. Id. at 63, 75, 78, 102. Proposition 8 thus left intact same-sex couples’ constitutional and statutory rights to form families and have and raise children. Id. at 75-76. Finally, the court held that Proposition 8 did not retroactively invalidate the approximately 18,000 marriages that same-sex couples entered into before it passed. Id. at 119-22.
3. In May 2009, Plaintiffs filed this action in the district court. Petitioners, the official proponents of Proposition 8, see Cal. Elec. Code § 342, intervened as defendants, and San Francisco intervened as a plaintiff. Pet. App. 144a. The district court conducted a 12day bench trial, and Plaintiffs and San Francisco proffered 17 witnesses to testify on myriad topics concerning marriage and same-sex relationships.1
1 These topics included the histories of marriage and of discrimination against gay people, the similarities between same-sex and opposite-sex couples as couples and as parents,
(Continued on following page)

7
Pet. App. 168a-181a. Petitioners declined to offer significant evidence, calling only two witnesses, one regarding purported justifications for excluding samesex couples from marriage and the other to testify about gay people’s political power. Pet. App. 181a202a. Following the trial, the district court determined that Proposition 8 violated same-sex couples’ fundamental right to marry and that it failed either strict scrutiny or rational basis scrutiny under the Equal Protection Clause because it had no justification other than to place an official stamp of inferiority on same-sex relationships. Pet. App. 248a-250a, 260a263a, 295a, 301a, 316a.2
4. The State and county defendants did not appeal from the judgment, but Petitioners did. After
the well-being of children raised by same-sex couples and the benefits to those children of recognition of their parents’ relationships as “marriages,” the harms to same-sex couples and their children from Proposition 8, the costs to government of discriminatory laws, the immutability of sexual orientation, the inability of gay people to protect themselves from discrimination through the political process, the messages of the Proposition 8 campaign, and those messages’ similarity to earlier ballot measure campaigns to restrict the rights of gay people.
2 After the district judge who presided over the trial and issued this decision retired, Petitioners sought to vacate the judgment because the judge, who is gay and in a same-sex relationship, did not affirmatively disavow his interest in marrying his partner. The Ninth Circuit made short work of this argument. Pet. App. 93a-94a. Petitioners also made the baseless argument that one of the circuit judges who decided this case should have recused himself. Perry v. Brown, 630 F.3d 909 (9th Cir. 2011).

8
briefing and argument, the Ninth Circuit certified to the California Supreme Court open questions of state law affecting Petitioners’ standing to maintain their appeal. Pet. App. 415a-416a. After that court held that initiative proponents are authorized by the State to represent its interests in defending an initiative measure where state officials decline to do so, Pet. App. 378a, the Ninth Circuit held that Petitioners had standing, Pet. App. 43a.
On the merits, the Ninth Circuit affirmed the district court’s judgment but, “adher[ing] to the principle of deciding constitutional questions only in the context of the particular case before the Court,” it did not decide “[w]hether under the Constitution same-sex couples may ever be denied the right to marry.” Pet. App. 17a. Instead, it inquired whether “the People of California have legitimate reasons for enacting a constitutional amendment that serves only to take away from same-sex couples the right to have their lifelong relationships dignified by the official status of ‘marriage,’ and to compel the State and its officials and all others authorized to perform marriage ceremonies to substitute the label of ‘domestic partnership’ for their relationships?” Pet. App. 54a. Applying Romer, 517 U.S. 620, the Ninth Circuit observed that Proposition 8 withdrew from same-sex couples alone an existing right to the revered title of marriage, while allowing them to continue to enjoy all of the other rights and incidents of marriage, Pet. App. 54a. The Ninth Circuit rejected the rationales that Petitioners offered to justify this

9
“discrimination of an unusual character,” Pet. App. 62a (quotation marks omitted), finding that eliminating the right of same-sex couples to designate their relationships as “marriages,” but leaving intact all of their other relationship rights, did not advance any of the interests that Petitioners identified. As for Petitioners’ claimed interest that children be raised by two biological parents, the Ninth Circuit found this justification to be “totally inconsistent” with Proposition 8’s effect on California’s laws and policies. Pet. App. 73a. Both before and after Proposition 8, California law “recognize[s] that gay individuals are fully capable of . . . responsibly caring for and raising children,” Pet. App. 72a (quotation marks omitted), and offers them and their families rights identical in every respect to those of “biological” families, except access to the title “marriage.” As for Petitioners’ claim that withdrawing the title of marriage from same-sex couples would advance responsible procreation by encouraging opposite-sex couples to marry and take responsibility for their children, the Ninth Circuit found this justification not even “conceivably plausible.” Pet. App. 71a-75a.
In the end, the court concluded, the peculiar effect of Proposition 8 left only the inference that its true purpose was to “dishonor a disfavored group by taking away the official designation of approval of their committed relationships,” thereby diminishing their dignity. Pet. App. 91a. This inference found further support in evidence that the campaign to pass

10
Proposition 8 was based on stereotypes “that gay people and relationships are inferior, that homosexuality is undesirable, and that children need to be protected from exposure to gay people and their relationships.” Pet. App. 89a-91a. Because a purpose to “impose on gays and lesbians, through the public law, a majority’s private disapproval of them and their relationships” was not a legitimate basis, the Ninth Circuit affirmed the district court’s judgment invalidating Proposition 8. Pet. App. 92a.
---------------------------------  ---------------------------------
ARGUMENT
I. THE NINTH CIRCUIT’S APPLICATION OF SETTLED EQUAL PROTECTION PRINCIPLES DOES NOT CONFLICT WITH OTHER DECISIONS.
1. The Ninth Circuit faithfully applied Romer, 517 U.S. 620, to the unique facts presented by California’s marriage and family laws, and its application does not conflict with other decisions of this Court. In doing so, the Ninth Circuit carefully followed each step of the Romer analysis. First, it examined Proposition 8’s “singular and limited change to the California Constitution.” Pet. App. 47a; see also Romer, 517 U.S. at 627-28. Relying on the California Supreme Court’s authoritative construction, the court below held that Proposition 8’s only effect was to remove the “cherished status of ‘marriage’ ” from lesbian and gay couples, while leaving intact the rights of those couples to form families and raise children on the

11
same basis as opposite-sex couples. Pet. App. 52a-53a. Moreover, Proposition 8 accomplished this result by carving out a narrow exception, applicable to lesbians and gay men alone, from the California Constitution’s equal protection, liberty, and privacy provisions that had previously guaranteed them the right to marry. Pet. App. 55a (citing Strauss, 207 P.3d at 61, 76). Petitioners argue that the Ninth Circuit misapplied Romer by distinguishing between removing an existing right from same-sex couples and never granting that right in the first place. Pet. 19-20. But the Ninth Circuit’s understanding of Proposition 8 was compelled by the California Supreme Court, which had already determined as a matter of law that Proposition 8 did not “restor[e] the traditional definition of marriage,” Pet. 21, but instead eliminated an existing state constitutional right, Pet. App. 54a-55a, just as in Romer Colorado’s Amendment 2 “eliminated various substantive rights,” Pet. App. 59a; see Romer, 517 U.S. at 624. Moreover, Petitioners’ argument, which would treat the timing of Proposition 8 and its withdrawal of existing rights as irrelevant, conflicts with Romer, which found the “[s]weeping and comprehensive” change worked on Colorado’s laws by Amendment 2 “evident from the ordinances” that it repealed. 517 U.S. at 627; see also Reitman v. Mulkey, 387 U.S. 369, 373 (1967) (courts must analyze a measure “in terms of its immediate objective, its ultimate effect and its historical context and the conditions existing prior to its enactment”) (quotation marks omitted).

12
Next, the Ninth Circuit searched for a link between “the classification adopted and the object to be obtained,” Romer, 517 U.S. at 632, noting the peculiar characteristics of the law at issue. While Colorado’s Amendment 2 was unusual in its breadth, “imposing a broad and undifferentiated disability on a single named group,” 517 U.S. at 632, Proposition 8 is equally unusual in its “surgical precision,” operating solely to exclude a historically despised group from a title and stature that are bestowed by the state and honored by society, Pet. App. 59a-60a. In both cases, the peculiar operation of the statute made it difficult to conceive of legitimate rationales. Proposition 8’s proponents offered several purported rationales, chief among them an interest in responsible procreation by opposite-sex couples. But as discussed further in Section V, the Ninth Circuit correctly found no rational connection between heterosexual conduct and a law affecting only same-sex couples. As in Romer, Proposition 8 was “so far removed from th[e] particular justifications [offered by its proponents] that [the court found] it impossible to credit them.” Romer, 517 U.S. at 635; Pet. App. 84a. Because there was no credible rationale for Proposition 8 in light of its actual effects, the Ninth Circuit followed Romer in inferring that it created a classification solely to make a disfavored group of people unequal to others. Romer, 517 U.S. at 635; Pet. App. 89a.
2. Contrary to Petitioners’ claims, the Ninth Circuit’s decision is consistent with Crawford v. Board of Education, 458 U.S. 527 (1982). Before 1979,

13
the California Constitution required schools to remedy de jure and de facto school segregation, including by busing students in some circumstances. Crawford upheld an initiative that amended the California Constitution to prohibit state courts from ordering busing as a remedy except where required by the Federal Constitution. Petitioners cite Crawford for “reject[ing] the contention that once a State chooses to do ‘more’ than the Fourteenth Amendment requires, it may never recede.” Pet. 15 (quoting Crawford, 458 U.S. at 535). But they err in taking this to mean that a State may always choose to recede to the federal constitutional baseline. To the contrary, the Court upholds state laws withdrawing rights only when those laws are rationally designed to serve a legitimate government purpose. See Crawford, 458 U.S. at 543 (upholding challenged initiative because it furthered legitimate purpose of promoting neighborhood schools). In other cases, the Court has not hesitated to invalidate laws withdrawing rights or protections where they lack a legitimate purpose or are motivated by animus. See, e.g., U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 537-38 (1973) (invalidating federal regulations stripping food stamp benefits from households containing unrelated members); See also Crawford, 458 U.S. at 539 n.21 (“Of course, if the purpose of repealing legislation is to disadvantage a racial minority, the repeal is unconstitutional for this reason.”).
Petitioners’ suggestion that States act with impunity when they rescind rights to a federal constitutional baseline is inconsistent with other cases

14
as well. In Reitman, 387 U.S. 369, the Court invalidated Proposition 14, a California constitutional amendment that repealed the State’s fair housing laws. The Court acknowledged that prior to Proposition 14, the State’s fair housing laws went beyond what the federal Constitution required in prohibiting private racial discrimination in property transactions. Id. at 376. But in light of the “historical context and the conditions existing prior to its enactment,” id. at 373, the Court concluded that Proposition 14 served the illegitimate purpose of encouraging private discrimination. Id. at 381; see also Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 471 (1982) (invalidating law prohibiting busing for the purpose of desegregation, but allowing it for all other purposes, because it “was enacted because of, not merely in spite of, its adverse effects upon busing for integration”) (internal quotation marks omitted).3
3. The Ninth Circuit’s decision is also consistent with this Court’s cases holding that the desire to disfavor unpopular groups can never be a legitimate purpose. In City of Cleburne v. Cleburne Living
3 These cases involved allegations of race discrimination, and in Seattle School District No. 1, the Court explicitly applied heightened scrutiny. 458 U.S. at 471. The level of scrutiny is immaterial, however, because even the most relaxed scrutiny requires a legitimate governmental purpose. See Moreno, 413 U.S. at 537-38.

15
Center, 473 U.S. 432 (1985), this Court applied rational basis review to invalidate a zoning law requiring special permits for homes for people with mental retardation. It found that the relationship between the law’s classification and the law’s supposed ends was “so attenuated as to render the distinction arbitrary or irrational.” Id. at 446. Because the government’s justifications for the law simply did not make sense, the law “appear[ed] . . . to rest on an irrational prejudice against the mentally retarded” and could not be sustained. Id. at 450. Similarly, in Moreno, 413 U.S. 528, the poor fit between the ends claimed for withdrawing food stamp benefits – preventing fraud – and its means led the Court to conclude that animus against an unpopular group was its purpose. Id. at 534, 537. In concluding that Proposition 8 could not be justified by the State’s purported interest in privileging couples who could produce children unintentionally because it had no effect on the California laws that govern parenting, the Ninth Circuit followed the guidance of City of Cleburne and Moreno. In any event, supervision of lower courts’ application of settled decisions to unique circumstances does not present a compelling reason for this Court to grant review.
4. Nor does this case present an occasion for the Court to resolve a conflict concerning federal law among lower courts. See Pet. 17-18, 28-29. The Ninth Circuit explained that the constitutional injury it addressed “has little to do with the substance of the right or benefit from which a group is excluded, and

16
much to do with the act of exclusion itself.” Pet. App. 65a. Ignoring this admonition, Petitioners insist that the decision below is a wholesale rejection of the responsible-procreation rationale and therefore conflicts with cases holding that marriage need not be extended to lesbians and gay men in the first instance. While the Ninth Circuit correctly rejected the responsible-procreation rationale as applied to Proposition 8, it did not create a conflict with decisions accepting that rationale in other contexts.
In Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006), the Eighth Circuit credited Nebraska’s claim that its state constitutional amendment prohibiting recognition of the marriages or civil unions of same-sex couples served its interest in steering procreation into marriage by conferring a benefit on opposite-sex couples alone. Id. at 867. The Eighth Circuit’s determination concerned the laws of Nebraska, which offer no recognition at all to samesex couples and do not recognize same-sex partners’ adoption of each other’s children. See In re Adoption of Luke, 640 N.W.2d 374 (Neb. 2002). Nebraska’s laws could hardly differ more from California’s, which offer identical family and parenting rights to same-sex and opposite-sex couples in all respects except as to the title of marriage. See pp. 3-4, supra. In the decision below, the Ninth Circuit said nothing about whether a State can ever decide that the risks of accidental procreation justify benefits exclusively for opposite-sex couples. Its rejection of the responsible-procreation rationale was instead based on its determination that

17
Proposition 8 “had absolutely no effect on the ability of same-sex couples to become parents or the manner in which children are raised in California” and thus “is not rationally related . . . to . . . [this] purported interes[t], whether or not the interes[t] would be legitimate under other circumstances.” Pet. App. 71a; see also infra Section V. The Ninth Circuit’s opinion thus did not call the Eighth Circuit’s views into question, as even the panel’s dissenting opinion recognized. Pet. App. 127a.
The decision below does not conflict with the state-court cases Petitioners cite. These cases address marriage laws that exclude same-sex couples from the title and all the incidents of marriage, rather than laws selectively withdrawing the title of marriage while continuing to grant all of its incidents. Standhardt v. Superior Court, 77 P.3d 451 (Ariz. Ct. App. 2003); Dean v. Dist. of Columbia, 653 A.2d 307 (D.C. 1995); Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973); Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971); In re Marriage of J.B. & H.B., 327 S.W.3d 654 (Tex. App. 2010); Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974). Because these decisions involve different domestic relations laws and answer different legal questions, the Ninth Circuit’s decision poses no conflict with them.

18
II. BAKER V. NELSON HAS NO BEARING ON THIS CASE.
Petitioners incorrectly assert that this Court has already resolved the marriage rights of same-sex partners in its summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972) (mem.). Pet. 23. But a summary disposition by this Court has extremely narrow precedential effect, extending “no farther than the precise issues presented and necessarily decided” by the Court’s action. Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 182 (1979) (internal quotation marks omitted); see also Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam). Properly viewed through this lens, Baker does not control this case. Neither the legal issue “necessarily decided” in Baker nor the facts underlying that case are sufficiently similar to the present case for Baker to have any relevance. The legal issue presented in Baker was whether the State of Minnesota’s “refusal, pursuant to Minnesota marriage statutes, to sanctify appellants’ marriage because both are of the male sex violates their rights under the equal protection clause” or deprives them of due process rights. Appellant’s Jurisdictional Statement at 3, Baker v. Nelson, No. 71-1027 (Oct. Term 1972). By contrast, the Ninth Circuit resolved solely the question whether California was justified in withdrawing the title of “marriage” from same-sex couples. Pet. App. 61a-62a. Even the dissenting judge on the Ninth Circuit panel agreed that this narrow question differed from that decided by this Court in Baker. Pet. App. 101a-103a.

19
California provides same-sex couples all the rights and benefits associated with marriage, while denying them only the title. Pet. App. 49a-50a. Minnesota, by contrast, did not and does not provide even domestic partnership recognition to same-sex couples, let alone the benefits and incidents of marriage. Appellant’s Jurisdictional Statement at 11-14, Baker v. Nelson; Minn. Stat. § 517.03. The underpinnings of the two cases are sufficiently different that Baker cannot control.
Moreover, since Baker was decided, this Court has determined that laws prohibiting consensual sodomy violate the Due Process Clause, Lawrence v. Texas, 539 U.S. 558 (2003); that there is no distinction between laws prohibiting homosexual conduct and laws targeting gay people as a class, Christian Legal Soc. etc. v. Martinez, 130 S. Ct. 2971, 2990 (2010); and that the elimination of rights from gay people alone must serve at least a rational purpose to be justified under the Equal Protection Clause, Romer, 517 U.S. at 634-35. These subsequent “doctrinal developments” in the Court’s sexual orientation jurisprudence have eliminated any precedential effect Baker once had. See Hicks v. Miranda, 422 U.S. 332, 344 (1975).

20
III. THE COURT’S CONSIDERATION OF THE CONSTITUTIONALITY OF LAWS DENYING MARRIAGE RIGHTS TO LESBIANS AND GAY MEN WILL BENEFIT FROM FURTHER PERCOLATION.
A. The Ninth Circuit’s Decision Does Not Compel Revision To The Marriage Laws Of Any Other State.
Petitioners claim a particular urgency for review of this case on the ground that other jurisdictions’ marriage laws are now poised to fall because of it: The Ninth Circuit’s decision, in their view, “is tantamount to a judicial death sentence for traditional marriage laws throughout this Circuit.” Pet. 6. This is empty hyperbole. The Ninth Circuit’s decision turns on the peculiar operation of Proposition 8’s elimination of the stature of marriage for gay people in a State where they otherwise enjoy equal opportunities to form families and have and rear children. As the Ninth Circuit recognized, this unique and limited effect permitted it to reach a decision on narrow grounds in an opinion that “express[ed] no view” concerning “whether same-sex couples have a fundamental right to marry, or whether states that fail to afford the right to marry to gays and lesbians must do so.” Pet. App. 60a.
Petitioners’ speculative claims of far-reaching effects are already undercut by a district court’s recent rejection of a challenge to Hawaii’s marriage laws based on the Ninth Circuit’s decision. See Jackson v. Abercrombie, Civ. No. 11-00734 ACK-KSC,

21
___ F. Supp. 2d ___, 2012 WL 3255201 (D. Haw. Aug. 8, 2012). That court held that the Ninth Circuit’s decision in this case was not dispositive because Hawaii’s marriage laws did not take away the designation of marriage while leaving in place all of its incidents – even though that State amended its constitution to override a state supreme court decision holding that its existing marriage laws were subject to strict scrutiny. Id. at *1, *18-*21. If the Ninth Circuit’s decision is not “a judicial death sentence” for Hawaii’s marriage laws, it is even less so for other States’ laws. No other State has recognized that same-sex couples have a constitutional right to the title and incidents of marriage and then withdrawn only the title. Petitioners claim that Nevada, Oregon, and Washington marriage laws are poised to be invalidated by the Ninth Circuit’s decision. But none of these States, or any other State that provides robust domestic partnership rights, has withdrawn the designation of marriage from same-sex couples alone. And in the event the Ninth Circuit disagrees with the Hawaii district court and concludes that the decision below requires invalidation of a different kind of marriage ban, the Court will have the opportunity to review that decision.
There is no merit to Petitioners’ further speculation that the Ninth Circuit’s decision will discourage States from expanding domestic partnership rights and the like for same-sex couples. At least one State has expanded rights for same-sex couples since the decision below, see 2012 Haw. Laws Act 267 (H.B.

22
2569) (expanding civil unions), and there is no reason to believe that other States will shy away from similar legislation. Indeed, even after the district court issued its ruling in this case, States continued to enact civil union and domestic partner laws. See Del. Code Ann. tit. 13, § 201 et seq. (recognizing civil unions effective 2011); Ill. Stat. Ch. 750 § 751 et seq. (recognizing civil unions effective 2010); R.I. Gen. Laws Ann. § 15-3.1-2 (recognizing civil unions effective 2011). And if it later should happen that a State has a legitimate reason to withdraw these expanded rights, the decision below would not prevent it from doing so.
B. Further Judicial Deliberation Concerning The Marriage Rights Of SameSex Couples Can Only Assist In The Court’s Ultimate Consideration Of The Issue.
As Petitioners do not dispute, the Ninth Circuit is the first, and only, federal court of appeals to have invalidated a state law withdrawing the right to marry from same-sex couples. Future cases concerning the constitutional marriage rights of same-sex couples will no doubt arise. As debate on the constitutional merits of same-sex couples’ claims to equal treatment in regard to marriage and family evolves, the cases that inevitably will follow will provide superior vehicles for this Court to consider these issues.

23
This Court has frequently preferred to resolve significant constitutional questions only after they have percolated in the courts such that the “perspective of time” helps to shed more light on the weighty issues they present. See Darr v. Burford, 339 U.S. 200, 227 (1950) (Frankfurter, J., dissenting). “To identify rules that will endure, [the Court] must rely on the state and lower federal courts to debate and evaluate the different approaches to difficult and unresolved questions of constitutional law.” California v. Carney, 471 U.S. 386, 400-01 (1985) (Stevens, J., dissenting). As one “perceptive study,” id. at 398, of this Court’s docket explained:
Disagreement in the lower courts facilitates percolation – the independent evaluation of a legal issue by different courts. The process of percolation allows a period of exploratory consideration and experimentation by lower courts before the Supreme Court ends the process with a nationally binding rule. The Supreme Court, when it decides a fully percolated issue, has the benefit of the experience of those lower courts.
Samuel Estreicher & John E. Sexton, A Managerial Theory of the Supreme Court’s Responsibilities: An Empirical Study, 59 N.Y.U. L. Rev. 681, 716 (1984). These principles apply with particular force here. The issue of marriage equality is undoubtedly of profound significance. But it is precisely because “frontier legal problems” are presented in this case that further percolation is warranted and will “yield a better informed and more enduring final pronouncement by

24
this Court.” Arizona v. Evans, 514 U.S. 1, 23 n.1 (1995) (Ginsburg, J., dissenting). After additional lower courts have grappled with the important issues this case raises, the Court’s final pronouncement on the matter will be better informed by that robust debate.
The need for percolation is all the greater because this case raises issues that are currently the subject of intense legislative and popular debate. Constitutional amendments, state referenda and initiatives, and ballot questions implicating marriage equality for same-sex couples are in process in Indiana, Maine, Maryland, Minnesota, Ohio, and Washington. H.J. Res. 6, 117th Gen. Assembly, 1st Reg. Sess. (Ind. 2011); An Act To Allow Marriage Licenses for Same-sex Couples and Protect Religious Freedom, L.D. 1860, 125th Leg. (Me. 2012); Veto Referendum of H.B. 438, 431st Gen. Assembly, Reg. Sess. (Md. 2012); S.F. No. 1308, 87th Leg. Sess. (Minn. 2011); The Freedom to Marry and Religious Freedom Amendment, Initiative Petition No. 273 (Ohio filed Mar. 26, 2012); Referendum 74, Veto Referendum of S.B. 6239, 62nd Leg., Reg. Sess. (Wash. 2012). Lawsuits seeking marriage rights for same-sex couples are pending in Hawaii, Illinois, Minnesota, Nevada, and New Jersey. Jackson, 2012 WL 3255201; Darby v. Orr, No. 12-CH19718 (Ill. Cir. Ct. filed May 30, 2012); Lazaro v. Orr, No. 12-CH-19719 (Ill. Cir. Ct. filed May 30, 2012); Benson v. Alverson, No. 27 CV 10 11697 (Minn. Dist. Ct. filed May 11, 2010); Sevcik v. Sandoval, No. 12CV-00578 (D. Nev. filed Apr. 10, 2012); Garden State Equality v. Dow, No. MER-L-1729-11 (N.J. Superior

25
Ct. filed Jun. 29, 2011). National polling numbers show increased public support, particularly among younger people, for marriage rights for same-sex partners. See CNN/ORC Poll, conducted May 29-31, 2012 (finding that 54% of Americans, and 73% of Americans under age 34, believed in May 2012 that same-sex couples’ marriages should be recognized as valid, compared to 44% of Americans in June 2008); 2012 Gallup Values and Beliefs Poll, conducted May 3-6, 2012 (finding that 50% of Americans believe that same-sex marriages should be legally valid).4 These developments will likely lead to further judicial consideration of marriage equality issues, which will ultimately serve as a resource for this Court to draw upon when it considers those issues in the future. The Ninth Circuit – which, unlike this Court, was obligated to review the district court’s decision – recognized the importance of issuing an incremental ruling grounded in the unique circumstances surrounding California’s marriage and domestic partnership laws, allowing further judicial consideration to continue even within that circuit. This Court should do the same by declining to hear the issue in this case now.5
4 Reflecting the evolution of views, since the Ninth Circuit issued its decision, Petitioners’ sole trial witness who testified in support of the responsible-procreation rationale has recanted his opinion. See David Blankenhorn, How My View on Gay Marriage Changed, N.Y. Times, Jun. 22, 2012.
5 Respondent does not suggest that there is any policy interest on the part of California, or for that matter any other State, in “proceeding cautiously” by denying equal marriage rights to same-sex couples, as Petitioners have argued. Pet. 36.
(Continued on following page)

26
C. A Grant Of Certiorari In The Cases Addressing The Defense Of Marriage Act Would Further Counsel Against Granting The Petition.
Presently pending before this Court are six petitions seeking review of decisions invalidating the constitutionality of DOMA, which changed the longstanding deference federal law had accorded States to regulate marriage by defining marriage as a union “between one man and one woman for purposes of federal law.” See Bipartisan Legal Advisory Grp. v. Gill, No. 12-13 (docketed July 3, 2012); Dep’t of Health and Human Servs. v. Massachusetts, No. 1215 (docketed July 3, 2012); Office of Pers. Mgmt. v. Golinski, No. 12-16 (docketed July 3, 2012); Windsor v. United States, No. 12-63 (docketed July 17, 2012); Massachusetts v. Dep’t of Health and Human Servs., No. 12-97 (docketed July 24, 2012); Pedersen v. Office of Pers. Mgmt., No. 12-231 (docketed Aug. 22, 2012). Every party to these cases that has filed a brief expressing its views has urged this Court’s consideration of DOMA’s constitutionality. Assuming this Court grants certiorari in one or more of those cases, it should deny certiorari in cases involving the ability of
On the contrary, this Court has soundly rejected such justifications for discriminating against a minority group. See, e.g., Hunter v. Erickson, 393 U.S. 385, 392 (1969). Rather, Respondent addresses here the Court’s institutional concern, particularly when addressing constitutional issues, in exercising the power of certiorari in a manner that best enables it to issue a wellinformed decision.

27
States to deny marriage rights to same-sex couples until States and lower courts have had the opportunity to understand the Court’s DOMA decision and apply its teachings.
Any decision on DOMA’s constitutionality could bear on cases addressing the constitutionality of exclusionary marriage laws. As the cases and petitions concerning DOMA make clear, this Court’s assessment of DOMA’s constitutionality will unquestionably require consideration of, for example, the justifications for laws categorically excluding samesex couples from marital rights and benefits, the proper level of constitutional scrutiny to be given to those laws, and the role of this Court’s precedents. See Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1, 9 (1st Cir. 2012) (considering the proper level of “scrutiny of [the government’s] purported justifications” for DOMA); Petition for a Writ of Certiorari, Bipartisan Legal Advisory Grp. v. Gill, No. 12-13 (contending that the First Circuit’s decision “not only invalidates an Act of Congress on constitutional grounds, but it does so in a way that conflicts with binding precedent of this Court”). Indeed, a group of States have urged this Court to consider the constitutionality of DOMA because of the “likely consequences for state marriage laws” of decisions invalidating that statute. Brief of the States of Indiana et al., as Amici Curiae in Support of the Petition, Bipartisan Legal Advisory Grp. v. Gill, No. 12-13 (filed Aug. 2, 2012).

28
Any decision from this Court regarding DOMA will inform lower courts addressing similar issues in cases implicating same-sex couples’ marriage rights, and the law will evolve as the lower courts apply this Court’s reasoning to different factual contexts. When those cases inevitably reach this Court, it will have the benefit of a variety of perspectives on claims involving sexual orientation discrimination – perspectives that will help further inform the Court’s ruling on this issue. Put simply, the Court will be in a better position to address state marriage rights for same-sex partners after the constitutionality of DOMA has been decided than it will be if it grants the petition for review presented here.
IV. THIS CASE IS A FLAWED VEHICLE BECAUSE THIS COURT MUST ADDRESS PETITIONERS’ STANDING.
In addition to not satisfying this Court’s traditional criteria for granting certiorari, the petition should be denied because of the threshold issue of whether Petitioners have standing before this Court to assert the constitutionality of Proposition 8 after California’s state and local officers declined to appeal the district court’s judgment. Petitioners’ standing to appeal was disputed below, and their ability to invoke this Court’s jurisdiction is not compelled by any of this Court’s precedent. Pet. App. 33a-43a. At worst, this threshold issue will prevent the Court from reaching the merits of the question presented; at best, the Court will have to grapple with the complicated

29
issue of when initiative proponents, delegated the authority by a State to defend the validity of that initiative, satisfy Article III’s requirements. Particularly in light of the fact that cases concerning the constitutionality of state marriage laws will recur, the need for this Court to resolve Petitioners’ standing to invoke its jurisdiction militates against selecting this case for review.
This Court must assure itself of Petitioners’ standing to seek review of the Ninth Circuit’s judgment before it can consider the merits of the case. Friends of Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000); Arizonans for Official English v. Arizona, 520 U.S. 43, 64-65 (1997). Before the Ninth Circuit, Petitioners’ standing was disputed where state officials did not appeal the district court’s judgment and the court of appeals was uncertain whether California law authorized Petitioners to continue to defend Proposition 8’s validity. The court certified to the California Supreme Court the questions whether Petitioners had a particular interest in Proposition 8’s validity, or whether they have “the authority to assert the State’s interest in the initiative’s validity.” Pet. App. 32a. The California Supreme Court answered only the latter question, holding that California law authorizes initiative proponents to defend the validity of initiative measures on behalf of the State, when state officials decline to do so. Pet. App. 378a. That court grounded its holding not in any textual source but in California’s “unique . . . initiative process,” Pet. App. 391a, which allows citizens to

30
“manage and control” the process of qualifying and passing initiatives, Pet. App. 377a, and analogized the role played by proponents in defending an initiative to that “ordinarily played by the [California] Attorney General or other public officials in vigorously defending a duly enacted state law,” Pet. App. 374a. Relying on this analogy, the Ninth Circuit held that because California had delegated to Petitioners the authority to “stand[ ] in the shoes of the State to assert its interest in litigation,” Petitioners need not show some “personal injury” or “particularized interest” in the outcome of the case. Pet. App. 41a-42a.
Regardless whether the Ninth Circuit’s ruling is correct, any holding that Petitioners satisfy Article III’s limitations on federal judicial power is at the very least a significant expansion of this Court’s Article III jurisprudence. While the Court has indicated that initiative proponents’ lack of state-law authority to defend the constitutionality of an initiative is sufficient to place their standing to sue in federal court in “grave doubt[ ] ,” Arizonans for Official English, 520 U.S. at 66, it has never determined that the converse is true, namely, that delegation of executive authority to a private person, particularly in the absence of any textual justification, is sufficient to confer standing. See Karcher v. May, 484 U.S. 72, 82 (1987) (holding that State of New Jersey was properly represented in litigation by Speaker of the General Assembly and President of the Senate). To the contrary, this Court has suggested that Article III may limit the ability of assignees or delegatees of

31
litigating power to invoke federal jurisdiction. For instance, the Court has recognized that plaintiffs suing under federal qui tam statutes may invoke Article III jurisdiction by identifying an injury in fact suffered by the government, and not the litigant personally. See Vermont Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 773-74 (2000). But at the same time, the Court stressed additional factors in finding that Article III is satisfied in the qui tam context: (1) the relator is statutorily designated by the government to sue on its behalf, id. at 772; (2) the qui tam function’s “long tradition . . . in England and the American Colonies” meant that it was properly included within Article III’s restriction of the judicial power to “Cases” and “Controversies,” id. at 774; and (3) the qui tam plaintiff, while lacking an injury in fact, nevertheless retains an “interest” in the outcome of the case by virtue of “the bounty he will receive if the suit is successful,” id. at 772; see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 581 (1992) (Kennedy, J., concurring) (describing Article III requirement that “the parties before the court have an actual, as opposed to professed, stake in the outcome”). In all other circumstances in which the Court has permitted a plaintiff to sue on behalf of another, it has steadfastly required that plaintiff to identify a personal injury in fact, in addition to other requirements for standing. See, e.g., Powers v. Ohio, 499 U.S. 400, 411 (1991).

32
Petitioners have suffered no injury in fact; there is no similar historical support for the defense of state laws by initiative proponents; and Petitioners’ stake in the outcome is limited to their ideological interest, similar to that of legislators, in having the initiative they sponsored upheld. Cf. Raines v. Byrd, 521 U.S. 811, 824-25 (1997). Their entitlement to invoke federal jurisdiction is not clearly resolved by any of this Court’s decisions concerning the boundaries of Article III. If the Court grants review in this case, it will have no choice but to address the questions whether and in what circumstances a State may delegate its litigating authority to private individuals who lack a tangible stake in the case. The import of this question is heightened by the fact that the Court has found that Article III requirements are relaxed for States, see Massachusetts v. EPA, 549 U.S. 497, 519-20 (2007), such that a State’s delegation of litigating power could significantly expand the reach of federal jurisdiction.
The necessity of resolving these difficult questions will detract from the Court’s consideration of the issues raised in this petition. Even if the Court is inclined to address the constitutional marriage rights of same-sex couples, it should await a better vehicle.

33
V. THE NINTH CIRCUIT CORRECTLY HELD THAT PROPOSITION 8 SERVED NO LEGITIMATE PURPOSE.
At bottom, the Ninth Circuit’s decision was rooted in its understanding of the real and substantiated dignitary harm that Proposition 8 inflicted on same-sex couples. Petitioners do not, because they cannot, dispute that marriage is a universally understood, cherished institution that “symbolizes state legitimization and societal recognition of . . . committed relationships.” Pet. App. 16a-17a. Proposition 8 stripped same-sex couples of access to this important institution, relegating them to the status of secondclass citizens eligible only for domestic partnerships – an institution that “lack[s] the social meaning associated with marriage" – and thereby “ ‘work[ed] a real and appreciable harm upon same-sex couples and their children.’ ” Pet. App. 25a (quoting Marriage Cases, 183 P.3d at 452), 45a, 59a. That the exclusion of same-sex couples from “the principal manner in which the State attaches respect and dignity to the highest form of a committed relationship and to the individuals who have entered into it,” Pet. App. 53a, inflicted real harm on lesbian and gay Californians and their families cannot seriously be questioned. See Marriage Cases, 183 P.3d at 445.
Petitioners seek to justify this harm with the absurd prediction that California’s recognition of same-sex couples’ marriages would somehow undermine “responsible procreation” and the purported paramount importance of biological connections

34
between parent and child. Pet. 26-31; see also Brief of the States of Indiana et al., as Amici Curiae in Support of the Petition at 19, Bipartisan Legal Advisory Grp. v. Gill, No. 12-13 (filed Aug. 2, 2010) (arguing that laws restricting marriage to opposite-sex couples are justified because “all things being equal, it is better for the biological parents also to be the legal parents”). It is with good reason that these arguments have been rejected at every stage of this litigation. See Pet. App. 70a-78a; Pet. App. 245a-285a. These arguments lack even a remote degree of plausibility in California, where opposite-sex and samesex couples are identical under the law with regard to forming families and raising children, both before and after Proposition 8. Pet. App. 71a. Indeed, any assertion that Proposition 8 could be justified by the State’s preference for biological families is affirmatively rejected by California law, which privileges the social, rather than biological, relationship between parent and child, Pet. App. 73a, and has rejected any norm of gendered parenting roles, In re Marriage of Carney, 598 P.2d 36, 42 (Cal. 1979).
The domestic relations laws of California – where tens of thousands of children are being raised by same-sex couples, Pet. App. 238a – refute Petitioners’ responsible-procreation justification. Petitioners contend the State is justified in extending the title of marriage to opposite-sex couples alone to encourage them to form families to rear children. Pet. 26-27. But because Proposition 8 does not extend an honor to anyone but only removes an honor from same-sex

35
couples, this justification can be credited only if it is rational to believe that fewer opposite-sex couples will raise children in marital families if marriage is also available to same-sex couples. This rationale cannot justify Proposition 8. As a matter of law, California courts have recognized that the State’s interest in encouraging couples to provide for their children is no less potent for children of same-sex couples than those of opposite-sex couples, see, e.g., Elisa B., 117 P.3d 660, making it implausible to suggest that the State would encourage only oppositesex couples to form committed and stable families. As a matter of fact, the only evidence adduced at trial that had any bearing on this claim refuted it. Pet. App. 150a-151a, 156a-158a.6 Finally, even if there were a “rational reason to think that taking away the designation of ‘marriage’ from same-sex couples would . . . encourag[e] California’s opposite-sex couples to procreate more responsibly,” Pet. App. 75a, such a reason would be tantamount to a State pronouncement that permitting same-sex couples access to marriage would diminish that institution. See Pet. App. 133a-134a (Smith, J., dissenting) (acknowledging that Petitioners’ responsible-procreation rationale operates through the mechanism of encouraging private biases). This Court has already made clear
6 When asked by the district court how permitting same-sex marriage impairs or adversely affects the State’s “procreative” interest in marriage, the lead counsel for Petitioners answered “I don’t know.” Pet. App. 150a-151a.

36
that the creation of a classification to accommodate private biases is not a legitimate state interest. Palmore v. Sidoti, 466 U.S. 429, 433 (1984); Reitman, 387 U.S. at 378-79.
The lack of support for Petitioners’ purported rationales for Proposition 8, coupled with the fact that “Proposition 8 had absolutely no effect on the ability of same-sex couples to become parents or the manner in which children are raised in California,” Pet. App. 71a, properly led the Ninth Circuit to conclude that Proposition 8’s sole purpose was to impose on gay and lesbian Californians the “majority’s private disapproval of them and their relationships.” Pet. App. 92a. Contrary to Petitioners’ suggestion, however, the Ninth Circuit’s conclusion does not amount to a “charge [that] defames over seven million California voters and countless other Americans.” Pet. 38. The Ninth Circuit grounded its view in uncontroverted evidence that Proposition 8’s supporters bombarded California voters with statements conveying the message that “gay people and relationships are inferior, that homosexuality is undesirable and that children need to be protected from exposure to gay people and their relationships,” Pet. App. 90a (internal quotations and citations omitted) – a message that is rooted in historical stereotypes that have long operated to diminish the dignity of gay people, Pet. App. 91a. And in any case, the Ninth Circuit’s conclusion that Proposition 8’s lack of a legitimate justification indicated that the measure was born of a desire to harm gays and

37
lesbians does not label Proposition 8 supporters as bigots, just as this Court’s Romer decision did not label supporters of Colorado’s Amendment 2 as bigots. 517 U.S. at 634-35. Indeed, the Ninth Circuit recognized that prejudice need not be based on hatred or spite. Pet. App. 92a. Rather,
[p]rejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.
Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J., concurring). This Court should disregard Petitioners’ efforts to inflame and transform this factbound (and factually supported) justification into a reason for the Court’s review.
---------------------------------  ---------------------------------

38

CONCLUSION

For the foregoing reasons, the Court should deny the petition.

August 24, 2012

Respectfully submitted,
SAN FRANCISCO CITY ATTORNEY’S OFFICE
DENNIS J. HERRERA City Attorney THERESE M. STEWART Chief Deputy City Attorney Counsel of Record VINCE CHHABRIA CHRISTINE VAN AKEN MOLLIE M. LEE AILEEN M. MCGRATH Deputy City Attorneys
Counsel for Respondent the City and County of San Francisco

 
 No. 12-144 ================================================================
In The
Supreme Court of the United States

---------------------------------  ---------------------------------

DENNIS HOLLINGSWORTH, et al., Petitioners,
v.
KRISTIN M. PERRY, et al., Respondents.
---------------------------------  ---------------------------------

On Petition For A Writ Of Certiorari To The United States Court Of Appeals
For The Ninth Circuit
---------------------------------  ---------------------------------

REPLY BRIEF FOR PETITIONERS ---------------------------------  ---------------------------------

ANDREW P. PUGNO LAW OFFICES OF
ANDREW P. PUGNO 101 Parkshore Drive, Suite 100 Folsom, California 95630
DAVID AUSTIN R. NIMOCKS JAMES A. CAMPBELL ALLIANCE DEFENDING FREEDOM 801 G Street, NW, Suite 509 Washington, D.C. 20001

CHARLES J. COOPER Counsel of Record
DAVID H. THOMPSON HOWARD C. NIELSON, JR. PETER A. PATTERSON COOPER AND KIRK, PLLC 1523 New Hampshire
Avenue, NW Washington, D.C. 20036 Tel: (202) 220-9600 Email: ccooper@
cooperkirk.com

Counsel for Petitioners

================================================================
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831

i
TABLE OF CONTENTS Page
TABLE OF AUTHORITIES ................................. ii ARGUMENT ........................................................ 1 CONCLUSION..................................................... 13

ii
TABLE OF AUTHORITIES Page
CASES
Andersen v. King County, 138 P.3d 963 (Wash. 2006) ........................................7
Arizonans for Official English v. Arizona, 520 U.S. 43 (1997)...................................................10
Baker v. Nelson, 409 U.S. 810 (1972) ...........................................5, 6, 7
Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) ...................................7
Califano v. Yamasaki, 442 U.S. 682 (1979) .................................................11
Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010)...............................................6
City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) ...................................................5
Conaway v. Deane, 932 A.2d 571 (Md. Ct. App. 2007).............................7
Crawford v. Board of Educ., 458 U.S. 527 (1982) ...........................................4, 5, 8
Diamond v. Charles, 476 U.S. 54 (1986)...................................................10
Gratz v. Bollinger, 539 U.S. 244 (2003) .................................................10
GTE Sylvania, Inc. v. Consumers Union of U.S., Inc., 445 U.S. 375 (1980) .................................................10

iii
TABLE OF AUTHORITIES – Continued Page
Heller v. Doe, 509 U.S. 312 (1993) ...................................................8
Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) ..........................................7
Jackson v. Abercrombie, Civ. No. 11-00734 ACK-KSC, 2012 WL 3255201 (D. Haw. Aug. 8, 2012) ..................... 2, 7, 11
Karcher v. May, 484 U.S. 72 (1987)...................................................10
Lawrence v. Texas, 539 U.S. 558 (2003) ...................................................6
Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644 (9th Cir. 2011)....................................11
Maine v. Taylor, 477 U.S. 131 (1986) .................................................10
Massachusetts v. EPA, 549 U.S. 497 (2007) .................................................10
Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005) ..........................7
National Collegiate Athletic Ass’n v. Smith, 525 U.S. 459 (1999) .................................................11
Romer v. Evans, 517 U.S. 620 (1996) .......................................3, 4, 6, 9
Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974)........................7
Standhardt v. Superior Ct. of Ariz., 77 P.3d 451 (Ariz. Ct. App. 2003)..............................7

iv
TABLE OF AUTHORITIES – Continued Page
U.S. Department of Agriculture v. Moreno, 413 U.S. 528 (1973) ...................................................5
Washington v. Glucksberg, 521 U.S. 702 (1997) ...................................................1
Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421 (2012).............................................11
OTHER THOMAS M. MESSNER, THE PRICE OF PROP 8
(2009) .........................................................................9

1
ARGUMENT
At the heart of Respondents’ equal protection claim is the remarkable proposition, adopted by the court below, that the traditional definition of marriage, which has prevailed in virtually every organized society throughout human history, is so utterly irrational, so wholly bereft of any legitimate purpose, that it can only be explained as designed to “dishonor” and “marginalize” gays and lesbians. Plaintiffs concede that “the merits of the . . . equal protection analysis” which yielded this startling conclusion in the court below raises an “obviously” and “undeniably important” issue. Pl. BIO 2, 33. And they further concede that “[i]n some respects, this case is an attractive vehicle for approaching” this issue, especially given that the Court also has before it petitions seeking review of decisions invalidating the Defense of Marriage Act, the federal law adopting the traditional definition of marriage. Id. at 2-3. These concessions, standing alone, establish the certworthiness of this case. Indeed, the decision below warrants review even if it could plausibly be confined to California: surely a highly controversial two-to-one decision placing the traditional, age-old definition of marriage “outside the arena of public debate and legislative action,” Washington v. Glucksberg, 521 U.S. 702, 720 (1997), in a State that is home to nearly one out of every eight Americans warrants this Court’s attention.
But the decision below, even on its own terms, plainly threatens the marriage laws of other States.

2
Indeed, in emphasizing the Ninth Circuit’s reasoning that California’s domestic partnership laws render Proposition 8 especially irrational, San Francisco underscores how the decision below casts doubt upon the marriage laws of other States that extend similar rights to their gay and lesbian residents. SF BIO 3334. And while it is true that a federal district court recently attempted to distinguish the decision below in upholding the constitutionality of Hawaii’s traditional marriage laws, see Jackson v. Abercrombie, Civ. No. 11-00734 ACK-KSC, 2012 WL 3255201, at *1, *18-*21, *34 n.28 (D. Haw. Aug. 8, 2012), that court also flatly rejected, in a thoroughly supported and well-reasoned opinion, the fundamental premises of the decision below in arriving at its contrary conclusion. See, e.g., id. at *5-*6 (“[T]he legislature could rationally conclude that defining marriage as a union between a man and woman provides an inducement for opposite-sex couples to marry, thereby decreasing the percentage of children accidently conceived outside of a stable, long-term relationship. . . . [A]llowing opposite-sex couples to marry furthers this interest and allowing same-sex couples to marry would not do so.”); id. at *56 (“[T]o say that in preserving the traditional definition of marriage Hawaii – along with at least 41 other states and not to mention numerous judges and justices who have upheld such laws – has acted . . . absurdly, ignorantly, or with bigotry, such that the federal judiciary must take the extraordinary step of intervening and overthrowing the democratic process, is simply untenable.”). Even if a decision by this Court here did not resolve the

3
constitutionality of traditional marriage in Hawaii and throughout the Nation – as it likely would – there is no reason why litigation in Hawaii and other States should continue in the shadow of a decision whose soundness is subject to grave question.
Despite conceding the importance and timeliness of this case, Plaintiffs nonetheless insist that review should be denied, primarily because the decision below, they say, follows directly from Romer v. Evans, 517 U.S. 620 (1996), presents no conflict with precedent from this Court or other circuits, and comes to this Court under a jurisdictional cloud. San Francisco, for its part, adds that our petition should be denied to allow further “percolation” of the “ ‘frontier legal problems’ . . . presented in this case,” SF BIO 23, thus refuting its own claim that this case is sui generis. None of these points is substantial.
A. Plaintiffs have mined this Court’s opinion in Romer for quotes noting that, as a factual matter, one effect of Colorado’s Amendment 2 was to repeal a handful of local ordinances prohibiting discrimination on the basis of sexual orientation. See Pl. BIO 14. But the Court emphasized that “Amendment 2, in explicit terms, [did] more than repeal or rescind these provisions.” Romer, 517 U.S. at 624. Amendment 2 established an “unprecedented” and “sweeping and comprehensive” ban on any legal protections for gays and lesbians against “an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society,” id. at 627, 631,

4
633, from housing and public accommodations, to employment and education, id. at 629. The amendment, in short, deemed gays and lesbians “stranger[s] to [Colorado’s] laws,” id. at 635, and the notion that the age-old and ubiquitous institution of marriage is “remarkably similar” (Pl. BIO 10) to such a measure cannot be taken seriously.
Nor can there be any doubt at all that the Court’s analysis of Amendment 2 did not turn on its timing. See Pet. 4, 18-20. This Court’s ruling was not limited to communities with pre-existing laws protecting gays and lesbians from discrimination, and the measure would plainly have been held unconstitutional even if it had been enacted by a State with no such laws. Pet. 18. Plaintiffs offer no response to these dispositive points.
B.1. The Ninth Circuit’s analysis of Romer, advanced by Respondents here, not only fails on its own terms, but also brings the decision below squarely into conflict with Crawford v. Board of Education, 458 U.S. 527 (1982). Crawford emphatically “reject[ed] the contention that once a State chooses to do ‘more’ than the Fourteenth Amendment requires, it may never recede.” 458 U.S. at 535. It mattered not at all that Proposition 1 simply “remove[d] one means of achieving the state-created right to desegregated education.” Pl. BIO 21 (quoting Crawford, 458 U.S. at 544). To the contrary, this Court made clear that the State “could have conformed its law to the Federal Constitution in every respect.” 458 U.S. at 542. Indeed, the Court rejected the argument that

5
Proposition 1 was unconstitutional because it did not go far enough, emphasizing that “preserving a greater right to desegregation than exists under the Federal Constitution . . . most assuredly [did] not render the Proposition unconstitutional.” Id.
To be sure, “if the purpose of repealing legislation is to disadvantage a racial minority, the repeal is unconstitutional for this reason.” 458 U.S. at 539 n.21. Plaintiffs seize on this footnote, but tellingly excise the key word – “racial.” See Pl. BIO 21. Crawford’s note simply reflects the well-settled principle that facially neutral laws motivated by racial discrimination, no less than explicit racial classifications, are subject to strict scrutiny. Indeed, Crawford expressly recognized that “if Proposition 1 employed a racial classification it would be unconstitutional unless necessary to further a compelling state interest.” 458 U.S. at 536. This analysis has no relevance where, as here, rational basis review applies.1
2. Respondents’ attempts to distinguish Baker v. Nelson, 409 U.S. 810 (1972), are likewise unavailing. Plaintiffs’ claim that the petitioners in Baker did not present a claim of sexual-orientation discrimination is demonstrably wrong. See, e.g., Jurisdictional
1 In attempting to distinguish Crawford, San Francisco also cites U.S. Department of Agriculture v. Moreno, 413 U.S. 528 (1973), and City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), but neither case suggests that the timing of a classification, as opposed to the rationality of the classification itself, has any constitutional significance.

6
Statement at 6-7, Baker, 409 U.S. 810 (No. 71-1027) (Minnesota’s denial of same-sex marriage license attributable to “prejudice against non-heterosexuals”); id. at 10 (“there is no justification in law for the discrimination against homosexuals”); id. at 13 (“the class of persons who wish to engage in single sex marriages are being subject to invidious discrimination”).
Nor has this Court repudiated Baker’s holding through subsequent “doctrinal developments.” Pl. BIO 23; SF BIO 19. Lawrence v. Texas, 539 U.S. 558 (2003), expressly declined to consider “whether the government must give formal recognition to any relationship that homosexual persons seek to enter,” id. at 578, and neither Romer nor Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010), addressed the issue at all.
Finally, Plaintiffs argue that California’s laws regarding marriage and same-sex relationships are “far different” from the Minnesota law upheld in Baker. Emphasizing that Baker upheld the constitutionality of Minnesota’s “outright refusal . . . to afford any recognition to same-sex relationships,” Pl. BIO 24, Plaintiffs argue that California’s constitutional offense was in affording “gay and lesbian individuals the right to enter into domestic partnerships that carry virtually all the same rights and obligations” of marriage but not the official designation of “marriage.” Id. Plaintiffs thus read Baker to give States an all-or-nothing choice: either to refuse to afford any recognition to same-sex relationships or to redefine

7
marriage to include such relationships. This surely cannot be the teaching of Baker, and immediate clarification by this Court of the States’ constitutional authority in this area is urgently needed.
3. Respondents likewise fail meaningfully to distinguish the other appellate decisions that have rejected constitutional challenges to the traditional definition of marriage. As we have demonstrated, the decision below is at odds not only with the holdings of these decisions, but also with their core rationales. See Pet. 17-18, 28-29. Indeed, Plaintiffs highlight this conflict by arguing that Proposition 8 is irrational because infertile opposite-sex couples have always been allowed to marry, Pl. BIO 17-18 – an argument repeatedly raised and rejected in these and other challenges to traditional marriage laws. See, e.g., Baker v. Nelson, 191 N.W.2d 185, 187 (Minn. 1971); Standhardt v. Superior Ct. of Ariz., 77 P.3d 451, 46263 (Ariz. Ct. App. 2003); Singer v. Hara, 522 P.2d 1187, 1195 (Wash. Ct. App. 1974); Jackson, 2012 WL 3255201 at *40; Hernandez v. Robles, 855 N.E.2d 1, 11-12 (N.Y. 2006); Andersen v. King County, 138 P.3d 963, 983 (Wash. 2006) (plurality); Conaway v. Deane, 932 A.2d 571, 631-34 (Md. Ct. App. 2007); Morrison v. Sadler, 821 N.E.2d 15, 27 (Ind. Ct. App. 2005).
C. Apart from raising the oft-rejected infertility argument, Respondents merely echo the rational basis analysis of the decision below. Respondents offer no meaningful response to our demonstration that the Ninth Circuit’s analysis conflicts with the

8
decisions of other courts and with binding principles of rational basis review established by this Court. See Pet. 29-35.
As we have demonstrated, Pet. 37, because California’s adherence to the traditional definition of marriage serves legitimate societal purposes, Proposition 8 simply “cannot run afoul” of the Fourteenth Amendment, and judicial inquiry should be at an end. Heller v. Doe, 509 U.S. 312, 320 (1993). It was thus unnecessary and improper for the Ninth Circuit to attempt the impossible task of divining the subjective motivations of over seven million voters in passing Proposition 8. See, e.g., Crawford, 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”).
Respondents see nothing but animus and antigay prejudice on our side of the public debate over redefining marriage. See Pl. BIO 18-20; SF BIO 36-37. Support for preserving the traditional definition of marriage not only is wrong-headed, they say, but is irrational, and all who oppose same-sex marriage seek only to dishonor and demean gays and lesbians. It is true, of course, that at the extreme edges of both sides of this public debate are those who are animated by hostility or irrational fears and prejudice.2
2 Respondents attempt to smear millions of Californians who supported Proposition 8 with a handful of carefully selected
(Continued on following page)

9
See, e.g., THOMAS M. MESSNER, THE PRICE OF PROP 8 (2009) (DIX0458). The voices at the extremes can be heard whenever divisive social issues implicating deeply held values are debated. But the question under this Court’s rational basis precedents is whether people of good will can in good faith oppose fundamentally redefining the vital institution of marriage. Respondents say, as they must under this Court’s precedents, that the answer is no, that support for Proposition 8 is “inexplicable by anything but animus toward” gays and lesbians. Romer, 517 U.S. at 632. We submit that the answer is yes, and if there is even a fair chance that we are correct, the Court should grant review of the decision below invalidating the will of the People of California.
D. The issue of Petitioners’ standing does not present a meaningful vehicle problem. A State
snippets from the cacophony of messages that were before the voters – and even with testimony from trial that obviously was not before the voters. See Pl. BIO 19. Plaintiffs cite, for example, Dr. Hak-Shing William Tam as an authority on Petitioners’ “campaign messages.” Id. But Tam testified that he had no involvement in formulating the official ProtectMarriage.com campaign’s strategy or messaging, Trial Tr. 2002, and that he did not share his views on homosexuality, which are uninformed and invidious, with anyone from ProtectMarriage.com at any time during the campaign, Trial Tr. 1989. Indeed, Tam’s lessthan-negligible influence on the campaign is illustrated by the very “campaign message” quoted by Plaintiffs, see Pl. BIO 19 (quoting Pet. App. 281a-282a (quoting PX0513)), which is a letter Tam testified that he sent to a mailing list of about 100 people. See Trial Tr. 1982.

10
unquestionably has standing to defend the validity of its laws, both in the first instance and on appeal. See, e.g., Maine v. Taylor, 477 U.S. 131, 136-37 (1986); Diamond v. Charles, 476 U.S. 54, 62 (1986). And the question who is authorized to represent the State’s interest in the validity of its laws is plainly an issue of state law. Compare Karcher v. May, 484 U.S. 72, 81-82 (1987) (legislative leaders “had authority under state law to represent the State’s interests”), with Arizonans for Official English v. Arizona, 520 U.S. 43, 65 (1997) (questioning petitioners’ standing where Court was “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”). Here, the California Supreme Court has unanimously and emphatically confirmed Petitioners’ authority under California law to represent the State’s interests when, as here, the responsible state officials decline to do so. See Pet. 10-11; Pet. App. 323a-327a. This Court has frequently considered jurisdictional issues in cases presenting important questions, see, e.g., Massachusetts v. EPA, 549 U.S. 497, 516-27 (2007); Gratz v. Bollinger, 539 U.S. 244, 260-68 (2003), and the insubstantial standing question raised by Respondents here provides no basis for denying certiorari.3
3 Furthermore, because none of the named defendants defended Proposition 8, if Petitioners are not proper representatives of the State’s interests, then this case has never satisfied Article III’s case-or-controversy requirement. See GTE Sylvania,
(Continued on following page)

11
Nor do the other supposed “vehicle problems” urged by Plaintiffs provide any warrant for denying certiorari. This Court ordinarily does not consider issues not addressed by the court of appeals, and the fact that a respondent identifies such issues has never been thought to provide a basis for denying certiorari. See, e.g., Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421, 1430-31 (2012); National Collegiate Athletic Ass’n v. Smith, 525 U.S. 459, 46970 (1999).
In all events, Plaintiffs’ alternative theories are insubstantial and have been roundly rejected by the overwhelming majority of appellate courts to consider them. See Jackson, 2012 WL 3255201, at *28 & n.25 (all eleven circuits that have considered the issue have rejected claim that classifications based on sexual orientation are subject to heightened scrutiny under the Federal Constitution); id. at *27 (“vast majority” of courts to consider the issue have rejected claim that the traditional definition of marriage discriminates on the basis of sex); id. at *24-*25 &
Inc. v. Consumers Union of U.S., Inc., 445 U.S. 375, 383 (1980). Thus, if Respondents were right that Petitioners lack standing, the proper course would be for this Court to grant certiorari, vacate the judgments of the court of appeals and the district court below, and remand with instructions to dismiss the case. At a minimum, because this case is not a class action, the only relief that possibly could be justified if Petitioners lack standing would be a district court judgment enjoining enforcement of Proposition 8 solely against the four Plaintiffs. See, e.g., Califano v. Yamasaki, 442 U.S. 682, 702 (1979); Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011).

12
n.21 (collecting numerous decisions rejecting claim that the traditional definition of marriage infringes the fundamental due process right to marry).
E. San Francisco urges the Court to deny review of the “frontier legal problems . . . presented in this case,” despite their “profound significance,” to allow them to “percolat[e]” further in the lower courts. SF BIO 23. But the issues presented by this case have “percolated” for years in numerous state and federal courts, and there is very little, if anything, to be gained by delaying this Court’s inevitable consideration of them. Besides, this Court will very likely consider this Term the constitutionality of the traditional definition of marriage anyway in connection with the DOMA case, and this Court’s analysis would no doubt be assisted by considering at the same time the validity of this definition as adopted by a State. Moreover, as San Francisco acknowledges, the issues presented here “are currently the subject of intense legislative and popular debate,” id. at 24, and clarification from this Court on the States’ constitutional latitude is urgently needed, particularly in light of the Ninth Circuit’s holding that experimentation in this area is permanent and irrevocable. Finally, as the stays entered by the Ninth Circuit in this case illustrate, California should not be judicially mandated to redefine marriage to include same-sex couples contrary to the express will of its voters while the soundness of the judicial invalidation of that will remains subject to grave doubt.
---------------------------------  ---------------------------------

13

CONCLUSION

For these reasons, this Court should grant the petition for a writ of certiorari.

Respectfully submitted,

ANDREW P. PUGNO LAW OFFICES OF
ANDREW P. PUGNO 101 Parkshore Drive, Suite 100 Folsom, California 95630
DAVID AUSTIN R. NIMOCKS JAMES A. CAMPBELL ALLIANCE DEFENDING FREEDOM 801 G Street, NW, Suite 509 Washington, D.C. 20001

CHARLES J. COOPER Counsel of Record
DAVID H. THOMPSON HOWARD C. NIELSON, JR. PETER A. PATTERSON COOPER & KIRK, PLLC 1523 New Hampshire
Avenue, NW Washington, D.C. 20036 Tel: (202) 220-9600 Email: ccooper@
cooperkirk.com

Counsel for Petitioners

September 4, 2012

 
 No. 12-144 ================================================================
In The
Supreme Court of the United States

---------------------------------  ---------------------------------
DENNIS HOLLINGSWORTH, et al., Petitioners,
v.
KRISTIN M. PERRY, et al., Respondents.
---------------------------------  ---------------------------------
On Writ Of Certiorari To The United States Court Of Appeals
For The Ninth Circuit ---------------------------------  ---------------------------------
BRIEF OF PETITIONERS ---------------------------------  ---------------------------------

ANDREW P. PUGNO LAW OFFICES OF
ANDREW P. PUGNO 101 Parkshore Drive, Suite 100 Folsom, California 95630
DAVID AUSTIN R. NIMOCKS JAMES A. CAMPBELL ALLIANCE DEFENDING FREEDOM 801 G Street, NW, Suite 509 Washington, D.C. 20001

CHARLES J. COOPER Counsel of Record
DAVID H. THOMPSON HOWARD C. NIELSON, JR. PETER A. PATTERSON COOPER AND KIRK, PLLC 1523 New Hampshire
Avenue, NW Washington, D.C. 20036 (202) 220-9600 ccooper@cooperkirk.com

Counsel for Petitioners

================================================================
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831

i
QUESTIONS PRESENTED
1. Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.
2. Whether petitioners have standing under Article III, §2 of the Constitution in this case.

ii
PARTIES TO THE PROCEEDINGS BELOW
Petitioners Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Mark A. Jansson, and ProtectMarriage.com – Yes on 8, A Project of California Renewal (“ProtectMarriage.com”) intervened as defendants in the district court and were the appellants in the court below.
Respondents, plaintiffs Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo and intervening plaintiff City and County of San Francisco, were the appellees below.
Official-capacity defendants Edmund G. Brown, Jr., as Governor of California; Kamala D. Harris, as Attorney General of California; Ron Chapman, as Director of the California Department of Public Health & State Registrar of Vital Statistics; Linette Scott, as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health; Patrick O’Connell, as Clerk-Recorder for the County of Alameda; and Dean C. Logan, as Registrar-Recorder/County Clerk for the County of Los Angeles and intervening defendant Hak-Shing William Tam were not parties to the appeal below.

iii
CORPORATE DISCLOSURE STATEMENT
No corporations are parties, and there are no parent companies or publicly held companies owning any corporation’s stock. Petitioner ProtectMarriage. com is a primarily formed ballot committee under California law. See CAL. GOV. CODE §§82013 & 82047.5. Its “sponsor” under California law is California Renewal, a California nonprofit corporation, recognized as a public welfare organization under 26 U.S.C. §501(c)(4).

iv
TABLE OF CONTENTS Page
QUESTIONS PRESENTED ................................ i PARTIES TO THE PROCEEDINGS BELOW ..... ii CORPORATE DISCLOSURE STATEMENT ....... iii TABLE OF CONTENTS ...................................... iv TABLE OF AUTHORITIES ................................. vi OPINIONS BELOW............................................. 1 JURISDICTION................................................... 1 CONSTITUTIONAL PROVISIONS INVOLVED..... 1 INTRODUCTION ................................................ 2 STATEMENT OF THE CASE.............................. 9 SUMMARY OF ARGUMENT .............................. 12 ARGUMENT ........................................................ 15
I. Petitioners Have Standing To Defend Proposition 8 ................................................ 15
II. Proposition 8’s Validity Does Not Turn on the Timing of its Adoption ........................... 19 A. This Court has established that a State is not required to adhere forever to policies that exceed federal constitutional requirements ................ 19 B. Proposition 8 is not unconstitutional under Romer .......................................... 20
III. The Equal Protection Clause Does Not Forbid California from Defining Marriage as the Union of a Man and a Woman ........ 27

v
TABLE OF CONTENTS – Continued
Page
A. Proposition 8 advances society’s vital interest in responsible procreation and childrearing............................................ 31
1. Responsible procreation and childrearing has been an animating purpose of marriage in virtually every society throughout history ............... 31
2. Proposition 8 furthers society’s vital interests in responsible procreation and childrearing .............................. 36
3. That Proposition 8 did not eliminate domestic partnerships does not render it irrational ........................... 44
B. Proposition 8 serves California’s interest in proceeding with caution before fundamentally redefining a bedrock social institution .................................... 48
C. Proposition 8 restores democratic authority over an issue of vital importance to the People of California........... 55
D. Proposition 8 does not “dishonor” gays and lesbians .......................................... 61
CONCLUSION..................................................... 65

vi
TABLE OF AUTHORITIES Page
CASES
Adams v. Howerton, 486 F.Supp. 1119 (C.D. Cal. 1980), aff ’d on other grounds, 673 F.2d 1036 (9th Cir. 1982) .....36, 43
Andersen v. King County, 138 P.3d 963 (Wash. 2006) ................................40, 43
Arizonans for Official English v. Arizona, 520 U.S. 43 (1997).............................................15, 17
Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977) .................................................18
Baker v. Nelson, 409 U.S. 810 (1972) .............................................3, 28
Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) .....................28, 31, 43
Board of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) ...........................................13, 39
Bowen v. Gilliard, 483 U.S. 587 (1987) .................................................24
Brown v. Board of Educ., 347 U.S. 483 (1954) ...............................................6, 7
Cabell v. Chavez-Salido, 454 U.S. 432 (1982) ...........................................29, 30
Califano v. Yamasaki, 442 U.S. 682 (1979) .................................................18
Central State Univ. v. American Ass’n of Univ. Professors, 526 U.S. 124 (1999) .................................................24

vii
TABLE OF AUTHORITIES – Continued
Page
Christian Legal Soc’y v. Martinez, 130 S.Ct. 2971 (2010)................................................4
Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006) .......................30, 43, 46
City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985) ...............................29, 39, 40, 42
City of New Orleans v. Dukes, 427 U.S. 297 (1976) .................................................24
Conaway v. Deane, 932 A.2d 571 (Md. 2007) .........................................43
Conseil Constitutionnel, decision no.201092, ¶ 9, Jan. 28, 2011 (Fr.), available at http://www.conseil-constitutionnel.fr/conseilconstitutionnel/root/bank/download/201092QP Cen201092qpc.pdf ...................................................43
Corte Costituzionale, judgment no.138 of 2010, p. 26-27, Apr. 15, 2010 (It.), available at http:// www.cortecostituzionale.it/documenti/download/ doc/recent_judgments/S2010138_Amirante_ Criscuolo_EN.doc ....................................................43
Coyote Publ’g, Inc. v. Miller, 598 F.3d 592 (9th Cir. 2010) ...................................46
Crawford v. Board of Educ., 458 U.S. 527 (1982) ......................................... passim
Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995)...................................31, 43
Diamond v. Charles, 476 U.S. 54 (1986)...................................................15

viii
TABLE OF AUTHORITIES – Continued Page
District Att’y’s Office v. Osborne, 557 U.S. 52 (2009).............................................58, 59
Doran v. Salem Inn, Inc., 422 U.S. 922 (1975) .................................................18
Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004).....................................................60
FCC v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) .................................................30
Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995) .................................................36
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) .................................................17
Gregory v. Ashcroft, 501 U.S. 452 (1991) ...........................................15, 59
Heller v. Doe, 509 U.S. 312 (1993) .....................................30, 39, 61
Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) ..............................4, 32, 43
Hicks v. Miranda, 422 U.S. 332 (1975) .................................................28
In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004).................43
In re Marriage Cases, 143 Cal.App.4th 873 (2006), rev’d, 183 P.3d 384 (Cal. 2008) ....................................... 4, 57
In re Marriage Cases, 183 P.3d 384 (Cal. 2008) .....................................9, 23

ix
TABLE OF AUTHORITIES – Continued Page
In re Marriage of J.B. & H.B., 326 S.W.3d 654 (Tex. App. 2010) ......................30, 43
INS v. Chadha, 462 U.S. 919 (1983) .................................................18
Jackson v. Abercrombie, 2012 WL 3255201 (D. Haw. Aug. 8, 2012)........40, 43
Johnson v. Robison, 415 U.S. 361 (1974) .................................8, 40, 42, 63
Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973) ......................................31
Karcher v. May, 484 U.S. 72 (1987).......................................15, 16, 17
Katzenbach v. Morgan, 384 U.S. 641 (1966) .................................................46
Lawrence v. Texas, 539 U.S. 558 (2003) ...................................3, 4, 48, 62
Lewis v. Casey, 518 U.S. 343 (1996) .................................................18
Lewis v. Harris, 908 A.2d 196 (N.J. 2006).........................................50
Lofton v. Secretary of the Dep’t of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004)..................................37
Loving v. Virginia, 388 U.S. 1 (1967)...................................6, 7, 8, 35, 37
Lyng v. Automobile Workers, 485 U.S. 360 (1988)................................................... 24

x
TABLE OF AUTHORITIES – Continued Page
Maher v. Roe, 432 U.S. 464 (1977) ...................................................4
Maine v. Taylor, 477 U.S. 131 (1986) .................................................15
Massachusetts v. EPA, 549 U.S. 497 (2007) .................................................57
Massachusetts v. HHS, 682 F.3d 1 (1st Cir. 2012) ..................................31, 62
Maynard v. Hill, 125 U.S. 190 (1888) .................................................48
Michael M. v. Superior Court of Sonoma County, 450 U.S. 464 (1981) ...............................14, 29, 40, 62
Mohamed v. Palestinian Auth., 132 S.Ct. 1702 (2012)..............................................46
Monsanto Co. v. Geertson Seed Farms, 130 S.Ct. 2743 (2010)..............................................18
Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005) ..................40, 43
New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) .................................................60
Nguyen v. INS, 533 U.S. 53 (2001).............................................28, 39
Pennoyer v. Neff, 95 U.S. 714 (1877)...................................................59
Planned Parenthood v. Casey, 505 U.S. 833 (1992) ...................................................8

xi
TABLE OF AUTHORITIES – Continued Page
Romer v. Evans, 517 U.S. 620 (1996) ......................................... passim
Rostker v. Goldberg, 453 U.S. 57 (1981).............................................13, 28
San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) .....................................................28
Schalk & Kopf v. Austria, App. No. 30141/04 (Eur. Ct. H.R. 2010) .................61
Sevcik v. Sandoval, 2012 WL 5989662 (D. Nev. Nov. 26, 2012) .............43
Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974)......................31
Smelt v. County of Orange, Cal., 447 F.3d 673 (9th Cir. 2006) ...................................56
Sosna v. Iowa, 419 U.S. 393 (1975) .............................................7, 60
Standhardt v. Superior Court of Ariz., 77 P.3d 451 (Ariz. Ct. App. 2003) ................ 31, 40, 43
Strauss v. Horton, 207 P.3d 48 (Cal. 2009) ................................... passim
United States v. Lopez, 514 U.S. 549 (1995)................................................... 59
United States v. Salerno, 481 U.S. 739 (1987) .................................................22
United States R.R. Ret. Bd. v. Fritz, 449 U.S. 166 (1980) ...........................................24, 61

xii
TABLE OF AUTHORITIES – Continued Page
Vacco v. Quill, 521 U.S. 793 (1997) .................................................39
Vance v. Bradley, 440 U.S. 93 (1979) ..................................................... 42
Warth v. Seldin, 422 U.S. 490 (1975) .................................................18
Washington v. Glucksberg, 521 U.S. 702 (1997) .........................................3, 5, 58
Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) .................................................20
Williams v. North Carolina, 317 U.S. 287 (1942) .................................................48
Wilson v. Ake, 354 F.Supp.2d 1298 (M.D. Fla. 2005) .....................43
Windsor v. United States, 699 F.3d 169 (2d Cir. 2012) .....................................31
Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353 (2009) .................................................23
Zablocki v. Redhail, 434 U.S. 374 (1978) .................................................48
CONSTITUTIONAL PROVISIONS, STATUTES AND RULES U.S. CONST. amend. I..................................................31 U.S. CONST. amend. XIV..................................... passim U.S. CONST. art. III, §2, cl. 1.......................1, 10, 15, 18 28 U.S.C. §1254(1) ........................................................1

xiii
TABLE OF AUTHORITIES – Continued Page
Defense of Marriage Act (DOMA) ........................31, 64 CAL. CONST. art. I, §7.5 ...........................................2, 31 CAL. ELEC. CODE §342 ...................................................9 CAL. FAM. CODE §297.5................................................57 CAL. FAM. CODE §308.5 .................................................9 CAL. GOV’T CODE §82047.5(b) .......................................9 COLO. CONST. amend. 2.......................21, 22, 23, 24, 26 N.Y. DOM. REL. LAW §§10-b, 11 ...................................58 Proposition 1 .........................................................19, 20 Proposition 8 ....................................................... passim Proposition 22 ...............................................................9
OTHER AUTHORITIES Andrew J. Cherlin, The Deinstitutionalization
of American Marriage, 66 J. MARRIAGE & FAMILY 848 (2004)....................................................54 Article 12 of the Convention for the Protection of Human Rights and Fundamental Freedoms ......................................................................... 12 BERTRAND RUSSELL, MARRIAGE & MORALS (Liveright Paperbound Edition, 1970)............................35 BRONISLAW MALINOWSKI, SEX, CULTURE, AND MYTH (1962).............................................................34 Claude Levi-Strauss, Introduction, in 1 A HISTORY OF THE FAMILY: DISTANT WORLDS, ANCIENT WORLDS (Andre Burguiere, et al. eds., 1996) .........32

xiv
TABLE OF AUTHORITIES – Continued
Page
CLAUDE LEVI-STRAUSS, THE VIEW FROM AFAR (1985) .......................................................................32
DAVID HUME, AN ENQUIRY CONCERNING THE PRINCIPLES OF MORALS (1751) .........................................34
E. J. Graff, Retying the Knot, THE NATION, June 24, 1996 ...................................................................53
ELIZABETH WILDSMITH ET AL., CHILDBEARING OUTSIDE OF MARRIAGE: ESTIMATES AND TRENDS IN THE UNITED STATES, CHILD TRENDS RESEARCH BRIEF (Nov. 2011).....................................................41
Ellen Willis, contribution to Can Marriage be Saved? A Forum, THE NATION, July 5, 2004...........53
G. ROBINA QUALE, A HISTORY OF MARRIAGE SYSTEMS (1988) ..............................................................34
Gregory M. Herek, et al., 7 SEXUALITY RESEARCH & SOC. POL’Y 176 (2010) ..........................................64
JAMES Q. WILSON, THE MARRIAGE PROBLEM (2002) .......................................................................32
Joe Garofoli, California left behind on pot, marriage, SFGATE.COM, Nov. 11, 2012, http://www. sfgate.com/politics/joegarofoli/article/Californialeft-behind-on-pot-marriage-4028563.php .............58
JOEL PRENTISS BISHOP, COMMENTARIES ON THE LAW OF MARRIAGE & DIVORCE §213 (1st ed. 1852) ..........................................................................7
JOEL PRENTISS BISHOP, COMMENTARIES ON THE LAW OF MARRIAGE & DIVORCE §225......................7, 32

xv
TABLE OF AUTHORITIES – Continued
Page
JOHN LOCKE, SECOND TREATISE OF CIVIL GOVERNMENT §78 (1690).......................................................34
JOHN WITTE, JR., FROM SACRAMENT TO CONTRACT (2012) .......................................................................48
JONATHAN RAUCH, GAY MARRIAGE (2004) ....................63
Jonathan Rauch, How Can the Supreme Court Help Gay Rights? By Keeping Out Entirely, TNR.COM, Dec. 12, 2012, http://www.tnr.com/ blog/plank/110949/the-only-way-the-supremecourt-can-help-gay-marriage-staying-out-it ..........50
JOSEPH STORY, COMMENTARIES ON THE CONFLICT OF LAWS (1834).........................................................48
Kingsley Davis, The Meaning and Significance of Marriage in Contemporary Society, in CONTEMPORARY MARRIAGE: COMPARATIVE PERSPECTIVES ON A CHANGING INSTITUTION (Kingsley Davis ed., 1985).......................................................35
KRISTEN ANDERSON MOORE, ET AL., MARRIAGE FROM A CHILD’S PERSPECTIVE, CHILD TRENDS RESEARCH BRIEF (June 2002). .................................37
Lawrence B. Finer & Mia R. Zolna, Unintended Pregnancy in the United States: Incidence and Disparities, 2006, 84 CONTRACEPTION 478 (2011) .......................................................................41
M.V. LEE BADGETT, WHEN GAY PEOPLE GET MARRIED (2009)..................................................64, 65

xvi
TABLE OF AUTHORITIES – Continued
Page
Marriage Equality Amendment Bill 2009, Australian Senate Legal & Constitutional Affairs Legislation Committee Report, available at http://www.aph.gov.au/Parliamentary_Business/ Committees/Senate_Committees?url=legcon_ tte/completed_inquiries/2008-10/marriage_equality/ report/index.htm .......................................................44
Michelangelo Signorile, Bridal Wave, OUT MAGAZINE (Dec./Jan. 1994).............................................54
MONTESQUIEU, 2 THE SPIRIT OF LAWS 96 (1st American from the 5th London ed., 1802) .......34, 48
NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1st ed. 1828)....................34
Norval D. Glenn, The Struggle For Same-Sex Marriage, 41 SOC’Y 25 (2004)..................................55
President Barack Obama, Interview, http://abcnews. go.com/Politics/transcript-robin-roberts-abc-newsinterview-president-obama/story?id=16316043 &singlePage=true .....................................................60
President Barack Obama, Speech on Fatherhood (June 15, 2008), transcript available at http://www.realclearpolitics.com/articles/2008/ 06/obamas_speech_on_fatherhood.html ................. 38
ROBERT P. GEORGE, ET AL., WHAT IS MARRIAGE? (2012) .....................................................34, 35, 51, 52
THE TAXPAYER COSTS OF DIVORCE AND UNWED CHILDBEARING: FIRST-EVER ESTIMATES FOR THE NATION AND ALL FIFTY STATES (Benjamin Scafidi, Principal Investigator 2008) .....................38

xvii
TABLE OF AUTHORITIES – Continued Page
Wendy D. Manning, et al., The Relative Stability of Cohabiting and Marital Unions for Children, 23 POPULATION RESEARCH & POL’Y REV. 135 (2004)........................................................41
WILLIAM BLACKSTONE, 1 COMMENTARIES ...................... 34
William J. Doherty, et al., Responsible Fathering, 60 J. MARRIAGE & FAMILY 277 (1998) ..............47
WILLIAM N. ESKRIDGE, JR. & DARREN R. SPEDALE, GAY MARRIAGE: FOR BETTER OR FOR WORSE? WHAT WE’VE LEARNED FROM THE EVIDENCE (2006) .......................................................................49
WILSON, THE MARRIAGE PROBLEM ...............................35
WITHERSPOON INSTITUTE, MARRIAGE AND THE PUBLIC GOOD (2008)...........................................51, 52

1
OPINIONS BELOW
The Ninth Circuit’s opinion is reported at 671 F.3d 1052. Pet.App.1a. The Ninth Circuit’s order denying rehearing en banc is reported at 681 F.3d 1065. Pet.App.441a. The district court’s findings of fact and conclusions of law are reported at 704 F.Supp.2d 921. Pet.App.137a. The Ninth Circuit’s certification order is reported at 628 F.3d 1191. Pet.App.413a. The California Supreme Court’s answer is reported at 265 P.3d 1002, 52 Cal.4th 1116. Pet.App.318a.
---------------------------------  ---------------------------------
JURISDICTION
The judgment below was entered on February 7, 2012. The Ninth Circuit denied a timely petition for rehearing en banc on June 5, 2012. This Court granted a timely petition for certiorari on December 7, 2012. J.A.940. This Court has jurisdiction under 28 U.S.C. §1254(1).
---------------------------------  ---------------------------------
CONSTITUTIONAL PROVISIONS INVOLVED
“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . . .” U.S. CONST. art. III, §2, cl. 1.

2
“[N]or shall any State . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV.
“Only marriage between a man and a woman is valid or recognized in California.” CAL. CONST. art. I, §7.5.
---------------------------------  ---------------------------------
INTRODUCTION
Over the course of the last decade or so, our Nation has been involved in a “great debate,” Pet.App.17a, about whether to redefine the age-old and vitally important institution of marriage to include same-sex couples. That question – which implicates the most profound social, philosophical, religious, moral, political, and legal values of the People – is, as the court below acknowledged, “an issue over which people of good will may disagree.” Id. The People’s democratic institutions are now fully engaged. Nine States have decided to redefine marriage. The rest, California among them, have decided, most by express constitutional amendment, to preserve the traditional definition of marriage as the union of a man and a woman. The voters of California reaffirmed this traditional definition in 2008, passing Proposition 8 after a highly contentious and costly public debate that riveted the attention of voters for months. The arguments advanced by the advocates of redefining marriage attracted substantial support, persuading over 47 percent of the electorate. Indeed, just two months ago those same arguments carried

3
the day in three states, including Maine, where the voters were acting to reverse a referendum that had rejected the redefinition of marriage just three years earlier. The public debate continues throughout the Nation.
Respondents argue in this case, however, that the public debate over redefining marriage, in California and elsewhere, was and is meaningless; they say that the issue was taken out of the People’s hands in 1868, when the Fourteenth Amendment was ratified, and that our Constitution itself defines marriage as a genderless institution. Until the decision below, every state and federal appellate court to consider the issue, including this one, see Baker v. Nelson, 409 U.S. 810 (1972), had rejected the claim that the Federal Constitution prohibits a State from embracing the traditional gendered definition of marriage. They have thus permitted the “earnest and profound debate about the morality, legality, and practicality” of redefining marriage “to continue, as it should in a democratic society.” Washington v. Glucksberg, 521 U.S. 702, 735 (1997).
No precedent or established constitutional precept justifies federal judicial intervention into this sensitive democratic process. This is not a case, like Lawrence v. Texas, 539 U.S. 558 (2003), where the State has punished as a crime “the most private human conduct, sexual behavior, and in the most private of places, the home,” or sought “to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of

4
persons to choose without being punished as criminals.” Id. at 567. By reaffirming the traditional definition of marriage, the People of California have not even discouraged, let alone criminalized, any private behavior or personal relationship. Rather, California has simply reserved a special form of recognition and support to those relationships that have long been thought to uniquely further vital societal interests. And it has done so while at the same time providing substantial recognition and support to same-sex couples and their families through expansive domestic partnership laws. This Court has long recognized that “[t]here is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy.” Maher v. Roe, 432 U.S. 464, 475 (1977); see also Christian Legal Soc’y v. Martinez, 130 S.Ct. 2971, 2989 n.17 (2010) (emphasizing “the distinction between state prohibition and state support”). Indeed, as the California Court of Appeal aptly put it, “[t]he right to be let alone from government interference is the polar opposite of insistence that the government acknowledge and regulate a particular relationship, and afford it rights and benefits that have historically been reserved for others.” In re Marriage Cases, 143 Cal.App.4th 873, 926 (2006), rev’d, 183 P.3d 384 (Cal. 2008); see also Hernandez v. Robles, 855 N.E.2d 1, 10 (N.Y. 2006) (“Plaintiffs here do not, as the petitioners in Lawrence did, seek protection against state intrusion on intimate, private activity. They seek from the courts access to a state-conferred

5
benefit that the Legislature has rationally limited to opposite-sex couples.”).
Nor is this a case like Romer v. Evans, 517 U.S. 620 (1996), where Colorado had imposed a “[s]weeping” and “unprecedented” political disability on all individuals identified “by a single trait,” id. at 627, 633, thus effectively deeming “a class of persons a stranger to its laws,” id. at 635. For one thing, although California has restored the traditional definition of marriage, it has not in any other way altered or eliminated the numerous laws that provide gays and lesbians in California what that State’s largest statewide advocacy organization for gays and lesbians acknowledges are “some of the most comprehensive civil rights protections in the nation.” J.A.Exh.2. Further, it is not Proposition 8, which simply restored the venerable definition of marriage that has prevailed in California for all but a few months of its history, but Respondents’ claim – that the Fourteenth Amendment requires that this ubiquitous institution be fundamentally redefined in a manner unknown in the record of human history until a few short years ago – that is unprecedented. As this Court has recognized, “[i]f a thing has been practised for two hundred years by common consent, it will need a strong case for the Fourteenth Amendment to affect it.” Glucksberg, 521 U.S. at 723. And no institution has been more universally practiced by common consent – not only throughout the history of this Nation, but until little more than a decade ago, everywhere and always – than that of marriage as a union between man and

6
woman. This fact alone precludes Respondents’ remarkable claim, adopted by the court below, that the traditional definition of marriage is irrational and, thus, can be explained only as designed to dishonor gays and lesbians as a class. To the contrary, a social institution that has prevailed continuously in our history and traditions and virtually everywhere else throughout human history – with nearly universal support from politicians, courts, philosophers, and religious leaders of all stripes – can justly be said to be rational per se. And we submit that countless Californians of goodwill have opted in good faith to preserve the traditional definition of marriage because they believe it continues to meaningfully serve important societal interests and they cannot yet know how those interests will be affected if marriage is fundamentally redefined.
Finally, this is not a case like Loving v. Virginia, 388 U.S. 1 (1967), or Brown v. Board of Education, 347 U.S. 483 (1954), where the State had embraced explicit “racial discrimination” of the sort “it was the object of the Fourteenth Amendment to eliminate.” Loving, 388 U.S. at 11. By enforcing “the central meaning of the Equal Protection Clause” in those cases, id. at 12, this Court vindicated a constitutional norm that the People of this Nation had fought and died to establish and had expressly and democratically enacted as an Amendment to the Constitution. And while the antimiscegenation laws invalidated in Loving had existed in some (though by no means all) of the States for part of this Nation’s history, race was

7
never understood to play a fundamental part in the definition of marriage. Indeed, even in antebellum America, the leading treatise on the law of marriage described racial restrictions on marriage as mere “impediments, which are known only in particular countries, or States.” JOEL PRENTISS BISHOP, COMMENTARIES ON THE LAW OF MARRIAGE & DIVORCE §213 (1st ed. 1852). By contrast, the same scholar categorically stated that “[i]t has always . . . been deemed requisite to the entire validity of every marriage . . . that the parties should be of different sex,” and that “[m]arriage between two persons of one sex could have no validity.” Id. §225 (emphasis added). Neither Loving nor Brown provides any support for judicially restructuring the vital social institution of marriage.
In short, there is no warrant in precedent or precept for invalidating marriage as it has existed in California for virtually all of its history, as it was universally understood throughout this Nation (and the world) until just the last decade, and as it continues to be defined in the overwhelming majority of States and Nations – and in diverse philosophical and religious traditions – throughout the world. Further, the definition of marriage has always been understood to be the virtually exclusive province of the States, which, subject only to clear constitutional constraints, have “absolute right to prescribe the conditions upon which the marriage relation between [their] citizens shall be created.” Sosna v. Iowa, 419 U.S. 393, 404 (1975). More important still, the institution of marriage has also always been understood

8
to owe its very existence to society’s vital interests in responsibly creating and nurturing the next generation. As this Court has aptly put it, marriage is “fundamental to our very existence and survival.” Loving, 388 U.S. at 12. Marriage is thus inextricably linked to the objective biological fact that opposite-sex couples, and only such couples, are capable of creating new life together and, therefore, are capable of furthering, or threatening, society’s existential interests in responsible procreation and childrearing. That fact alone is dispositive of Respondents’ equal protection claim, for this Court’s precedents make clear 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 v. Robison, 415 U.S. 361, 383 (1974). Indeed, it was only by “undervalu[ing] the State’s interest,” Planned Parenthood v. Casey, 505 U.S. 833, 873, 875 (1992) (plurality), in the traditional definition and purposes of marriage that the Ninth Circuit and the district court were able to conclude that Proposition 8 is unconstitutional.
Our Constitution does not mandate the traditional gendered definition of marriage, but neither does our Constitution condemn it. This Court, accordingly, should allow the public debate regarding marriage to continue through the democratic process, both in California and throughout the Nation.
---------------------------------  ---------------------------------

9
STATEMENT OF THE CASE
1. “From the beginning of California statehood, the legal institution of civil marriage has been understood to refer to a relationship between a man and a woman.” In re Marriage Cases, 183 P.3d 384, 407 (Cal. 2008). In 2000, Californians passed Proposition 22, an initiative statute reaffirming that understanding. See CAL. FAM. CODE §308.5. In 2008, the California Supreme Court interpreted the State constitution to require that marriage be redefined to include same-sex couples and invalidated Proposition 22. See In re Marriage Cases, 183 P.3d 384. Less than six months later, the People of California adopted Proposition 8, which amended the California Constitution to provide that “[o]nly marriage between a man and a woman is valid or recognized in California.” The California Supreme Court rejected a state constitutional challenge to Proposition 8. See Strauss v. Horton, 207 P.3d 48 (Cal. 2009).
2. The plaintiff respondents (“Plaintiffs,” or, with City and County of San Francisco, “Respondents”) filed suit against public officials responsible for enforcing California’s marriage laws, claiming that Proposition 8 violates the Fourteenth Amendment to the United States Constitution. These officials informed the court that they would not defend Proposition 8. Petitioners, official proponents of that measure and their primarily formed ballot measure committee, see CAL. ELEC. CODE §342; CAL. GOV’T CODE §82047.5(b), intervened. See N.D. Cal. Doc. No. (“Doc. No.”) 76 at 2-3. After a trial, the district court ruled

10
that Proposition 8 violates the Fourteenth Amendment. Pet.App.137a. The Ninth Circuit stayed the district court’s judgment pending Petitioners’ appeal.
3. The Ninth Circuit certified to the Supreme Court of California the question whether “under California law, the official proponents of an initiative measure” have authority to “defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.” Pet.App.416a. The Supreme Court of California issued a unanimous opinion answering “the question posed by the Ninth Circuit in the affirmative.” Pet.App.326a.
4. Relying on this opinion, the Ninth Circuit unanimously held that Petitioners have standing to appeal the district court’s decision:
Because the State of California has Article III standing to defend the constitutionality of Proposition 8, and because both the California Constitution and California law authorize the official proponents of an initiative to appear and assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so, we conclude that [Petitioners] are proper appellants here.
Pet.App.43a.

11
On the merits, a divided panel held that Proposition 8 violates the Equal Protection Clause. The panel majority ruled that Proposition 8 is unconstitutional on the “narrow grounds” that the initiative’s effect was to “take away” from same-sex couples “the official designation of ‘marriage,’ ” while “leaving in place all of its incidents,” which are available to same-sex couples through California’s expansive domestic partnership laws. Pet.App.17a-18a. According to the Ninth Circuit, under this Court’s decision in Romer, this “unique and strictly limited effect of Proposition 8” distinguished it from other State laws defining marriage as the union of a man and a woman, Pet.App.17a, and rendered it wholly unsupported by any conceivable legitimate rational basis. Judge Smith dissented.
The Court of Appeals denied Petitioners’ timely petition for rehearing en banc but stayed its mandate pending the timely filing and disposition of a petition for writ of certiorari. Pet.App.444a. Judge O’Scannlain, joined by Judges Bybee and Bea, dissented, explaining that the panel opinion had declared unconstitutional the “definition of marriage that has existed for millennia” on the basis of a “gross misapplication of Romer v. Evans.” Pet.App.445a. Judge Smith also would have granted the petition. Pet.App.443a.
---------------------------------  ---------------------------------

12
SUMMARY OF ARGUMENT
1. Petitioners have standing to defend Proposition 8 in lieu of public officials who have declined to do so. A State unquestionably has standing to defend the constitutionality of its laws, and this Court’s decisions establish that state law determines who is authorized to assert this interest on behalf of the State. Here, the California Supreme Court has squarely held that the proponents are authorized to assert this interest when public officials decline to defend an initiative.
2. 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 v. Board of Educ., 458 U.S. 527, 540 (1982). The validity of Proposition 8 thus turns not on the fact that California’s Supreme Court interpreted the state constitution to require the redefinition of marriage before the People could vote on Proposition 8, but on whether the Equal Protection Clause required California to redefine marriage “in the first place.” Id. at 538. Nothing in Romer supports a different analysis.
3. The Equal Protection Clause does not require California to redefine marriage to include same-sex couples. The age-old definition of marriage distinguishes between relationships of a man and a woman and all other types of relationships, including samesex relationships. This distinction is rooted in a basic

13
biological fact that goes to the heart of the State’s interest in regulating marriage: the unique capacity of intimate relationships between men and women to create new life. This indisputable difference between same-sex and opposite-sex relationships demonstrates that Proposition 8 is constitutional, for the Constitution requires only that a State “treat similarly situated persons similarly, not that it engage in gestures of superficial equality.” Rostker v. Goldberg, 453 U.S. 57, 79 (1981).
4. Throughout human history, societies have regulated sexual relationships between men and women so that the unique procreative capacity of such relationships benefits rather than harms society. In particular, an animating purpose of marriage is to increase the likelihood that children will be born and raised in stable and enduring family units by their own mothers and fathers. Because relationships between persons of the same sex do not have the capacity to produce children, they do not implicate this interest in responsible procreation and childrearing in the same way. The Equal Protection Clause does not require the State to ignore this difference. See, e.g., Board of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 366-67 (2001).
5. Redefining marriage as a genderless institution would work a profound change in an institution critical to the stable progression of society from generation to generation. The Equal Protection Clause does not require California to disregard reasonable concerns that this profound change, by severing any

14
inherent connection between marriage and the creation and nurture of the next generation, could impair the ability of marriage to serve this critical societal function.
6. Redefining marriage would affect not only same-sex couples but all members of society. By adopting Proposition 8, the People of California demonstrated their belief that this matter is best resolved by the People themselves, not by their courts. The Equal Protection Clause does not prohibit the People of California – or of any State – from making this choice. To the contrary, it leaves them free to do what they are doing – debating this controversial issue and seeking to resolve it in a way that will best serve their families, their children, and, ultimately, their society as a whole.
7. Because Proposition 8 plainly furthers important interests, the Ninth Circuit’s speculation regarding the motives of the voters who enacted it was neither necessary or appropriate. See, e.g., Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 472 n.7 (1981) (plurality). In all events, whether marriage should be defined to include same-sex relationships is an important question of social policy about which reasonable people of good will can and do disagree in good faith.
---------------------------------  ---------------------------------

15
ARGUMENT
I. Petitioners Have Standing To Defend Proposition 8.
“[A] State clearly has a legitimate interest in the continued enforceability” of its laws, Maine v. Taylor, 477 U.S. 131, 137 (1986), and thus “has standing to defend the constitutionality” of those laws, both in the trial court and on appeal, Diamond v. Charles, 476 U.S. 54, 62 (1986). This Court’s decisions leave no doubt that State law determines who is authorized to assert this interest on behalf of the State. See, e.g., Arizonans for Official English v. Arizona, 520 U.S. 43, 65 (1997); Karcher v. May, 484 U.S. 72, 81-82 (1987). Article III does not purport to control the manner in which States allocate their sovereign powers, and “principles of federalism require that federal courts respect such decisions by the states as to who may speak for them.” Pet.App.35a-36a. Indeed, such decisions are “of the most fundamental sort,” for it is “[t]hrough the structure of its government, and the character of those who exercise government authority, [that] a State defines itself as a sovereign.” Gregory v. Ashcroft, 501 U.S. 452, 460 (1991).
Here, the Supreme Court of California has unanimously confirmed that Petitioners have “authority under state law,” Karcher, 484 U.S. at 82, to defend Proposition 8 “as agents of the people” of California “in lieu of public officials” who refuse to do so, Arizonans, 520 U.S. at 65. The Ninth Circuit was thus

16
plainly correct in holding that Petitioners have standing to defend Proposition 8.
A. In Karcher, this Court held that the presiding officers of the New Jersey Legislature were “proper” defendants, both in the trial court and in the court of appeals, in federal litigation challenging the constitutionality of a state statute when “neither the Attorney General nor the named defendants would defend the statute.” 484 U.S. at 75, 82. These individuals “had authority under state law to represent the State’s interests” because, in at least one other case, the “New Jersey Supreme Court ha[d] granted applications of the Speaker of the General Assembly and the President of the Senate to intervene as partiesrespondent on behalf of the legislature in defense of a legislative enactment.” Id. at 82.
Here too, as the Supreme Court of California has recognized, “California courts have routinely permitted the official proponents of an initiative to intervene or appear as real parties in interest to defend a challenged voter-approved initiative measure . . . to enable such proponents to assert the people’s, and hence the state’s, interest in defending the validity of the initiative measure.” Pet.App.324a. Further, that Court has expressly confirmed that the official proponents of an initiative measure “are authorized under California law to appear and assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so.” Pet.App.327a.

17
B. Nothing in Arizonans for Official English undermines Karcher’s clear application here. In dicta, this Court discussed, but ultimately did “not definitively resolve” whether the principal sponsor of an Arizona ballot initiative had standing to appeal a decision striking down that measure. Arizonans, 520 U.S. at 66. Citing Karcher, the Court explained that it had previously “recognized that state legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State’s interests.” Id. at 65. Unlike in Karcher, however, the Court was “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.” Id. For this reason, the Court expressed “grave doubts” about the standing of the Arizona initiative sponsors to appeal. Id. at 66. Here, by contrast, the California Supreme Court has definitively held that California law does grant initiative sponsors such authority.
C. If this Court holds, contrary to the foregoing, that Petitioners lack standing to defend Proposition 8 on appeal, the Court would then “have an obligation . . . 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.” Id. at 73. Obviously, the Ninth Circuit’s judgment would have to be vacated. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 235-36 (1990). In addition, the sweeping opinion and state-wide injunction

18
entered by the trial court should be vacated as well. At least as a prudential matter, Plaintiffs’ case, brought against a handful of carefully selected, congenial official defendants, none of whom offered any defense of Proposition 8, may not have presented even a case or controversy appropriate for adjudication. See INS v. Chadha, 462 U.S. 919, 939-40 (1983).
More important, Article III requires that a “remedy . . . be limited to the inadequacy that produced the injury in fact that the plaintiff has established.” Lewis v. Casey, 518 U.S. 343, 357 (1996). Thus, even if the Court concludes that this case was justiciable in the district court, that court lacked remedial jurisdiction to award any relief beyond a default judgment limited to the four named plaintiffs. Plaintiffs did not purport to represent a class, and an injunction permitting them, and only them, to marry would have provided them complete relief for the injuries they alleged. See Monsanto Co. v. Geertson Seed Farms, 130 S.Ct. 2743, 2760, 2767 n.6 (2010); Califano v. Yamasaki, 442 U.S. 682, 702 (1979). It is well settled that a plaintiff lacks standing to seek relief for the injuries of others not before the court. See, e.g., Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 263 (1977); Warth v. Seldin, 422 U.S. 490, 499 (1975). Accordingly, “neither declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs, and the State is free to” enforce those laws against others. Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975).

19
II. Proposition 8’s Validity Does Not Turn on the Timing of its Adoption.
A. This Court has established that a State is not required to adhere forever to policies that exceed federal constitutional requirements.
The lynchpin of the Ninth Circuit’s decision invalidating Proposition 8 was its insistence that a different analysis is required when a state-law right is “withdrawn” than when it is not extended in the first instance. Pet.App.68a. But this proposition is foreclosed by this Court’s decision in Crawford, which makes clear that when a State repeals a law the relevant inquiry is simply whether that law was “required by the Federal Constitution in the first place.” 458 U.S. at 538. Indeed, Crawford emphatically “reject[ed] the contention that once a State chooses to do ‘more’ than the Fourteenth Amendment requires, it may never recede.” Id. at 535. Such a rule, the Court reasoned, would be “destructive of a State’s democratic processes and of its ability to experiment,” id., and it would affirmatively “discourage[ ] the States from providing greater protection” to their citizens than the Fourteenth Amendment requires, id. at 539.
Crawford involved an equal protection challenge to a California constitutional amendment (Proposition 1) that superseded in part a decision of the California Supreme Court interpreting the State Constitution to require public school districts to remedy de facto segregation and, thus, to go beyond the mandates of the Federal Constitution. Upholding Proposition 1,

20
this Court refused to “interpret the Fourteenth Amendment to 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.” Id. at 540. Instead, this Court held, “having gone beyond the requirements of the Federal Constitution, the State was free to return in part to the standard prevailing generally throughout the United States.” Id. at 542.
The Ninth Circuit’s attempts to distinguish Crawford fail. First, this Court’s findings that Proposition 1 did not draw a racial classification and was not motivated by race, see Pet.App.67a-68a, meant only that it was subject to rational-basis review, rather than heightened scrutiny. See Crawford, 458 U.S. at 536-38, 543-45; compare Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 471 (1982) (applying strict scrutiny to law “effectively drawn for racial purposes”). These findings are of no moment here, where the panel majority itself purported to apply rationalbasis review.
Second, the court below emphasized that even after Proposition 1, California’s Constitution still provided a “more robust ‘right . . . than exists under the Federal Constitution.’ ” Pet.App.67a (quoting Crawford, 458 U.S. at 542). But Proposition 8, like Proposition 1, was “less than a ‘repeal’ ” of any provision of the California Constitution, Crawford, 458 U.S. at 541 (emphasis added), for the California Constitution continues to guarantee a broad range of rights to gays and lesbians, including the right “to establish . . . an

21
officially recognized and protected family,” Strauss, 207 P.3d at 77. More fundamentally, the lesson of Crawford is that a State is no less free to withdraw state constitutional rights that exceed federal constitutional requirements than it was to extend them (or not) in the first place. Whether a State withdraws such a right entirely or only partially is for it to decide. Indeed, in Crawford this Court emphasized that “preserving a greater right . . . than exists under the Federal Constitution . . . most assuredly [did] not render the Proposition unconstitutional.” 458 U.S. at 542. Conversely, California “could have conformed its law to the Federal Constitution in every respect” rather than “pull[ing] back only in part.” Id.
B. Proposition 8 is not unconstitutional under Romer.
1. The Ninth Circuit’s holding that “Romer, not Crawford controls” this case, Pet.App.68a, rests on a “gross misapplication of Romer,” Pet.App.445a. Central to the Ninth Circuit’s error is its assertion that Romer turned on the timing of Colorado’s Amendment 2 rather than its substance.
This is how the Ninth Circuit framed the issue: “The relevant inquiry in Romer was not whether the state of the law after Amendment 2 was constitutional. . . . The question, instead, was whether the change in the law that Amendment 2 effected could be justified by some legitimate purpose.” Pet.App.64a. But nothing in Romer suggests that Amendment 2

22
would have been valid had it only been enacted before Aspen, Boulder, and Denver passed ordinances banning discrimination on the basis of sexual orientation. Nor did Romer suggest that a constitutional amendment identical to Amendment 2 would be valid in a State that had no preexisting local laws protecting gays and lesbians from discrimination. Indeed, this Court struck down Amendment 2 on its face, not merely as applied to the handful of jurisdictions in Colorado that had previously enacted antidiscrimination ordinances protecting gays and lesbians. See United States v. Salerno, 481 U.S. 739, 745 (1987).
The Ninth Circuit read Romer to turn on the fact that Amendment 2 “withdrew” from gays and lesbians “elective” local antidiscrimination protections “that the Fourteenth Amendment did not require . . . to be afforded to gays and lesbians.” Pet.App.63a-64a. But Amendment 2 “in explicit terms [did] more than repeal or rescind” antidiscrimination laws that were not required by the Federal Constitution. Romer, 517 U.S. at 624 (emphasis added). It imposed a “broad and undifferentiated disability on a single named group” by prohibiting “all legislative, executive or judicial actions at any level of state or local government designed to protect the named class [of] homosexual persons or gays and lesbians.” Id. at 624, 632. Amendment 2 “identifie[d] persons by a single trait and then denie[d] them protection across the board” – “protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary life in a free society.” Id. at 631, 633.

23
In short, Amendment 2 “deem[ed] a class of persons a stranger to [the] laws.” Id. at 635. These were the “peculiar,” “exceptional,” “unusual,” and indeed “unprecedented” characteristics of Amendment 2 that concerned the Court, id. at 632-33, not the Amendment’s repeal of a handful of local antidiscrimination laws.
In any event, there is no merit, legal or logical, in the panel majority’s theory that “[w]ithdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place, regardless of whether the right was withdrawn after a week, a year, or a decade.” Pet.App.55a. Obviously the rationality of a classification does not turn on the timing of its adoption – if it was reasonable for California to draw a line between opposite-sex couples and other types of relationships (including same-sex relationships) for 158 years before the California Supreme Court’s ruling in the Marriage Cases, it is also reasonable for California to draw the same line, for the same reasons, after the 142-day hiatus caused by that short-lived decision. And if it is rational for Congress and 40 other States to distinguish between opposite-sex couples and other types of relationships for purposes of marriage, surely it is rational for California to do so as well.
Not surprisingly, this Court has consistently applied the same constitutional analysis to laws withdrawing legal rights or benefits as it has to laws refusing to extend rights or benefits in the first instance. See, e.g., Ysursa v. Pocatello Educ. Ass’n, 555

24
U.S. 353, 356, 360 n.2 (2009); Central State Univ. v. American Ass’n of Univ. Professors, 526 U.S. 124, 127 (1999); Lyng v. Automobile Workers, 485 U.S. 360, 371 (1988); Bowen v. Gilliard, 483 U.S. 587, 598-601 (1987); United States R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 176-77 (1980); City of New Orleans v. Dukes, 427 U.S. 297, 303-05 (1976). And this Court has squarely rejected the proposition that there is a legally material difference between repealing a benefit and declining to extend it in the first instance, emphasizing that “[f]or legal purposes . . . the two situations are identical.” Bowen, 483 U.S. at 604 (emphasis added).
Finally, characterizing Proposition 8 as “withdrawing” or “eliminating” rights is misleading. The Attorney General issued the initiative’s title and summary for signature petitions in November 2007. Signatures qualifying Proposition 8 for the ballot were submitted for verification before the California Supreme Court issued its decision requiring the State to redefine marriage, and that decision did not become final until after Proposition 8 officially qualified for the ballot. Indeed, but for the California Supreme Court’s refusal to stay its decision pending the People’s vote, see Strauss, 207 P.3d at 68, California never would have recognized same-sex relationships as marriages.
2. Putting aside the red herring of its timing, it is plain that Proposition 8 differs sharply from Amendment 2 in every material respect. First, far from being “unprecedented in our jurisprudence” or alien to “our constitutional tradition,” Romer, 517 U.S.

25
at 633, it is difficult to think of a law with deeper roots in California’s and our Nation’s history, practices, and traditions than one defining marriage as the union of a man and a woman. That definition has prevailed for all but 142 days of California’s 162-year history, and it continues to prevail in federal law and in the overwhelming majority of the States, most often through constitutional provisions much like Proposition 8.
Nor is it in any way “unprecedented” or even unusual that in restoring the traditional definition of marriage, the People of California exercised the “inalienable,” “fundamental” right that they have reserved to themselves to “amend the[ir] Constitution through the initiative process when they conclude that a judicial interpretation or application of a preexisting constitutional provision should be changed.” Strauss, 207 P.3d at 108. To the contrary, “past state constitutional amendments that diminished state constitutional rights . . . refut[e] [the] description of Proposition 8 as ‘unprecedented.’ ” Id. at 105.
Second, far from imposing a “broad and undifferentiated disability on a single named group” or denying that group “protection across the board,” Romer, 517 U.S. at 632-33, Proposition 8’s purpose was “simply to restore the traditional definition of marriage as referring to a union between a man and a woman,” Strauss, 207 P.3d at 76. And it achieved this purpose in the narrowest possible manner, leaving undisturbed the numerous other laws – including the expansive domestic partnership laws – that provide

26
gays and lesbians in California “with some of the most comprehensive civil rights protections in the nation.” J.A.Exh.2 As the California Supreme Court itself recognized, there is simply no comparison between Proposition 8 and a law, such as Colorado’s Amendment 2, that “sweepingly . . . leaves [a minority] group vulnerable to public or private discrimination in all areas without legal recourse.” Strauss, 207 P.3d at 102.
The Ninth Circuit’s assertion that Proposition 8’s narrow focus “makes it even more suspect” than Amendment 2, Pet.App.59a, cannot be reconciled with Romer’s emphasis on Amendment 2’s “sheer breadth,” 517 U.S. at 632. Indeed, by restoring the traditional definition of marriage in the narrowest possible manner – particularly when a competing and “much more sweeping initiative” was proposed and available, Strauss, 207 P.3d at 76 n.8 – the People of California expressed solicitude for both traditional marriage and the rights of committed same-sex couples, not an invidious or irrational desire to harm or dishonor gays and lesbians.
Finally, though Amendment 2 was so bereft of any conceivable legitimate state purpose that it could be explained only as resulting from “a bare . . . desire to harm a politically unpopular group,” Romer, 517 U.S. at 634, the Ninth Circuit correctly disclaimed any “suggest[ion] that Proposition 8 is the result of ill will on the part of the voters of California,” Pet.App.87a. As discussed more fully below, the gendered definition of marriage has prevailed in all

27
societies throughout human history not because of anti-gay animus but because marriage is closely connected to society’s vital interests in the uniquely procreative nature of opposite-sex relationships. It has always been, and is now, supported by countless people of good faith who harbor no ill will toward gays and lesbians. See, e.g., Pet.App.17a (recognizing that redefining marriage to include same-sex couples is “an issue over which people of good will may disagree”). As President Obama recognized, even as he announced his support for same-sex marriage, many people who “feel very strongly” about preserving the traditional definition of marriage do so not “from a mean-spirited perspective” but rather because they “care about families.” http://abcnews.go.com/Politics/ transcript-robin-roberts-abc-news-interview-presidentobama/story?id=16316043&singlePage=true; see also infra III.D.
III. The Equal Protection Clause Does Not Forbid California from Defining Marriage as the Union of a Man and a Woman.
As the foregoing demonstrates, whether the Equal Protection Clause prohibits the People of California from restoring the traditional definition of marriage turns on whether the redefinition of marriage to include same-sex couples was “required by the [Equal Protection Clause] in the first place.” Crawford, 458 U.S. at 538. It was not. Indeed, this Court has already rejected that contention, unanimously dismissing for want of a substantial federal question an appeal squarely presenting the question whether a

28
State’s refusal to recognize same-sex relationships as marriages violates the Equal Protection Clause. Baker, 409 U.S. 810; see also Baker, No. 71-1027, Jurisdictional Statement at 3 (Oct. Term 1972); Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971); cf. Hicks v. Miranda, 422 U.S. 332, 344 (1975).
Baker was correctly decided. The first task in evaluating an equal protection claim is, of course, to identify the precise classification at issue. See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 18-29 (1973). By defining marriage as the union of man and woman, societies throughout history have drawn a line between opposite-sex couples and all other types of relationships, including same-sex couples. This is the precise classification at issue here, and it is based on an obvious difference between same-sex and opposite-sex couples: the natural capacity to create children, which as a matter of indisputable biological fact is limited to sexual relationships between a man and a woman. As demonstrated below, this distinction goes to the heart of society’s traditional interest in regulating intimate relationships. Given this undeniable biological difference, the traditional definition of marriage satisfies the Equal Protection Clause under any standard of review, for even when heightened scrutiny applies, “[t]he Constitution requires that [a State] treat similarly situated persons similarly, not that it engage in gestures of superficial equality.” Rostker, 453 U.S. at 79. And “[t]o fail to acknowledge even our most basic biological differences . . . risks making the guarantee of equal

29
protection superficial, and so disserving it.” Nguyen v. INS, 533 U.S. 53, 73 (2001); see also Michael M., 450 U.S. at 471.
In all events, this relevant biological distinction dictates that the traditional definition of marriage be subject only to rational-basis review:
[W]here individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement, the courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued. In such cases, the Equal Protection Clause requires only a rational means to serve a legitimate end.
City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 441-42 (1985).1
1 Unlike laws that explicitly classify individuals based on sexual orientation, the traditional definition of marriage classifies on the basis of sexual orientation only to the extent that it distinguishes between same-sex couples and opposite-sex couples. And this distinction reflects biological realities closely related to society’s traditional interest in marriage. To resolve this case, the Court thus need hold only that the biologically based, plainly relevant distinction drawn by the traditional definition of marriage calls for nothing more than rational-basis review. This Court need not determine what level of scrutiny should apply to other sorts of laws that classify individuals based on sexual orientation. Cf. Cabell v. Chavez-Salido, 454 U.S. 432,
(Continued on following page)

30
Rational-basis review, of course, constitutes a “paradigm of judicial restraint,” under which courts have no “license . . . to judge the wisdom, fairness, or logic of legislative choices.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313-14 (1993). “A statutory classification fails rational-basis review only when it rests on grounds wholly irrelevant to the achievement of the State’s objective.” Heller v. Doe, 509 U.S. 312, 324 (1993). Thus, Proposition 8 “must be upheld . . . if there is any reasonably conceivable state of facts that could provide a rational basis for” it. Id. at 320. Furthermore, because “the institution of marriage has always been, in our federal system, the predominant concern of state government . . . rational-basis review must be particularly deferential” in this context. Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 867 (8th Cir. 2006).
As demonstrated below, Proposition 8 clearly satisfies this deferential standard of review. Indeed, aside from the panel majority below – whose analysis rested on a flawed interpretation of Romer – no appellate court applying the Federal Constitution has held that the traditional definition of marriage fails it. See Bruning, 455 F.3d 859; In re Marriage of J.B. & H.B., 326 S.W.3d 654 (Tex. App. 2010);
438-39 (1982) (although classifications based on alienage are ordinarily subject to strict scrutiny, “strict scrutiny is out of place when the [classification] primarily serves a political function” because “citizenship . . . is a relevant ground for determining membership in the political community”).

31
Standhardt v. Superior Court of Ariz., 77 P.3d 451 (Ariz. Ct. App. 2003); Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995); Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974); Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973); Baker, 191 N.W.2d 185; see also Windsor v. United States, 699 F.3d 169, 181 (2d Cir. 2012) (“We . . . decline to join issue with the dissent, which explains why Section 3 of DOMA may withstand rational basis review.”); Massachusetts v. HHS, 682 F.3d 1, 9-10 (1st Cir. 2012) (challenge to DOMA “cannot prevail” under “classic rational basis review”).2
A. Proposition 8 advances society’s vital interest in responsible procreation and childrearing.
1. Responsible procreation and childrearing has been an animating purpose of marriage in virtually every society throughout history.
The definition of marriage as a union “between a man and a woman,” CAL. CONST. art. I, §7.5, has prevailed throughout this Nation since before its
2 As our amici will demonstrate, Proposition 8 advances other important societal interests in addition to those we address, including accommodating the First Amendment and other fundamental rights of institutions and individuals who support the traditional definition of marriage on religious or moral grounds.

32
founding, including the period when the Fourteenth Amendment was framed and adopted. See, e.g., BISHOP, COMMENTARIES ON THE LAW OF MARRIAGE & DIVORCE §225 (“It has always . . . been deemed requisite to the entire validity of every marriage . . . that the parties should be of different sex. . . .”). Indeed, until very recently “it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex.” Hernandez, 855 N.E.2d at 8. And “the family – based on a union, more or less durable, but socially approved, of two individuals of opposite sexes who establish a household and bear and raise children – appears to be a practically universal phenomenon, present in every type of society.” CLAUDE LEVI-STRAUSS, THE VIEW FROM AFAR 40-41 (1985); see also, e.g., JAMES Q. WILSON, THE MARRIAGE PROBLEM 24 (2002) (noting that “a lasting, socially enforced obligation between man and woman that authorizes sexual congress and the supervision of children” exists and has existed “[i]n every community and for as far back in time as we can probe”).
The record of human history leaves no doubt that the institution of marriage owes its existence to the undeniable biological reality that opposite-sex unions – and only such unions – can produce children. Marriage, thus, is “a social institution with a biological foundation.” Claude Levi-Strauss, Introduction, in 1 A HISTORY OF THE FAMILY: DISTANT WORLDS, ANCIENT WORLDS 5 (Andre Burguiere, et al. eds., 1996). And

33
that biological foundation – the unique procreative potential of sexual relationships between men and women – implicates vital social interests. On the one hand, procreation is necessary to the survival and perpetuation of the human race; accordingly, the responsible creation, nurture, and socialization of the next generation is a vital – indeed existential – social good. On the other hand, irresponsible procreation and childrearing – the all-too-frequent result of casual or transient sexual relationships between men and women – commonly results in hardships, costs, and other ills for children, parents, and society as a whole. As eminent authorities from every discipline and every age have uniformly recognized, an overriding purpose of marriage in virtually every society is, and has always been, to regulate sexual relationships between men and women so that the unique procreative capacity of such relationships benefits rather than harms society. In particular, through the institution of marriage, societies seek to increase the likelihood that children will be born and raised in stable and enduring family units by both the mothers and the fathers who brought them into this world.
This animating purpose of marriage was well explained by Blackstone. Speaking of the “great relations in private life,” he described the relationship of “husband and wife” as “founded in nature, but modified by civil society: the one directing man to continue and multiply his species, the other prescribing the manner in which that natural impulse must

34
be confined and regulated.” WILLIAM BLACKSTONE, 1 COMMENTARIES *410. Blackstone then immediately turned to the relationship of “parent and child,” which he described as “consequential to that of marriage, being its principal end and design: and it is by virtue of this relation that infants are protected, maintained, and educated.” Id.; see also id. *435.
Throughout history, other leading thinkers have likewise consistently recognized the essential connection between marriage and responsible procreation and childrearing. See, e.g., JOHN LOCKE, SECOND TREATISE OF CIVIL GOVERNMENT §78 (1690); DAVID HUME, AN ENQUIRY CONCERNING THE PRINCIPLES OF MORALS 66 (1751); MONTESQUIEU, 2 THE SPIRIT OF LAWS 96 (1st American from the 5th London ed., 1802); NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1st ed. 1828); BRONISLAW MALINOWSKI, SEX, CULTURE, AND MYTH 11 (1962); G. ROBINA QUALE, A HISTORY OF MARRIAGE SYSTEMS 2 (1988); ROBERT P. GEORGE, ET AL., WHAT IS MARRIAGE? 38 (2012). In the words of the sociologist Kingsley Davis:
The family is the part of the institutional system through which the creation, nurture, and socialization of the next generation is mainly accomplished. . . . The genius of the family system is that, through it, the society normally holds the biological parents responsible for each other and for their offspring. By identifying children with their parents . . . the social system powerfully motivates

35
individuals to settle into a sexual union and take care of the ensuing offspring.
The Meaning and Significance of Marriage in Contemporary Society, in CONTEMPORARY MARRIAGE: COMPARATIVE PERSPECTIVES ON A CHANGING INSTITUTION 1, 7-8 (Kingsley Davis ed., 1985); see also, e.g., WILSON, THE MARRIAGE PROBLEM 41 (“Marriage is a socially arranged solution for the problem of getting people to stay together and care for children that the mere desire for children, and the sex that makes children possible, does not solve.”).
Indeed, prior to the recent movement to redefine marriage to include same-sex relationships, it was commonly understood and accepted, without a hint of controversy, that an overriding purpose of marriage is to further society’s vital interest in responsible procreation and childrearing. That is why this Court has repeatedly recognized marriage as “fundamental to our very existence and survival.” E.g., Loving, 388 U.S. at 12. And certainly no other purpose can plausibly explain why marriage is so universal or even why it exists at all. As Bertrand Russell put it, “[b]ut for children, there would be no need of any institution concerned with sex.” BERTRAND RUSSELL, MARRIAGE & MORALS 77 (Liveright Paperbound Edition, 1970). Indeed, if “human beings reproduced asexually and . . . human offspring were born self-sufficient[,] . . . would any culture have developed an institution anything like what we know as marriage? It is clear that the answer is no.” GEORGE, WHAT IS MARRIAGE? 96.

36
2. Proposition 8 furthers society’s vital interests in responsible procreation and childrearing.
By providing special recognition, encouragement, and support to committed opposite-sex relationships, the traditional institution of marriage preserved by Proposition 8 seeks to channel potentially procreative conduct into stable, enduring relationships, where that conduct is likely to further, rather than harm, society’s vital interests in responsible procreation and childrearing. And by reaffirming the age-old definition of marriage, Proposition 8 preserves the abiding link between that institution and this traditional purpose. Proposition 8 thus plainly bears a close and direct relationship to society’s interest in increasing the likelihood that children will be born to and raised by the mothers and fathers who brought them into the world in stable and enduring family units. Indeed, given the close connection between the traditional definition of marriage and the vitally important interests that institution has always been understood to serve, we submit that Proposition 8 satisfies any level of equal protection scrutiny. Cf. Florida Bar v. Went For It, Inc., 515 U.S. 618, 629 (1995) (“history, consensus, and ‘simple common sense’ ” may satisfy even strict scrutiny).
a. “[I]t seems beyond dispute that the state has a compelling interest in encouraging and fostering procreation of the race and providing status and stability to the environment in which children are raised. This has always been one of society’s paramount

37
goals.” Adams v. Howerton, 486 F.Supp. 1119, 1124 (C.D. Cal. 1980), aff ’d on other grounds, 673 F.2d 1036 (9th Cir. 1982). Indeed, “[i]t is hard to conceive an interest more legitimate and more paramount for the state than promoting an optimal social structure for educating, socializing, and preparing its future citizens to become productive participants in civil society.” Lofton v. Secretary of the Dep’t of Children & Family Servs., 358 F.3d 804, 819 (11th Cir. 2004). These interests are, indeed, “fundamental to our very existence and survival.” E.g., Loving, 388 U.S. at 12.
Underscoring the state’s interest in marriage is the undisputed truth that children suffer when procreation and childrearing take place outside stable family units, which is the usual result, unfortunately, of unintended pregnancies outside of marriage. A leading survey of social science research explains:
Children in single-parent families, children born to unmarried mothers, and children in stepfamilies or cohabiting relationships face higher risks of poor outcomes than do children in intact families headed by two biological parents. Parental divorce is also linked to a range of poorer academic and behavioral outcomes among children. There is thus value for children in promoting strong, stable marriages between biological parents.
KRISTEN ANDERSON MOORE, ET AL., MARRIAGE FROM A CHILD’S PERSPECTIVE, CHILD TRENDS RESEARCH BRIEF 6 (June 2002).

38
In addition, when parents, and particularly fathers, do not take responsibility for raising their children, society is often forced to assist through social welfare programs and other means. Indeed, a recent study estimates that divorce and unwed childbearing “costs U.S. taxpayers at least $112 billion each and every year, or more than $1 trillion each decade.” THE TAXPAYER COSTS OF DIVORCE AND UNWED CHILDBEARING: FIRST-EVER ESTIMATES FOR THE NATION AND ALL FIFTY STATES 5 (Benjamin Scafidi, Principal Investigator 2008). The adverse outcomes for children associated with single parenthood harm society in other ways as well. As President Obama has emphasized:
We know the statistics – that children who grow up without a father are five times more likely to live in poverty and commit crime; nine times more likely to drop out of school, and twenty times more likely to end up in prison. They are more likely to have behavioral problems, or run away from home, or become teenage parents themselves. And the foundations of our community are weaker because of it.
Barack Obama, Speech on Fatherhood (June 15, 2008), transcript available at http://www.realclearpolitics.com/ articles/2008/06/obamas_speech_on_fatherhood.html.
b. Because same-sex relationships cannot naturally produce offspring, they do not implicate the State’s interest in responsible procreation and childrearing in the same way that opposite-sex relationships do.

39
Same-sex relationships “are thus different, immutably so, in relevant respects” from opposite-sex relationships for purposes of marriage. Cleburne, 473 U.S. at 442. And given this biological reality, as well as marriage’s central concern with responsible procreation and childrearing, the “commonsense distinction,” Heller, 509 U.S. at 326, that our law has always drawn between same-sex couples and opposite-sex couples “is neither surprising nor troublesome from a constitutional perspective.” Nguyen, 533 U.S. at 63. For, again, as this Court has made clear, “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 differences does not give rise to a constitutional violation.” Garrett, 531 U.S. at 366-67. Simply put, “[t]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.” Vacco v. Quill, 521 U.S. 793, 799 (1997).
The Ninth Circuit thus erred in concluding that the traditional definition of marriage must be deemed irrational unless “opposite-sex couples were more likely to procreate accidentally or irresponsibly when same-sex couples were allowed access to the designation of ‘marriage.’ ” Pet.App.74a-75a. For although there plainly is a reasonable basis for concern that officially redefining marriage as a genderless institution would necessarily entail a significant risk of negative consequences over time to the institution and the interests it has always served, see infra III.B,

40
the possibility of such harm need not be shown in order to uphold Proposition 8.
To the contrary, this Court’s precedent makes clear 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. Conversely, a law 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. Thus, the relevant inquiry here is not, as the Ninth Circuit would in effect have it, whether restoring the traditional definition of marriage was necessary to avoid harm to that institution. Rather, the question is whether recognizing oppositesex relationships as marriages furthers interests that would not be furthered, or would not be furthered to the same degree, by recognizing same-sex relationships as marriages. See, e.g., Jackson v. Abercrombie, 2012 WL 3255201, at *2 (D. Haw. Aug. 8, 2012); Andersen v. King County, 138 P.3d 963, 984 (Wash. 2006) (plurality); Morrison v. Sadler, 821 N.E.2d 15, 23, 29 (Ind. Ct. App. 2005); Standhardt, 77 P.3d at 463.3
3 Even where heightened scrutiny applies, this Court has rejected the argument that a classification may be upheld only if it is necessary to achieve the government’s purpose. See Michael M., 450 U.S. at 473 (rejecting argument that statutory rape law punishing only males was “not necessary to deter teenage pregnancy because a gender-neutral statute, where both male
(Continued on following page)

41
The answer to that question is clear. Sexual relationships between men and women, and only such relationships, can produce children – often unintentionally. See, e.g., Lawrence B. Finer & Mia R. Zolna, Unintended Pregnancy in the United States: Incidence and Disparities, 2006, 84 CONTRACEPTION 478, 481 Table 1 (2011) (finding that nearly half of all pregnancies in the United States, and nearly 70 percent of those pregnancies that occurred outside of marriage, were unintended). And as demonstrated above, it is the procreative capacity of heterosexual relationships – including the very real threat it can pose to the interests of society and to the welfare of children conceived unintentionally – that the institution of marriage has always sought to address. Nor can there be any doubt that providing recognition and support to committed opposite-sex couples through the institution of marriage generally makes those potentially procreative relationships more stable and enduring and thus promotes society’s interest in responsible procreation. See, e.g., ELIZABETH WILDSMITH ET AL., CHILDBEARING OUTSIDE OF MARRIAGE: ESTIMATES AND TRENDS IN THE UNITED STATES, CHILD TRENDS RESEARCH BRIEF 5 (Nov. 2011); Wendy D. Manning, et al., The Relative Stability of Cohabiting and Marital Unions for Children, 23 POPULATION RESEARCH & POL’Y REV.
and female would be subject to prosecution, would serve that goal equally well” as, inter alia, not reflecting “[t]he relevant inquiry” given that “virtually all of the significant harmful and inescapably identifiable consequences of teenage pregnancy fall on the young female”).

42
135, 136 (2004). Indeed, even Plaintiffs have conceded that “ ‘responsible procreation’ may provide a rational basis for the State’s recognition of marriages by individuals of the opposite sex.” Doc. No. 202 at 25; see also Plaintiffs’ BIO 17.
Sexual relationships between individuals of the same sex, by contrast, neither advance nor threaten society’s interest in responsible procreation in the same manner, or to the same degree, that sexual relationships between men and women do. As even Plaintiffs’ lead counsel was forced to acknowledge below, “heterosexual couples who practice sexual behavior outside their marriage” present “a big threat to irresponsible procreation,” but same-sex couples “don’t present a threat of irresponsible procreation.” J.A.933-34. Under Johnson and Cleburne, that is the end of the matter. It is plainly reasonable for California to maintain a unique institution to address the unique challenges posed by the unique procreative potential of sexual relationships between men and women. Respondents’ contrary contention – that when California recognizes committed opposite-sex relationships as marriages because they serve society’s interests in responsible procreation and childrearing, the State is constitutionally compelled to extend the same recognition to same-sex couples even though they do not similarly further those interests – is a non sequitur that is plainly not the law. See, e.g., Vance v. Bradley, 440 U.S. 93, 109 (1979) (law may “dr[aw] a line around those groups . . . thought most generally pertinent to its objective”); Johnson, 415 U.S. at 378 (classification

43
will be upheld if “characteristics peculiar to only one group rationally explain the statute’s different treatment of the two groups”).
It is thus not surprising that “a host of judicial decisions” have concluded that “the many laws defining marriage as the union of one man and one woman and extending a variety of benefits to married couples are rationally related to the government interest in ‘steering procreation into marriage.’ ” Bruning, 455 F.3d at 867-68; see also Dean, 653 A.2d at 363; Baker, 191 N.W.2d at 186-87; In re Marriage of J.B. & H.B., 326 S.W.3d at 677-78; Standhardt, 77 P.3d at 461-64; Singer, 522 P.2d at 1195, 1197; Sevcik v. Sandoval, 2012 WL 5989662, at *17 (D. Nev. Nov. 26, 2012); Jackson, 2012 WL 3255201, at *38-*41; Wilson v. Ake, 354 F.Supp.2d 1298, 1308-09 (M.D. Fla. 2005); In re Kandu, 315 B.R. 123, 145-47 (Bankr. W.D. Wash. 2004); Adams, 486 F.Supp. at 1124-25; Conaway v. Deane, 932 A.2d 571, 630-34 (Md. 2007); Hernandez, 855 N.E.2d at 7-8; Andersen, 138 P.3d at 982-85; Morrison, 821 N.E.2d at 23-31.4
4 A number of foreign nations have reached the same conclusion. See, e.g., Conseil Constitutionnel, decision no.2010-92, ¶ 9, Jan. 28, 2011 (Fr.), available at http://www.conseil-constitutionnel. fr/conseil-constitutionnel/root/bank/download/201092QPCen201092 qpc.pdf (English version) (deferring to legislature’s judgment that “the difference of situation between couples of the same sex and those composed of a man and a woman can justify a difference in treatment with regard to the rules regarding the right to a family”); Corte Costituzionale, judgment no.138 of 2010, p. 26-27, Apr. 15, 2010 (It.), available at http://www.cortecostituzionale.it/
(Continued on following page)

44
3. That Proposition 8 did not eliminate domestic partnerships does not render it irrational.
The Ninth Circuit also reasoned that Proposition 8 does not go far enough to truly advance society’s interest in responsible procreation and childrearing, that it “changes the law far too little to have any of the effects it purportedly was intended to yield.” Pet.App.91a. Proposition 8’s flaw, according to the panel majority, is that it only limits the use of “the designation of ‘marriage,’ while leaving in place all the substantive rights and responsibilities of samesex partners.” Pet.App.84a. But even the Ninth Circuit could not accept the necessary corollary of this argument, for it elsewhere disclaimed any intent “to suggest that Proposition 8 would be constitutional if only it had gone further – for example, by also
documenti/download/doc/recent_judgments/S2010138_Amirante_ Criscuolo_EN.doc (English version) (recognizing “the (potential) creative purpose of marriage which distinguishes it from homosexual unions,” and thus holding that limiting marriage to opposite-sex unions “does not result in unreasonable discrimination, since homosexual unions cannot be regarded as homogeneous with marriage”); Marriage Equality Amendment Bill 2009, Australian Senate Legal & Constitutional Affairs Legislation Committee Report at 37, available at http://www.aph.gov.au/ Parliamentary_Business/Committees/Senate_Committees?url= legcon_ctte/completed_inquiries/2008-10/marriage_equality/report/ index.htm (noting “range of compelling evidence from those in opposition to the Bill” including evidence related to “preserving the narrower and common definition [of marriage] on the basis of ‘natural procreation’ and on the potential effect of same-sex parenting on children”).

45
repealing same-sex couples’ equal parental rights or their rights to share community property or enjoy hospital visitation privileges.” Id. at 76a. The majority’s schizophrenia on this point is neither sustainable nor difficult to resolve: surely California’s extraordinary solicitude for gays and lesbians and their families does not uniquely doom its ability to retain the traditional definition of marriage. Proposition 8 obviously cannot stand on weaker constitutional footing than would an amendment that restored the traditional definition of marriage and repealed California’s generous domestic partnership laws.
a. By reaffirming the traditional definition of marriage, California preserves the established public meaning of that institution, as well as the inherent link between marriage and its vital purpose of channeling potentially procreative conduct into committed, lasting relationships. See infra III.B. Reserving the name “marriage” to committed opposite-sex couples is designed, now as always, to provide special recognition, encouragement, and support to those relationships most likely to further society’s vital interests in responsible procreation and childrearing.
The Ninth Circuit’s assertion that reserving to opposite-sex couples this time-honored designation, as opposed to the more tangible benefits traditionally associated with marriage, could not even plausibly “encourage heterosexual couples to enter into matrimony” or “bolster the stability of families headed by one man and one woman,” Pet.App.78a, cannot be reconciled with its repeated “emphasi[s]” of “the

46
extraordinary significance of the official designation of ‘marriage,’ ” id. at 51a. Indeed, the panel majority elsewhere insisted, correctly, that “[t]he official, cherished status of ‘marriage’ is distinct from the incidents of marriage,” and these incidents, “standing alone,” do not “convey the same governmental and societal recognition as does the designation of ‘marriage.’ ” Id. at 52a-53a. The Ninth Circuit cannot have it both ways.
It may be true that reserving to opposite-sex couples not only the name of marriage, but also the benefits and obligations traditionally associated with that institution, would provide additional incentives for such couples to marry and thereby further advance society’s interest in “steering procreation into marriage.” See Bruning, 455 F.3d at 867. But it would do so at the expense of the separate interests served by California’s domestic partnership laws. And 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 Publ’g, Inc. v. Miller, 598 F.3d 592, 610 (9th Cir. 2010); see also Mohamed v. Palestinian Auth., 132 S.Ct. 1702, 1710 (2012) (“No legislation pursues its purposes at all costs . . . .”). In all events, it is well settled that a law “is not invalid under the Constitution because it might have gone farther than it did.” Katzenbach v. Morgan, 384 U.S. 641, 657 (1966).
b. The Ninth Circuit also believed that “[i]n order to be rationally related to the purpose of

47
funneling more childrearing into families led by two biological parents, Proposition 8 would have had to modify . . . in some way” California’s laws granting same-sex couples the rights to form families and raise children. Pet.App.72a. This, too, is a non sequitur. The animating purpose of marriage is not to prevent gays and lesbians from forming families and raising children. Rather, it is to steer potentially procreative conduct into stable and enduring family units in order to increase the likelihood that children will be raised by the mothers and fathers who brought them into the world.
As noted earlier, see supra III.A.2.b., sexual relationships between men and women commonly result in unintended pregnancies. And the question in nearly every case of unintended pregnancy is not whether the child will be raised by two opposite-sex parents or by two same-sex parents, but rather whether the child will be raised by both its mother and father or by its mother alone, often relying on the assistance of the State. See, e.g., William J. Doherty, et al., Responsible Fathering, 60 J. MARRIAGE & FAMILY 277, 280 (1998) (“In nearly all cases, children born outside of marriage reside with their mothers.”). And there can be no dispute that children raised by both their mother and father generally do better than children raised by their mother alone, and that the State has a direct and compelling interest in avoiding the public financial burdens and social costs too often associated with single motherhood. See supra III.A.2.a. Thus, regardless of any provisions the State may make

48
regarding the families of gays and lesbians, it is plainly rational for the State to make special provision through the institution of marriage to minimize the social risks uniquely posed by potentially procreative sexual relationships between men and women.
B. Proposition 8 serves California’s interest in proceeding with caution before fundamentally redefining a bedrock social institution.
Marriage has long been understood as “the parent, and not the child of society,” JOSEPH STORY, COMMENTARIES ON THE CONFLICT OF LAWS 100 (1834), and “of all human actions that in which society is most interested,” MONTESQUIEU, 2 SPIRIT OF LAWS 173. As this Court has recognized, marriage is thus “the foundation of the family and of society, without which there would be neither civilization nor progress.” Maynard v. Hill, 125 U.S. 190, 211 (1888). It is “an institution more basic in our civilization than any other,” Williams v. North Carolina, 317 U.S. 287, 303 (1942), and “fundamental to the very existence and survival of the race,” Zablocki v. Redhail, 434 U.S. 374, 384 (1978).
Given that “the western tradition has seen that marriage and the family are indispensable to the integrity of the individual and the preservation of the social order,” JOHN WITTE, JR., FROM SACRAMENT TO CONTRACT 329 (2012), many people of good will agree with Justice O’Connor that “preserving the

49
traditional institution of marriage” is itself a “legitimate state interest,” Lawrence, 539 U.S. at 585-86 (O’Connor, J., concurring in judgment). And it is plainly reasonable for the People of California to proceed with caution when considering a fundamental change to the institution.
1. Almost everyone, including prominent advocates of same-sex marriage, admits that redefining marriage would alter that institution. For example, when the Massachusetts Supreme Judicial Court redefined marriage, Plaintiffs’ own expert Professor Cott stated publicly that “[o]ne could point to earlier watersheds [in the history of marriage], but perhaps none quite so explicit as this particular turning point.” J.A.429. Indeed, as Professor William Eskridge, a prominent advocate for redefining marriage, explains, much gay and lesbian support for redefining marriage is premised on the understanding that “enlarging the concept [of marriage] to embrace same-sex couples would necessarily transform it into something new.” WILLIAM N. ESKRIDGE, JR. & DARREN R. SPEDALE, GAY MARRIAGE: FOR BETTER OR FOR WORSE? WHAT WE’VE LEARNED FROM THE EVIDENCE 19 (2006). It is plainly reasonable for the People of California to be concerned about the potential consequences of such a profound redefinition of a bedrock social institution.
As an initial matter, the People of California could reasonably fear that redefining marriage without first securing a broad-based democratic consensus for the change could weaken that institution, which has traditionally drawn much of its strength not from

50
the State, but from social norms derived from and sustained by public opinion, the community, and the private organizations (such as churches) that have long partnered with the State in encouraging marriage, performing marriage ceremonies, providing marriage counseling, and otherwise supporting this vital institution. As one prominent supporter of redefining marriage has put it, social “consensus” is important in this context, because marriage’s “unique strength is its ability to fortify, not just ratify, the bond that creates family; and that ability comes from the web of social expectations and support that the community brings to the marriage.” Jonathan Rauch, How Can the Supreme Court Help Gay Rights? By Keeping Out Entirely, TNR.COM, Dec. 12, 2012, http://www.tnr.com/blog/plank/110949/the-onlyway-the-supreme-court-can-help-gay-marriage-stayingout-it. Concerns that precipitately redefining marriage in the absence of democratic consensus could weaken that institution are heightened by the fact that many of marriage’s most steadfast supporters hold its ageold definition dear, even sacred.
2. More fundamentally, it is simply impossible to “escape the reality that the shared social meaning of marriage . . . has always been the union of a man and a woman. To alter that meaning would render a profound change in the public consciousness of a social institution of ancient origin.” Lewis v. Harris, 908 A.2d 196, 222 (N.J. 2006). Indeed, even “[r]evisionists agree that it matters what California or the

51
United States calls a marriage, because this affects how Californians or Americans come to think of marriage.” GEORGE, WHAT IS MARRIAGE? 54. Plaintiffs’ expert Professor Cott, for example, conceded at trial that redefining marriage by law would “definitely ha[ve] an impact on the social meaning of marriage,” and that changing the public meaning of marriage would “unquestionably ha[ve] real world consequences.” J.A.431-33. Professor Cott also admits the self-evident truth that it is impossible to accurately predict the long-term social consequences of changing the public meaning of marriage. J.A.429.
In light of this uncertainty, there are reasonable grounds for concern that officially changing the public meaning of marriage from a gendered to a genderless institution would necessarily entail a significant risk of adverse consequences over time to the institution of marriage and the interests it has always served. Indeed, a large group of prominent scholars from all relevant academic fields recently expressed “deep[ ] concerns about the institutional consequences of same-sex marriage for marriage itself.” WITHERSPOON INSTITUTE, MARRIAGE AND THE PUBLIC GOOD 18 (2008). As they explained:
Same-sex marriage would further undercut the idea that procreation is intrinsically connected to marriage. It would undermine the idea that children need both a mother and a father, further weakening the societal norm

52
that men should take responsibility for the children they beget.
Id. at 18-19. A leading thinker on these matters has further explained that by redefining marriage, the law would teach that marriage is “essentially an emotional union” without any inherent connection “to procreation and family life.” GEORGE, WHAT IS MARRIAGE? 7. And “[i]f marriage is understood as an essentially emotional union, then marital norms, especially permanence and exclusivity, will make less sense.” Id. at 67.
The People of California could reasonably share these concerns. Perhaps ironically, the reasonableness of concerns such as these is underscored by the decisions of the courts below invalidating Proposition 8 in this very case. The district court repeatedly denigrated the traditional definition of marriage, characterizing it as a mere historical “artifact” that lacks “any historical purpose” and “advances nothing.” Pet.App.290a, 304a (emphases added). The district court likewise “found” that children derive no benefit at all from “having both a male and a female parent,” and that the “genetic relationship between a parent and a child” is irrelevant to a child’s upbringing. Pet.App.264a. And according to the district court, marriage focuses primarily on adults having “happy, satisfying relationships and form[ing] deep emotional bonds and strong commitments” to one another. Id. at 235a. The court of appeals similarly viewed marriage as simply “the principal manner in which the State attaches respect and dignity to the highest form of a committed relationship and to the individuals who have entered into it.” Pet.App.53a.

53
These decisions would thus put the force of our Constitution behind a conception of marriage that (1) severs it from any inherent connection to its traditional purposes of promoting responsible procreation and childrearing, (2) transforms marriage from a public institution with well-established, venerable purposes focused on children into a private, selfdefined relationship focused on adults, and (3) denigrates the importance of mothers and fathers raising the children they create together. It is certainly reasonable to fear that officially changing the public meaning of marriage in this manner will send a message that the desires of adults, as opposed to the needs of children (or any other social good that transcends the marriage partners), are the paramount concern of marriage and may weaken the social norms encouraging parents, especially fathers, to make the sacrifices necessary to marry, remain married, and play an active role in raising their children.
Indeed, some gay rights advocates favor redefining marriage because of its likely adverse effects on the traditional understanding and purposes of marriage. They argue that redefining marriage “is a breathtakingly subversive idea,” E. J. Graff, Retying the Knot, THE NATION, June 24, 1996, at 12, that “will introduce an implicit revolt against the institution [of marriage] into its very heart,” Ellen Willis, contribution to Can Marriage be Saved? A Forum, THE NATION, July 5, 2004 at 16, such that “that venerable institution will ever after stand for sexual choice, for cutting the link between sex and diapers,” Graff, Retying the

54
Knot, at 12. See also, e.g., Michelangelo Signorile, Bridal Wave, OUT MAGAZINE 161 (Dec./Jan. 1994). Statements such as these, of course, do nothing to alleviate the concerns that many Californians reasonably have about redefining marriage.
3. More generally, even some supporters of redefining marriage to include same-sex relationships, such as Professor Andrew Cherlin of Johns Hopkins University, identify such a redefinition as “the most recent development in the deinstitutionalization of marriage,” which he defines as the “weakening of the social norms that define people’s behavior in . . . marriage.” Andrew J. Cherlin, The Deinstitutionalization of American Marriage, 66 J. MARRIAGE & FAMILY 848, 848, 850 (2004). This weakening of social norms entails shifting the focus of marriage from serving vital societal needs to facilitating the personal fulfillment of individuals. See id. at 853. Cherlin predicts that if deinstitutionalization continues, “the proportion of people who ever marry could fall further,” and, “because of high levels of nonmarital childbearing, cohabitation, and divorce, people will spend a smaller proportion of their adult lives in intact marriages than in the past.” Id. at 858. The process of deinstitutionalization could even culminate, Cherlin writes, in “the fading away of marriage,” to the point that it becomes “just one of many kinds of interpersonal romantic relationships.” Id.
Other scholars agree. Professor Norval Glenn, for example, believes that the traditional purposes of marriage – “regulation of sexual activity and the

55
provision for offspring that may result from it” – have been weakened by the gradual “blurring of the distinction between marriage as an institution and mere ‘close relationships.’ ” Norval D. Glenn, The Struggle For Same-Sex Marriage, 41 SOC’Y 25, 25-26 (2004). He fears that “acceptance of the arguments made by some advocates of same-sex marriage would bring this trend to its logical conclusion, namely, the definition of marriage as being for the benefit of those who enter into it rather than as an institution for the benefit of society, the community, or any social entity larger than the couple.” Id. at 26.
4. In sum, many thoughtful people, including respected scholars from a variety of relevant disciplines and perspectives, reasonably believe that redefining marriage as a genderless institution will have deeply harmful consequences for society, especially if brought about by judicial decree. To be sure, other thoughtful people disagree. But no one can reasonably dispute that the ultimate outcome of redefining marriage cannot yet be foreseen with confidence from our current vantage point. It was entirely reasonable, therefore, for the People of California to proceed with caution in these still uncharted waters.
C. Proposition 8 restores democratic authority over an issue of vital importance to the People of California.
1. Proposition 8 also furthers the California electorate’s unquestionably legitimate interest in democratic self-governance. As the ballot arguments

56
they offered make clear, Proposition 8’s supporters believed that advocates of same-sex marriage had “gone behind the backs of voters and convinced four activist judges” of the California Supreme Court “to redefine marriage.” J.A.Exh.56. Exercising what California considers “one of the most precious rights of [its] democratic process,” Strauss, 207 P.3d at 107, the People of California amended their Constitution to ensure “that the will of the people is respected” and that marriage could be redefined “only through a vote of the people.” J.A.Exh.57.
2. It was plainly reasonable for the People of California to return control over the definition of marriage to the democratic process. The question whether the venerable institution of marriage should be redefined to include same-sex couples implicates various important but potentially conflicting interests, as well as competing values and understandings of the public good that are strongly and sincerely held by both supporters and opponents of such change. Indeed, “it is difficult to imagine” an issue “more fraught with sensitive social policy considerations.” Smelt v. County of Orange, Cal., 447 F.3d 673, 681 (9th Cir. 2006). And as even the court below recognized, this question “is currently a matter of great debate in our nation, and an issue over which people of good will may disagree, sometimes strongly.” Pet.App.17a. Controversial social policy issues such as this are particularly well suited, of course, for the give and take of the democratic process, where individuals may persuade or be persuaded, and where broad public participation, compromise, and incremental change are not only

57
possible but likely. Decisions reached through this process are more likely to be regarded by a free people as legitimate and to be widely accepted than decisions reached in any other manner. And if such decisions prove unpopular or unwise, they are subject to further deliberation and revision, for the People remain free to refine their “preferred approach as circumstances change and as they develop a more nuanced understanding of how best to proceed.” Massachusetts v. EPA, 549 U.S. 497, 524 (2007); cf. Strauss, 207 P.3d at 60 (“more than 500 amendments to the California Constitution have been adopted since ratification of California’s current Constitution in 1879”).
3. With respect to the public debate regarding the redefinition of marriage, these virtues of the democratic process are not theoretical; they are real and demonstrable. In California and throughout the Nation, individuals are debating, listening, and persuading one another. And in the best traditions of our democracy, even where the People sharply disagree among themselves, they have often reached compromises that attempt to accommodate the competing interests and needs of all concerned. Thus, although California has chosen, at least for now, to retain the traditional definition of marriage, it has simultaneously sought to accommodate the interests of gays and lesbians through domestic partnerships offering virtually all of the benefits and responsibilities traditionally associated with marriage. See CAL. FAM. CODE §297.5; In re Marriage Cases, 143 Cal.App.4th at 935-36 (“By maintaining the traditional definition of

58
marriage while simultaneously granting legal recognition and expanded rights to same-sex relationships, [California] has struck a careful balance to satisfy the diverse needs and desires of Californians.”). Many States have taken a similar approach. Others have chosen to extend marriage to same-sex couples through the democratic process, sometimes providing substantial protections for institutions and individuals who support the traditional definition of marriage on religious or moral grounds. See, e.g., N.Y. DOM. REL. LAW §§10-b, 11.
Moreover, public opinion and State laws are evolving rapidly as the democratic conversation regarding marriage continues to unfold. Indeed, at the last election the People of Maine, Maryland, and Washington voted to redefine marriage. Notably, in Maine, the People had rejected a similar proposal just three years before. Even in California, proponents of redefining marriage have vowed to seek to repeal Proposition 8 by initiative if it is upheld by this Court. See Joe Garofoli, California left behind on pot, marriage, SFGATE.COM, Nov. 11, 2012, http://www.sfgate.com/ politics/joegarofoli/article/California-left-behind-on-potmarriage-4028563.php.
4. In short, “Americans are engaged in an earnest and profound debate about the morality, legality, and practicality” of redefining marriage, and this Court should “permit[ ] this debate to continue, as it should in a democratic society.” Glucksberg, 521 U.S. at 735. Affirming the Ninth Circuit’s ruling would necessarily “short-circuit” this debate. District Att’y’s

59
Office v. Osborne, 557 U.S. 52, 73 (2009). Even a decision embracing the narrow grounds on which the Ninth Circuit purportedly relied would stifle democratic compromise and experimentation by suggesting that any change in the definition of marriage is irrevocable and by creating strong disincentives against experiments with civil unions or domestic partnership laws. Such a decision would, as a practical matter, “pretermit other responsible solutions” to the emerging and novel social issues raised by samesex relationships, id., and would force States to make an all-or-nothing choice between retaining the traditional definition of marriage without any recognition of same-sex relationships and fundamentally and irreversibly redefining an age-old institution that continues to play a vital role in our society today. And a broader decision requiring the redefinition of marriage throughout the Nation as a matter of federal constitutional law would bring the democratic process regarding marriage to a grinding and divisive halt.
5. Considerations of federalism likewise counsel against affirming the judgment below. Few matters are so “firmly within a State’s constitutional prerogatives,” Gregory, 501 U.S. at 462, as the regulation of marriage, “an area to which States lay claim by right of history and expertise,” United States v. Lopez, 514 U.S. 549, 583 (1995) (Kennedy, J., concurring). Indeed, this Court has long recognized that, subject only to clear constitutional constraints, a State “has absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created.” Pennoyer v. Neff, 95 U.S. 714, 734-35 (1877),

60
quoted in Sosna, 419 U.S. at 404; see also Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004).
Our federal system of government is designed to permit a diversity of approaches to difficult and uncertain social issues, and the democratic process regarding marriage that is unfolding throughout the Nation shows the genius of that system at work. As Justice Brandeis long ago observed, “[i]t is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). The people of California, like those of the numerous other States that have decided, at least for now, to adhere to the venerable definition of marriage, are entitled to await the results of experiments with redefining marriage in other jurisdictions before charting that course for themselves. Indeed, Plaintiffs’ own expert Professor Badgett believes “that social change with respect to same-sex marriage in this country is taking place at a sensible pace at this time with more liberal states taking the lead and providing examples that other states might some day follow.” J.A.701. See also Transcript: President Obama, May 9, 2012, http:// abcnews.go.com/Politics/transcript-robin-roberts-abc-newsinterview-president-obama/story?id=16316043&single Page=true (disclaiming any desire to “nationalize the issue” of redefining marriage and thereby cut off the “healthy process and . . . healthy debate” that is

61
occurring in the States and resulting in “[d]ifferent communities . . . arriving at different conclusions, at different times”).
The “earnest and profound” debate regarding marriage is not, of course, limited to the United States but is global in scale. The European Court of Human Rights recently declined to “rush to substitute its own judgment in place of that of the national authorities,” holding that the right to marry secured by Article 12 of the Convention for the Protection of Human Rights and Fundamental Freedoms does not require Council of Europe member nations to redefine marriage in the absence of a “European consensus regarding samesex marriage.” Schalk & Kopf v. Austria, App. No. 30141/04 ¶¶ 58, 61-62 (Eur. Ct. H.R. 2010). Our Constitution does not take this sensitive, controversial social issue out of the hands of the People themselves.
D. Proposition 8 does not “dishonor” gays and lesbians.
Because “there are plausible reasons” for California’s adherence to the traditional definition of marriage, judicial “inquiry is at an end.” Fritz, 449 U.S. at 179; see also Romer, 517 U.S. at 634-46 (drawing “inference” of animus only because Amendment 2 was not “directed to any identifiable legitimate purpose or discrete objective”). Proposition 8 simply “cannot run afoul” of the Fourteenth Amendment. Heller, 509 U.S. at 320. Indeed, even when heightened scrutiny applies, “[i]t is a familiar practice of constitutional law

62
that this court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” Michael M., 450 U.S. at 472 n.7. These principles apply with special force in the context of a challenge to an initiative or referendum, for the difficulties inherent in assessing the subjective motivations of a multi-member legislative body are most acute when the legislative body consists of the entire voting populace of a State.
At any rate, the panel majority clearly erred in concluding that the People of California restored the traditional definition of marriage to express official “disapproval of [gays and lesbians] and their relationships.” Pet.App.92a. As the First Circuit recently explained, “preserv[ing] the heritage of marriage as traditionally defined over centuries of Western Civilization . . . is not the same as mere moral disapproval of an excluded group.” Massachusetts, 682 F.3d at 16; see also Lawrence, 539 U.S. at 585-86 (O’Connor, J., concurring in judgment) (“Unlike the moral disapproval of same-sex relations – the asserted state interest in this case – other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.”). And even California’s then-Attorney General (now Governor) Edmund G. Brown, Jr., who embraced nearly every other allegation made by Plaintiffs, denied that “Prop. 8 was driven by moral disapproval of gay and lesbian individuals.” J.A.Exh.147.
Nor does reserving the designation of marriage to committed opposite-sex couples “dishonor a disfavored

63
group” or proclaim the “lesser worth [of gays and lesbians] as a class.” Pet.App.88a, 91a. Providing special recognition to one class of individuals does not demean others who are not similarly situated with respect to the central purpose of the recognition. It is simply not stigmatizing for the law to treat different things differently, see, e.g., Johnson, 415 U.S. at 383, or to call different things by different names.
Again, societies throughout human history have uniformly defined marriage as a gendered relationship not because individuals in such relationships are virtuous or morally praiseworthy, but because of the unique potential such relationships have either to harm, or to further, society’s vital interest in responsible procreation and childrearing. That is why the right to marry has never been conditioned on an inquiry into the virtues or vices of individuals seeking to marry. Conversely, that same-sex relationships are not recognized as marriages does not reflect a public judgment that individuals in such relationships are “inferior” or “of lesser worth as a class,” Pet.App.88a, but simply the fact that such relationships do not implicate society’s interest in responsible procreation in the same way that opposite-sex relationships do.
Even some leading advocates for redefining marriage have recognized that most traditional marriage supporters are “motivated by a sincere desire to do what’s best for their marriages, their children, their society.” JONATHAN RAUCH, GAY MARRIAGE 7 (2004); cf. J.A.498 (Chauncey); J.A.769 (Segura). Indeed, as Plaintiffs’ experts have recognized, many gays and

64
lesbians themselves oppose redefining marriage to include same-sex couples. See J.A.Exh.49 (26.5% of self-identified LGBT individuals did not support redefining marriage); Gregory M. Herek, et al., 7 SEXUALITY RESEARCH & SOC. POL’Y 176, 194 (2010) (22.1% of self-identified LGB individuals did not agree with redefining marriage); M.V. LEE BADGETT, WHEN GAY PEOPLE GET MARRIED 129 (2009). Gay and lesbian opposition to same-sex marriage surely does not reflect a desire to dishonor gays and lesbians or to proclaim their lesser worth.
The Ninth Circuit’s charge that Proposition 8 seeks to dishonor gays and lesbians is, moreover, at war with its own acknowledgments that Proposition 8 is not “the result of ill will on the part of the voters of California,” Pet.App.87a, and that the question whether marriage should be redefined to include same-sex couples is one “over which people of good will may disagree,” Pet.App.17a. A person who seeks to dishonor gays and lesbians and to proclaim their lesser worth is not, obviously, a person “of good will” who has no desire to harm gays and lesbians. The Ninth Circuit’s charge thus “impugn[s] the motives” of over seven million California voters and countless other Americans who believe that traditional marriage continues to serve society’s vital interests, Crawford, 458 U.S. at 545, including the citizens and lawmakers of 40 other States, the Members of Congress and President who supported enactment of the federal Defense of Marriage Act, the large majority of state and federal appellate judges who have addressed the

65

issue, and until very recently President Obama. In sum, as one of Plaintiffs’ own expert witnesses acknowledges, there are “millions of Americans who believe in equal rights for gays and lesbians . . . but who draw the line at marriage.” BADGETT, WHEN GAY PEOPLE GET MARRIED 175 (quoting Rabbi Michael Lerner).
---------------------------------  ---------------------------------

CONCLUSION

For these reasons, the Ninth Circuit’s decision invalidating Proposition 8 should be reversed.

Respectfully submitted,

ANDREW P. PUGNO LAW OFFICES OF
ANDREW P. PUGNO 101 Parkshore Drive, Suite 100 Folsom, California 95630
DAVID AUSTIN R. NIMOCKS JAMES A. CAMPBELL ALLIANCE DEFENDING FREEDOM 801 G Street, NW, Suite 509 Washington, D.C. 20001

CHARLES J. COOPER Counsel of Record
DAVID H. THOMPSON HOWARD C. NIELSON, JR. PETER A. PATTERSON COOPER AND KIRK, PLLC 1523 New Hampshire
Avenue, NW Washington, D.C. 20036 (202) 220-9600 ccooper@cooperkirk.com

Counsel for Petitioners

 
 No. 12-144

IN THE
Supreme Court of the United States
_________________________ DENNIS HOLLINGSWORTH, et al.,
Petitioners, v. KRISTIN M. PERRY, et al.,
Respondents.

On Writ of Certiorari to the United States Court of Appeals
for the Ninth Circuit

BRIEF ADDRESSING THE MERITS OF THE STATES OF INDIANA, VIRGINIA, ALABAMA, ALASKA, ARIZONA, COLORADO, GEORGIA,
IDAHO, KANSAS, MONTANA, NEBRASKA, NORTH DAKOTA, OKLAHOMA, SOUTH
CAROLINA, SOUTH DAKOTA, TEXAS, UTAH, WEST VIRGINIA AND WISCONSIN AS AMICI CURIAE IN SUPPORT OF THE PETITIONERS
_________________________

KENNETH CUCCINELLI Attorney General
E. DUNCAN GETCHELL Solicitor General
Office of Attorney General 900 E Main Street Richmond, VA 23219

GREGORY F. ZOELLER Attorney General
THOMAS M. FISHER Solicitor General (Counsel of Record)
Office of Attorney General IGC South, Fifth Floor 302 West Washington St. Indianapolis, IN 46204 (317) 232-6255 Tom.Fisher@atg.in.gov

Counsel for Amici Curiae

ADDITIONAL COUNSEL

LUTHER STRANGE Attorney General State of Alabama

MICHAEL C. GERAGHTY Attorney General State of Alaska

TOM C. HORNE Attorney General State of Arizona

JOHN W. SUTHERS Attorney General State of Colorado

SAM OLENS Attorney General State of Georgia

LAWRENCE G. WASDEN Attorney General State of Idaho

DEREK SCHMIDT Attorney General State of Kansas

TIMOTHY C. FOX Attorney General State of Montana

JON BRUNING Attorney General State of Nebraska

WAYNE STENEHJEM Attorney General of North Dakota

SCOTT PRUITT
Attorney General
State of Oklahoma

ALAN WILSON Attorney General State of South Carolina

MARTY JACKLEY Attorney General State of South Dakota

GREG ABBOTT Attorney General State of Texas

ADDITIONAL COUNSEL [CONT’D]

JOHN E. SWALLOW Attorney General State of Utah

PATRICK MORRISEY Attorney General State of West Virginia

J.B. VAN HOLLEN Attorney General
State of Wisconsin

i QUESTION PRESENTED
Whether a State may define marriage as the legal union of one man and one woman.

ii TABLE OF CONTENTS
QUESTION PRESENTED ....................................... i
TABLE OF AUTHORITIES ................................... iv
INTEREST OF THE AMICI STATES .................... 1
SUMMARY OF THE ARGUMENT......................... 1
ARGUMENT ............................................................ 4
I. Rational-Basis Review Applies ..................... 4
A. Deference follows from states’ historical, near-absolute dominion over marriage...................................... 4
B. No basis for higher scrutiny exists .... 8
C. Rational-basis review permits examination only of a classification, not its effect on the status quo ......... 11
II. Traditional Marriage Is Historically, Culturally, and Socially Legitimate ........... 14
A. Traditional marriage carries forth centuries of Western tradition ......... 14
B. Traditional marriage advances important state interests in promoting responsible procreation and optimal childrearing .................. 16

iii 1. Traditional marriage
promotes responsible procreation ............................. 17
2. Traditional marriage identifies the ideal of family life for children ....................... 22
C. Proposition 8 is a legitimate attempt to secure the social benefits of traditional marriage ......................... 25
D. There is no coherent reason for government to recognize same-sex marriages .......................................... 27
III. Judicial Redefinition of Marriage Created a Political Grievance Redressable by Referendum ................................................. 37
CONCLUSION ....................................................... 40

iv TABLE OF AUTHORITIES
CASES
Adams v. Howerton, 486 F. Supp. 1119 (C.D. Cal. 1980) .................. 29
Andersen v. King County, 138 P.3d 963 (Wash. 2006) ......................... 24, 29
Ankenbrandt v. Richards, 504 U.S. 689 (1992)............................................. 5
Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971)..................... 15, 29
Barber v. Barber, 21 How. 582 (1859) ............................................. 4
C.E.W. v. D.E.W., 845 A.2d 1146 (Me. 2004) ................................. 31
Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006)............................. 29
Cleveland, C. C. & St. L. Ry. v. Marshall, 182 Ind. 280 (Ind. 1914) ..................................... 7
Conaway v. Deane, 932 A.2d 571 (Md. 2007) ................................... 29
Crawford v. Bd. of Educ. of Los Angeles, 458 U.S. 527 (1982)........................................... 12
Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406 (1977)........................................... 12

v CASES [CONT’D]
Dean v. Dist. of Columbia, 653 A.2d 307 (D.C. 1995) .................................. 29
Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004)................................................. 5
Goodridge v. Dep’t of Pub. Health, No. 20011647A, 2002 WL 1299135 (Mass. Sup. Ct. May 7, 2002) ......................................... 9
Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 965 (Mass. 2003).....9, 14, 26, 27
Heller v. Doe, 509 U.S. 312 (1993)............................... 11, 12, 38
Hernandez v. Robles, 805 N.Y.S.2d 354 (N.Y. App. Div. 2005), ..........................................................passim
In re Burrus, 136 U.S. 586 (1890)............................................. 4
In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004).......... 29
In re M.C., 195 Cal. App. 4th 197 (2011) ............................ 31
In re Marriage Cases, 183 P.3d 384 (Cal. 2008)............................. 37, 39
In re Marriage of J.B. & H.B., 326 S.W.3d 654 (Tex. Ct. App. 2010) ......... 22, 29

vi CASES [CONT’D] In re Parentage of L.B.,
122 P.3d 161 (Wash. 2005) ............................... 30 Jackson v. Abercrombie,
2012 WL 3255201 (D. Haw. August 8, 2012) .................................................................. 29 Johnson v. Robinson, 415 U.S. 361 (1974)........................................... 16 K.M. v. E.G., 37 Cal. 4th 130 (2005)....................................... 31 Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407 (Conn. 2008) ............................... 14 LaChappelle v. Mitten, 607 N.W.2d 151 (Minn. Ct. App. 2000) ............ 31 Lawrence v. Texas, 539 U.S. 558 (2003)........................................... 30 Lewis v. Harris, 875 A.2d 259 (N.J. Sup. Ct. 2005) .................... 24 Lofton v. Sec’y of Dep’t of Children & Fam. Servs., 358 F.3d 804 (11th Cir. 2004)........................... 29 Loving v. Virginia, 388 U.S. 1 (1967)................................... 6, 8, 9, 15

vii CASES [CONT’D]
Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012) ................................. 30
Maynard v. Hill, 125 U.S. 190 (1888)............................................. 7
Michael H. v. Gerald D., 491 U.S. 110 (1989)........................................... 20
Moore v. Sims, 442 U.S. 415 (1979)............................................. 5
Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005) ............ 28, 29
Nguyen v. I.N.S., 533 U.S. 53 (2001)............................................. 20
Noel v. Ewing, 9 Ind. 37 (1857) ................................................. 15
Pennoyer v. Neff, 95 U.S. 714 (1878)........................................... 4, 7
Raftopol v. Ramey, 12 A.3d 783 (Conn. 2011) ................................. 31
Reno v. Flores, 507 U.S. 292 (1993)........................................... 21
Romer v. Evans, 517 U.S. 620 (1996)........................................... 12

viii CASES [CONT’D]
Sevcik v. Sandoval, No. 2:12-cv-00578, 2012 WL 5989662 (D. Nev. Nov. 26, 2012)..................................... 10, 29
Simms v. Simms, 175 U.S. 162 (1899)............................................. 5
Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974) .... 9, 28, 29
Skinner v. Oklahoma, 316 U.S. 535 (1942)..................................... 15, 16
Sosna v. Iowa, 419 U.S. 393 (1975)............................................. 5
Standhardt v. Superior Court, 77 P.3d 451 (Ariz. Ct. App. 2003)..................... 29
T.M.H. v. D.M.T., 79 So.3d 787 (Fla. Dist. Ct. App. 2011)............ 31
Turner v. Safley, 482 U.S 78 (1987)................................................ 6
United States v. Windsor, 699 F.3d 169 (2d Cir. 2012) ........................ 10, 39
V.C. v. M.J.B., 748 A.2d 539 (N.J. 2000) .................................. 31
Washington v. Davis, 426 U.S. 229 (1976)........................................... 10

ix CASES [CONT’D]
Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483 (1955)........................................... 26
Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) ............ 29
Zablocki v. Redhail, 434 U.S. 374 (1978)............................................. 6
FEDERAL STATUTES
42 U.S.C. § 666(a)(5)(G) ......................................... 20
STATE STATUTES
13 Del. Code § 8-201............................................... 30
D.C. Code §§ 16-831.01 et seq. ............................... 30
Ind. Code §§ 31-14-7 et seq..................................... 20
OTHER AUTHORITIES
About, Friends with Kids, http://www.friendswithkids.com/#about (last visited Jan. 22, 2013) ............................... 32
About Us: FAQs, Modamily, http://www.modamily.com/faq/ (last visited Jan. 23, 2013) .................................................... 32
Alexander M. Bickel, The Least Dangerous Branch (2d ed. 1986)......................................... 38

x OTHER AUTHORITIES [CONT’D]
Co-Parenting, Pollentree.com, http://www. pollentree.com/coparenting (last visited Jan. 23, 2013) ............................................................ 32
Encyclopedia of Ancient Greece (Nigel Wilson ed., 2006) ........................................................... 14
Fay Botham, Almighty God Created the Races: Christianity, Interracial Marriage, & American Law (2009).......................................... 8
Harvey M. Applebaum, Miscegenation Statutes: A Constitutional and Social Problem, 53 Geo. L.J. 49 (1964) ......................... 8
Jason DeParle & Sabrina Tavernise, For Women Under 30, Most Births Occur Outside Marriage February 17, 2012, http://www.nytimes.com/2012/02/18/us/forwomen-under-30-most-births-occuroutside-arriage.html?pagewanted=all ............. 22
John Bowe, Gay Donor or Gay Dad, N.Y. TIMES, Nov. 19, 2006......................................... 30
John Finnis, Sexual Morality and the Possibility of “Same-sex Marriage,” 42 Am. J. Juris. 97 (1997) ............................................. 18
Jonathan Turley, One Big, Happy Polygamous Family, NY Times, July 21, 2011..................... 36

xi OTHER AUTHORITIES [CONT’D]
Lynn D. Wardle, The Boundaries of Belonging: Allegiance, Purpose and the Definition of Marriage, 25 B.Y.U. J. Pub. L. 287 (2011)....... 25
Lynn D. Wardle, The Potential Impact of Homosexual Parenting on Children, 1997 U. Ill. L. Rev. 833 (1997)................................... 23
Marcus Tullius Cicero, De Officiis (Walter Miller trans., 1913) ............................................. 6
Melanie B. Jacobs, Why Just Two? Disaggregating Traditional Parental Rights and Responsibilities to Recognize Multiple Parents, 9 J.L. & Fam. Stud. 309 (2007)................................................................. 31
Monte Neil Stewart, Judicial Redefinition of Marriage, 21 Can. J. Fam. L. 11 (2004) ........... 17
Peter Wallenstein, Tell the Court I Love My Wife: Race, Marriage, and Law—An American History (2002)................................. 8, 9
Susan Treggiari, Roman Marriage: Iusti Coniuges from the Time of Cicero to the Time of Ulpian (1993)................................. 14, 15
The Declaration of Independence (U.S. 1776) ....... 37
The Federalist No. 39 (James Madison) .................. 6

xii OTHER AUTHORITIES [CONT’D]
Willystine Goodsell, A History of the Family as a Social and Educational Institution (1915)................................................................. 33
Your Road Map to Co-Parenting: Glossary, Modamily.com, http://www.modamily.com/ learn/best-practices/ (last visited Jan. 22, 2013) .................................................................. 35

1
INTEREST OF THE AMICI STATES
Over four-fifths of the states continue to define marriage as the legal union of one man and one woman, consistent with the ancient historical definition of marriage. From the first challenges to traditional marriage laws more than forty years ago, federal courts have refused to interfere with state marriage definitions and policies. Yet the decision below rejects a decision by California voters to reclaim that state’s traditional definition of marriage after the California Supreme Court mandated marriage for same-sex couples. The Ninth Circuit’s decision undermines the ability of states to define and regulate marriage and uses the federal constitution to prevent citizens from overriding a judicial interpretation of a state constitution. The Amici States have interests in (1) protecting their ability to define and regulate marriage, and (2) preserving the integrity of their constitutions and democratic processes.
SUMMARY OF THE ARGUMENT
In the decision below, the Ninth Circuit overrode a state citizenry’s use of state democratic channels to address a state court’s interpretation of a state constitution on a matter of core state responsibility. The result is not merely vitiation of California’s coequal sovereignty without a clear constitutional warrant; it is disintegration of perhaps the most fundamental and revered cultural institution of American life: marriage as we know it.

2
The fundamental equal protection issue here is whether states may confer the special status of “marriage” on qualified opposite sex couples without also conferring it on any other relationships, including same-sex couples. Rather than address that issue, however, the Ninth Circuit presupposed co-equal special status for same-sex and opposite-sex couples and analyzed Proposition 8 as a retraction of that status. In effect, the court implicitly presumed a right to same-sex marriage. It should instead have presumed the legitimacy of designating qualified opposite-sex couples for special treatment and inquired only whether all legitimate explanations for that classification could be negated.
Legitimate justifications for traditional marriage are long-established, even if sometimes forgotten or deemed old-fashioned. In short, a state may rationally confer civil marriage on one man and one woman in order to encourage the couple to stay together for the sake of any children that their sexual union may create. Traditional marriage focuses on protecting children and creating optimal childrearing environments, not on celebrating adult romantic relationships. The male-female relationship alone enables the married persons—in the ideal—to beget children who have a biological relationship to both parents and to serve as role models of both sexes for those biological children. In this way, a state’s decision to ratify the sexual union between a man and a woman confirms a deeply significant understanding of human relationships and encourages such unions as the standard for the

3
human family. The validity of such cultural decisions is not subject to empirical testing or the testimonial opinions of a few elite experts.
In contrast, the decision below supplies no governmental rationale for bestowing special civic status on same-sex couples. While same-sex couples may do an excellent job of raising children, they cannot provide the family structure states seek to encourage with traditional marriage: where those who raise a child combine both legal responsibility for and a biological connection with that child. Instead, the central rationale for same-sex marriage is social approval of the couple’s sexual relationship as such. But there is no reason for government to take any interest in that sexual relationship—and certainly nothing like the government’s interest in encouraging long-term care for the children produced by heterosexual intercourse. And because any interest in same-sex couples bears no link to any characteristic innately limited to them, it contains no limiting principle for excluding other groupings of individuals. Ultimately, there is no legal argument for same-sex marriage, only an argument against civil marriage as a special, limited status.
Finally, Proposition 8 is justified as an exercise in popular sovereignty directly checking a state’s judiciary. The desire of Californians to determine their own state constitutional fate rather than leave it to their judges represents an entirely separate rationale for Proposition 8. Yet the Ninth Circuit treated this political action as “context” that had to

4
be independently justified. Furthermore, it discounted Petitioners’ responsible procreation arguments because California’s political solution did not also withdraw legislatively provided same-sex domestic partner benefits. The two-judge majority below thus treated as constitutional vices both the political nature of California’s approach and the narrowness of its marriage definition. This deeply erroneous conclusion by the Ninth Circuit should be reversed.
ARGUMENT
I. Rational-Basis Review Applies
A. Deference follows from states’ historical, near-absolute dominion over marriage
For over 150 years, the Court has held that the regulation of domestic relations is almost exclusively within the jurisdictional purview of the states. In Barber v. Barber, 21 How. 582, 584 (1859), the Court expressly disclaimed federal jurisdiction over divorce and alimony. And in Pennoyer v. Neff, 95 U.S. 714, 734-35 (1878), the Court recognized that “[t]he State . . . has absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved.”
States’ exclusive jurisdiction over the core of family law has continued ever since. See, e.g., In re Burrus, 136 U.S. 586, 593-94 (1890) (“The whole

5
subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.”); Simms v. Simms, 175 U.S. 162, 167 (1899) (“It may therefore be assumed as indubitable that the circuit courts of the United States have no jurisdiction, either of suits for divorce, or of claims for alimony[.]”); Moore v. Sims, 442 U.S. 415, 435 (1979) (“Family relations are a traditional area of state concern.”).
As recently as 1992 the Court explicitly recognized a “domestic relations exception” to federal jurisdiction that “divest[s] the federal courts of power to issue divorce, alimony, and child custody decrees.” Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992). And in Elk Grove Unified School District v. Newdow, 542 U.S. 1, 17 (2004), the Court rejected a father’s standing to challenge the Pledge of Allegiance on behalf of his daughter amidst a custody dispute because “it is improper for the federal courts to entertain a claim by a plaintiff whose standing to sue is founded on family law rights that are in dispute . . . .”
Accordingly, only where a state law materially interferes with core traditional marriage rights does the Court apply heightened scrutiny. Compare Sosna v. Iowa, 419 U.S. 393, 404 (1975) (using deferential scrutiny to uphold a one-year residency requirement for marriage dissolution as “a part of Iowa’s comprehensive statutory regulation of domestic relations, an area that has long been

6
regarded as a virtually exclusive province of the States”), with Turner v. Safley, 482 U.S 78, 97-99 (1987) (rejecting a prison restriction on the right to marry); Zablocki v. Redhail, 434 U.S. 374, 388-91 (1978) (rejecting state interference with marriage by those having outstanding child-support obligations); Loving v. Virginia, 388 U.S. 1, 12 (1967) (rejecting prohibition against interracial marriage).
The tradition of state control over marriage arises from the specific historical origins of the Union and more generally the philosophical underpinnings of Western society. States are the original and most fundamental sovereigns of our Nation. See, e.g., The Federalist No. 39 (James Madison) (“Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. . . . [The Constitution] leaves to the several States a residuary and inviolable sovereignty . . . .”). In turn, for millennia the family has supplied the most basic unit of Western society buffering the individual from the state. As Cicero observed, “For since the reproductive instinct is by Nature’s gift the common possession of all living creatures, the first bond of union is that between husband and wife; the next, that between parents and children; then we find one home, with everything in common. And this is the foundation of civil government, the nursery, as it were, of the state.” 1 Marcus Tullius Cicero, De Officiis 54 (Walter Miller trans., 1913).

7
This deep philosophical understanding of the relationship between marriage and the state has endured in America. See, e.g., Maynard v. Hill, 125 U.S. 190, 211 (1888) (referring to traditional marriage as “the foundation of the family and of society, without which there would be neither civilization nor progress”); Cleveland, C. C. & St. L. Ry. v. Marshall, 182 Ind. 280, 287 (Ind. 1914) (recognizing that “the family was the earliest of our social institutions, and has formed the basis of human progress toward a more perfect civilization” and “has inspired the organization of state governments and guaranteed their perpetuity”).
Accordingly, the impact of laws governing the creation, existence, and dissolution of marriage are felt most acutely at the state level. Property rights and distribution, child custody and support, the disposition of estates—to name just a few legal subjects affected by the laws of marriage and divorce—are dealt with primarily, routinely, and exhaustively by states. Laws governing the creation of marriages are critical to how state policies in these areas function. See Pennoyer, 95 U.S. at 734735. It is therefore well within states’ purview to encourage family arrangements that they deem most advantageous to the execution of fundamental state policies, and rational-basis scrutiny is the only level of review that affords states appropriate deference on this most core of state responsibilities.

8

B. No basis for higher scrutiny exists

To the extent that such a thing could ever be known, neither the framers and ratifiers of the Bill of Rights nor those of the Fourteenth Amendment intended to protect a fundamental right to same-sex marriage. Accordingly, Proposition 8 does not abridge any right protected as fundamental by the Constitution.

Nor does it draw heightened scrutiny by way of

comparison to anti-miscegenation laws invalidated

in Loving v. Virginia, 388 U.S. 1 (1967). To begin,

unlike Proposition 8, anti-miscegenation laws

contravened common law and marriage tradition in

Western society. The entire phenomenon of banning

interracial marriages originated in the American

colonies: “There was no ban on miscegenation at

common law or by statute in England at the time of

the

establishment

of

the

American

Colonies.” Harvey M. Applebaum, Miscegenation

Statutes: A Constitutional and Social Problem, 53

Geo. L.J. 49, 49-50 (1964). Maryland and Virginia

adopted the first such laws in the late 1600s when

interracial marriages began to produce children

whose condition of servitude could not readily be

determined from the color of their skin. Fay

Botham, Almighty God Created the Races:

Christianity, Interracial Marriage, & American Law

52-53 (2009). Anti-miscegenation laws then spread

to northern states, which had previously permitted

interracial marriages. See Peter Wallenstein, Tell

9
the Court I Love My Wife: Race, Marriage, and Law—An American History 40-42 (2002).
Plainly, anti-miscegenation laws were predicated not on a fundamental understanding of the nature and purposes of marriage, but on an ideology of white supremacy. Loving, 388 U.S. at 11. (“There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.”)
In contrast, the traditional definition of marriage existed at the very origin of the institution and predates by millennia the current political controversy over same-sex marriage. See Singer v. Hara, 522 P.2d 1187, 1191 (Wash. Ct. App. 1974) (“The operative distinction [with Loving] lies in the relationship which is described by the term ‘marriage’ itself, and that relationship is the legal union of one man and one woman.”); see also Goodridge v. Dep’t of Pub. Health, No. 20011647A, 2002 WL 1299135, at *10 n.22 (Mass. Sup. Ct. May 7, 2002), vacated, 798 N.E.2d 941 (Mass. 2003) (“By contrast, statutory restrictions on interracial marriage . . . did not have such deep historical roots.”). Indeed, Loving itself linked the right to marry with procreation. Loving, 388 U.S. at 12 (“Marriage is one of the basic civil rights of man,

10
fundamental to our very existence and survival.”) (internal quotation marks omitted).
Loving, in short, invalidated efforts to thwart the traditional parameters of marriage (which took no account of race) based on racial animus. It involved relationships that were plainly within the historical understanding and purposes of marriage. In contrast, same-sex relationships were never thought to be marriages—or to further the purposes of marriage—anywhere at any time, until recently (in some jurisdictions). Accordingly, there is no basis for inferring that group animus underlies traditional marriage, and no basis for subjecting Proposition 8 to heightened scrutiny, as even the decision below acknowledged. Pet. App. 61a.1
1 The only remaining theory for heightened scrutiny sometimes advanced is that homosexuals constitute a protected “suspect” class. See, e.g., United States v. Windsor, 699 F.3d 169, 185 (2d Cir.), cert. granted, 2012 WL 4009654 (2012). The Amici States do not address whether this is an apt characterization of homosexuals, but instead contend that the issue is irrelevant because traditional marriage laws do not target homosexuals as such. See Sevcik v. Sandoval, No. 2:12-cv-00578, 2012 WL 5989662, at *7 (D. Nev. Nov. 26, 2012) (“[T]he distinction is not by its own terms drawn according to sexual orientation. Homosexual persons may marry in Nevada, but like heterosexual persons, they may not marry members of the same sex.”). While traditional marriage laws impact heterosexuals and homosexuals differently, that is not enough to treat them as creating classifications based on sexuality, particularly in view of the benign history of traditional marriage laws generally. See, e.g., Washington v. Davis, 426 U.S. 229, 242 (1976) (holding that disparate impact on a

11

C. Rational-basis

review

permits

examination only of a classification, not

its effect on the status quo

Notwithstanding its conclusion that the rationalbasis test applies here, the Ninth Circuit also announced that “[c]ontext matters . . . . The action of changing something suggests a more deliberate purpose than does the inaction of leaving it as it is.” Id. at 1080. The “deliberate purpose” the court divined was for the electorate “to impose upon gays and lesbians, through the public law, a majority’s private disapproval of them and their relationships.” Id. at 1095.

Even setting aside the Ninth Circuit’s unsupported and insulting insinuation that California voters adopted Proposition 8 out of sheer bigotry against homosexuals, the court was wrong to say that “context matters.” To the contrary, with rational-basis review, “a classification must be upheld against [an] equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Heller v. Doe, 509 U.S. 312, 320 (1993). The necessary corollary is that actual contexts, purposes, and motivations do not matter.

Furthermore, rational-basis equal-protection scrutiny addresses classifications, not rights or

suspect class is insufficient to justify strict scrutiny absent evidence of discriminatory purpose).

12
benefits. See, e.g., id. at 320 (“[A] classification cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.” (emphasis added)). Even in Romer v. Evans, 517 U.S. 620, 631 (1996), the Court stated that “we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.”
It follows that whether a state creates a classification by “changing something” or merely leaves a pre-existing classification “as it is,” Pet. App. 55a, is irrelevant. The Court has “reject[ed] the contention that once a state chooses to do ‘more’ than the Fourteenth Amendment requires, it may never recede.” Crawford v. Bd. of Educ. of Los Angeles, 458 U.S. 527, 535 (1982). Furthermore, rescission of prior government action is constitutionally questionable only if the agency “was under a constitutional duty to take the action which it initially took.” Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 414 (1977). If not, “then the rescission of the initial action in and of itself cannot be a constitutional violation.” Id.
Yet the Ninth Circuit in effect used the Equal Protection Clause not to evaluate the classification drawn by Proposition 8—which was merely restoration of the same traditional marriage definition that had prevailed until the California Supreme Court interceded—but to question the political withdrawal of a judicially bestowed right

13
not itself protected by the U.S. Constitution. This was a manifestly improper inquiry under the Fourteenth Amendment. Whatever else the Fourteenth Amendment requires of state marriage laws, it surely does not impose different standards based on whether a state adopted its definition of marriage amidst a controversial national debate or merely as a matter of course as part of a rich and durable American tradition.
The Ninth Circuit’s misdirected analytical approach had significant consequences. Because the court considered it critical to view Proposition 8 as withdrawing previously vested rights, the question it addressed was, essentially, “how does withdrawing the right to same-sex marriage promote responsible procreation and child rearing by biological parents?” Under the properly deferential rational-basis test, however, the question it should have addressed was “how does bestowing the right to same-sex marriage promote responsible procreation and child rearing by biological parents?” The answer is that it does not, which underscores the point that the central rationale for traditional civil marriage has nothing whatever to do with same-sex couples. See infra Part II.B.
All courts that have invalidated traditional marriage laws under their state constitutions have used the same semantic trick as the Ninth Circuit. That is, all have asked whether same-sex marriage interferes with the rationales for traditional marriage instead of whether it advances them. See,

14
e.g., Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 965 (Mass. 2003) (concluding that same-sex marriage “does not disturb the fundamental value of marriage in our society”); Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407, 473 (Conn. 2008) (“[G]ranting same sex couples the right to marry will not alter the substantive nature of the legal institution of marriage.” (internal quotation marks omitted)). This backward approach to constitutional review in effect presumes the illegality of traditional marriage laws, contrary to centuries of presumably constitutional state regulation of marriage, not to mention this Court’s long-established equalprotection doctrine.
II. Traditional Marriage Is Historically, Culturally, and Socially Legitimate
A. Traditional marriage carries forth centuries of Western tradition
Marriage is ubiquitous in every state of human history and development, and its function has always been to provide a norm for sexual activity between men and women in view of the children that it produces. For the ancient Greeks and Romans, for example, marriage was “an institution designed for the production of legitimate children.” Susan Treggiari, Roman Marriage: Iusti Coniuges from the Time of Cicero to the Time of Ulpian 8 (1993); Encyclopedia of Ancient Greece 450 (Nigel Wilson ed., 2006) (“For antiquity, and for Classical Athens in particular, marriage was informed by two

15
dominant and purposive imperatives: first, the production of legitimate children . . . second, the formation and maintenance of social and interfamilial alliances.”)
Marriage is antecedent to the state, not merely in natural law theory, but in fact. See, e.g., Treggiari, supra, at 13 (“The Romans saw marriage as a matter of human practice, varying in different cultures, but in Roman law accompanied by precise legal results.”). As the Indiana Supreme Court long ago observed, “[i]n every enlightened government [marriage] is pre-eminently the basis of civil institutions, and thus an object of the deepest public concern.” Noel v. Ewing, 9 Ind. 37, 50 (1857) (emphasis added). According to Noel, marriage “giv[es] character to our whole civil polity,” a characterization that implies an independent status for marriage. Id. And of course, until very recently, marriage in all cultures has exclusively been a union of opposite-sex individuals. See, e.g., Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971), appeal dismissed for want of a substantial federal question, 93 S. Ct. 37 (1972) (“The institution of marriage as a union of a man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis.”).
Confirming this deeply ingrained heritage, the Court has acknowledged that “[m]arriage is one of the most basic civil rights of man, fundamental to our very existence and survival.” Loving v. Virginia, 388 U.S. 1, 12 (1967) (quoting Skinner v. Oklahoma,

16

316 U.S. 535, 541 (1942)). Indeed, though the majority below implies that marriage exists in California only by the free choice of the state, Pet. App. 19a (“Upon its founding, the State of California recognized the legal institution of civil marriage for its residents.”), it hardly had the historical option of not recognizing it.

B. Traditional

marriage

advances

important state interests in promoting

responsible procreation and optimal

childrearing

To understand Proposition 8’s legitimacy, it is critical to consider why states have traditionally valued marriage in the first place. This is not a situation where exclusion achieves an objective so much as one where inclusion would itself fail to advance a state interest. As the Court expressly recognized in Johnson v. Robinson, 415 U.S. 361, 383 (1974), “[w]hen . . . the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not, we cannot say that the statute’s classification of beneficiaries and non-beneficiaries is invidiously discriminatory.” Accordingly, states need not provide marital recognition to same-sex couples if doing so would not promote the state’s reason for recognizing marriages in the first place.

17

1. Traditional marriage responsible procreation

promotes

The basic rationale for traditional marriage is to encourage biological parents to remain together for the sake of their children. The hope is that the availability of marriage makes it more likely that unintended children, among the weakest members of society, will be cared for. “[M]arriage’s vital purpose in our societies is not to mandate man/woman procreation but to ameliorate its consequences.” Monte Neil Stewart, Judicial Redefinition of Marriage, 21 Can. J. Fam. L. 11, 47 (2004).

Historically, that is, civil marriage has not advanced a state interest in adult relationships in the abstract. It is instead predicated on the positive, important, and concrete societal interests in the procreative nature of opposite-sex relationships. Marriage is how the state promotes a particular family structure, where biological parents care for their children in one household. Traditional marriage is not about imposing disadvantages on homosexuals, but about promoting behavior exclusive to opposite-sex couples, namely procreation through sexual intercourse where a baseline condition for optimal childrearing—the cohabitation and mutual dedication of the parents—is present.

In this regard, the laws of marriage generally reflect the state’s interest in the welfare of children, their protection, and their well-being. See Hernandez v. Robles, 805 N.Y.S.2d 354, 360 (N.Y. App. Div.

18
2005), aff’d 7 N.Y.3d 338 (2006). Traditional marriage creates the norm that potentially procreative sexual activity should occur in a longterm, cohabitative relationship. See John Finnis, Sexual Morality and the Possibility of “Same-sex Marriage,” 42 Am. J. Juris. 97, 131 (1997) (“[Marriage] is fundamentally shaped by its dynamism towards, appropriateness for, and fulfillment in, the generation, nurture, and education of children who each can only have two parents and who are fittingly the primary responsibility (and the object of devotion) of those two parents.”). It provides the greatest likelihood that both biological parents will nurture and raise the children they beget, which is optimal for children and society at large.
Parental rights are an important aspect of traditional marriage, but it does not follow that marriage rights go wherever parental rights lead. The purpose of traditional marriage is not to encourage just any two people to assume parental responsibility for children. It is instead to encourage the two biological parents to care for their children in tandem. Neither same-sex couples nor any other inherently non-procreative grouping of individuals fits that bill.
Nor is this fundamental purpose of traditional marriage undermined by marriages among the infertile, the elderly, or those who simply choose not to have children. Opposite-sex couples without children who are married model the optimal, socially

19
expected behavior for other opposite-sex couples whose sexual intercourse may well produce children. Moreover, inquiring of every applicant for a marriage license whether they can or intend to procreate would impose serious, constitutionally questionable intrusions on individual privacy. The state is not required to go to such extremes simply to prove that the purpose of marriage is to promote procreation and child rearing in the traditional family context. It suffices to observe that only members of the opposite sex have even a chance at procreating, so it is fair to limit marriage to oppositesex unions as an initial matter, regardless whether there are further regulations of marriage.
In contrast, rejecting the traditional definition of marriage would irremediably separate procreative sexuality from marriage as the context for childbearing. The state has an interest in encouraging that children be raised by parents who are married. The Ninth Circuit rejected the claim that restoring the traditional definition of marriage could have any logical connection to this task. Pet. App. 78a (“It is implausible to think that denying two men or two women the right to call themselves married could somehow bolster the stability of families headed by one man and one woman.”). Defining marriage to include a relationship that cannot naturally bear children, however, cleaves sexuality from childbearing. Same-sex marriage will always require a separation between sexuality, the natural parents of the child, and the legal same-sex parents.

20
In this regard, it is important to observe that both state and federal law presume a biological relationship where a child is born to married parents. 42 U.S.C. § 666(a)(5)(G); see also, e.g., Ind. Code §§ 31-14-7 et seq. This presumption is justified insofar as marriage carries with it a tradition and expectation of monogamy and fidelity. While children may occasionally result from extramarital liaisons or donor-enabled assisted reproductive technology, the vast majority of children born within marriage are biologically related to their mother’s husband. Traditional marriage is a reliable indicator of the biological relationship between parent and child. See Nguyen v. I.N.S., 533 U.S. 53 (2001) (upholding naturalization rules that presume a child’s biological relationship to married parents but not to unmarried parents).
Moreover, the presumption of a biological relationship where a child is born to married parents furthers the government’s important interest in protecting the integrity of the family unit by “excluding inquiries into the child’s paternity that would be destructive of family integrity and privacy.” Michael H. v. Gerald D., 491 U.S. 110, 120 (1989) (upholding a California statute creating a presumption that the child born to a married woman living with her husband is a child of the marriage). Thus, traditional marriage, and the uniquely suitable parentage expectations that accompany it, facilitates family privacy in a way that same-sex marriage cannot.

21
It is proper to limit marriage to its traditional context to protect its ability to function as an important indicator of the biological connection between parent and child. Every child has exactly one biological mother and one biological father. Thus, marriage recognizes and protects the onemale/one-female union—the only union that can naturally produce children. Extending marriage to same-sex couples would do nothing to further this important governmental objective, in that children of same-sex couples are necessarily unrelated biologically to at least one of their parents. At the same time, a state’s desire to protect the biological relationship between parents and children does not require a state to outlaw adoptions or otherwise to prevent parents from raising children to whom they are not biologically related. It does, however, allow the state to express a preference for biological parents “whom our society . . . [has] always presumed to be the preferred and primary custodians of their minor children.” Reno v. Flores, 507 U.S. 292, 310 (1993).
Ultimately, there is a cultural connection between government promotion of sexuality apart from conception and the separation of conception from marriage. State efforts to encourage procreative couples to beget children in the context of marriage would be undercut by a constitutional imperative

22
that inherently negates the underlying connection between childbearing and marriage.2
2. Traditional marriage identifies the ideal of family life for children
A related but analytically distinct point is that only the marriage of one man and one woman reflects the complementarity of the sexes and validates the relationship’s unique and natural ability to produce children. There is no dispute that this is the way that the vast majority of children are in fact conceived. This immutable characteristic of the human design by itself suggests the traditional definition of marriage because it enables biological parents to image the identity of each sex to the children, and allows the children born of this relationship to enjoy a biological relationship to each parent. 3 Traditional marriage reflects the reality
2 The separation of sexuality, childbearing, and marriage is not merely theoretical. The number of children born outside of marriage has risen above 50% for women under the age of 30 for the first time in the history of the United States. See Jason DeParle & Sabrina Tavernise, For Women Under 30, Most Births Occur Outside Marriage, NY Times, February 17, 2012, http://www.nytimes.com/2012/02/18/us/for-women-under-30most-births-occur-outside-arriage.html?pagewanted=all&_r=0
3 The idea that a child might more easily identify with an adult of the same sex—imaging inherently available for all children born in the conjugal union of traditional marriages—is commonsensical. See, e.g., In re Marriage of J.B. & H.B., 326 S.W.3d 654, 678 (Tex. Ct. App. 2010) (“The state also could have rationally concluded that children are benefited by being exposed to and influenced by the beneficial and distinguishing

23
that every child is begotten from a father and a mother. These characteristics are unique to traditional marriage.
In establishing marriage laws, states seek to establish standards that its citizens will respect, exhorting the community to order its affairs according to these standards. The conclusion that the ideal ordering of the human family is one in which a child is the fruit of the love of father and mother is not one subject to objective verification at all. It is a conclusion about the ideal nature of family life, not prejudice or animus.
The structure of family life promoted by traditional marriage does not denigrate the capacity of same-sex parents to raise their children in a loving and supporting environment. Nor does it disparage the suitability of alternative arrangements where non-biological parents have legal responsibility for children. Rather, it is an acknowledgment that the parent-child relationship is ideal when a child is the offspring of both parents, with a role model of each sex in the family. It enables the biological and legal to be perfectly joined
attributes a man and a woman individually and collectively contribute to the relationship.”). The role of the parent of each sex is helpful in the optimal raising of children, without which “the child must cope with the loss of example, counsel, and experience that living with the missing-gender parent would have provided[.]” Lynn D. Wardle, The Potential Impact of Homosexual Parenting on Children, 1997 U. Ill. L. Rev. 833, 863 (1997).

24
together so that the child’s legal parents are also the child’s natural parents. In contrast, with inherently infertile relationships, there will be at least one legal parent who is not a biological one, and at least one natural parent who is not a legal one. Andersen v. King County, 138 P.3d 963, 983 (Wash. 2006) (en banc).
The physical complementarity of the sexes indicates the “binary” nature of the relationship. Andersen, 138 P.3d at 1002 (Johnson, J., concurring); Lewis v. Harris, 875 A.2d 259, 277 (N.J. Sup. Ct. 2005) (Parillo, J., concurring). The union between a man and a woman is the ordinary way that children have been generated from time immemorial. A state’s decision to ratify this relationship as the one that constitutes a legal marriage thus confirms a very significant understanding of human relationships. By defining marriage as between one man and one woman, a state establishes this relationship as the normative standard for the human family. See Hernandez, 855 N.E.2d at 7 (plurality opinion) (“The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father.”). And by reserving marriage to opposite-sex couples, a state encourages them and makes a positive statement about the relationship’s unique characteristics, not a negative statement about the ability of other relationships to provide a proper setting for raising and nurturing children. It is the combination of the attributes of traditional

25
marriage, and what they mean for the ideal of family life, that makes the relationship unique.
These justifications are rooted in the acquired wisdom of a state’s citizens. The traditional definition of marriage is a reflection of the community’s understanding of the human person and the ideal ordering of human relationships. These are deep questions of identity and meaning that are not subject to objective measurement.
C. Proposition 8 is a legitimate attempt to secure the social benefits of traditional marriage
The majority below concluded that, because California extends nearly all marital rights and benefits to same-sex domestic partners, the state believes there is no difference between same-sex and opposite-sex families with respect to childrearing. See Pet. App. 72a-73a. It also declared that withdrawing from same-sex couples access to the marriage label will not encourage opposite-sex couples to marry or strengthen traditional marriages. See id. at 1088-89. Neither conclusion is sound or even relevant.
First, it is within the realm of rational deliberation that designating relationships inherently incapable of producing children as “marriages” could alter marital norms that otherwise exist owing to the general procreative capacity of a husband-wife relationship. See Lynn D.

26
Wardle, The Boundaries of Belonging: Allegiance, Purpose and the Definition of Marriage, 25 B.Y.U. J. Pub. L. 287, 298-99 (2011). Accordingly, even if analyzed as withdrawal of a right (rather than as restoration of a classification), Proposition 8 is rationally related to the legitimate government purpose of preventing consequences that might follow if citizens no longer associate marriage with responsible procreation.
Second, there is no constitutional requirement that all possible rights and benefits policies must promote responsible procreation in order for the traditional definition of marriage to be legitimate. Legislatures and other politically accountable officials must balance an infinite variety of competing interests and priorities. The result is often incongruent means and ends, but that does not negate the objective of whatever half measures are undertaken. Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 487-88 (1955) (“[T]he law need not be in every respect logically consistent with its aims to be constitutional.”).
Third, even the simple prospect of joining the revered institution of “marriage” promotes responsible procreation among opposite sex couples. As this and other same-sex marriage lawsuits implicitly concede, marriage, regardless of exclusive concrete benefits, is a desirable status. See Goodridge, 798 N.E.2d at 955 (“[C]ivil marriage is an esteemed institution[.]”).

27
California’s decision to encourage responsible procreation by offering committed opposite-sex couples exclusive status but not exclusive rights does not negate the state’s underlying objective. The Ninth Circuit erred grievously in using California’s experimentation with separate civil recognition of same-sex couples against the majority of California voters who wish to preserve the traditional definition of marriage as such.
D. There is no coherent reason for government to recognize same-sex marriages
The Ninth Circuit rejected the traditional rationale for civil marriage without supplying any coherent alternative, let alone one that extends no further than mandating recognition of same-sex couples who desire it. Its decision essentially deprives states of a justification for affording any limited set of relationships special status and thereby opens states to claims from an infinite variety of groups demanding government recognition.
1. The decision below located the significance of marriage in “intimate,” “stable and committed lifelong relationships.” Pet. App. 52a-53a; see also Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 961 (Mass. 2003) (opinion of Marshall, C.J., joined by Ireland & Cowin, JJ.) (equating same-sex and opposite-sex couples because “it is the exclusive and permanent commitment of the marriage partners to

28
one another, not the begetting of children, that is the sine qua non of civil marriage”).
But having identified mutual dedication as one of the central incidents of marriage, neither the Ninth Circuit nor the Goodridge plurality explained why the state should care about that commitment between romantic partners any more than it cares about other voluntary relationships of two, or even more, adults. See Morrison v. Sadler, 821 N.E.2d 15, 29 (Ind. Ct. App. 2005) (lead opinion). Both opinions rejected the assumption that civil marriage is necessarily limited to opposite-sex couples, yet failed even to question whether marriage is necessarily limited to either (1) a limited set of relationships, or (2) people who presumably engage in sex.
By contrast, appellate courts upholding the traditional definition of marriage routinely examine the underlying rationale for civil marriage and conclude that it turns on the procreative capacity of opposite-sex couples, which in turn supplies the rational basis for distinguishing same-sex couples and other inherently non-reproductive relationships. In Singer v. Hara, 522 P.2d 1187, 1195 (Wash. Ct. App. 1974), the court observed that limiting marriage to opposite-sex couples “is based upon the state’s recognition that our society as a whole views marriage as the appropriate and desirable forum for procreation and the rearing of children.” Not every marriage produces children, but “[t]he fact remains that marriage exists as a protected legal institution primarily because of societal values associated with

29
the propagation of the human race.” Id. This analysis remains dominant in our legal culture, both with regard to federal equal protection doctrine4 and state constitutional law.5
2. A constitutional theory that requires recognition of same-sex couples in contravention of this legal culture, not to mention centuries of human experience, must supply a coherent rationale, not simply attack traditional marriage as antiquated or ill-considered. “Until a few decades ago, it was an accepted truth for almost everyone who ever lived . . . that there could be marriages only between
4 See, e.g., Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 867 (8th Cir. 2006); Lofton v. Sec’y of Dep’t of Children & Fam. Servs., 358 F.3d 804, 818-19 (11th Cir. 2004); Sevcik v. Sandoval, No. 2:12-cv-00578, 2012 WL 5989662, at *16 (D. Nev. Nov. 26, 2012); Jackson v. Abercrombie, 2012 WL 3255201, at *34 (D. Haw. August 8, 2012); Wilson v. Ake, 354 F. Supp. 2d 1298, 1309 (M.D. Fla. 2005); Adams v. Howerton, 486 F. Supp. 1119, 1124 (C.D. Cal. 1980), aff’d, 673 F.2d 1036 (9th Cir. 1982); Dean v. Dist. of Columbia, 653 A.2d 307, 362-64 (D.C. 1995) (per curiam) (Steadman, J., concurring); In re Kandu, 315 B.R. 123, 147-48 (Bankr. W.D. Wash. 2004); Standhardt v. Superior Court, 77 P.3d 451, 464-65 (Ariz. Ct. App. 2003); In re Marriage of J.B. & H.B., 326 S.W.3d 654, 67778 (Tex. Ct. App. 2010); Singer v. Hara, 522 P.2d 1187, 1197 (Wash. Ct. App. 1974); Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971).
5 See, e.g., Standhardt v. Superior Court, 77 P.3d 451, 464-65 (Ariz. Ct. App. 2003); Morrison v. Sadler, 821 N.E.2d 15, 25 (Ind. Ct. App. 2005) (lead opinion); Conaway v. Deane, 932 A.2d 571, 619-21, 630-31 (Md. 2007); Hernandez, 855 N.E.2d at 7; Anderson v. King County, 138 P.3d 963, 982-83 (Wash. 2006) (en banc).

30
participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted.” Hernandez, 855 N.E.2d at 8 (plurality opinion); see also Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1, 16 (1st Cir. 2012) (observing that the desire to promote traditional marriage “is not the same as ‘mere moral disapproval of an excluded group’” (quoting Lawrence v. Texas, 539 U.S. 558, 585 (2003) (O’Connor, J., concurring))).
A central argument for recognizing same-sex marriages arises from a fashionable insistence that society and the “modern family” are not what they used to be. There is no refuting that, over the past 50 years, American society and American family life have surely changed in a number of particulars. Same-sex couples now raise children together by virtue of artificial insemination, surrogacy, and adoption. See, e.g., John Bowe, Gay Donor or Gay Dad, N.Y. TIMES, Nov. 19, 2006, at E66.
Indeed, there seems to be no end to the variety of de facto family permutations that can arise. By virtue of statutory amendment and judicial fiat, some states bestow parental rights and responsibilities on unwed step-parents and even entire groups of “coparents.” In recent years, Delaware and the District of Columbia have passed laws that recognize third “de facto” parents who have parental rights and responsibilities. D.C. Code §§ 16-831.01 et seq.; 13 Del. Code § 8-201. Courts in several other states have also recognized three parents. See In re Parentage of

31
L.B., 122 P.3d 161, 176-77 (Wash. 2005) (en banc) (recognizing third “de facto” parent); C.E.W. v. D.E.W., 845 A.2d 1146 (Me. 2004) (same); V.C. v. M.J.B., 748 A.2d 539 (N.J. 2000) (recognizing third “psychological” parent); LaChappelle v. Mitten, 607 N.W.2d 151 (Minn. Ct. App. 2000) (recognizing thirdparent rights); see also In re M.C., 195 Cal. App. 4th 197, 214, 223 (2011) (observing that “[i]n the abstract, it is not difficult to opine a child might be well served by judicial recognition and preservation of a relationship with three legal ‘parents,’ all of whom love and care for her, and each of whom has evinced a commitment to providing her a safe and stable family environment” and that “M.C. does have three presumed parents, a situation the Supreme Court has acknowledged may exist,” but remanding for reconciliation of competing parentage claims).
Still more states’ courts have conferred joint parental rights on unmarried same-sex couples in circumstances that would imply the availability of third-parent rights. See Raftopol v. Ramey, 12 A.3d 783, 799 (Conn. 2011) (recognizing paternal rights in both biological father and gay partner, parties to gestational agreement with maternal surrogate); K.M. v. E.G., 37 Cal. 4th 130, 142 (2005) (recognizing maternal rights in both egg-donor mother and birth mother); T.M.H. v. D.M.T., 79 So.3d 787, 803 (Fla. Dist. Ct. App. 2011) (holding it constitutionally mandated that both egg-donor mother and birth mother have parental rights); see also Melanie B. Jacobs, Why Just Two? Disaggregating Traditional

32
Parental Rights and Responsibilities to Recognize Multiple Parents, 9 J.L. & Fam. Stud. 309 (2007).
There is even an emerging sector of co-parent clearinghouses that not only match donors and surrogates with would-be parents, but also facilitate the creation of “co-parenting” arrangements among strangers. See, e.g., About Us: FAQs, Modamily, http://www.modamily.com/faq/ (last visited Jan. 23, 2013); Co-Parenting, Pollentree.com, http://www. pollentree.com/coparenting (last visited Jan. 23, 2013) (“[C]o-parenting is typically where two single people agree to have a child and bring that child up together or it can be two couples who agree to do the same.”).6
But none of these social changes—whether one views them as good, bad, or inconsequential— justifies marriage for same-sex couples. Surely no one argues that the liberty to engage freely in
6 Perhaps unsurprisingly, popular culture has begun to celebrate the “co-parenting” phenomenon as a way for people with no romantic connection to raise a child together. In 2012, Lionsgate, a major motion picture company, released “Friends with Kids,” starring Adam Scott, Jennifer Westfeldt, Jon Hamm, Kristen Wiig, Maya Rudolph, Chris O’Dowd, Megan Fox, and Edward Burns. According to its official web page, the movie “is a daring and poignant ensemble comedy about a close-knit circle of friends at that moment in life when children arrive and everything changes. The last two singles in the group observe the effect that kids have had on their friends’ relationships and wonder if there’s a better way. They decide to have a kid together – and date other people.” About, Friends with Kids, http://www.friendswithkids.com/#about (last visited Jan. 22, 2013).

33
consensual sex means states must also celebrate (or even acknowledge) each individual’s sexuality. Nor, then, does the government’s interest in the sexuality of its citizens suddenly spring forth at the origination of particular romantic or cohabitational relationships as such. There has to be something more to justify government involvement. See Willystine Goodsell, A History of the Family as a Social and Educational Institution 7-8 (1915) (“It seems clear enough that the sexual instinct of itself could not have brought about permanent relationships between male and female.”).
As discussed in Part II.B.1, supra, for qualified opposite-sex couples, the “something more” is the natural capacity of their relationship to produce children unintentionally. This natural capacity gives rise to the state’s interest in encouraging responsible procreation, i.e., where the sexual partners live in a long-term, committed relationship for the sake of any children they may produce, even unintentionally. See id. (“The source of marriage . . . must probably be looked for in the utter helplessness of the newborn offspring . . . .”).
The ability of same-sex couples to raise children together is not the same thing. The primary rationale for traditional marriage is responsible procreation, not responsible parenting more generally. And when two people become parents by way of artificial insemination, surrogacy or adoption, they have not procreated—at least not with one another. Hence, what is missing is society’s interest

34
in encouraging couples to consider and plan for the children that inevitably result from impulsive decisions to act on sexual desires. The sexual activity of same-sex couples implies no consequences similar to that of opposite-sex couples.
Indeed, to the extent same-sex couples must take intentional, non-sexual action to become joint parents, such conduct vitiates the need for government involvement. states may assume that couples who by definition can acquire parental rights only through intentional conduct need no further societal approbation or regulation—they are already focused on the consequences of their actions. It is where the parentage may be unintentional, where couples act impulsively while ignoring the consequences, that social ordering is necessary.
It is no response for same-sex couples to say that the State also has an interest in encouraging those who acquire parental rights without procreating (together) to maintain long-term, committed relationships for the sake of their children. Such an interest is not the same as the interest that justifies marriage as a special status for sexual partners as such. Traditional marriage reflects the ideal of family life, recognizing the love between a mother and a father and the ability of this relationship to bear children. The same is true for opposite-sex couples that do not procreate because they model the optimal ordering of family life. Responsible parenting is not a theory supporting marriage for same-sex couples because, like the Ninth Circuit, it

35
cannot answer two critical questions: Why two people? Why a sexual relationship?
In other words, if marriage rights must follow parental rights, and if states cannot restrict joint parental rights to opposite-sex couples as an optimal setting for childrearing, there would be no basis for precluding joint parentage—and, hence, marriage— by any social grouping, regardless of the existence of a sexual relationship. See Your Road Map to CoParenting: Glossary, Modamily.com, http://www. modamily.com/learn/best-practices/ (last visited Jan. 22, 2013) (defining “co-parent” as “a parenting situation where the parents are not in a marriage or romantic relationship with one another”). Sisters, brothers, platonic friends, groups of three or more— all would be on equal footing for purposes of the right to parent jointly and, thus, the right to marry.7
Consequently, responsible parenting is not a justification for same-sex-couple marriage, as distinguished from recognition of any other human
7 In this regard it is important to bear in mind that, under this model, it is only the potential for a group of adults to acquire parental rights—not the actual conferral of parental rights on any particular grouping—that would be the necessary predicate for marriage. In other words, taken to its logical conclusion, Plaintiffs’ argument for “marriage equality” would insist that, just as opposite-sex couples are eligible for marriage by reference to their theoretical procreative capacity, so too would other groups be eligible for marriage by reference to their theoretical ability to acquire joint parental rights, regardless whether they actually (or even intend) to do so.

36
relationships. It is instead a rationale for eliminating marriage as government recognition of a limited set of relationships. Once the natural limits that inhere in the relationship between a man and a woman can no longer sustain the definition of marriage, the conclusion that follows is that any grouping of adults would have an equal claim to marriage. See, e.g., Jonathan Turley, One Big, Happy Polygamous Family, NY Times, July 21, 2011, at A27 (“[Polygamists] want to be allowed to create a loving family according to the values of their faith.”).
Marriage is not a device that governments generally use to acknowledge acceptable sexuality, living arrangements, or de facto parenting structures. It is a means to encourage and preserve something far more compelling and precise: the relationship between a man and a woman in their natural capacity to have children. It attracts and then regulates couples whose sexual conduct may potentially create children, which ameliorates the burdens society ultimately bears when unintended children are not properly cared for. Neither samesex couples nor any other social grouping presents the same need for government involvement, so there is no similar rationale for recognizing such relationships.

37
III. Judicial Redefinition of Marriage Created a Political Grievance Redressable by Referendum
The mantra of the decision below is that, even using the rational-basis test, “context matters” for state laws being evaluated under the Equal Protection Clause. Yet the Ninth Circuit failed to give full weight to the most salient contextual explanation of Proposition 8: the decision of the Supreme Court of California in In re Marriage Cases, 183 P.3d 384 (Cal. 2008), to redefine marriage under the California Constitution to include same-sex marriages. Proposition 8 can most reasonably be understood as a popular reaction not to the extension of rights to gays and lesbians, but to judicial overreach. The supporters of Proposition 8 might reasonably have concluded that the wrong branch of government had wrought a fundamental societal change; they might reasonably have concluded that the court did so employing an improper means by treating a word having a fixed meaning with postmodernist insouciance; and they might reasonably have concluded that this judicial activism justified state constitutional correction.
In our tradition, the conviction that the wrong authority has done the wrong thing in the wrong manner is cognizable as a political grievance subject to a political remedy. Cf. The Declaration of Independence para. 2 (U.S. 1776) (“He has combined with others to subject us to a Jurisdiction foreign to our Constitution, and unacknowledged by our Laws;

38
giving his Assent to their Acts of pretended Legislation: . . . For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments: For suspending our own Legislatures, and declaring themselves invested with Power to legislate for us in all Cases whatsoever.”).
Judicial reluctance to circumscribe state sovereignty should therefore be at its apex when doing so cuts short vigorous democratic debates and uses of political processes. This principle recognizes that courts disrupt the democratic process and deprive society of the opportunity to reach consensus when they prematurely end valuable public debate over moral issues. Federal courts should not stultify democratic principles by declaring a winner of the marriage debate.
For this Court to mandate that all states recognize same-sex marriage would be to wreak revolutionary change on American marriage jurisprudence. Sharply departing from the Court’s traditional understanding that its role is a modest one of enforcing necessary constitutional standards, a decision affirming the Ninth Circuit would catapult the Court into the role of “superlegislature.” Heller v. Doe, 509 U.S. 312, 319 (1993) (Rationalbasis test does not “authorize the judiciary [to] sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.” (internal quotation

39
marks omitted)). Such a conclusion would have grave implications for the nature of our democratic institutions when deeply disputed moral questions such as the definition of marriage are subject to judicial fiat. See Alexander M. Bickel, The Least Dangerous Branch 16-17 (2d ed. 1986) (“[W]hen the Supreme Court declares unconstitutional a legislative act or the action of an elected executive, it thwarts the will of representatives of the actual people . . . .”).
The Court should instead continue to recognize the importance of the people’s role in fashioning the standards for marriage and children—traditionally the absolute preserve of the states. The conclusion that marriage should be between one man and one woman should not be gainsaid by the federal courts. Cf. United States v. Windsor, 699 F.3d 169, 208 (2d Cir. 2012) (Straub, J., dissenting) (“When, as here, an issue involves policy choices, the Supreme Court has cautioned that the appropriate forum for their resolution in a democracy is the legislature.” (internal quotation marks omitted)), cert. granted, 2012 WL 4009654 (2012). Any social policy regarding marriage should come by way of democratic processes.
If the Ninth Circuit is correct, traditional marriage can be understood only as a historic means of sexual-orientation discrimination, and the vast majority of the states actuate nothing more than homosexual bigotry by maintaining it. This cannot be correct. What Proposition 8 represents is a legitimate political disagreement over ways, means,

40

and ends, which fully repels the notion that it was enacted to harm and denigrate homosexuals. In view of the Marriage Cases, voter reaffirmation of the historical meaning of marriage is legitimate and rational in itself.

CONCLUSION
The Court should reverse the judgment below.

KENNETH CUCCINELLI Attorney General
E. DUNCAN GETCHELL Solicitor General
Office of Attorney General 900 E Main Street Richmond, VA 23219

Respectfully submitted,
GREGORY F. ZOELLER Attorney General
THOMAS M. FISHER Solicitor General (Counsel of Record)
Office of Attorney General IGC South, Fifth Floor 302 West Washington St. Indianapolis, IN 46204 (317) 232-6255 Tom.Fisher@atg.in.gov

January 29, 2013

Counsel for Amici Curiae

 
 No. 12-144
In the Supreme Court of the United States
DENNIS HOLLINGSWORTH, ET AL., PETITIONERS,
v.
KRISTIN M. PERRY, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMICUS BRIEF OF THE STATE OF MICHIGAN IN SUPPORT OF PETITIONERS
Bill Schuette Attorney General
John J. Bursch Michigan Solicitor General Counsel of Record P.O. Box 30212 Lansing, Michigan 48909 BurschJ@michigan.gov (517) 373-1124
B. Eric Restuccia Deputy Solicitor General
Aaron D. Lindstrom Assistant Solicitor General
Joseph E. Potchen Tonya C. Jeter Assistant Attorneys General
Attorney for Amicus Curiae State of Michigan

i
QUESTION PRESENTED Whether it is rational for a state to choose to define marriage as the legal union of one man and one woman.

ii
TABLE OF CONTENTS
Question Presented...................................................... i
Table of Contents ........................................................ ii
Table of Authorities ................................................... iv
Interest of Amicus Curiae........................................... 1
Introduction and Summary of Argument .................. 2
Argument .................................................................... 4
I. Michigan’s view is that the traditional family is the ideal setting in which to raise children. .... 4
A. The marriage of one man and one woman is rooted in the complementarity of the sexes and the unique capacity of that relationship to bear children. ........................ 5
B. The traditional definition of marriage enables the parents to serve as role models of each of the sexes for their children........................................................... 7
C. The traditional definition of marriage enables the parents to have a biological relationship with their children. ................... 9
II. The reaffirmation of the traditional definition of marriage, which excludes other relationships, is reasonable. .............................. 11
A. Other relationships do not share the unique characteristics of traditional marriage. ...................................................... 12
B. The upholding of traditional marriage is not a matter of animus. ............................... 13

iii
C. The debate over the definition of “marriage” is ongoing and should be left to the states. ................................................. 15
Conclusion ................................................................. 18

iv

TABLE OF AUTHORITIES

Page

Cases
Andersen v. King County, 138 P.3d 963 (Wash. 2006)............................... 6, 9
Bobby v. Dixon, 132 S. Ct. 26 (2011) .............................................. 8
Dixon v. Houk, 627 F.3d 553 (6th Cir. 2010) ................................ 8
Duren v. Missouri, 439 U.S. 357 (1979) .............................................. 8
Hernandez v. Robles, 855 N.E.2d 1 (2006) .................................... 6, 7, 10
In re Marriage Cases, 183 P.3d 384 (Cal. 2008) .................................... 13
In re Marriage of J.B. and H.B., 326 S.W.3d 654 (Tx. Ct. App. 2010)..................... 7
In re Winship, 397 U.S. 358 (1970) ............................................ 16
Jackson v. Abercrombie, ___ F. Supp. 2d ___, 2012 WL 3255201 (D. Hawaii 2012)......................................................... 7
Lawrence v. Texas, 539 U.S. 558 (2003) ............................................ 14
Lewis v. Harris, 875 A.2d 259 (N.J. Sup. Ct. 2005)...................... 15

v
Lofton v. Secretary of Department of Children & Family Services, 358 F.3d 804 (11th Cir. 2004) .............................. 8
Maher v. Roe, 432 U.S. 464 (1977) ............................................ 17
Maynard v. Hill, 125 U.S. 190 (1888) ............................................ 11
Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) ...................... 13, 14
Sissung v. Sissung, 31 N.W. 770 (Mich. 1887) ..................................... 4
State v. Fry, 4 Mo. 120 (Mo. 1835) ............................................ 4
Statutes MICH. COMP. LAWS § 551.1................................ 1, 4, 11 MICH. COMP. LAWS § 710.24...................................... 10 MICH. COMP. LAWS 1915, § 11364............................... 5 MICH. COMP. LAWS 1915, § 11365............................... 5
Constitutional Provisions MICH. CONST. art. I, § 25................................... 1, 4, 11

1
INTEREST OF AMICUS CURIAE
Like the majority of states, Michigan defines marriage as the union between one man and one woman. Michigan’s statutory marriage law dates back to 1846, and its citizens recently affirmed its traditional definition by amending the state constitution in 2004. See, RS 1846, Ch. 83, § 1, as added by Pub Acts 1996, No. 324, imd eff June 26, 1996; MICH. COMP. LAWS § 551.1; MICH. CONST. art. I, § 25.
Michigan’s definition of marriage is predicated on the conviction that the ideal setting in which to raise children is with their biological mother and father in a stable relationship. And by making that conviction a legal definition, the State provides an affirmative statement about the unique features of the relationship.
The Ninth Circuit’s conclusion—that it violates the Equal Protection Clause for a state to establish this standard about the ideal setting in which to raise children—would apply to all states, rendering Michigan’s legal scheme unconstitutional. The State of Michigan agrees with the amicus brief prepared by the States of Indiana and Virginia but files its own amicus brief to underscore the primary justification of Michigan law: Michigan’s view that marriage between one man and one woman is the ideal setting for the procreation and rearing of children. In doing so, the State of Michigan does not denigrate other relationships but rather communicates its conviction about child rearing.

2
INTRODUCTION AND SUMMARY OF ARGUMENT
No other relationship is like that of the marriage of one man and one woman. Its distinct attributes make it uniquely ordered to the procreation and education of children. Only in traditional marriage does the marriage contract reflect the complementarity of the sexes with the natural capacity to bear children, to provide a role model of the identity of manhood and womanhood to the children, and to enable any children born of the marriage to have a biological relationship to each parent.
Michigan’s assessment is that this setting is the ideal one in which to raise children. Accordingly, Michigan has an interest in promoting this institution for the welfare of children by conferring on marriage between one man and one woman exclusive rights and obligations. This conclusion is true even for those states, such as California, that reserve to traditional marriage nothing more than the special title of “marriage.” And it is reasonable for Michigan and California to make this policy decision.
This brief will not reiterate the many excellent arguments raised in the amicus brief filed by the States of Indiana and Virginia. They rightly contend that traditionally the law of marriage has been the preserve of state law, and Michigan concurs that the institution of marriage precedes the state’s existence. Moreover, the State of Michigan agrees that there should be no heightened scrutiny for state laws that reserve the definition of marriage to one man and one woman. Finally, Michigan believes that the responsible procreative theory supports traditional marriage based

3
on the fact that the relationship between a man and a woman is the only one with the natural capacity to create children.
Nevertheless, Michigan’s primary justification for legally recognizing marriage between one man and one woman is that it extols virtues that are in the best interest of children. This definition has existed from time immemorial and is not rooted in animus toward same-sex couples or even an unwarranted stereotype that same-sex couples cannot provide a loving setting for children. They clearly can. Michigan’s definition simply acknowledges the reality that same-sex relationships are different in that they lack the natural capacity to bear children and the ability to provide a biologically-connected role model of both womanhood and manhood.
In the current debate on marriage, it is evident that the definition of marriage can be understood in many different ways. These are issues on which people of good will may reasonably disagree. This debate should continue; this Court should not overturn the popular will on marriage and impose its own vision, ossifying the debate and leaving those who hold the traditional views effectively silenced. The views of the people of Michigan—some of their most deeply held and revered—are reasoned ones, and are not bigotry.
Marriage, if it is to have any meaning, has to have a definition. Every relationship between individuals does not constitute a marriage. But courts should leave the contentious social issue of “marriage” to the democratic process rather than cutting short the people’s deliberations. It is through such vigorous discussions that ideals can be properly established.

4
ARGUMENT
I. Michigan’s view is that the traditional family is the ideal setting in which to raise children.
The State of Michigan’s interest in marriage is based on providing the best setting for children. The Michigan Constitution defines marriage “as the union of one man and one woman” and does so “to secure and preserve the benefits of marriage for our society and for future generations of children.” MICH. CONST. art. I, § 25. The same is true for Michigan’s statutory law, which provides that “this state has a special interest in encouraging, supporting, and protecting that unique relationship in order to promote, among other goals, the stability and welfare of society and its children.” MICH. COMP. LAWS § 551.1.
Although this constitutional and statutory language is relatively new—adopted in the last 20 years—the primary justification for marriage has historically been for the procreation and education of children. See Sissung v. Sissung, 31 N.W. 770, 772 (Mich. 1887) (“the first purpose of matrimony, by the laws of nature and society, is procreation.”) Consequently, the understanding of marriage has always been between one man and one woman, appearing throughout the states from the beginning because it was the understanding of marriage at common law. See, e.g., State v. Fry, 4 Mo. 120, 1835 WL 2108, *5 (Mo. 1835), quoting Sir Francis Bacon, 6 Bacon Abr. 523, 530 (“marriage is a compact between a man and a woman for the procreation and education of children”). Likewise, Michigan’s definition was historically predicated on the understanding that

5
marriage was between one man and one woman, as reflected in Michigan statutory law. See, e.g., MICH. COMP. LAWS 1915, §§ 11364, 11365 (identifying all of the persons that a man or a woman could not marry based on their blood relationship, all of the opposite sex).
Underlying this definition of marriage as between two persons of the opposite sex is the justification that only traditional marriage has certain characteristics that make it ideal for the raising of children.
A. The marriage of one man and one woman is rooted in the complementarity of the sexes and the unique capacity of that relationship to bear children.
There are two sexes, each necessary for the procreation of children. A man and a woman generally have the inherent ability together to beget a child biologically connected to both parents. The unique capacity of a man and a woman to conceive a child is based on their natural complementarity in a conjugal union. In Michigan, as in other states, there is no obligation to have children in marriage. Yet, there is no dispute that it is through the sexual union of a man and a woman that the vast majority of children are created.
It is through the relationship between man and woman that children have been created from the beginning of time. Thus, the State’s decision to solemnize this reality by recognizing the unique capacity of a man and woman to beget a child is a reasonable one. By defining marriage as between one man and one woman, the State elevates this

6
relationship, identifying it as the ideal standard for the human family.
The case law has generally identified this dynamic as one reflecting the “binary” nature of the human condition in its generative capacity. See Andersen v. King County, 138 P.3d 963, 991 (Wash. 2006) (Johnson, J., concurring) (“The unique and binary biological nature of marriage and its exclusive link with procreation and responsible child rearing has defined the institution at common law and in statutory codes and express constitutional provisions of many states.”). See also Hernandez v. Robles, 855 N.E.2d 1, 15 (2006) (Graffeo, J., concurring) (“The binary nature of marriage—its inclusion of one woman and one man— reflects the biological fact that human procreation cannot be accomplished without the genetic contribution of both a male and a female.”) In other words, sexual complementary is an irreducible difference; no other arrangement has the capacity to create a new life, no matter how committed or loving the relationship.
The traditional definition of marriage thereby corresponds to the ordinary way in which children are conceived—in a relationship between a man and a woman. Id. In this way, the traditional definition of marriage follows the reality of how children are created.

7
B. The traditional definition of marriage enables the parents to serve as role models of each of the sexes for their children.
The traditional definition of marriage also has the ability to provide a male and female role model for any children born of the marriage. This fact again is rooted in the reality of family life.
As one of their key family roles, parents educate their children and provide them with tools that assist them in reaching adulthood. Specifically, parents teach their boys in their transition to manhood and their girls in reaching womanhood. The concept underlying this point is that a child would benefit from an adult of each sex by the “living” example provided by the parents. See Hernandez, 855 N.E.2d at 7 (plurality opinion) (“Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like.”) Accord Jackson v. Abercrombie, ___ F. Supp. 2d ___, 2012 WL 3255201, *43 (D. Hawaii 2012). In the absence of both a man and a woman, the child is missing a role model:
The state also could have rationally concluded that children are benefited by being exposed to and influenced by the beneficial and distinguishing attributes a man and a woman individually and collectively contribute to the relationship.
In re Marriage of J.B. and H.B., 326 S.W.3d 654, 678 (Tx. Ct. App. 2010).

8
Women and men bring undeniably unique gifts to parenting, gifts that are different and complementary. As Justice Ginsburg explained in a different context, arguing in Duren v. Missouri, 439 U.S. 357 (1979): “Yes, men and women are persons of equal dignity and they should count equally before the law but they are not the same. There are differences between them that most of us value highly. . . . I think that we–perhaps all understand it when we see it and we feel it but it is not that easy to describe, yes, there is a difference.” (11/1/78 Tr.)
Moreover, for the transition from adolescence, the ability to have a father who serves as a male role model for a young boy in becoming a man is particularly important as is for a mother to serve as a female role model for a young girl. This concept appears in cases involving divorce, termination of parental rights, or even in evaluating mitigating factors in the sentencing phase of a criminal case. See, e.g., Dixon v. Houk, 627 F.3d 553, 568 (6th Cir. 2010) (approvingly identifying “lack of father figure” as a mitigating factor for punishment from previous case), reversed on other grounds, Bobby v. Dixon, 132 S. Ct. 26 (2011). The conclusion that this is a salutary influence for a child to have a male and female role model in the child’s transition to adulthood is a reasonable one. See Lofton v. Secretary of Department of Children & Family Services, 358 F.3d 804, 819–822 (11th Cir. 2004) (“It is chiefly from parental figures that children learn about the world and their place in it, and the formative influence of parents extends well beyond the years spent under their roof, shaping their children’s psychology, character, and personality for years to come.”).

9
To be sure, single mothers, single fathers, and same-sex couples can be wonderful parents, while opposite-sex couples can be inadequate parents. But there is nothing unconstitutional about a state choosing to honor the mother-father-child relationship as an ideal familial structure.
C. The traditional definition of marriage enables the parents to have a biological relationship with their children.
In traditional marriage, for any child born from the marital relationship between a man and a woman, the child is then the offspring of each parent. This fact creates a bond between a child and the child’s parents. See Andersen, 138 P.3d at 982–83 (“Heterosexual couples are the only couples who can produce biological offspring of the couple”). The parents and the children are bound in blood, sharing not only a legal identity as a family but also a physical affinity. In this way, the biological parents of a child are also the legal parents.
In contrast, for same-sex couples, their conjugal union will never yield a child. For any children in their marriage, there will always be at least one biological parent who is outside of the marital union, and there always will be at least one legal parent who is not a biological one. See id.
Defining marriage to include a relationship that is not naturally capable of producing children strictly separates the marital sexual union from the procreation of children. For same-sex couples, there will generally be some artificial intervention for the conception of any child, necessarily separating the child from one or both biological parents. Id. at 983

10
(“single-sex couples raise children and have children with third party assistance or through adoption”). In traditional marriage in contrast, a child may be the fruit of the conjugal relationship between husband and wife, a fact that can never be true for same-sex couples. They are differently situated.
Again, this conclusion does not disparage the ability of same-sex couples or others to provide loving homes or to establish a stable, nurturing setting for children. The point is that the State may elect to provide legal support for the ideal setting, upholding it as the archetype for all families, and fostering it as the optimal arrangement. The State may reasonably conclude that “it is better, other things being equal, for children to grow up with both a mother and a father.” Hernandez, 855 N.E.2d at 7 (plurality opinion). This point is even more strongly true where the parents are that child’s biological mother and father.
Of course, there are opposite-sex couples who are unable to have children of their own and who adopt children. Under Michigan law, married couples and single persons may adopt, but unmarried couples— including same-sex couples—may not adopt. MICH. COMP. LAWS § 710.24. But there is a fundamental difference between a same-sex couple and a married man and woman seeking to adopt. As explained above, the male and female married couples reflect the complementarity of the sexes and may offer the necessary role modeling helpful to the optimal raising of children. And the relationship of man and woman reinforces the ideal by establishing an example for other couples of the opposite sex.

11
There is no requirement in Michigan that a married couple seek to have children or even that the couple have a sexual relationship for a couple to enter the married state. The interest of the State arises from the fact that children are ordinarily born from a relationship between a man and a woman, and the State seeks to ensure the ideal raising of these children. MICH. CONST. art. I, § 25; MICH. COMP. LAWS § 551.1.
II. The reaffirmation of the traditional definition of marriage, which excludes other relationships, is reasonable.
Traditional marriage as defined as one man and one woman has its origin in the common law. It is the foundation of society. Maynard v. Hill, 125 U.S. 190, 211 (1888) (“It is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress.”).
Contrary to the analysis of the Ninth Circuit, the effort to reassert the traditional definition of marriage is not based on animus toward same-sex couples, but rather reflects an affirmative statement about the virtues of traditional marriage. In fact, the definition of marriage as the union of one man and one woman precedes the entire debate on same-sex marriage, which has only arisen in the last 50 years.

12
A. Other relationships do not share the unique characteristics of traditional marriage.
In contrast to same-sex relationships, the traditional marriage relationship reflects the complementarity of the sexes with the natural capacity to produce children. And in traditional marriage there is both a mother and a father to serve as role models for the children, and the potential for the children to be the offspring of the married couple. For same-sex couples, there is always an issue about parentage. And there is always only one sex represented among the parents. The preference of the citizens of California, Michigan, and other states, to promote the ideal for families by recognizing only the union of one man and one woman in marriage is predicated on the salutary features of this relationship for children.
There are many traditional families that fail to meet this ideal. And there are many same-sex couples that provide a nurturing and loving setting for children. But this does not answer the point. The law serves the goal of establishing ideal standards, exhorting the public to align themselves to these archetypes. And the State may foster the ideal for children.
The question is whether it is reasonable to believe that these attributes of marriage, unique to the marriage of one man and one woman, further the end of providing the ideal setting for the procreation and education of children. From the beginning of recorded history, this relationship has been the hallmark of family life. Until this past century, all children were conceived in the relationship between a man and a

13
woman, and the law ratified and codified the reality of an institution already in place. The fact that other committed same-sex adults may provide a loving setting for children does not impeach this fact.
B. The upholding of traditional marriage is not a matter of animus.
The Ninth Circuit determined that the withdrawing of the designation of marriage in California for same-sex couples was based in animus. Perry v. Brown, 671 F.3d 1052, 1093–94 (9th Cir. 2012) (“By withdrawing the availability of the recognized designation of ‘marriage,’ Proposition 8 enacts nothing more or less than a judgment about the worth and dignity of gays and lesbians as a class.”). Not so. The reassertion of the traditional definition was a response to a judicial imposition of a new definition of marriage, specifically, In re Marriage Cases, 183 P.3d 384, 402 (Cal. 2008), which held that “to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.” Thus, Proposition 8 restored the basic legal system in place before the California court interposed its decision.
The broader point relevant for Michigan and the states generally is that the effort to reaffirm the traditional definition is not based in animus toward same-sex couples or individuals who experience samesex attraction. Every human life has inherent dignity and is of immense worth. Michigan, through its laws, encourages all people to treat each other with respect. Rather, Michigan’s definition of marriage is a policy decision that expresses the State’s view about the ideal

14
of family life. See Lawrence v. Texas, 539 U.S. 558, 585 (2003) (O’Connor, J., concurring) (“Unlike the moral disapproval of same-sex relations . . . other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.”) The State of Michigan advances these affirmative reasons here.
Historically, the primary competing understanding of family life has been plural marriage. There are more than 40 countries that currently permit plural marriage. By excluding plural marriage in the defense of traditional marriage, there is no implied animus or bigotry against cultures that tolerate plural marriage, including some Islamic nations. Rather, this reaffirmation of the traditional definition is a celebration of the virtues of the union of one man and one woman in marriage, not an attack on other relationships.
Significantly, this Court’s rejection of the traditional definition of marriage may require the acceptance of plural marriage. The underlying rationale for the Ninth Circuit’s decision is that generally two adult persons who are dedicated to one another and seek to raise a child should be able to marry. Cf. Perry, 671 F.3d at 1076 (“[Proposition 8] stripped same-sex couples of the right to have their committed relationships recognized by the State with the designation of ‘marriage’”). But any number of adults can be committed to one another and seek to raise children together. Once the courts reject a state’s ability to promote the view that the ideal family structure consists of a mother, father, and children, the reasoned ability to limit marriage to two adults is

15
weakened. Lewis v. Harris, 875 A.2d 259, 277 (N.J. Sup. Ct. 2005) (Parrillo, J., concurring) (“If, for instance, marriage were only defined with reference to emotional or financial interdependence, couched only in terms of privacy, intimacy, and autonomy, then what non-arbitrary ground is there for denying the benefit to polygamous or endogamous unions whose members claim the arrangement is necessary for their self-fulfillment?”)
In sum, a state may reasonably reserve marriage to one man and one woman because of that relationship’s unique characteristics. This union alone provides for the complementarity that is naturally capable of producing life while also enabling the married persons—in the ideal—to beget children who have a biological relationship to each parent, who may then serve as role models of both sexes for their children.
C. The debate over the definition of “marriage” is ongoing and should be left to the states.
Since this nation’s founding, the institution of marriage and its legal development have been in the constant care of state legislatures and the citizens of the states. Our nation is currently engaging in a robust debate on same-sex marriage. This debate should be allowed to play out in our democratic institutions and should not be short-circuited by the courts. “When this Court assumes for itself the power to declare any law— state or federal—unconstitutional because it offends [a] majority[] [of the court’s] own views of what is fundamental and decent in our society, our Nation ceases to be governed according to the ‘law of the land’

16
and instead becomes one governed ultimately by the ‘law of the judges.’” In re Winship, 397 U.S. 358, 384 (1970). (Black, J., dissenting). Deeply rooted cultural definitions of marriage are best left to the political arena where the full discourse of public debate can occur.
In areas fraught with sensitive social policy, such as the ideal family setting for children, people of good will may genuinely and reasonably disagree without any sort of discriminatory animus. An open democratic process ensures full vetting of matters involving the ideal societal structure. Federal courts should not halt these democratic principles by judicial fiat. And any social policy regarding definitions of marriage should come by way of democratic processes, not judicial activism.
As Justice Black recognized, perhaps the most fundamental individual liberty of citizens is the right of each person to participate in the self-government of their society. In re Winship, 397 U.S. at 385 (Black, J., dissenting). “The people . . . may of course be wrong in making . . . determinations [of fairness], but the right of self-government that our Constitution preserves is just as important as any of the specific individual freedoms preserved in the Bill of Rights.” Id.
State laws necessarily promote a vision of what is the “ideal.” And different communities will have different visions of what constitutes the “ideal.” The view in some communities is that marriage is only about recognizing the emotional fulfillment of adults, separate from encouraging a legal attachment between children and their natural parents. The view in others is that sexual identity is inconsequential in marriage,

17
rendering mothers and fathers entirely interchangeable. And all Michigan citizens are free to argue about the current understanding of the “ideal” of marriage. There are different reasonable conclusions that citizens may draw on these questions. The democratic processes of this country are ill-served by the judiciary stepping in and relegating one side of the debate to the status of irrational. To arrogate this decision to themselves, the courts will dismiss some of the most ancient and cherished beliefs of half of the country as animus. Democracy should not work that way.
It is well settled that there is a “basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy.” Maher v. Roe, 432 U.S. 464, 475 (1977). By adopting a traditional definition of marriage, Michigan does not interfere with the right of adults to commit each other to an exclusive, loving relationship. But Michigan has established traditional marriage as the ideal setting for the procreation and rearing of children. There is nothing unconstitutional about this conclusion.

18
CONCLUSION The State of Michigan as amicus curiae would ask this Court to reverse and affirm the constitutionality of California law on marriage.
Respectfully submitted,
Bill Schuette Attorney General
John J. Bursch Michigan Solicitor General Counsel of Record P.O. Box 30212 Lansing, Michigan 48909 BurschJ@michigan.gov (517) 373-1124
B. Eric Restuccia Deputy Solicitor General
Aaron D. Lindstrom Assistant Solicitor General
Joseph E. Potchen Tonya C. Jeter Assistant Attorneys General
Attorney for Amicus Curiae State of Michigan
Dated: JANUARY 2013

 
 No. 12-144

In the Supreme Court of the United States
__________
DENNIS HOLLINGSWORTH, et al., Petitioners,
v.
KRISTIN M. PERRY, et al., Respondents. __________
On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit __________

BRIEF AMICUS CURIAE OF UNITED STATES CONFERENCE OF CATHOLIC BISHOPS IN SUPPORT OF PETITIONERS AND SUPPORTING REVERSAL __________ ANTHONY R. PICARELLO, JR.* General Counsel JEFFREY HUNTER MOON Solicitor MICHAEL F. MOSES Associate General Counsel UNITED STATES CONFERENCE OF CATHOLIC BISHOPS 3211 Fourth Street, N.E. Washington, D.C. 20017 (202) 541-3300 apicarello@usccb.org Counsel for Amicus Curiae

January 29, 2013

*Counsel of Record

TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................... iii
INTEREST OF AMICUS............................................ 1
SUMMARY OF ARGUMENT .................................... 1
ARGUMENT ............................................................... 4
I. Proposition 8 Is Rationally Related to Legitimate State Interests. ................................ 4
A. Two Unique Features of Opposite-Sex Unions Supply Two of Many Rational Bases for Distinguishing Those Unions from Other Relationships........................... 5
1. Recognizing the Unique Capacity of Opposite-Sex Couples to Procreate. ... 6
2. Recognizing the Unique Value to Children of Being Raised by Their Mother and Father Together. ............ 7
B. The Court Below Erred in Finding the Unique Affirmation of Opposite-Sex Unions Irrational...................................... 12
1. Rationality Does Not Require the State to Endorse or Promote SameSex Relationships If It Endorses or Promotes Opposite-Sex Unions........ 12
2. Rationality Does Not Require Acceptance of the Lower Court’s Incoherent Definition of Marriage. .. 14
i

C. The Court Below Failed to Show California the Judicial Deference Characteristic of the Rational Basis Standard, or Appropriate to State Decisions in Areas of Ongoing Controversy and Traditional Concern. .... 15
D. Although Rational Basis Review Is the Appropriate Standard, Proposition 8 Would Also Survive More Rigorous Scrutiny..................................................... 18
II. Proposition 8 Is Not Rendered Invalid Because It Was Informed by Religious and Moral Viewpoints.............................................. 19
III. Redefining Marriage Will Generate WideRanging Burdens on Religious Liberty and Other Well-Established Constitutional Rights 21
CONCLUSION ......................................................... 24
ii

TABLE OF AUTHORITIES
Cases
Adams v. Howerton, 486 F. Supp. 1119 (C.D Cal. 1980), aff’d, 673 F.2d 1036 (9th Cir. 1982), cert. denied, 458 U.S. 1111 (1982) ............................ 6,7
Beal v. Doe, 432 U.S. 438 (1977) ............................. 13
Bob Jones Univ. v. Simon, 416 U.S. 725 (1974) ..... 23
Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006) ........................................................ 6,7,8
Elane Photography v. Willock, 284 P.3d 428 (N.M. App. 2012) ............................................................ 21
Goodridge, v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003) .................................................. 10,22
Griswold v. Connecticut, 381 U.S. 479 (1965) ......... 7
Harris v. McRae, 448 U.S. 297 (1980)................. 13,20
Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) ....... 8
Jackson v. Abercrombie, No. 11-00734 ACK-KSC, 2012 WL 3255201 (D. Haw. Aug. 8, 2012) 10,13,17
Johnson v. Robison, 415 U.S. 361 (1974) ................ 12
Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407 (Conn. 2008) ........................................................ 13
Lawrence v. Texas, 539 U.S. 558 (2003).............. 11,13
Loving v. Virginia, 388 U.S. 1 (1967) ...................... 16
iii

Lynch v. Donnelly, 465 U.S. 668 (1984) ................... 19 Maher v. Roe, 432 U.S. 464 (1977) ........................... 13 In the Matter of Marriage of J.B. & H.B., 326 S.W.3rd
654 (Tex. App. 2010) ............................................. 8 McGowan v. Maryland, 366 U.S. 420 (1961) ........... 20 Pennoyer v. Neff, 95 U.S. 714 (1878) ....................... 15 Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) .. 4,5,14 Planned Parenthood v. Casey, 505 U.S. 833 (1992) 13 Skinner v. Oklahoma, 316 U.S. 535 (1942) ............... 6 Sosna v. Iowa, 419 U.S. 393 (1975) ......................... 15 Standhardt v. Superior Court of Arizona, 77 P.3d 451
(Ariz. Ct. App. 2003) ............................................. 7 Vacco v. Quill, 521 U.S. 793 (1997).......................... 18 Vance v. Bradley, 440 U.S. 93 (1979) ......................... 7 Ward v. Wilbanks, No. 09-CV-11237, 2010 WL
3026428 (E.D. Mich. July 26, 2010), rev’d, 667 F.3d 727 (6th Cir. 2012) ...................................... 21 Washington v. Glucksberg, 521 U.S. 702 (1997) ..... 18 Windsor v. United States, 699 F.3d 169 (2d Cir. 2012) .............................................................................. 17 Zablocki v. Redhail, 434 U.S. 374 (1978) ................ 15 Zorach v. Clauson, 343 U.S. 306 (1952) .................. 19
iv

Other Authorities
ACLU Press Release (Aug. 23, 2012)....................... 21
Pam Belluck, Massachusetts Arrives at Moment for Same-Sex Marriage, N.Y. TIMES (May 17, 2004) 23
Jen Doll, Ruth Sheldon, Town Clerk, Will Also Resign Instead of Performing Gay Marriages, THE VILLAGE VOICE (July 18, 2011)............................ 22
William C. Duncan, The State Interests in Marriage, 2 AVE MARIA L. REV. 153 (Spring 2004) ...................................................................... 6
Sherif Girgis, Robert P. George, & Ryan T. Anderson, What is Marriage?, 34 HARV. J.L. & PUB. POL’Y 245 (Winter 2011) ............................................ 9,15
Judy Harrison, Same-Sex Marriage Law Means Notaries Can’t Discriminate in Performing Weddings, BANGOR DAILY NEWS (Dec. 12, 2012) 22
Loren D. Marks, Same-Sex Parenting and Children’s Outcomes: A Closer Examination of the American Psychological Association’s Brief on Lesbian and Gay Parenting, 41 SOC. SCI. RES. 735 (2012) .............................................................. 9
Memorandum from Archdiocese of Washington (Mar. 1, 2010)................................................................. 23
NY Town Clerk Quits, Cites Gay Marriage Opposition, NEWSDAY (July 12, 2011)................. 22
v

Sharon Otterman, Employee Sues for Benefits to Cover Same-Sex Spouse, N.Y. TIMES (June 19, 2012)..................................................................... 22
David Popenoe, LIFE WITHOUT FATHER: COMPELLING NEW EVIDENCE THAT FATHERHOOD AND MARRIAGE ARE INDISPENSABLE FOR THE GOOD OF CHILDREN AND SOCIETY (1996) ............................................... 8
Mark Regnerus, How Different Are the Adult Children of Parents Who Have Same-Sex Relationships? Findings from the New Family Structures Study, 41 SOC. SCI. RES. 752 (2012).... 8
SAME-SEX MARRIAGE AND RELIGIOUS LIBERTY: EMERGING CONFLICTS (Douglas Laycock, Anthony R. Picarello, Jr., & Robin Fretwell Wilson, eds. 2008) .................................................................... 23
Same-sex “Marriage” Law Forces D.C. Catholic Charities to Close Adoption Program, CATHOLIC NEWS AGENCY (Feb. 17, 2010)............................. 24
Julie Shapiro, Reflections on Complicity, 8 N.Y. CITY L. REV. 657 (Fall 2005) ........................................ 15
Patricia Wen, Catholic Charities Stuns State, Ends Adoptions, BOSTON GLOBE (Mar. 11, 2006) ........ 23
vi

INTEREST OF AMICUS
The United States Conference of Catholic Bishops (“USCCB” or “Conference”) is a nonprofit corporation, the members of which are the Catholic Bishops in the United States.1 The USCCB advocates and promotes the pastoral teaching of the U.S. Catholic Bishops in such diverse areas of the nation’s life as the free expression of ideas, fair employment and equal opportunity for the underprivileged, protection of the rights of parents and children, the sanctity of life, and the nature of marriage. Values of particular importance to the Conference include the promotion and defense of marriage, the protection of the First Amendment rights of religious organizations and their adherents, and the proper development of the nation’s jurisprudence on these issues.
We submit this brief in support of Petitioners, and urge this Court to uphold Proposition 8.
SUMMARY OF ARGUMENT
California’s Proposition 8 encourages and supports the union of one man and one woman, as distinct from other interpersonal relationships, by giving it alone the name “marriage.” This is rationally related to legitimate state interests for several reasons.
1 Pursuant to Supreme Court Rule 37.6, counsel for amicus state that they authored this brief, in whole, and that no person or entity other than amicus made a monetary contribution toward the preparation or submission of this brief. All parties have consented to the filing of this brief, and their letters of consent have been filed with the Clerk of the Court.
1

First, as a matter of simple biology, the union of one man and one woman is the only union capable of creating new life. Second, the People of California could reasonably conclude that a home with a mother and a father is the optimal environment for raising children, an ideal that Proposition 8 encourages and promotes. Given both the unique capacity for reproduction and unique value of homes with a mother and father, it is reasonable for a State to treat the union of one man and one woman as having a public value that is absent from other intimate interpersonal relationships.
While this Court has held that laws forbidding private, consensual, homosexual conduct between adults lack a rational basis, it does not follow that the government has a constitutional duty to encourage or endorse such conduct. Thus, governments may legitimately decide to further the interests of opposite-sex unions only. Similarly, minimum standards of rationality under the Constitution do not require adopting the lower court’s incoherent definition of “marriage” as merely a “committed lifelong relationship,” which is wildly over-inclusive, empties the term of its meaning, and leads to absurd results.
The lower court’s definition of “marriage” also fails to reflect the deference to legislative decision-making that characterizes rational basis analysis generally. This is particularly egregious in a context where deference to States is especially warranted, both because marriage is a traditional concern of the States, and because ongoing controversies about marriage are currently working their way through
2

reasonable democratic processes, yielding a range of results.
The combined force of these objectives argues for upholding Proposition 8, even if this Court were to apply a higher level of scrutiny. Marriage, understood as the union of one man and one woman, is not an historical relic, but a vital and foundational institution of civil society today. The government interests in continuing to encourage and support it are not merely legitimate, but compelling. No other institution joins together persons with the natural ability to have children, to assure that those children are properly cared for. No other institution ensures that children will at least have the opportunity of being raised by their mother and father together. Societal ills that flow from the dissolution of marriage and family would not be addressed—indeed, they would only be aggravated—were the government to fail to reinforce the union of one man and one woman with the unique encouragement and support it deserves.
Proposition 8 is not rendered invalid because some of its supporters were informed by religious or moral considerations. Many, if not most, of the significant social and political movements in our Nation’s history were based on precisely such considerations. Moreover, the argument to redefine marriage to include the union of persons of the same sex is similarly based on a combination of religious and moral considerations (albeit ones that are, in our view, flawed). As is well established in this Court’s precedent, the coincidence of law and morality, or law and religious teaching, does not detract from the rationality of a law.
3

Finally, redefining marriage—particularly as a matter of constitutional law, rather than legislative process—not only threatens principles of federalism and separation of powers, but would have a widespread adverse impact on other constitutional rights, such as the freedoms of religion, conscience, speech, and association. Affirmance of the judgment below would create an engine of conflict in this area, embroiling this Court and lower courts in a series of otherwise avoidable disputes—pitting constitutional right squarely against constitutional right—for years to come.
ARGUMENT
I. Proposition 8 Is Rationally Related to Legitimate State Interests.
All three Ninth Circuit judges on the panel below correctly concluded that rational basis review applies to Proposition 8. Perry v. Brown, 671 F.3d 1052, 1082, 1086-90 (9th Cir. 2012); id. at 1100-01 (Smith, J., concurring in part and dissenting in part). Application of rational basis review to legislation that classifies on the basis of sexual orientation is consistent with this Court’s precedent and the overwhelming weight of authority.2 A majority of the panel seriously erred, however, in concluding that Proposition 8 had no rational basis.
2 We address at length why rational basis review is appropriate for such classifications in our amicus brief (pp. 4-18) in United States v. Windsor, No. 12-307.
4

A. Two Unique Features of Opposite-Sex Unions Supply Two of Many Rational Bases for Distinguishing Those Unions from Other Relationships.
While California has given persons in same-sex relationships other rights and benefits associated with marriage, it continues to encourage and support the union of one man and one woman, as distinct from other interpersonal relationships, by giving it alone the name “marriage.”3 Government support
3 The Ninth Circuit repeatedly described Proposition 8 in terms of State approval and endorsement of the union of one man and one woman, in contradistinction to same-sex relationships. See, e.g., Perry v. Brown, 671 F.3d at 1063 (stating that “the designation of ‘marriage,’” if extended to persons in same-sex relationships, would “symbolize[] state legitimization and societal recognition of … [such] relationships”); id. at 1065 (stating that Proposition 8 withholds “the official designation of marriage [to persons in same-sex relationships] and thus the officially conferred and societally recognized status that accompanies that designation”); id. at 1076 (stating that Proposition 8 denies persons in same-sex relationships “the right to have their committed relationships recognized by the State with the designation of ‘marriage’”); id. at 1077-78 (stating that Proposition 8 denies same-sex partners the “official status and the societal approval that comes with it”); id. at 1078 (stating that “the designation ‘marriage’ … expresses validation, by the state and the community,” and manifests the “recognition that the State affords to those who are in stable and committed lifelong relationships”); id. at 1081 (stating that Proposition 8 denies to the “committed lifelong relationships” of persons of the same sex “the societal status conveyed by the designation of ‘marriage’”); id. at 1083 (stating that Proposition 8 deprives persons in same-sex relationships “the official designation and status of ‘marriage’”). Of course, nothing in Proposition 8 prevents private parties in a same-sex relationship from calling their relationship a marriage (even if, in our view or California’s, it is not a marriage). Rather, the Respondents seek the State’s endorsement of such relationships by forcing the
5

and encouragement for such unions have crosscultural roots as old as recorded history. As the antiquity and near-universality of such marriage laws suggest, there are numerous rational bases for government to uniquely affirm man-woman unions as “marriage,” and the Petitioners and supporting amici will likely present many. We highlight two.
1. Recognizing the Unique Capacity of OppositeSex Couples to Procreate. As a matter of simple biology, only sexual relationships between men and women can lead to the birth of children by natural means. As these relationships alone may generate new life, the state has an interest in channeling the sexual and reproductive faculties of men and women into the kind of sexual union where responsible childbearing will take place and children’s interests will be protected. See, e.g., Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (“[m]arriage and procreation are fundamental to the very existence and survival of the race.”); see also William C. Duncan, The State Interests in Marriage, 2 AVE MARIA L. REV. 153, 166 (Spring 2004) (“The state has an interest in all opposite-sex couples because all are theoretically capable of procreation.”).4 That childbearing
State to call those relationships “marriage.”
4 Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 867-68 (8th Cir. 2006) (citing “responsible procreation,” or the interest in “encourag[ing] heterosexual couples to bear and raise children in committed marriage relationships,” as one of two rational bases for upholding Nebraska marriage amendment against a federal equal protection challenge); Adams v. Howerton, 486 F. Supp. 1119, 1124 (C.D Cal. 1980) (upholding Colorado marriage statute against federal due process and equal protection challenges on the ground that “the state has a compelling interest in encouraging and fostering procreation of the race and
6

opportunities inherent in the marital union are occasionally unrealized does nothing to undermine the rationality of a law recognizing the unique status of such unions.5
2. Recognizing the Unique Value to Children of Being Raised by Their Mother and Father Together. It is reasonable to conclude that the optimal
providing status and stability to the environment in which children are raised”), aff’d, 673 F.2d 1036 (9th Cir. 1982), cert. denied, 458 U.S. 1111 (1982); Standhardt v. Superior Court of Arizona, 77 P.3d 451, 463-64 (Ariz. Ct. App. 2003) (“[T]he State has a legitimate interest in encouraging procreation and childrearing within the marital relationship,” and defining marriage as the union of one man and one woman “is rationally related to that interest”).
5 Adams, 486 F. Supp. at 1124-25 (“The alternative [to allowing legal marriage as between all couples of the opposite sex, even if infertile or not planning to have children] would be to inquire of each couple, before issuing a marriage license, as to their plans for children and to give sterility tests to all applicants, refusing licenses to those found sterile or unwilling to raise a family. Such tests and inquiries would themselves raise serious constitutional questions.”), citing Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965); Standhardt, 77 P.3d at 462 (“[I]f the State excluded opposite-sex couples from marriage based on their intention or ability to procreate, the State would have to inquire about that subject before issuing a license, thereby implicating constitutionally rooted privacy concerns.”). Of course, under rational basis review, it is of no moment if the marriage law includes husband-wife unions that cannot or do not produce children. Citizens for Equal Prot., 455 F.3d at 868, citing Vance v. Bradley, 440 U.S. 93, 108 (1979) (legislation survives rational basis review even if it is underinclusive or overinclusive or both). Even under more exacting scrutiny, the interest in not making the sort of intrusive and unconstitutional inquiries that would be necessary to exclude infertile husbandwife unions fully justifies a definition of marriage that includes such unions.
7

environment for the raising of children is a family structure in which both a mother and a father are present and bonded together. Only marriage, understood as the union of one man and one woman, assures that children will have the opportunity to be raised by both a mother and a father.6 A mother and father each bring something unique and irreplaceable to child-rearing that the other cannot.7 It is precisely
6 Citizens for Equal Prot., 455 F.3d at 867-68 (citing the notion that a husband and wife are “the optimal partnership for raising children” as one of two rational bases for rejecting equal protection challenge to Nebraska marriage amendment); In the Matter of Marriage of J.B. & H.B., 326 S.W.3d 654, 677 (Tex. App. 2010) (listing cases that have rejected equal protection challenges to marriage as the union of one man and one woman, and noting that “[i]t is reasonable for the state to conclude that the optimal familial setting for the raising of children is the household headed by an opposite-sex couple”); id. at 678 (“The state also could have rationally concluded that children are benefited by being exposed to and influenced by the beneficial and distinguishing attributes a man and a woman individually and collectively contribute to the relationship.”); Hernandez v. Robles, 855 N.E.2d 1, 7 (N.Y. 2006) (“The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like.”).
7 See, e.g., Mark Regnerus, How Different Are the Adult Children of Parents Who Have Same-Sex Relationships? Findings from the New Family Structures Study, 41 SOC. SCI. RES. 752 (2012) (finding that children raised by married biological parents fared better in a range of significant outcomes than children raised in same-sex households); David Popenoe, LIFE WITHOUT FATHER: COMPELLING NEW EVIDENCE THAT FATHERHOOD AND MARRIAGE ARE INDISPENSABLE FOR THE GOOD OF CHILDREN AND SOCIETY, 146 (1996) (“The burden of social science evidence supports the idea that gender differentiated parenting is important for human development and that the contribution of fathers to
8

such unions, which house the unique and irreplaceable gifts of mother and father, to which the people of California have exclusively conferred the name “marriage.”
In short, marriage
“reinforces the idea that the union of husband and wife is (as a rule and ideal) the most appropriate environment for the bearing and rearing of children…. If same-sex partnerships were recognized as marriages, however, that ideal would be abolished from our law: no civil institution would any longer reinforce the notion that children need both a mother and father; that men and women on average bring different gifts to the parenting enterprise; and that boys and girls need and tend to benefit from fathers and mothers in different ways.”
Sherif Girgis, Robert P. George, & Ryan T. Anderson, What is Marriage?, 34 HARV. J.L. & PUB. POL’Y 245, 262-63 (Winter 2011).
Even if California allows the adoption of children by same-sex couples, or provides other rights or benefits to such couples, that does not negate the State’s judgment that married couples (husbands and
childrearing is unique and irreplaceable.”); Loren D. Marks, Same-Sex Parenting and Children’s Outcomes: A Closer Examination of the American Psychological Association’s Brief on Lesbian and Gay Parenting, 41 SOC. SCI. RES. 735, 748 (2012) (explaining flaws in 59 studies conducted on same-sex parenting, including the involvement of small, non-random, convenience samples, and concluding that the generalized claim of “no difference” was “not empirically warranted”).
9

wives) represent the ideal environment for raising children, and therefore continue to warrant the distinctive and preferential name of “marriage.”8 The moral and social good of children who are born of such unions is advanced when government supports, encourages, and prefers their placement within a family structure headed by one man and one woman. Giving the name “marriage” to the union of one man and one woman, and not to other interpersonal relationships, is a legitimate means of encouraging, promoting, and supporting the former as the ideal environment for children.9
Put another way, it is reasonable for the government to view the union of one man and one woman united in marriage as the preferred environment for the bearing and upbringing of children, even if, as it happens, some children are born and raised in non-marital contexts as well (e.g.,
8 “That the State does not preclude different types of families from raising children does not mean that it must view them all as equally optimal and equally deserving of State endorsement and support…. Thus, the Legislature may rationally permit adoption by same-sex couples yet harbor reservations as to whether parenthood by same-sex couples should be affirmatively encouraged to the same extent as parenthood by the heterosexual couple whose union produced the child.” Jackson v. Abercrombie, No. 11-00734 ACK-KSC, slip op. at 110, 2012 WL 3255201, at *43 (D. Haw. Aug. 8, 2012), quoting Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 1000-01 (Mass. 2003) (Cordy, J., dissenting) (internal quotation marks and brackets omitted).
9 Jackson, supra, slip op. at 111, 2012 WL 3255201 at *43 (“[I]t is not irrational for the state to provide support for the parenthood of same-sex couples through the civil unions law, but not to the same extent or in the same manner it encourages parenthood by opposite-sex couples.”).
10

by single persons, or by persons in same-sex relationships). It bears emphasizing that a government preference for husband-wife unions as the optimal environment in which to raise children is a judgment about marriage as the only institution that serves to connect children with their father and mother together in a stable home. It is not a judgment about the dignity or worth of any person, married or not. See, e.g., Lawrence v. Texas, 539 U.S. 558, 585 (2003) (O’Connor, J., concurring in the judgment) (“[R]easons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.”).10 It also is not a judgment about the parental competency of any one person over another.
10 Some advocates and even some lower courts (including the lower courts in this case) have caricatured a moral preference for marital unions as disapproval of persons with same-sex attractions. This is as misleading and inaccurate as saying that the current marriage laws of 50 states disparage or undermine the dignity of single persons, or of persons who practice polygamy, as opposed to simply representing a moral preference for marriage. First, the current debate specifically concerns the meaning of marriage and the proposal to redefine marriage, not the phenomenon of same-sex attraction and the persons who experience such attraction. For this reason, the suggestion that opposition to the redefinition of marriage is equivalent to an animus against people who experience same-sex attraction is particularly offensive and plainly wrong. Second, the Church’s pastoral care of persons who are sexually attracted solely or predominantly to persons of the same sex is informed not only by its teaching about the proper use of the sexual faculty, but by its conviction that each and every human person, regardless of sexual inclination, has a dignity and worth that derives from his or her Creator. Thus, the further suggestion that opposition to homosexual conduct is simply animus against persons who engage in such conduct is also erroneous and offensive.
11

Given the procreative capacity of different-sex couples, the basic right of a child to be raised by his or her father and mother together, and the interest in encouraging homes with a mother and father, marriage, as the union of one man and one woman, has a societal value that is absent from other interpersonal relationships. In particular, because marriage advances legitimate interests that same-sex relationships do not, the State is not required to treat them as equivalent. See Johnson v. Robison, 415 U.S. 361, 383 (1974) (a classification subject to rational basis review will be upheld when “the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not”).
B. The Court Below Erred in Finding the Unique Affirmation of Opposite-Sex Unions Irrational.
1. Rationality Does Not Require the State to Endorse or Promote Same-Sex Relationships If It Endorses or Promotes Opposite-Sex Unions. When the citizens of California endorsed, supported, and promoted the union of one man and one woman as uniquely valuable by conferring on that union the name “marriage,” they neither incurred an obligation to extend the same endorsement to same-sex relationships, nor implicitly expressed hostility to them.
Indeed, in striking down a ban on homosexual acts, this Court has cautioned expressly that a duty of government non-interference with such acts does not mean that the government has a duty, constitutional or otherwise, to support or encourage
12

same-sex relationships, whether by calling them “marriage” or otherwise. Lawrence, 539 U.S. at 578 (noting that case involving a criminal prohibition of homosexual conduct “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter”).11
This is fully consistent with other decisions of this Court, which recognize that the constitutional protection of private conduct from government interference does not imply a constitutional duty to endorse or promote that conduct. For example, this Court has ruled that there are certain types of private conduct that states may not ban, such as abortion before viability. Planned Parenthood v. Casey, 505 U.S. 833 (1992). But that has never translated into a constitutional requirement that states support or encourage abortion. Quite the contrary, states may encourage childbirth, and it is well settled that when they do so they incur no duty to encourage abortion. Harris v. McRae, 448 U.S. 297 (1980); Maher v. Roe, 432 U.S. 464 (1977); Beal v. Doe, 432 U.S. 438 (1977).
In short, Lawrence and Casey involved a right (albeit not absolute) to keep government’s hands off of certain personal decisions—in one case, whether to
11 See Jackson, supra, slip op. at 38, 2012 WL 3255201 at *15 (“[T]he court in Lawrence implicitly recognized that it is one thing to conclude that criminalizing private, consensual homosexual conduct between adults violates due process; it is entirely another matter to conclude that the constitution requires the redefinition of the institution of marriage to include same sex couples.”), quoting Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407, 513 (Conn. 2008) (Borden, J., dissenting).
13

have an abortion, in the other, to engage in homosexual relationships. On the other hand, this Court has never intimated that this “right to be let alone”—the right to government non-interference with constitutionally protected private conduct— requires as a matter of basic rationality some right to affirmative government support. The government is not somehow constitutionally required to place its imprimatur on those personal decisions with which it may not constitutionally interfere.
2. Rationality Does Not Require Acceptance of the Lower Court’s Incoherent Definition of Marriage. The Ninth Circuit’s radical “redefinition” of marriage to mean “committed lifelong relationships,” 671 F.3d at 1078, 1081,12 empties marriage of its meaning and leads to absurd results. Any number of relationships (brother-sister, mother-daughter, father-son, or lifelong friends) may be “committed” and “lifelong” without constituting a marriage. For that matter, three or more persons may have a lifelong, committed relationship, but their relationship is plainly not a marriage. Though no party to this litigation argues that multiple friendships and polygamous relationships constitute marriage, it is not evident why they would not also qualify as “marriages” under the Ninth’s Circuit’s novel test. Moreover, if the meaning of marriage is so malleable and indeterminate as to embrace all “lifelong and committed” relationships, then marriage simply
12 See also id. at 1078 (stating that marriage is “the name that society gives to the relationship that matters most between two adults,” and that the name “marriage” signifies “the unique recognition that society gives to harmonious, loyal, enduring, and intimate relationships”).
14

collapses as a coherent legal category. What is Marriage?, supra at 269-75. Indeed, the ultimate elimination of marriage as a relevant legal category is the announced goal of many who seek social approval of same-sex sexual relationships. See, e.g., Julie Shapiro, Reflections on Complicity, 8 N.Y. CITY L. REV. 657, 658 & n.6 (Fall 2005).
C. The Court Below Failed to Show California the Judicial Deference Characteristic of the Rational Basis Standard, or Appropriate to State Decisions in Areas of Ongoing Controversy and Traditional Concern.
The Ninth Circuit’s redefinition of marriage represents a stark departure from the traditional role of federal courts in applying the rational basis standard, and intrudes into an area of law that falls squarely within the classic regulatory powers of the States.13 Federal judicial review of state marriage laws has been especially deferential, even beyond the deference typical of the rational basis standard.14
13 It does not interfere with the traditional primacy of the States in regulating marriage for the federal government to define the legal term “marriage” for purposes of federal law, as the federal Defense of Marriage Act does.
14 See, e.g., Pennoyer v. Neff, 95 U.S. 714, 734-35 (1878) (a State “has [an] absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved”), quoted in Sosna v. Iowa, 419 U.S. 393, 404 (1975); see Zablocki v. Redhail, 434 U.S. 374, 392 (1978) (Stewart, J., concurring in the judgment) (“Surely, for example, a State may legitimately say that no one can marry his or her sibling, that no one can marry who is not at least 14 years old, that no one can marry without first passing an examination for venereal disease, or that no one can marry
15

Accordingly, a judicially-imposed redefinition of marriage would improperly insert federal courts into the middle of a public policy dispute to which the various states have, so far, offered competing answers.
Americans throughout the Nation have already demonstrated that, notwithstanding their differences, they are capable of reasonably addressing competing claims made about marriage. Most states define marriage as the union of one man and one woman, and many of these do not permit civil unions or other marriage-like institutions among persons of the same sex.15 Other states define marriage as the union of one man and one woman but confer some of the rights and benefits of marriage upon persons in a civil union or domestic partnership, that is, something short of marriage. California has taken yet a third approach and conferred upon same-sex couples all of the rights and benefits associated with marriage, but promotes and encourages marriage itself, understood as the union of one man and one woman, by giving it the exclusive designation
who has a living husband or wife.”). One notable exception to this norm is Loving v. Virginia, 388 U.S. 1 (1967), but that case involved racial classifications that derived from the notion of “White Supremacy.” Id. at 7, 11. These classifications triggered the strictest judicial scrutiny, for they squarely violated the “clear and central purpose” (id. at 9-10) and “central meaning” (id. at 12) of the Equal Protection Clause. It cannot seriously be maintained that a State law defining marriage as the union of one and one woman warrants this exceptional treatment.
15 See our amicus brief (pp. 7-8 n.5) in United States v. Windsor, No. 12-307 (listing state constitutional amendments and statutes that define marriage as the union of one man and one woman).
16

“marriage,” a designation not afforded to persons in same-sex relationships. These and other approaches are still being considered and evaluated by the citizenry. This Court should not short-circuit that process by interposing federal constitutional constraints that would foreclose debate.16 The states are the proper forum for experimentation and continued debate on the issue of marriage. That debate should be allowed to unfold.17 See Windsor v. United States, 699 F.3d 169, 211 (2d Cir. 2012) (Straub, J., dissenting in part and concurring in part) (“Courts should not intervene where there is a robust political debate because doing so poisons the well, imposing a destructive anti-majoritarian constitutional ruling on a vigorous debate. Courts should not entertain claims like those advanced here, as we can intervene in this robust debate only to cut it short.”).
16 It would be odd to hold, as a matter of constitutional rule, that the broad accommodations that California has granted to persons in homosexual relationships trigger an entitlement to the name “marriage.” Such a rule would create an incentive to deny Respondents those very accommodations if a State wished to avoid conferring the name “marriage” upon their relationships. See Jackson, supra, slip op. at 96, 2012 WL 3255201 at *37 (acceptance of the plaintiffs’ argument that a civil unions law triggers a constitutional right to marry a person of the same sex “would provide a perverse incentive for states not to enact … civil union laws”).
17 We do not claim that the compromises described above represent wise public policy. But the fact that we may disagree with what some states have done on the issue of the legal recognition of same-sex relationships is precisely the point: people and institutions do in fact have good faith disagreements about this issue, and the Court should not foreclose varying judgments by the citizenry by forcing the issue into a constitutional Procrustean bed.
17

Judicial preemption of the political process on an issue like marriage would only be the start, and this Court would be called upon endlessly to define the scope and meaning of any constitutional “right” it declares on this subject, including its impact on other settled constitutional interests. See discussion infra at 21-24. In the past, this Court has demonstrated prudence and restraint in not allowing itself to be drawn into novel social and political activism. See, e.g., Washington v. Glucksberg, 521 U.S. 702 (1997) (declining to find a substantive due process right to physician-assisted suicide); Vacco v. Quill, 521 U.S. 793 (1997) (declining to find an equal protection right to physician-assisted suicide). The exercise of restraint in this case as well will redound to this Court’s institutional credit. Indeed, a contrary ruling, one upholding the Ninth Circuit’s judicial redefinition of marriage, see discussion supra at 14 & n.12, would violate the principles of judicial restraint that this Court articulated in Glucksberg.
D. Although Rational Basis Review Is the Appropriate Standard, Proposition 8 Would Also Survive More Rigorous Scrutiny.
The government interests we have described and that Proposition 8 advances—such as encouraging procreation in stable households headed by a mother and father—are compelling interests, those of the highest order. No institution other than marriage joins a man and a woman together in a permanent and exclusive way and unites them to any children born of their union. No other institution ensures that children will have the opportunity to be raised by both a mother and father. The devaluation and loss
18

of such families as the primary venue for raising children is one of the chief ills of our Nation. Laws that strongly encourage and promote the union of one man and one woman in marriage are an important part of the remedy for this national problem. It would be a grave disservice to the Nation, and a serious misreading of the Constitution, to strike down such laws.
II. Proposition 8 Is Not Rendered Invalid Because It Was Informed by Religious and Moral Viewpoints.
It is hard to recall any significant legal reform movement in American history that has not been informed by religious and moral viewpoints, against which different or opposing religious and moral viewpoints are often arrayed. As this Court has insisted, “[w]e are a religious people.” Lynch v. Donnelly, 465 U.S. 668, 675 (1984), quoting Zorach v. Clauson, 343 U.S. 306, 313 (1952). If the religious viewpoints of the people were deemed “out of bounds” in public policy—falling below even a minimum standard of rationality—then the history of our Nation would have been much different (and worse).
The social and political movements that led to the abolition of slavery and the subsequent adoption of civil rights laws, for example, were all informed by religious motivations and moral viewpoints. Indeed, every January the Nation celebrates the birthday of a minister, a leading figure in the civil rights movement, who drew upon decidedly religious and moral notions of human dignity in urging the reform of American law.
19

Moreover, the arguments made in favor of redefining marriage to include same-sex relationships are themselves shaped by religious and moral arguments and viewpoints, albeit (in our view) erroneous ones. Thus, if the policy arguments made by those favoring marriage are ruled “out of bounds” simply because they are religiously and morally motivated, then those religious and moral claims favoring the redefinition of marriage are equally impermissible. In short, religious and moral considerations—sometimes explicit, sometimes implicit—are interwoven into the fabric of the current and unfolding debate about marriage, on all sides of the debate.
It is well established that a law is not constitutionally impermissible because it overlaps with a religious teaching. This Court has squarely rejected any claim that “a statute violates the Establishment Clause because it ‘happens to coincide or harmonize with the tenets of some or all religions.’” Harris v. McRae, 448 U.S., at 319, quoting McGowan v. Maryland, 366 U.S. 420, 442 (1961). The government may enact laws that “reflect[] ‘traditionalist’ values” toward an issue without being found to have adopted as laws “the views of any particular religion.” Harris, 448 U.S. at 319.
It is therefore a mistake to characterize laws defining marriage as the union of one man and one woman as somehow embodying a purely religious viewpoint over against a purely secular one. This Court should therefore reject any argument that Proposition 8 is irrational or otherwise
20

unconstitutional because it corresponds with one or another religious or moral view of marriage.
III. Redefining Marriage Will Generate Wide-Ranging Burdens on Religious Liberty and Other Well-Established Constitutional Rights.
If this Court were to impose constitutional constraints on how states define marriage, it would impede the prospect of compromise and accommodation that the legislative process makes possible. The disputes that have arisen to date are a good predictor of what would come.
Individuals, either directly or as principals of closely-held businesses, are already encountering government obstacles to entering or remaining in their chosen profession18 or in the marketplace, because of their support for marriage as the union of one man and one woman.19 Religiously-affiliated
18 See Ward v. Wilbanks, No. 09-CV-11237, 2010 WL 3026428 (E.D. Mich. July 26, 2010) (upholding dismissal from academic program of counseling trainee based on her religious objection to affirming potential counselee’s same-sex relationship), rev’d, 667 F.3d 727 (6th Cir. 2012).
19 Catholic owners of a bed and breakfast in Vermont were charged with violating Vermont’s Fair Housing and Public Accommodations Act for allegedly not hosting a “wedding” reception for two persons of the same sex. Ultimately the owners agreed to pay a fine and not to host any wedding receptions. See ACLU Press Release (Aug. 23, 2012), available at http://www.aclu.org/lgbt-rights/vermont-resort-pay-fine-andrevise-policies-settle-discrimination-lawsuit-lesbian-couple; see also Elane Photography v. Willock, 284 P.3d 428 (N.M. App. 2012) (holding that wedding photographer’s religious objection to photographing same-sex “commitment ceremony” must yield
21

nonprofit organizations now face the prospect of civil suits—previously unavailable before the redefinition of marriage—where the organization, in keeping with its religious and moral beliefs, declines to extend to an employee’s same-sex “spouse” health benefits reserved to married couples.20 Notaries public, court clerks, and justices of the peace with religious and moral objections to same-sex relationships have been forced to give up their positions.21 As difficult as
to New Mexico law forbidding discrimination on the basis of sexual orientation).
20 Sharon Otterman, Employee Sues for Benefits to Cover SameSex Spouse, N.Y. TIMES (June 19, 2012), available at http://www.nytimes.com/2012/06/20/nyregion/st-josephs-medical -center-sued-over-benefits-by-same-sex-couple.html.
21 With the passage of marriage redefinition in Maine last November, the Maine Secretary of State has informed all notaries public (roughly 25,000), including clergy, that regardless of their religious objections, they must officiate at “weddings” of persons of the same sex or officiate at no weddings at all; otherwise they will be fined. See Judy Harrison, SameSex Marriage Law Means Notaries Can’t Discriminate in Performing Weddings, BANGOR DAILY NEWS (Dec. 12, 2012), available at http://bangordailynews.com/2012/12/12/news/samesex-marriage-law-means-notaries-cant-discriminate-in-perform ing-weddings/. After New York State redefined marriage to include same-sex unions, municipal clerks with religious objections to facilitating such unions were forced to resign their positions. See NY Town Clerk Quits, Cites Gay Marriage Opposition, NEWSDAY (July 12, 2011), available at http://www.newsday.com/news/region-state/ny-town-clerk-quitscites-gay-marriage-opposition-1.3020914; Jen Doll, Ruth Sheldon, Town Clerk, Will Also Resign Instead of Performing Gay Marriages, THE VILLAGE VOICE (July 18, 2011), available at http://blogs.villagevoice.com/runninscared/2011/07/ruth_sheldon _gay_marriage.php. After the Massachusetts Supreme Judicial Court redefined marriage in Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003), twelve justices of the
22

these cases may be for regulators and legislators to address—for example, by crafting appropriate accommodations—they will become almost impossible to address in a balanced way if this Court determines that the government is constitutionally required to treat same-sex relationships exactly as it does different-sex marriage, in every case.22
Finally, if the Constitution were construed to require government affirmation of same-sex relationships as marriage, it would seem a short step to requiring such affirmation as a condition of receiving government contracts, participating in public programs, or being eligible for tax exemption.23

peace resigned rather than agree to solemnize same-sex unions. See Pam Belluck, Massachusetts Arrives at Moment for SameSex Marriage, N.Y. TIMES (May 17, 2004), available at http://www.nytimes.com/2004/05/17/us/massachusetts-arrivesat-moment-for-same-sex-marriage.html?.

22 The Becket Fund for Religious Liberty has filed an amicus brief in this case and in United States v. Windsor, No. 12-307, providing further detail about the burdens on religious liberty implicated in both cases. See also SAME-SEX MARRIAGE AND RELIGIOUS LIBERTY: EMERGING CONFLICTS (Douglas Laycock, Anthony R. Picarello, Jr., & Robin Fretwell Wilson, eds. 2008).

23 See, e.g., Bob Jones Univ. v. Simon, 416 U.S. 725 (1974).

After Massachusetts redefined marriage, Catholic Charities of

Boston was forced to end its adoption work rather than comply

with a state law requiring that same-sex couples be allowed to

adopt children. See Patricia Wen, Catholic Charities Stuns

State, Ends Adoptions, BOSTON GLOBE (Mar. 11, 2006), at A1.

After the District of Columbia redefined marriage, government

officials informed Catholic Charities of the Archdiocese of

Washington that it no longer would be allowed to continue to

provide foster care and publicly-funded adoption programs in

the District of Columbia. Memorandum from Archdiocese of

Washington

(Mar.

1,

2010),

available

at

http://site.adw.org/pdfs/10Marr_CathChar%20Impact_0301.pdf.

23

In short order, those who disagree with the government’s moral assessment of such relationships would find themselves increasingly marginalized and denied equal participation in American public life and benefits.
CONCLUSION
For the foregoing reasons, Proposition 8 should be upheld, and the judgment of the Court of Appeals should be reversed.
Respectfully submitted,

ANTHONY R. PICARELLO, JR.* General Counsel
JEFFREY HUNTER MOON Solicitor
MICHAEL F. MOSES Associate General Counsel
UNITED STATES CONFERENCE OF CATHOLIC BISHOPS
3211 Fourth Street, N.E. Washington, D.C. 20017 apicarello@usccb.org (202) 541-3300

January 29, 2013

*Counsel of Record

Thus, in 2010, Catholic Charities of the Archdiocese of Washington had to close its foster-care and adoption programs. Same-sex “Marriage” Law Forces D.C. Catholic Charities to Close Adoption Program, CATHOLIC NEWS AGENCY (Feb. 17, 2010), available at http://www.catholicnewsagency.com/ news/same-sex_marriage_law_forces_d.c._catholic_charities _to_close_adoption_program/.
24

 
 No. 12-144 Title:

Dennis Hollingsworth, et al., Petitioners

v.

Kristin M. Perry, et al.

Docketed:

August 1, 2012

Linked with 12A688

Lower Ct:

United States Court of Appeals for the Ninth Circuit

Case Nos.:

(10-16696, 11-16577)

Decision Date: February 7, 2012

Rehearing Denied: June 5, 2012

Jan 11 2013

Application (12A688) denied by Justice Kennedy.

Jan 18 2013

Consent to the filing of amicus curiae briefs, in support of either party or of

neither party, received from counsel for respondents Perry, Steir, Katami, and

Zarillo

Jan 18 2013

Record from U.S.C.A. for 9th Circuit is electronic.

Jan 21 2013

Brief amici curiae of Coalition of African American Pastors USA, et al.( 2nd

REPRINT) filed. (Distributed)

Jan 22 2013

Joint appendix filed. (2 Volumes and Supplement). (Distributed) (Statement of

costs filed)

Jan 22 2013

Brief of petitioners Dennis Hollingsworth, et al. filed. (Distributed)

Jan 23 2013

CIRCULATED.

Jan 23 2013

Brief amici curiae of David Benkof, et al. filed. (Distributed)

Jan 24 2013

Brief amicus curiae of Family Research Council filed. (Distributed)

Jan 24 2013

Brief amicus curiae of Dr. Paul McHugh (Merits) filed. VIDED. (Distributed)

Jan 25 2013

Brief amici curiae of Scholars of History and Related Disciplines filed.

(Distributed)

Jan 25 2013

Brief amici curiae of Liberty, Life and Law Foundation, et al. (Merits) filed.

VIDED. (Distributed)

Jan 25 2013

Brief amicus curiae of Westboro Baptist Church in support of neither party filed.

(Distributed)

Jan 25 2013

Brief amicus curiae of Professor Daniel N. Robinson, Ph.D. filed. (Distributed)

Jan 28 2013

Brief amicus curiae of International Jurists and Academics (Merits) filed.

VIDED. (Distributed)

Jan 28 2013

Brief amici curiae of Thomas More Law Center and Chuck Storey, Imperial

County Clerk (Merits) filed. (Distributed)

Jan 28 2013

Brief amici curiae of National Association of Evangelicals, et al. filed.

(Distributed)

Jan 28 2013

Brief amici curiae of thirty-seven scholars of federalism and judicial restraint

filed. (Distributed)

Jan 28 2013

Brief amicus curiae of High Impact Leadership Coalition filed. (Distributed)

Jan 28 2013

Brief amicus curiae of Concerned Women for America filed. (Distributed)

Jan 28 2013

Brief amicus curiae of The Becket Fund for Religious Liberty (Merits) filed.

VIDED. (Distributed)

Jan 28 2013

Brief amicus curiae of Lighted Candle Society filed. (Distributed)

Jan 29 2013

Record from U.S.D.C. for the Northern District of California. (10 Boxes)

Jan 29 2013

Brief amicus curiae of Coalition for the Protection of Marriage (Merits) filed.

VIDED. (Distributed)

Jan 29 2013

Brief amicus curiae of Foundation for Moral Law filed. (Distributed)

Jan 29 2013

Brief amicus curiae of United States Conference of Catholic Bishops filed.

(Distributed)

Jan 29 2013

Brief amici curiae of Citizens United's National Committee for Family, Faith and

Prayer, et al. filed. (Distributed)

Jan 29 2013

Brief amicus curiae of Center for Constitutional Jurisprudence filed. (Distributed)

Jan 29 2013

Brief amicus curiae of Patrick Henry College filed. (Distributed)

Jan 29 2013

Brief amicus curiae of Eagle Forum Education & Legal Defense Fund, Inc. filed.

Jan 29 2013
Jan 29 2013
Jan 29 2013 Jan 29 2013 Jan 29 2013 Jan 29 2013
Jan 29 2013
Jan 29 2013 Jan 29 2013
Jan 29 2013 Jan 29 2013
Jan 29 2013 Jan 29 2013 Jan 29 2013 Jan 29 2013 Jan 29 2013 Jan 29 2013
Jan 29 2013 Jan 29 2013
Feb 18 2013 Feb 21 2013
Feb 21 2013 Feb 26 2013
Feb 27 2013 Feb 27 2013
Feb 27 2013
Feb 27 2013 Feb 27 2013 Feb 27 2013 Feb 27 2013 Feb 27 2013 Feb 27 2013 Feb 27 2013
Feb 27 2013
Feb 28 2013 Feb 28 2013 Feb 28 2013
Feb 28 2013 Feb 28 2013

(Distributed) Brief amici curiae of Robert P. George, et al. (Merits) filed. VIDED. (Distributed) Brief amicus curiae of Parents and Friends of Ex-Gays & Gays (Merits) filed. VIDED. (Distributed) Brief amici curiae of Indiana, et al. filed. (Distributed). Brief amici curiae of Judicial Watch, Inc., et al filed. (Distributed) Brief amici curiae of Liberty Counsel, Inc. and Campaign for Children filed. Brief amici curiae of Catholic Answers, et al. (Merits) filed. VIDED. (Distributed) Brief amicus curiae of Catholics for the Common Good and the Marriage Law Project filed. (Distributed) Brief amici curiae of Pacific Legal Foundation, et al. filed. (Distributed) Brief amici curiae of National Association of Evangelicals, et al. filed. (Distributed) Brief amicus curiae of Matthew B. O'Brien (Merits) filed. VIDED. (Distributed) Brief amici curiae of Leon R. Kass, Harvey C. Mansfield and the Institute for Marriage and Public Policy filed. (Distributed) Brief amicus curiae of Michigan filed. (Distributed) Brief amicus curiae of Ethics and Public Policy Center filed. (Distributed) Brief amicus curiae of Minnesota for Marriage filed. (Distributed) Brief amicus curiae of Marriage Anti-Defamation Alliance filed. (Distributed) Brief amicus curiae of Helen M. Alvare (Merits) (Distributed). filed. VIDED. Brief amici curiae of Social Science Professors. (Merits) filed. VIDED. (Distributed) Brief amicus curiae of David Boyle (Merits) filed. (Distributed) Brief amicus curiae of American Civil Rights Union (Merits) filed. VIDED. (Distributed) Brief amicus curiae of Rev. Rick Yramategui, et al. filed. Brief of respondents Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo filed. (Distributed) Brief of respondent City and County of San Francisco filed. (Distributed) Brief amicus curiae of GLMA: Health Professionals Advancing LGBT Equality (Gay Lesbian Medical Association) concerning the immutability of sexual orientation filed. (Distributed) Brief amici curiae of Utah Pride Center, et al. filed. VIDED. (Distributed) Brief amici curiae of American Humanist Association and American Atheists, Inc., et al. filed. (Distributed) Brief amici curiae of Columbia Law School Sexuality & Gender Law Clinic, et al. filed. (Distributed) Brief amici curiae of Hon. Judith S. Kaye (Ret.), et al. filed. (Distributed) Brief amicus curiae of Marriage Equality USA filed. (Distributed) Brief amici curiae of Beverly Hills Bar Association, et al. filed. (Distributed) Brief amici curiae of Edward D. Stein, et al. filed. (Distributed) Brief amicus curiae of California filed. (Distributed) Brief amicus curiae of National Center for Lesbian Rights filed. (Distributed) Brief amici curiae of American Academy of Matrimonial Lawyers, et al. filed. (Distributed) Brief amici curiae of Jonathan Wallace, Meri Wallace, and Duncan Pflaster filed. (Distributed) Brief amici curiae of International Human Rights Advocates filed. (Distributed) Brief amici curiae of Kenneth B. Mehlman, et al. filed. (Distributed) Brief amicus curiae of Parents, Families and Friends of Lesbians and Gays, Inc. filed. (Distributed) Brief amicus curiae of Walter Dellinger filed. (Distributed) Brief amici curiae of Bay Area Lawyers for Individual Freedom, et al. filed.

Feb 28 2013
Feb 28 2013
Feb 28 2013 Feb 28 2013
Feb 28 2013 Feb 28 2013
Feb 28 2013
Feb 28 2013 Feb 28 2013 Feb 28 2013 Feb 28 2013 Feb 28 2013
Feb 28 2013 Feb 28 2013
Feb 28 2013 Feb 28 2013
Feb 28 2013
Feb 28 2013 Feb 28 2013
Feb 28 2013
Feb 28 2013 Feb 28 2013 Feb 28 2013 Feb 28 2013
Feb 28 2013
Feb 28 2013
Feb 28 2013 Feb 28 2013
Feb 28 2013 Feb 28 2013 Feb 28 2013
Feb 28 2013 Feb 28 2013 Feb 28 2013 Feb 28 2013
Feb 28 2013 Feb 28 2013

(Distributed) Brief amici curiae of Leadership Conference on Civil and Human Rights, et al. filed. (Distributed) Brief amici curiae of American Psychological Association, et al. filed. (Distributed) Brief amicus curiae of Dr. Maria Nieto filed. (Distributed) Brief amici curiae of Cato Institute and Constitutional Accountability Center filed. (Distributed) Brief amicus curiae of the United States filed. (Distributed) Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed. Brief amici curiae of American Anthropological Association, et al. filed. (Distributed) Brief amici curiae of Political Science Professors filed. (Distributed) Brief amici curiae of Anti-Defamation League, et al. filed. (Distributed) Brief amici curiae of Adoptive and Child Welfare Advocates filed. (Distributed) Brief amicus curiae of Gary J. Gates filed. (Distributed) Brief amici curiae of Organization of American Historians and the American Studies Association filed. (Distributed) Brief amicus curiae of Equality California filed. (Distributed) Brief amici curiae of National Organization for Women Foundation and the Feminist Majority Foundation filed. (Distributed) Brief amicus curiae of Southern Poverty Law Center filed. (Distributed) Brief amici curiae of Foreign and Comparative Law Experts Harold Hongju Koh, et al. filed. (Distributed) Brief amici curiae of Constitutional Law and Civil Procedure Professors Erwin Chermerinsky and Arthur Miller filed. (Distributed) (To Be Reprinted) Brief amici curiae of Massachusetts, et al. filed. (Distributed) Brief amicus curiae of Survivors of Sexual Orientation Change Therapies filed. (Distributed) Brief amicus curiae of Howard University School of Law Civil Rights Clinic filed. (Distributed) Brief amici curiae of William N. Eskridge, Jr., et al. filed. (Distributed) Brief amici curiae of California Professors of Family Law filed. (Distributed) Brief amici curiae of Chris Kluwe and Brendon Ayanbadejo filed. (Distributed) Brief amicus curiae of Women's Equal Rights Legal Defense and Education Fund filed. (Distributed) Brief amici curiae of Bishops of the Episcopal Church in the State of California, et al. filed. (Distributed) Brief amici curiae of California Assembly Speaker John A. Perez, et al. filed. (Distributed) Brief amici curiae of California Council of Churches, et al. filed. (Distributed) Brief amici curiae of American Federation of Labor and Congress of Industrial Organizations, et al. filed. (Distributed) Brief amici curiae of American Companies filed. (Distributed) Brief amici curiae of California Teachers Association, et al. filed. (Distributed) Brief amici curiae of Constitutional Law Scholars Bruce Ackerman, et al. filed. VIDED. (Distributed) Brief amicus curiae of American Sociological Association filed. (Distributed) Brief amici curiae of Family Equality Council, et al. filed. VIDED. (Distributed) Brief amici curiae of National Women's Law Center, et al. filed. (Distributed) Brief amici curiae of Constitutional Law and Civil Procedure Professors Erwin Chermerinsky and Arthur Miller filed. (Distributed) Brief amicus curiae of American Jewish Committee filed. VIDED. (Distributed) Brief amici curiae of Lambda Legal Defense and Education Fund, Inc., et al. filed. (Distributed)

Feb 28 2013

Brief amicus curiae of Garden State Equality filed. (Distributed)

~~Name~~~~~~~~~~~~~~~~~~~~~ Attorneys for Petitioners:

~~~~~~~Address~~~~~~~~~~~~~~~~~~

Charles J. Cooper

Cooper & Kirk, PLLC

Counsel of Record

1523 New Hampshire Avenue, N.W.

Washington, DC 20036

ccooper@cooperkirk.com

Party name: Dennis Hollingsworth, et al.

Attorneys for Respondents:

Theodore B. Olson

Gibson, Dunn & Crutcher LLP

Counsel of Record

1050 Connecticut Avenue, N.W.

Washington, DC 20036

tolson@gibsondunn.com

Party name: Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo

~~Phone~~~ (202) 2209600
(202) 9558500

Therese M. Stewart

Chief Deputy City Attorney

Counsel of Record

Office of the City Attorney

Rm. 234, City Hall, 1 Dr. Carlton B. Goodlett Place

San Francisco, CA 94102

therese.stewart@sfgov.org

Party name: City and County of San Francisco

Other:

Gloria R. Allred

Allred, Maroko & Goldberg

6300 Wilshire Blvd., Suite 1500 Los Angeles, CA 90048 gallred@amglaw.com Party name: Women's Equal Rights Legal Defense and Education Fund

(415) 5544708
(323) 6536530

Helen M. Alvare Party name: Helen M. Alvare

George Mason University
School of Law 3301 Fairfax Dr. Arlington, VA 22201 halvare@gmu.edu

(703) 9939845

Arthur N. Bailey Jr.

44 Montgomery Street Suite 3400

(415)-6331908

San Francisco, CA 94104 abailey@hausfeldllp.com Party name: California Teachers Association, et al.

Nicole G. Berner

1800 Massachusetts Ave. NW

(202) 7307383

Washington, DC 20036

nicole.berner@seiu.org

Party name: American Federation of Labor and Congress of Industrial Organizations, et al.

Carmine D. Boccuzzi Jr.

Cleary, Gottlieb, Steen & Hamilton

One Liberty Plaza New York, NY 10006 cboccuzzi@cgsh.com Party name: American Sociological Association

(212) 2252000

Ruth N. Borenstein

425 Market Street

San Francisco, CA 94105 RBorenstein@mofo.com Party name: Foreign and Comparative Law Experts Harold Hongju Koh, et al.

(415) 2687000

David C. Boyle Party name: David Boyle (Merits)

P.O. Box 15143
Long Beach, CA 90815 dbo@boyleslaw.org

(734)-9046132

Gerard V. Bradley Party name: Dr. Paul McHugh (Merits)

3156 Eck Hall of Law
Notre Dame, IN 46556 gerard.v.bradley.16@nd.edu

(574)-6318385

Laura W. Brill

Kendall Brill & Klieger LLP

10100 Santa Monica Blvd. Los Angeles, CA 90067 lbrill@kbkfirm.com Party name: California Assembly Speaker John A. Perez, et al.

(310) 5562700

Frederick A. Brodie

Pillsbury Winthrop Shaw Pittman LLP 1540 Broadway

(212) 8581000

Party name: Edward D. Stein, et al.

New York, NY 10036 fab@pillsburylaw.com

Dean Robert Broyles

National Center for Law & Policy

539 West Grand Avenue Escondido, CA 92025 dbroyles@nclplaw.org Party name: Parents and Friends of Ex-Gays & gays (Merits)

(760)-7474529

Martin N. Buchanan Party name: Marriage Equality USA

Law Offices of Martin N. Buchanan
655 West Broadway, Suite 1700 San Diego, CA 92101 martin@martinbuchanan.com

(619) 2382426

Paul C. Burke Party name: Utah Pride Center, et al.

36 South State Street, Suite 1400
Salt Lake City, UT 84111 pburke@rqn.com

(801) 5321500

John J. Bursch Party name: Michigan

Michigan Solicitor General
Michigan Department of Attorney General P.O. Box 30212 Lansing, MI 48909 BurschJ@michigan.gov

(517) 3731124

Elizabeth J. Cabraser

Lieff, Cabraser, Heimann & Bernstein, LLP

(415) 9561000

275 Battery Street, 30th Floor

San Francisco, CA 94111-3339

ecabraser@lchb.com

Party name: Constitutional Law and Civil Procedure Professors Erwin Chermerinsky and Arthur Miller

Christopher Gerald Caldwell Party name: Equality California

Caldwell Leslie & Proctor, PC
725 South Figueroa St., 31st Floor Los Angeles, CA 90017 213-629-9040

(213) 6299040

Holly L. Carmichael

2635 Camino de Rio South, Suite 109

San Diego, CA 92108 holly.1.carmichael@gmail.com Party name: Concerned Wom,en for America

(408)-8381212

David C. Codell

The Williams Institute

UCLA School of Law Box 951476 Los Angeles, CA 90095-1476 david@codell.com Party name: National Women's Law Center, et al.

(310) 2674382

Teresa Stanton Collett Party name: Minnesota for Marriage

University of St. Thomas School of Law
MSL 400 1000 LaSalle Avenue Minneapolis, MN 55403-2015

(651) 9624973

Jon W. Davidson

Legal Director

(213) 3827600

Lambda Legal Defense and Education Fund, Inc.

3325 Wilshire Blvd., Ste. 1300

Los Angeles, CA 90010

jdavidson@lambdalegal.org

Party name: Lambda Legal Defense and Education Fund, Inc., et al.

Andrew J. Davis

199 Fremont Street 20th Floor

San Francisco, CA 94105 ddavis@folgerlevin.com Party name: Parents, Families and Friends of Lesbians and Gays, Inc.

(415)-6251050

Michael D. Dean

Michael D. Dean LLC

17035 W. Wisconsin Avenue Suite 100 Brookfiled, WI 53005 miked@michaeldeanllc.com Party name: Marriage Anti-Defamation Alliance

(262) 7898044

Robert A. Destro

3600 John McCormack Road, N.E.

(202) 319-

Washington, DC 20064 robertdestro@hotmail.com Party name: Catholics for the Common Good and the Marriage Law Project

Deborah Dewart

620 E. Sabiston Drive

Swansboro, NC 28584-9674 debcpalaw@earthlink.net Party name: Liberty, Life and Law Foundation, et al. (Merits)

John A. Dragseth

Fish & Richardson, P.C., P.A.

3200 RBC Plaza 60 South 6th Street Minneapolis, MN 55402 dragseth@fr.com Party name: Chris Kluwe and Brendon Ayanbadejo

William C. Duncan

Marriage Law Foundation

1868 N 800 E Lehi, UT 84043 duncanw@marriagelawfoundation.org Party name: scholars of history and related disciplines

W. Cole Durham Jr.

J. Reuben Clark Law School

452 JRCB Provo, UT 84602 durhamc@lawgate.byu.edu Party name: International Jurists and Academics (Merits)

John C. Eastman

Center for Constitutional Jurisprudence

c/o Chapman University School of Law One University Drive Orange, CA 92886 jeastman@chapman.edu Party name: Center for Constitutional Jurisprudence

Rebecca Edelson

2121 Avenue of the Stars Suite 2800
Los Angeles, CA 90067 redelson@steptoe.com

5202
(910)-3264554
(612) 3355070
(801)-3674570
(801) 4226842
(714) 6282587
(310)-7343213

Party name: National Organization for Women Foundation and the Feminist Majority Foundation

John A. Eidsmoe Party name: Foundation for Moral Law

Foundation for Moral Law
One Dexter Avenue Montgomery, AL 36104 eidsmoeja@juno.com

(334) 2621245

Michael P. Farris Party name: Patrick Henry College

Patrick Henry College
10 Patrick Henry Circle Purcellville, VA 20132 michaelfarris@phc.edu

(540) 3381776

Peter J. Ferrara

2011 Freedom Lane

Falls Church, VA 22043 peterferrara@msn.com Party name: American Civil Rights Union

(703) 5828466

Peter J. Ferrara

2011 Freedom Lane

Falls Church, VA 22043 peterferrara@msn.com Party name: American Civil Rights Union (Merits)

(703)-5828466

Thomas M. Fisher Party name: Indiana, et al.

Solicitor General
Office of the Attorney General IGC South, Fifth Floor 302 W. Washington Street Indianapolis, IN 46204 Tom.Fisher@atg.in.gov

(317) 2326255

Aderson B. Francois

Associate Professor of Law

Supervising Attorney Civil Rights Clinic Howard University School of Law 2900 Van Ness Street NW Washington, DC 20008 Afrancois@law.howard.edu Party name: Howard University School of Law Civil Rights Clinic

(202) 8068065

Jonathan S. Franklin

Fulbright & Jaworski L.L.P.

801 Pennsylvania Avenue, N.W. Washington, DC 20004-2623 jfranklin@fulbright.com Party name: Leadership Conference on Civil and Human Rights, et al.

Robert P. George

Robinson & McElwee

500 Virginia Street East Suite 600 Charleston, WV 25326 rgeorge@princeton.edu Party name: Robert P. George, et al. (Merits)

Suzanne B. Goldberg

Columbia Law School

435 West 116th Street New York, NY 10027 sgoldb1@law.columbia.edu Party name: Columbia Law School Sexuality & Gender Law Clinic, et al.

Irving L. Gornstein Party name: Walter Dellinger

Georgetown University Law Center
600 New Jersey Ave., N.W. Washington, DC 20001

Irving H. Greines

Greines, Martin, Stein & Richland LLP

5900 Wilshire Blvd., 12th Floor Los Angeles, CA 90036 igreines@gmsr.com Party name: Beverly Hills Bar Association, et al.

Herbert G. Grey Party name: David Benkof, et al.

4800 S.W. Griffth Drive, Suite 320
Beaverton, OR 97005 herb@greylaw.org

Christopher T. Handman

Hogan Lovells US LLP 555 Thirteenth Street, N.W.

(202) 6620466
(609) 2583270
(212) 8540411
(202) 6629934
(310) 8597811
(503) 6414908
(202) 6375719

Washington, DC 20004 chris.handman@hoganlovells.com Party name: Anti-Defamation League, et al.

Elizabeth L. Hileman

Hileman & Associates, P.C.

7979 Old Georgetown Rd., Suite 600 Bethesda, MD 20814 ehileman@hilemanlaw.com Party name: American Humanist Association and American Atheists, Inc., et al.

Eric Alan Isaacson

Robbins Geller Rudman & Dowd LLP

655 West Broadway, Suite 1900 San Diego, CA 92101 EricI@rgrdlaw.com Party name: California Council of Churches, et al.

Harold E. Johnson

Pacific Legal Foundation

930 G Street Sacramento, CA 95814 mlh@pacificlegal.org Party name: Pacific Legal Foundation, et al.

Lawrence J. Joseph

1250 Connecticut Ave., NW

Suite 200 Washington, DC 20036 ljoseph@larryjoseph.com Party name: Eagle Forum Education & Legal Defense Fund, Inc.

Katherine Keating

560 Mission Street, 25th Floor

San Francisco, CA 94105 katherine.keating@bryancave.com Party name: Family Equality Council, et al.

Von G. Keetch

Kirton & McConkie

60 East South Temple Salt Lake City, UT 84111 vkeetch@kmclaw.com Party name: National Association of Evangelicals, et al.

(301) 6521448
(619) 2311058
(916) 4197111
(202) 3559452
(415)-2682000
(801) 3283600

David A. Kettel Party name: Dr. Maria Nieto

Katten Muchin Rosenman LLP
2029 Century Park East Suite 2600 Los Angeles, CA 90067 david.kettel@kattenlaw.com

Gary G. Kreep

United States Justice Foundation

932 D Street, Suite 3 Ramona, CA 92065 gkreep@sbcglobal.net Party name: Declaration Alliance & United States Justice Foundation

Douglas Laycock

University of Virginia School of Law

580 Massie Road Charlottesville, VA 22903 dlaycock@virginia.edu Party name: American Jewish Committee

Charles S. Limandri

PO Box 9120

Rancho Santa Fe, CA 92067 cslimandri@limandri.com Party name: Catholic Answers, et al. (Merits)

Marjorie P. Lindblom Party name: Gary J. Gates

Kirkland & Ellis LLP
601 Lexington Avenue New York, NY 10022 marjorie.lindblom@kirkland.com

Paul Benjamin Linton

Special Counsel

Thomas More Society 921 Keystone Avenue Northbrook, IL 60062 PBLCONLAW@AOL.COM Party name: Family Research Council (Merits)

Robert A. Long Jr.

Covington & Burling LLP

(310) 7884400
(760) 7886624
(434) 2438546
(858) 7599948
(212) 4464800
(847) 2913848
(202) 6625612

Party name: Political Science Professors

1201 Pennsylvania Avenue, N.W. Washington, DC 20004 rlong@cov.com

Nelson Lund Party name: Leon R. Kass, et al.

George Mason University School of Law
3301 Fairfax Drive Arlington, VA 22201 nlund@gmu.edu

Lawrence S. Lustberg Party name: Garden State Equality

Gibbons P.C.
One Gateway Center Newark, NJ 07102 llustberg@gibbonslaw.com

Lori Alvino McGill

Latham & Watkins LLP

555 11th Street, NW Suite 1000 Washington, DC 20004 lori.alvino.mcgill@lw.com Party name: Constitutional Law Scholars Bruce Ackerman, et al.

Jonathan B. Miller Party name: Massachusetts, et al.

One Ashburton Place
Boston, MA 02108 jonathan.miller@state.ma.us

Shannon P. Minter

870 Market Street Suite 370

San Francisco, CA 94102 sminter@nclrights.org Party name: National Center for Lesbian Rights

Cleta Mitchell

Act Right Legal Foundation
2029 K Street NW Suite 300 Washington, DC 20006 cmitchell@actright.com

(703)-9938045
(973) 5964500
(202)-6372319
(617)-9632073
(415)-3926257
(202) 6839405

Party name: High Impact Leadership Coalition

Robert F. Nagel

Univ. of Colorado Law School

Kittredge Loop Campus Box 401 Boulder, CO 80309 robert.nagel@colorado.edu Party name: thirty-seven scholars of federalism and judicial restraint

(303) 4928428

Nicholas M. O'Donnell

One Post Office Square

(617)-3382814

Boston, MA 02109

nodonnell@sandw.com

Party name: GLMA: Health Professionals Advancing LGBT Equality (Gay Lesbian Medical Association) concerning the immutability of sexual orientation

William J. Olson

William J.Olson PC

370 Maple Avenue West, Suite 4 Vienna, VA 22180-5615 wjo@mindspring.com Party name: Public Advocate of the United States, et al.

(703) 3565070

Paul J. Orfanedes Party name: Judicial Watch, Inc., et al

Judicial Watch, Inc.
425 Third Street, S.W., Suite 800 Washington, DC 20024 porfanedes@judicialwatch.org

(202) 6465172

Kathleen M. O'Sullivan

1201 Third Avenue, 48th Floor

Suite 4900 Seattle, WA 98101-3099 kosullivan@perkinscoie.com Party name: William N. Eskridge Jr., et al.

(206) 3598000

Kathleen Murray O'Sullivan

Perkins Coie, LLP

1201 Third Avenue, Suite 4900 Seattle, WA 98101 kosullivan@perkinscoie.com Party name: William N. Eskridge, Jr., et al.

(206) 3598000

Abram J. Pafford

Pafford Lawrence & Childress PLLC

1776 I Street NW, Suite 900 Washington, DC 20006 apafford@fflaw.com Party name: Social Science Professors, et al. (Merits)

Margie J. Phelps

3734 SW 12th Street

Topeka, KS 66604 margie.phelps@cox.net Party name: Westboro Baptist Church in support of neither party

Anthony R. Picarello Jr.

3211 Fourth Street, N.E.

Washington, DC 20017 apicarello@usccb.org Party name: United States Conference of Catholic Bishops

Daniel J. Powell Party name: California

Deputy Attorney General
455 Golden Gate Ave., Suite 11000 San Francisco, CA 94102 daniel.powell@doj.ca.gov

Eric C. Rassbach

Beket Fund for Religious Liberty

3000 K Street, NW, Suite 220 Washington, DC 20007 erassbach@becketfund.org Party name: The Becket Fund for Religious Liberty (Merits)

William Kendal Rentz

Attorney at Law

Party name: Rev.Rick Yramategui, et al.

242 Moore Street Santa Cruz, CA 95060 william.rentz@comcast.net

Diana E. Richmond

One Embarcadero Center, 22nd Floor

San Francisco, CA 94111 drichmond@sideman.com Party name: American Academy of Matrimonial Lawyers, et al.

(202) 7564886
(785) 4084598
(202) 5413300
(415)-7035830
(202) 3497214
(831) 4718199
(415)-3921960

Sanford Jay Rosen

Rosen Bien & Galvan LLP

315 Montgomery Street 10th Floor San Francisco, CA 94104-1823 SRosen@rbgg.com Party name: Survivors of Sexual Orientation Change Therapies

E. Joshua Rosenkranz Party name: American Companies

Orrick, Herrington & Sutcliffe LLP
51 West 52nd Street New York, NY 10019-6142 jrosenkranz@orrick.com

Jerome C. Roth

560 Mission Street, 27th Fl.

San Francisco, CA 94105 jerome.roth@mto.com Party name: Bay Area Lawyers for Individual Freedom, et al.

Ethan P. Schulman

Crowell & Moring LLP

275 Battery Street, 23rd Floor San Francisco, CA 94111 eschulman@crowell.com Party name: Hon. Judith S. Kaye (Ret.), et al.

Sean M. SeLegue

Arnold & Porter LLP

3 Embarcadero Center, 10th Floor San Francisco, CA 94111 sean.selegue@aporter.com Party name: California Professors of Family Law

Tejinder Singh

Goldstein & Russell, P.C.

5225 Wisconsin Ave. NW, #404 Washington, DC 20003 tsingh@goldsteinrussell.com Party name: International Human Rights Advocates

Paul M. Smith

Jenner & Block LLP

(415) 4336830
(212) 5065380
(415) 5124000
(415) 9862800
(415) 4713100
(202)-3620636
(202) 6396000

1099 New York Avenue, N.W., Suite 900 Washington, DC 20001 psmith@jenner.com Party name: American Psychological Association, et al.

Kevin T. Snider

Pacific Justice Institute

P.O. Box 276600 Sacramento CA, CA 95827 kevinsnider@pacificjustice.org Party name: Professor Daniel N. Robinson, Ph.D.

(918) 8576900

Mathew D. Staver

Liberty Counsel

1055 Maitland Center Commons Second Floor Maitland, FL 32751 court@lc.org Party name: Liberty Counsel, Inc. and Campaign for Children

(800) 6711776

Catherine E. Stetson

Hogan Lovells US LLP

555 Thirteenth Street, N.W. Washington, DC 20004 cate.stetson@hoganlovells.com Party name: Organization of American Historians and the American Studies Association

(202) 6375491

Monte Neil Stewart

Belnap Stewart Taylor & Morris, PLLC

12500 W. Explorer Drive Suite 100 Boise, ID 83713 stewart@belnaplaw.com Party name: Coalition for the Protection of Marriage (Merits)

(208) 3453333

Jon B. Streeter

Keker & Van Nest LLP

710 Sansome Street San Francisco, CA 94111 jstreeter@kvn.com Party name: Southern Poverty Law Center

(415) 3915400

Michael F. Sturley

727 East Dean Keeton Street Austin, TX 78705

(512) 2321350

msturley@law.utexas.edu Party name: Adoptive and Child Welfare Advocates

Richard Thompson

Thomas More Law Center

Suite J 3200 24 Frank Lloyd Wright Drive Ann Arbor, MI 48106 rthompson@thomasmore.org Party name: Thomas More Law Center and Chuck Storey, Imperial County Clerk (Merits)

(734) 8272001

Jeffrey S. Trachtman

Kramer Levin Naftalis & Frankel, LLP

1177 Avenue of the Americas New York, NY 10036 jtrachtman@kramerlevin.com Party name: Bishops of the Episcopal Church in the State of California, et al.

(212) 7159100

Donald B. Verrilli Jr. Party name: the United States

Solicitor General
United States Department of Justice 950 Pennsylvania Avenue, N.W. Washington, DC 20530-0001 SupremeCtBriefs@USDOJ.gov

(202) 5142217

Kristen Kellie Waggoner

Ellis, Li & McKinstry PLLC

2025 1st Avenue, PH-A Seattle, WA 98121-3125 kwaggoner@elmlaw.com Party name: Matthew B. O'Brien (Merits)

(206) 6820565

Jonathan D. Wallace

4011 23rd Avenue, #3F

Astoria, NY 11105 jonathan.wallace Party name: Jonathan Wallace, Meri Wallace, and Duncan Pflaster

(917) 3596234

Lynn Dennis Wardle

J.Reuben Clark Law School

Room 518 Provo, UT 84602 wardlel@law.byu.edu Party name: Coalition of African American Pastors USA, et al.

(801) 4222617

Seth P. Waxman

Wilmer Cutler Pickering Hale and Dorr LLP

Party name: Kenneth B. Mehlman, et al.

1875 Pennsylvania Avenue, N.W. Washington, DC 20006 seth.waxman@wilmerhale.com

(202) 6636000

George M. Weaver Party name: Lighted Candle Society

Hollberg & Weaver, LLP
2921 Piedmont Road, N. E. Suite C Atlanta, GA 30305 gweaver@hw-law.com

(404) 7601116

M. Edward Whelan

Ethics and Public Policy Center

1730 M Street, N.W., Suite 910 Washington, DC 20036 ewhelan@eppc.org Party name: Ethics and Public Policy Center

(202) 6821200

Sonya D. Winner

Covington & Burling LLP

One Front Street San Francisco, CA 94111 Party name: American Anthropological Association, et al.

(415) 5916000

Elizabeth B. Wydra
	  

Constitutional Accountability Center
1200 18th St., N.W., Suite 501 Washington, DC 20036 elizabeth@theusconstitution.org

(202) 2966889

 
 No. 12-144

IN THE
Supreme Court of the United States _________
DENNIS HOLLINGSWORTH, et al.,
Petitioners, v.
KRISTIN M. PERRY, et al.,
Respondents. _________
On Writ of Certiorari to the United States Court of Appeals
for the Ninth Circuit _________
BRIEF FOR AMICI CURIAE LEADERSHIP CONFERENCE ON CIVIL AND HUMAN RIGHTS, BAR ASSOCIATIONS AND
PUBLIC INTEREST AND LEGAL SERVICE ORGANIZATIONS IN SUPPORT OF RESPONDENTS _________

ANNE M. RODGERS

JONATHAN S. FRANKLIN*

LAUREN MILLER ETLINGER

FULBRIGHT & JAWORSKI L.L.P.

TRAVIS A. TORRENCE

801 Pennsylvania Ave., N.W.

TARA TUNE

Washington, D.C. 20004

ELIOT FIELDING TURNER

(202) 662-0466

JAMIE WHITNEY

jfranklin@fulbright.com

GERALDINE W. YOUNG

FULBRIGHT & JAWORSKI L.L.P. LISA BORNSTEIN

1301 McKinney

THE LEADERSHIP CONFERENCE

Suite 5100

ON CIVIL AND HUMAN RIGHTS

Houston, TX 77010

1629 K Street, N.W., 10th Fl.

(713) 651-5151

Washington, D.C. 20006

(202) 466-3311

* Counsel of Record

Counsel for Amici Curiae

TABLE OF CONTENTS Page
TABLE OF AUTHORITIES...................................... ii INTEREST OF AMICI CURIAE ...............................1 SUMMARY OF THE ARGUMENT ...........................3 ARGUMENT ..............................................................6
I. LAWRENCE REMOVED ANY PERCEIVED IMPEDIMENT TO THE RECOGNITION OF HEIGHTENED SCRUTINY FOR SEXUAL ORIENTATION CLASSIFICATIONS............6
II. SEXUAL ORIENTATION CLASSIFICATIONS WARRANT HEIGHTENED SCRUTINY ...........................9 A. Sexual Orientation Classifications Raise The Same Concerns As Other Classifications Accorded Heightened Scrutiny ......................................................9 B. Gay People Have Suffered A Long History Of Prejudicial Discrimination .......................................... 14 C. Sexual Orientation Bears No Relation To A Person’s Ability To Perform In Or Contribute To Society ......19 D. Sexual Orientation Is A Distinguishing Characteristic That Defines A Discrete Group ........................22 E. Gay People Remain Disadvantaged In The Political Arena..............................24
CONCLUSION .........................................................29 APPENDIX
(i)

ii TABLE OF AUTHORITIES

Page(s)

CASES:
Able v. United States, 968 F. Supp. 850 (E.D.N.Y. 1997) ................................................. 18
Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989) ............................................... 8, 15
Bowen v. Gilliard, 483 U.S. 587 (1987) ........ 13, 22
Bowers v. Hardwick, 478 U.S. 186 (1986) ..........................................................passim
Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of Law v. Martinez, 130 S. Ct. 2971 (2010)........................................................... 18, 22
Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006)............................. 21
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)....................................passim
City of New Orleans v. Dukes, 427 U.S. 297 (1976).......................................................... 10
Clark v. Jeter, 486 U.S. 456 (1988) ..................... 10
Conaway v. Deane, 932 A.2d 571 (Md. 2007) .................................................................. 16
Cook v. Gates, 528 F.3d 42 (1st Cir. 2008) .................................................................... 8
Craig v. Boren, 429 U.S. 190 (1976).................... 27
Equal. Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 54 F.3d 261 (6th Cir. 1995)....................................................... 7, 20

iii TABLE OF AUTHORITIES—Continued
Page(s)
Equal. Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 860 F. Supp. 417 (S.D. Ohio 1994) ................................................ 20
Frontiero v. Richardson, 411 U.S. 667 (1973) ..........................................................passim
Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012)........passim
High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) .................................................................... 8
High Tech Gays v. Def. Indus. Sec. Clearance Office, 909 F.2d 375 (9th Cir. 1990) .................................................................... 8
In re Marriage Cases, 183 P.3d 384 (Cal. 2008) .................................................................. 23
Jantz v. Muci, 759 F. Supp. 1543 (D. Kan. 1991) ......................................................... 20
Jantz v. Muci, 976 F.2d 623 (10th Cir. 1992) .................................................................... 7
Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407 (Conn. 2008) ........................passim
Lawrence v. Texas, 539 U.S. 558 (2003) ......passim
Locke v. Davey, 540 U.S. 712 (2004) ................... 10
Lofton v. Sec’y of the Dep’t of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004) .................................................................... 8
Lyng v. Castillo, 477 U.S. 635 (1986) ........... 11, 13
Mass. Bd. of Ret. v. Murgia, 427 U.S. 307 (1976)....................................passim
Matthews v. Lucas, 427 U.S. 495 (1976)....... 11, 12

iv TABLE OF AUTHORITIES—Continued
Page(s)
Mills v. Habluetzel, 456 U.S. 91 (1982) .............. 11
Nyquist v. Mauclet, 432 U.S. 1 (1977) ................ 13
Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987) .................................................................... 8
Palmore v. Sidoti, 466 U.S. 429 (1984) ............... 19
Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294 (D. Conn. 2012) ........passim
Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010)........passim
Plyler v. Doe, 457 U.S. 202 (1982)................. 10, 23
Price-Cornelison v. Brooks, 524 F.3d 1103 (10th Cir. 2008) .......................................... 8
Richenberg v. Perry, 97 F.3d 256 (8th Cir. 1996)............................................................. 7
Romer v. Evans, 517 U.S. 620 (1996).................. 10
Rowland v. Mad River Local Sch. Dist., 470 U.S. 1009 (1985)..................................... 7, 15
San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) .....................passim
Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250 (6th Cir. 2006) ................... 8
Snetsinger v. Montana Univ. Sys., 104 P.3d 445 (Mont. 2004)................................ 12
Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994) .................................................................. 20
Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) ..................................................... 7
United States v. Virginia, 518 U.S. 515 (1996).................................................... 11, 15

v TABLE OF AUTHORITIES—Continued
Page(s)
Watkins v. U.S. Army, 875 F.2d 699 (9th Cir. 1989)............. 8, 13, 20, 23
Witt v. U.S. Dep’t of Air Force, 527 F.3d 806 (9th Cir. 2008)............................... 8
Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989) ........................... 8
OTHER AUTHORITIES:
American Psychological Association, Sexual Orientation and Homosexuality ........... 24
John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 162 (1980)....... 7, 13
Douglas Haldeman, The Practice and Ethics of Sexual Orientation Conversion Therapy, 62 J. Consulting & Clinical Psychol. 221 (1994) ......................... 24
Jerome Hunt, Why the Gay and Transgender Population Experiences Higher Rates of Substance Abuse, Center for American Progress (Mar. 9, 2012) ................... 26
Dan Levine, Obama Nominates Openly Gay Lawyer For Patent Appeals Court (Feb. 7, 2013)..................................................... 25
Katie Miller and Jeff Krehely, New Data Demonstrates Unique Needs of Gay and Transgender Families (Oct. 31, 2012) ............. 26
Nat’l Ctr. for Health Statistics, Sexual Behavior, Sexual Attraction, and Sexual Identity in the United States: Data From the 2006–2008 National Survey of Family Growth.................................. 24

vi TABLE OF AUTHORITIES—Continued
Page(s)
Note, The Constitutional Status of Sexual Orientation: Homosexuality as a Suspect Classification, 98 Harv. L. Rev. 1285 (1985).......................................................... 7
Policy Concerning Homosexuality in the Armed Forces: Hearings Before the Sen. Comm. on Armed Servs., S. Hrg. No. 103-845, 103rd Cong., 2d Sess. (1993) ............. 18
Kenneth D. Wald, “The Context of Gay Politics,” in The Politics of Gay Rights (C. Rimmerman, K. Wald & C. Wilcox eds., 2000) ......................................................... 26

IN THE
Supreme Court of the United States _________
No. 12-144 _________
DENNIS HOLLINGSWORTH, et al.,
Petitioners, v.
KRISTIN M. PERRY, et al.,
Respondents. _________
On Writ of Certiorari to the United States Court of Appeals
for the Ninth Circuit _________
BRIEF FOR AMICI CURIAE LEADERSHIP CONFERENCE ON CIVIL AND HUMAN RIGHTS, BAR ASSOCIATIONS AND
PUBLIC INTEREST AND LEGAL SERVICE ORGANIZATIONS IN SUPPORT OF RESPONDENTS _________
INTEREST OF AMICI CURIAE Amici are a coalition of bar associations, civil and human rights groups, and public interest and legal service organizations committed to preventing, combating, and redressing discrimination, and protecting the equal rights of women and minorities in the United States, including African-Americans, Latinos, Asian Americans and Pacific Islanders, and

2
lesbian, gay, bisexual, and transgender people. 1 Amici have a vital interest in ensuring that the Constitution’s guarantee of equal protection effectively protects all people from invidious discrimination and have filed this brief to address an issue of overriding importance in this case: the proper standard for reviewing governmental action that discriminates on the basis of sexual orientation. Amici urge the Court to hold that classifications based on sexual orientation are subject to heightened scrutiny, so that governments cannot use invented, after-the-fact rationalizations to mask and justify discrimination based on prejudice, antipathy, or baseless stereotypes. Discrimination based on sexual orientation bears the same essential hallmarks as other kinds of discrimination that have long received heightened scrutiny, and it should be treated no differently under the law.
Amici include the following organizations: The Leadership Conference on Civil and Human Rights, 9to5, American Association of University Women, American Civil Liberties Union, API EqualityNorthern California, Asian American Institute, Asian American Justice Center, Asian & Pacific Islander American Health Forum, the Asian Law Caucus, the Boston Bar Association, the Center for American Progress, the Charles Houston Bar Association, Chinese for Affirmative Action, the Connecticut Women’s Education and Legal Fund, the
1 No counsel for a party authored this brief in whole or in part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than the amici curiae or their counsel made a monetary contribution to its preparation or submission. The parties have consented to the filing of this brief.

3
Courage Campaign, Empire Justice Center, Empire State Pride Agenda, Equal Rights Washington, EqualityMaine, Equality Maryland, Hispanic National Bar Association, Human Rights Campaign, Japanese American Citizens League, League of United Latin American Citizens, Legal Aid Society, the Lesbian, Gay, Bisexual & Transgender Community Center in New York City, LGBT Bar Association of Greater New York, Massachusetts LGBTQ Bar Association, MassEquality, Mattachine Society of Washington, D.C., Mexican American Legal Defense and Educational Fund, National Association for the Advancement of Colored People, NAACP Legal Defense and Educational Fund, National Action Network, National Black Justice Coalition, National Council of La Raza, National Gay and Lesbian Task Force Foundation, National LGBT Bar Association, National Organization for Women Foundation, New York Legal Assistance Group, New York State Bar Association, OCA – Asian Pacific American Advocates, One Iowa, Out & Equal Workplace Advocates, Permanent Commission on the Status of Women, Public Advocates Inc., Rainbow PUSH Coalition, Secular Woman, South Asian Bar Association of Connecticut, Vermont Freedom to Marry Task Force, and the Women’s Bar Association of the State of New York. Descriptions of the amici are set forth in the Appendix to this brief.
SUMMARY OF THE ARGUMENT
For years, lower courts erroneously declined to accord heightened scrutiny to sexual orientation classifications based on this Court’s decision in Bowers v. Hardwick, 478 U.S. 186 (1986), reasoning that if it were permissible to criminalize the conduct that was viewed as defining the class, distinctions

4
based on sexual orientation could not be presumptively illegitimate. Now that the Court has overruled Bowers, however, any perceived impediment to the application of heightened scrutiny has been removed. To determine whether to afford heightened scrutiny in this case, the Court should look to the settled criteria it has long applied to its equal protection jurisprudence.
Using those criteria, the Court has always afforded heightened scrutiny to discrimination against groups, like gay people,2 that have experienced a history of purposeful discrimination based on a factor that bears no relation to their ability to perform in or contribute to society. The Court has sometimes considered other factors in its determination of the correct level of scrutiny, such as the immutability or distinctiveness of a characteristic or the relative political power of a disfavored group. But it has never employed those factors to deny heightened scrutiny to laws burdening a group that has historically faced discrimination unrelated to the ability to contribute to society. Rather, in those circumstances the Court presumes the unequal treatment is based on deep-seated prejudice or baseless stereotypes and requires a more searching review of the actual grounds for the discrimination to prevent governments from justifying it with post hoc rationales.
Under these criteria, there is little question that sexual orientation classifications warrant heightened scrutiny. Gay people have experienced a long and painful history of deliberate discrimination and this
2 As used in this brief, the term gay people includes gay men, lesbians, and bisexual people.

5
discrimination is based on a factor unrelated to their ability to perform in or contribute to society. Indeed, this discrimination is particularly deep-seated and hostile because it has historically been based on deeply-felt moral views. Particularly after Lawrence v. Texas, 539 U.S. 558 (2003), private moral judgments cannot be employed to justify public governmental discrimination based on sexual orientation.
Moreover, although considerations of immutability or relative political power should not be determinative here, those considerations also support a finding of heightened scrutiny. As with other classifications that have been held to warrant such scrutiny, sexual orientation is a distinctive characteristic that remains a target of prejudicial discrimination, both public and private. Even if sexual orientation were theoretically subject to voluntary change—and the overwhelming weight of scientific evidence is to the contrary—it is a central aspect of a person’s identity, just as heterosexuality is, that one should not be required to change in order to avoid discrimination. Finally, to the extent a calculation of political power has any place in the heightened scrutiny analysis, gay people remain a small and underrepresented minority who continue to face an uphill struggle in the political process.
For all these reasons, amici urge the Court to hold that sexual orientation classifications are subject to heightened scrutiny. Moreover, even though the law at issue also fails rational basis scrutiny, amici urge the Court to require heightened scrutiny because of the important deterrent effect that such a holding provides, by making clear to governmental decisionmakers that sexual orientation discrim-

6
ination cannot continue absent a convincing justification. A decision that leaves the appropriate standard of scrutiny unresolved will potentially subject gay people to continued discrimination until the Court has the opportunity to address the issue again. By holding that classifications based on sexual orientation are presumptively invalid, the Court will help ensure that such distinctions will no longer form the basis for governmental discrimination.
ARGUMENT
I. LAWRENCE REMOVED ANY PERCEIVED IMPEDIMENT TO THE RECOGNITION OF HEIGHTENED SCRUTINY FOR SEXUAL ORIENTATION CLASSIFICATIONS.
According heightened scrutiny to governmental discrimination based on sexual orientation requires no departure from existing law. To the contrary, such a holding requires only the application of longsettled precedent, because discrimination against gay people bears the same features that earlier led to heightened scrutiny of other classifications such as those based on sex or race. This application of heightened scrutiny would likely have occurred long ago if it had not been for the Court’s erroneous decision in Bowers. Now that Bowers has been overruled, the way has been cleared for the Court to confirm that discrimination against gay people is presumptively illegitimate.
For nearly two decades Bowers was “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” Lawrence, 539 U.S. at 575. Unfortunately, but not surprisingly, lower courts also accepted the invitation. Even

7
though Bowers was decided on due process grounds, courts relied on that decision to bypass the Court’s traditional equal protection analysis in refusing to apply heightened scrutiny for classifications based on sexual orientation.
Before Bowers, the Court developed clear principles for determining whether discriminatory classifications warrant heightened scrutiny. Those principles considered whether the impacted group faced a long history of discrimination based on a characteristic that typically bears no relation to an individual’s ability to contribute to society. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440-41 (1985). Under this framework, both members of this Court as well as scholars concluded that sexual orientation classifications warranted heightened scrutiny.3
Then came Bowers, which upheld, under the Due Process Clause, a state law that criminalized socalled “homosexual sodomy.” Bowers, 478 U.S. at 191. Thereafter, circuit courts began summarily rejecting heightened scrutiny for sexual orientation classifications with no analysis of the factors recognized in Cleburne and other cases. 4 Their
3 See, e.g., Rowland v. Mad River Local Sch. Dist., 470 U.S. 1009, 1014 (1985) (Brennan, J., dissenting from denial of certiorari) (state action based on sexual orientation should be “subjected to strict, or at least heightened, scrutiny”); John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 162-64 (1980); Note, The Constitutional Status of Sexual Orientation: Homosexuality as a Suspect Classification, 98 Harv. L. Rev. 1285 (1985).
4 See, e.g., Richenberg v. Perry, 97 F.3d 256, 260 (8th Cir. 1996); Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir. 1996) (en banc); Equal. Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 54 F.3d 261, 267-68 (6th Cir. 1995), vacated and remanded 518 U.S. 1001 (1996); Jantz v. Muci, 976 F.2d 623

8
reasoning relied, instead, on the mere existence of Bowers: if the Constitution went so far as to permit the criminalization of “behavior that defines the class,” Padula, 822 F.2d at 103, then the Constitution—whether under the Due Process or Equal Protection clause—must likewise permit discrimination against the class.
With the invalidation of Bowers in 2003, however, this line of reasoning collapses. In Lawrence, the Court overruled Bowers and denounced that decision as incorrect when it was decided. 539 U.S. at 578. In doing so, the Court removed the barriers erroneously erected by Bowers, clearing the path for a return to the long-standing principles of equal protection jurisprudence. By confirming that there is constitutional protection for the “full right to engage” in the behavior that courts perceived as defining the class, Lawrence eliminated Bowers as a basis for denying heightened scrutiny for sexual orientation classifications. Id.5 While courts had interpreted
(10th Cir. 1992); High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989); Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987). There were dissenting voices, see, e.g., Watkins v. U.S. Army, 875 F.2d 699, 724-28 (9th Cir. 1989) (en banc) (Norris, J., concurring in the judgment); High Tech Gays v. Def. Indus. Sec. Clearance Office, 909 F.2d 375, 378 (9th Cir. 1990) (Canby, J., dissenting from denial of reh’g en banc), but they did not prevail over the invocations of Bowers.
5 After Lawrence, circuit courts continued to deny heightened scrutiny by following pre-Lawrence precedents. See, e.g., Witt v. U.S. Dep’t of Air Force, 527 F.3d 806, 821 (9th Cir. 2008); PriceCornelison v. Brooks, 524 F.3d 1103, 1114 n.9 (10th Cir. 2008); Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 261 (6th Cir. 2006); Lofton v. Sec’y of the Dep’t of Children & Family Servs., 358 F.3d 804, 818 (11th Cir. 2004); see also Cook v.

9
Bowers to foreclose heightened scrutiny for the class, Lawrence acknowledged that “equality of treatment” and the due process right to engage in the protected conduct were “linked in important respects” and that a tenable argument existed for invalidating the statute at issue under the Equal Protection Clause. Id. at 574-575.
After Lawrence, Bowers can no longer be relied on to create a barrier to heightened scrutiny for sexual orientation classifications. Instead, heightened scrutiny is warranted based on the same factors that have led to the recognition that other classifications merit careful review under the Equal Protection Clause. Amici urge this Court to expressly affirm that heightened scrutiny is the proper standard and thereby make clear to both governments and lower courts that such discrimination cannot be sustained unless the government can demonstrate at least a significant justification.
II. SEXUAL ORIENTATION CLASSIFICATIONS WARRANT HEIGHTENED SCRUTINY.
A. Sexual Orientation Classifications Raise The Same Concerns As Other Classifications Accorded Heightened Scrutiny.
The Court accords heightened scrutiny when a discriminatory classification is based on a factor that is “so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy—a view that those in the burdened class
Gates, 528 F.3d 42, 61 (1st Cir. 2008) (mistakenly relying on Romer v. Evans as holding that rational basis review is always required).

10
are not as worthy or deserving as others,” or that “generally provides no sensible ground for differential treatment.” City of Cleburne, 473 U.S. at 440-41. Where a discriminatory classification is “more likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective,” laws “predicated on such prejudice [are] easily recognized as incompatible with the constitutional understanding that each person is to be judged individually and is entitled to equal justice under the law.” Plyler v. Doe, 457 U.S. 202, 216 n.14 (1982).
Rational basis review is inappropriate where a law targets a historically disfavored group based on a characteristic that has no bearing on an individual’s ability to contribute to society. In these circumstances, the ordinary presumption of constitutionality gives way and it is not enough to sustain discrimination for lawyers to come up with a post hoc rational basis. Rather, for such discrimination the Court requires a greater justification, to ensure that discrimination based on deep-seated historical prejudice or baseless stereotypes is not masked by makeweight, post hoc rationales.
To date, the Court has recognized that heightened scrutiny is warranted when governments discriminate based on race, sex, illegitimacy, alienage, and national origin. See Romer v. Evans, 517 U.S. 620, 629 (1996); Clark v. Jeter, 486 U.S. 456, 461 (1988); City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976).6 On the other hand, it has declined such
6 Classifications based on religion also warrant heightened scrutiny, but this standard of review is separately justified by the Free Exercise Clause of the First Amendment. See, e.g., Locke v. Davey, 540 U.S. 712, 720 n.3 (2004).

11
scrutiny for classifications based on mental disability, age, wealth, or close family relationship. See Lyng v. Castillo, 477 U.S. 635 (1986); City of Cleburne, 473 U.S. at 443; Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313 (1976); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973).
While the Court has looked at several factors in determining whether a classification warrants heightened scrutiny, it has always accorded such scrutiny when two factors are present: (1) the disfavored group has faced a history of discrimination that is (2) based on a characteristic that does not bear upon a person’s ability to contribute to society. See Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407, 426 (Conn. 2008) (discussing precedents).
Every group the Court has found to be a protected class has suffered a history of discrimination akin to that suffered by gay people. As with racial and national origin discrimination, according heightened scrutiny to sex discrimination “responds to volumes of history.” United States v. Virginia, 518 U.S. 515, 531 (1996). Similarly, although “discrimination against illegitimates has never approached the severity or pervasiveness of the historic legal and political discrimination against women and [AfricanAmericans],” Matthews v. Lucas, 427 U.S. 495, 506 (1976), the historical burdens of unwed mothers and illegitimate children, including the “disapproval of family and community,” were still found to justify heightened scrutiny. Mills v. Habluetzel, 456 U.S. 91, 99-100 (1982) (O’Connor, J., concurring).
In contrast, the Court has declined to apply heightened scrutiny to classifications based on wealth because, among other things, the less well-off

12
constitute a “large, diverse, and amorphous class” that has not had a “history of purposeful unequal treatment.” Rodriguez, 411 U.S. at 28. The Court has applied a similar analysis to the aged. Murgia, 427 U.S. at 313.
Moreover, classifications subject to strict scrutiny, such as race, national origin, and alienage, are deemed suspect because these traits are “seldom relevant to the achievement of any legitimate state interest.” City of Cleburne, 473 U.S. at 440. Similarly, classifications based on sex and illegitimacy warrant heightened scrutiny because these characteristics typically bear no relation to an individual’s ability to participate in and contribute to society. Frontiero v. Richardson, 411 U.S. 667, 686 (1973) (plurality); Matthews, 427 U.S. at 505.
In analyzing whether a classification warrants heightened scrutiny, the Court has sometimes remarked on other factors, including the relative immutability of a characteristic or the political power of the disfavored group. See, e.g., Frontiero, 411 U.S. at 678 (plurality); City of Cleburne, 473 U.S. at 440. But it has never denied heightened scrutiny where— as with sexual orientation classifications—the disfavored group has experienced a painful history of discrimination based on deep-seated prejudice unrelated to its ability to contribute to society. Indeed, “[t]he irrational nature of the prejudice directed at gay persons, who ‘are ridiculed, ostracized, despised, demonized, and condemned’ merely for being who they are is entirely different in kind than the prejudice suffered by other groups that previously have been denied suspect or quasi-suspect class status.” Kerrigan, 957 A.2d at 446 (quoting Snetsinger v. Montana Univ. Sys., 104 P.3d 445, 454

13
(Mont. 2004) (Nelson, J., concurring)) (internal quotation marks omitted).
With regard to a characteristic’s “immutability,” the Court has employed that term only occasionally, and only in the context of examining whether the victims of discrimination “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group.” Lyng, 477 U.S. at 638 (emphasis added); accord Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987). As the disjunctive phrasing shows, this factor, to the extent relevant, simply looks to whether the class shares distinguishing features, not whether those features are always permanent or obvious at birth. Thus, the Court has expressly rejected the proposition that alienage classifications should not be subject to strict scrutiny because “a resident alien can voluntarily withdraw from disfavored status.” Nyquist v. Mauclet, 432 U.S. 1, 9 n.11 (1977); see also City of Cleburne, 473 U.S. at 442 n.10 (“‘[T]here’s not much left of the immutability theory, is there?’”) (quoting John Hart Ely, Democracy and Distrust 150 (1980)). Indeed, while some individuals do change their sex, it has never been suggested that this fact would have any bearing on the application of heightened scrutiny to sexbased classifications. Watkins, 875 F.2d at 726 (Norris, J., concurring).
Likewise, despite a few references in the Court’s jurisprudence to whether a disfavored group lacked political power, that has never been a dispositive factor in denying heightened scrutiny where there has been historical discrimination based on a factor irrelevant to societal contributions. The Frontiero plurality expressly acknowledged that “when viewed in the abstract, women do not constitute a small and

14
powerless minority,” 411 U.S. at 686 n.17, but nevertheless determined that sex-based classifications demanded heightened scrutiny given the long history of discrimination based on a characteristic that bears little or no relationship to an individual’s ability to contribute to society.
Thus, heightened scrutiny continues to apply to sex-based classifications, even though women have always outnumbered men and are an increasingly powerful political demographic. See City of Cleburne, 473 U.S. at 472 n.24 (Marshall, J., concurring and dissenting) (“The ‘political powerlessness’ of a group may be relevant, but that factor is neither necessary, as the gender cases demonstrate, nor sufficient, as the example of minors illustrates.”); Kerrigan, 957 A.2d at 452-53. Nor can the decision to employ heightened scrutiny for a classification depend on unprovable and continually changing calculations about whether a particular group has a degree of political power deemed sufficient to protect itself in all legislative fora.
As explained below, all the factors considered in the Court’s precedents warrant heightened scrutiny for sexual orientation classifications. But it is sufficient that gay people have experienced a painful history of prejudicial discrimination based on a factor that bears no relation to their ability to contribute to society. Such discrimination is presumptively illegitimate and therefore requires more than post hoc rationalizations to justify it.
B. Gay People Have Suffered A Long History Of Prejudicial Discrimination.
As noted, this Court has applied heightened scrutiny when a group has experienced a “history of

15
purposeful unequal treatment or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities.” Murgia, 427 U.S. at 313 (internal quotation marks omitted); see also Virginia, 518 U.S. at 531-32 (“[O]ur Nation has had a long and unfortunate history of sex discrimination * * * ”) (quoting Frontiero, 411 U.S. at 684) (internal quotation marks omitted). Sexual orientation discrimination plainly fits this description.
The long history of discrimination against gay people is incontestable. Many courts have acknowledged the reprehensible history of purposeful discrimination by state and local governments in areas such as public employment; denial of child custody and visitation rights; denial of the ability to associate freely; and legislative efforts including local initiatives to repeal laws that protect gay people from discrimination.7 Simply put, it is beyond reasonable dispute—and not seriously disputed in this case—that “gay persons historically have been, and continue to be, the target of purposeful and
7 See, e.g., Ben-Shalom, 881 F.2d at 465-66 (“Homosexuals have suffered a history of discrimination and still do.”); Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294, 317 (D. Conn. 2012) (“[H]omosexuals have suffered a long history of invidious discrimination.”); Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 985 (N.D. Cal. 2012) (“There is no dispute in the record that lesbians and gay men have experienced a long history of discrimination.”); see also Rowland, 470 U.S. at 1014 (1985) (Brennan, J., dissenting from denial of certiorari) (“[H]omosexuals have historically been the object of pernicious and sustained hostility, and it is fair to say that discrimination against homosexuals is likely to reflect deep-seated prejudice rather than * * * rationality.”) (internal quotation marks omitted).

16

pernicious discrimination due solely to their sexual orientation.” Kerrigan, 957 A.2d at 434.

The instances of such discrimination are too

numerous and widespread to catalogue here. But

the actions of the federal government alone illustrate

the degree to which that discrimination was based on

antipathy and prejudice. As shown in the record

before this Court, gay people were long barred from

federal employment because it was believed that

“efficiency” would be disrupted by the “revulsion of

other employees by homosexual conduct;” that other

employees would fear “homosexual advances,

solicitations or assaults;” that there would be

“unavoidable subjection of the sexual deviate to

erotic stimulation through on-the-job use of the

common toilet, shower, and living facilities;” that it

would be an “offense to members of the public who

are required to deal with a known or admitted sexual

deviate to transact Government business;” and that

“the prestige and authority of a Government position

will be used to foster homosexual activity,

particularly among the youth.”

Perry v.

Schwarzenegger, 704 F. Supp. 2d 921, 981-82 (N.D.

Cal. 2010) (citations and quotations omitted).

It was also believed that “the presence of a sex pervert”—at that time a common term for gay people—in a government agency “tends to have a corrosive influence on his fellow employees” because “[t]hese perverts will frequently attempt to entice normal individuals to engage in perverted practices. * * * One homosexual can pollute a Government office.” Id. at 983-84 (quoting Employment of Homosexuals and Other Sex Perverts in Government, S. Rep. No. 81-241, 81st Congress, 2d Sess. 4 (1950)); see also Conaway v. Deane, 932 A.2d

17
571, 610 (Md. 2007) (government sought to justify ban on employment on the view that gay people “lack[ed] the emotional stability of normal persons”) (citation omitted). Gay welfare organizations were similarly denied federal tax exemptions on the view they promoted “perverted or deviate behavior” that is “contrary to public policy and [is] therefore, not ‘charitable.’” Perry, 704 F. Supp. 2d at 981. And much historical animus against gay people was based on the view that they were inevitably or predominately child molesters. See, e.g., id. at 984 (quoting 1949 statement by Special California Assistant Attorney General that “[a]ll too often we lose sight of the fact that the homosexual is an inveterate seducer of the young of both sexes * * * and is ever seeking for younger victims.”).
Nor is this discrimination a recent innovation. Despite some attempts to portray discrimination based on sexual orientation as merely a 20th century phenomenon—a sordid record that itself would warrant heightened scrutiny—such discrimination has far deeper roots. Discrimination against and social disapproval of, same-sex sexual intimacy have existed in America since the time of the first settlers. Joint Appendix at 345-48, United States v. Windsor, No. 12-307 (“Windsor J.A.). These attitudes were reflected in colonial and state criminal prohibitions targeting same-sex sexual conduct. Pedersen, 881 F. Supp. 2d at 314. When individuals started to identify as gay from the late 19th century onward, that long-existing social stigma was transformed into discrimination against gay people as a class. Id. Therefore, “the affirmative legislation of anti-gay policing that arose in the twentieth century was not

18
reflective of an absence of prior discrimination or the emergence of a new form of discrimination.” Id.8
Moreover, homosexuality was long viewed as a psychological disorder. See Golinski, 824 F. Supp. 2d at 986; Perry, 704 F. Supp. 2d at 967. Until the 1970s, the United States military “treated homosexuals as unfit for service because they had a ‘personality disorder’ or a ‘mental illness.’” Able, 968 F. Supp. at 855 (citing Policy Concerning Homosexuality in the Armed Forces: Hearings Before the Sen. Comm. on Armed Servs., S. Hrg. No. 103845, 103rd Cong., 2d Sess. (1993)).
Thus, “for centuries there have been powerful voices to condemn homosexual conduct as immoral” and the criminalization of that conduct “demean[ed] the lives of homosexual persons.” Lawrence, 539 U.S. at 571, 575. And as noted, the Court has made clear that when homosexual conduct is criminalized “that declaration in and of itself is an invitation to subject homosexual persons to discrimination.” Id. at 575. Discriminating against conduct closely associated with the class is functionally the same as discriminating against the class itself.9
8 See also Able v. United States, 968 F. Supp. 850, 854 (E.D.N.Y. 1997) (noting that the “‘earliest and most drastic legislation against gay people enacted by any government of the High Middle Ages’ were laws passed by the European conquerors of Jerusalem imposing death by burning on homosexual men”) (quoting John Boswell, Christianity, Social Tolerance and Homosexuality 281 (1990)), rev’d on other grounds, 155 F.3d 628 (2d Cir. 1998).
9 See Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of Law v. Martinez, 130 S. Ct. 2971, 2990 (2010) (noting that the Court has “declined to distinguish between status and conduct” when faced with discrimination targeted at

19
The discrimination experienced by gay people, moreover, is particularly ingrained in society. It is not merely predicated on unfounded stereotypes about the inability of gay people to contribute to society, but has historically been based on a deepseated notion that gay people themselves are a moral affront to society itself. Kerrigan, 957 A.2d at 444 (“That prejudice against gay persons is so widespread and so deep-seated is due, in large measure, to the fact that many people in our state and nation sincerely believe that homosexuality is morally reprehensible.”). Although individuals are free to hold these views, the Constitution’s equal protection guarantee prevents such prejudice from being given the force of law: “[t]he Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” Palmore v. Sidoti, 466 U.S. 429, 433 (1984). Given this clear historical record of prejudicial discrimination, laws that perpetuate it warrant heightened scrutiny.
C. Sexual Orientation Bears No Relation To A Person’s Ability To Perform In Or Contribute To Society.
It is likewise indisputable that sexual orientation bears no relation to a person’s ability to perform in or
“homosexual conduct”); Lawrence, 539 U.S. at 583 (O’Connor, J., concurring) (“While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas’ sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class.”).

20
contribute to society.10 Cf. Frontiero, 411 U.S. at 686 (plurality) (“[W]hat differentiates sex from such nonsuspect statuses as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society.”). Being gay or bisexual does not cause one to “have a reduced ability to cope with and function in the everyday world.” City of Cleburne, 473 U.S. at 442. Indeed, all of the burdens that have been imposed because of sexual orientation have been artificial, as gay people, like other groups found to be protected classes, have been “subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities.” Murgia, 427 U.S. at 313. Gay people have historically suffered discrimination not because they cannot contribute to society but because of moral disapproval and the view that their mere presence will cause discomfort to those around them. See, e.g., Steffan v. Perry, 41
10 See, e.g., Watkins, 875 F.2d at 725 (Norris, J., concurring) (“Sexual orientation plainly has no relevance to a person’s ability to perform or contribute to society * * * ”); Equality Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 860 F. Supp. 417, 437 (S.D. Ohio 1994) (“[S]exual orientation * * * bears no relation whatsoever to an individual’s ability to perform, or to participate in, or contribute to, society.”), rev’d on other grounds, 54 F.3d 261 (6th Cir. 1995), vacated and remanded, 518 U.S. 1001 (1996); Jantz v. Muci, 759 F. Supp. 1543, 1548 (D. Kan. 1991) (“As a class-defining trait, sexual orientation ‘bears no relation to ability to perform or contribute to society.’”) (quoting Frontiero, 411 U.S. at 686), rev’d 976 F.2d 623 (10th Cir. 1992); Kerrigan, 957 A.2d at 434 (“The defendants also concede that sexual orientation bears no relation to a person’s ability to participate in or contribute to society, a fact that many courts have acknowledged, as well.”).

21
F.3d 677, 682-83 (D.C. Cir. 1994) (en banc) (quoting military’s rationale for ban on gay servicemembers).
Particularly after Lawrence, moral disapproval of homosexual conduct can provide no basis for denying equal treatment or heightened scrutiny. As noted above, although some courts had held that the criminalization of such conduct justified lenient review of sexual orientation classifications, the decision in Lawrence eliminated that argument. See supra at 6-9; Lawrence, 539 U.S. at 575 (“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.”).
Nor can heightened scrutiny be denied by arguing that rational bases exist to justify sexual orientation discrimination in certain circumstances. Cf. Citizens for Equal Protection v. Bruning, 455 F.3d 859, 867-68 (8th Cir. 2006) (holding that because a rational basis existed to prohibit same-sex marriage “Appellees are not entitled to strict scrutiny review on this ground”). As this Court has explained, when considering whether heightened scrutiny should apply, the Court “should look to the likelihood that governmental action premised on a particular classification is valid as a general matter, not merely to the specifics of the case before us.” City of Cleburne, 473 U.S. at 446 (emphasis added). Thus, whether discrimination on the basis of sexual orientation warrants heightened scrutiny must be resolved based on the application of the relevant factors to sexual orientation discrimination in general. This inquiry is prior to and distinct from whether a particular statute that discriminates on that basis is supported by constitutionally sufficient justifications.

22
D. Sexual Orientation Is A Distinguishing Characteristic That Defines A Discrete Group.
As explained above, see supra at 12-13, the perceived immutability of a particular trait is not a necessary factor to identify a protected class. Rather, it is sufficient that there are “distinguishing characteristics that define * * * a discrete group.” Bowen, 483 U.S. at 602. Indeed, the very existence of laws drawing distinctions based on that criterion demonstrates that gay people are a discrete group who share a distinguishing characteristic. The class is sufficiently discrete for it to be the subject of discriminatory legislation and it is therefore sufficiently discrete for it to be the subject of heightened scrutiny.
As the Court held in Lawrence, sexual orientation is an integral component of a person’s identity, and gay people cannot be required to sacrifice it any more than heterosexual people may be required to do so. 539 U.S. at 574 (“Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.”); see also Christian Legal Soc’y, 130 S. Ct. at 2990 (“Our decisions have declined to distinguish between status and conduct in this context.”). Thus, to the extent immutability matters at all, the relevant question is not whether sexual orientation is theoretically alterable for some, but whether a person should be compelled to change it, even if theoretically possible, in order to avoid discriminatory treatment. The answer to that question is plainly no.11 The law at issue here, for
11 See, e.g., Pedersen, 891 F. Supp. 2d at 326 (“Where there is overwhelming evidence that a characteristic is central and fundamental to an individual’s identity, the characteristic

23
example, is directed specifically at individuals who have entered into long-term committed relationships with a person of the same sex. For purposes of equal protection analysis, their sexual orientation is just as immutable as that of a heterosexual couple and any other characteristic that has warranted heightened scrutiny in the past.
Just like other classifications that warrant heightened scrutiny, discrimination based on sexual orientation unfairly burdens a group based on “circumstances beyond their control.” Plyler, 457 U.S. at 216 n.14. The overwhelming weight of scientific evidence establishes that sexual orientation is not subject to voluntary change. Indeed, this Court has before it an unchallenged determination, based on a factual record developed in an adversarial proceeding, that “[n]o credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.” Perry, 704 F. Supp. 2d at 966; see also Golinski, 824 F. Supp. 2d at 986 (“[T]he consensus in the scientific community is that sexual orientation is an immuta-
should be considered immutable and an individual should not be required to abandon it.”); Golinski, 824 F. Supp. 2d at 987 (“[A] person’s sexual orientation is so fundamental to one’s identity that a person should not be required to abandon it.”); Kerrigan, 957 A.2d at 438 (sexual orientation is “‘so central to a person’s identity that it would be abhorrent for government to penalize a person for refusing to change [it] * * * .’”) (quoting Watkins, 875 F.2d at 726 (Norris, J., concurring in the judgment)); In re Marriage Cases, 183 P.3d 384, 442 (Cal. 2008) (“[A] person’s sexual orientation is so integral an aspect of one’s identity [that] it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment.”).

24
ble characteristic.”); American Psychological Association, Sexual Orientation and Homosexuality, (www.apa.org/helpcenter/sexual-orientation.aspx) (sexual orientation is not a “conscious choice that can voluntarily be changed”); Douglas Haldeman, The Practice and Ethics of Sexual Orientation Conversion Therapy, 62 J. Consulting & Clinical Psychol. 221, 226 (1994) (describing “lack of empirical support for conversion therapy”). Thus, heightened scrutiny is required because sexual orientation is not subject to voluntary change and, even if it were, it is a fundamental aspect of human identity that people should not be required to alter in order to avoid discrimination.
E. Gay People Remain Disadvantaged In The Political Arena.
As shown above, supra at 12-14, the relative political power of gay people is not essential to the heightened scrutiny inquiry. But to the extent this factor is relevant, it strengthens the presumptive invalidity of sexual orientation classifications. Gay people are a tiny fraction of the population who are politically underrepresented and continue to face ongoing, systemic discrimination.
Particularly when compared to women—a protected class that comprises more than half the population—gay people are a small minority. Although estimates vary, government surveys have found that less than 5% of the population selfidentifies as gay or bisexual. See National Ctr. for Health Statistics, Sexual Behavior, Sexual Attraction, and Sexual Identity in the United States: Data From the 2006–2008 National Survey of Family Growth at 31 (www.cdc.gov/nchs/data/nhsr/nhsr036.pdf).

25
That small minority becomes even smaller when one looks at political representation, as “openly gay officials are underrepresented in political office in proportion to the gay and lesbian population.” Pedersen, 881 F. Supp. 2d at 328; cf. Frontiero, 411 U.S. at 686 & n.17 (“when viewed in the abstract, women do not constitute a small and powerless minority” but “in part because of past discrimination, women are vastly underrepresented in the Nation’s decisionmaking councils”) (plurality). As of 2011, only 1.2% of state legislators nationwide were openly gay, and there had been only seven such members of Congress in history. See Aff. of Gary Segura (“Segura Aff.”) at ¶¶ 45-46, Windsor v. United States, No. 10-cv-8435 (S.D.N.Y.) (filed May 17, 2011) (Windsor J.A. at 415-16).
The percentage of openly gay people holding local public office is even lower. In 2010, only .05% of the more than 500,000 city, county, school, and local board officials in this country were openly gay. Id. ¶ 47 (Windsor J.A. 416). There are no congressional districts or municipalities with a majority gay population. Id. ¶ 49 (Windsor J.A. 417). There has never been an openly gay Cabinet member. Nor has there ever been an openly gay federal circuit court judge, with only two ever having been nominated, one of whom withdrew without having been confirmed. See Dan Levine, Obama Nominates Openly Gay Lawyer For Patent Appeals Court (Feb. 7, 2013) (www.reuters.com/article/2013/02/07/us-usacourt-gay-idUSBRE91614E20130207).
Much of this underrepresentation is due directly to the history of discrimination against gay people. Gay people expose themselves to the very discrimination they seek to eliminate when they

26
acknowledge their identity in an effort to protest discriminatory practices. See Kenneth D. Wald, “The Context of Gay Politics,” in The Politics of Gay Rights at 1, 14 (C. Rimmerman, K. Wald & C. Wilcox eds., 2000) (“The awareness of public hatred and the fear of violence that often accompanies it undermine efforts to develop an effective gay political identity,” which “may explain why many gay officials hide their sexual orientation until they have built up considerable public trust”). Thus, four of the seven openly gay members of Congress in history were first elected with their sexual orientation not publicly known. Segura Aff. ¶ 46 (Windsor J.A. 415).
Regardless whether some legislatures or voters in some places have taken action to redress some historical wrongs, discrimination against gay people (as this case demonstrates) remains largely unchecked. Societal discrimination against gay people is pervasive, with nearly half reporting mistreatment or harassment in the workplace based on their sexual orientation.12 Yet there is no federal legislation prohibiting discrimination on the basis of sexual orientation in employment, education, access to public accommodations, or housing. Pedersen, 881 F. Supp. 2d at 328; Golinski, 824 F. Supp. 2d at 988. Indeed, although federal employment non-
12 See Katie Miller and Jeff Krehely, New Data Demonstrates Unique Needs of Gay and Transgender Families, Center for American Progress (Oct. 31, 2012) (www.americanprogress.org/ issues/lgbt/news/2012/10/31/43383/new-data-demonstrate-theunique-needs-of-gay-and-transgender-families/); Jerome Hunt, Why the Gay and Transgender Population Experiences Higher Rates of Substance Abuse, Center for American Progress (Mar. 9, 2012) (www.americanprogress.org/issues/lgbt/report/2012/ 03/09/11228/why-the-gay-and-transgender-populationexperiences-higher-rates-of-substance-use/).

27
discrimination legislation has been introduced regularly since 1994 (with earlier versions existing as far back as the 1970s), it has never passed Congress regardless of which party was in control. Segura Aff. ¶ 29 (Windsor J.A. 405).
Similarly, a majority of states have no statutory protection against sexual orientation discrimination in employment or public accommodations. Id. ¶ 33 (Windsor J.A. 408-09). Nor have other issues important to gay people fared well in legislatures or at the ballot box. A study of 143 votes from the 1970s through 2005 found that gay and lesbian rights were defeated or overturned more than 70% of the time, with the opponents of those rights prevailing at about the same rate for local and state elections. Id. ¶ 36 (Windsor J.A. 410). And while in 1990 there were no constitutional provisions banning marriage for same-sex couples, currently three fifths of the states have such amendments and another 11 states affirmatively prohibit it by statute. Id. at ¶ 34 (Windsor J.A. 409).
Any incremental gains in redressing sexual orientation discrimination through the political process pale in comparison to the political advances made by women when heightened scrutiny was first applied to them and thereafter. See, e.g., Kerrigan, 957 A.2d at 452 (gay people have “a good deal less” political influence than women, as a group, enjoyed at the time of Frontiero). By the time the Court applied intermediate scrutiny to sex-based classifications, see Craig v. Boren, 429 U.S. 190 (1976), Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963 had been in effect for more than a decade. See Frontiero, 411 U.S. at 687-88. These legislative protections did not eradicate

28
invidious discrimination on the basis of sex, which continues to this day. And they did not stop this Court from holding that discrimination on the basis of sex must be subjected to heightened scrutiny. Nor has the ever-increasing political power of women decreased the need to ensure that discriminatory classifications are not perpetuating historical stereotypes and prejudice.
It is therefore clear that despite some recent advances there exists with respect to gay people “a continuing antipathy or prejudice and a corresponding need for more intrusive oversight by the judiciary.” City of Cleburne, 473 U.S. at 443. Gay people remain intensely vulnerable in the majoritarian political arena and have been unable to rely on the traditional legislative processes to protect them from discrimination. Given that much antipathy towards gay people stems from “profound and deep convictions accepted as ethical and moral principles,” Lawrence, 539 U.S. at 571, discrimination based on sexual orientation is particularly deep-seated. According heightened scrutiny to such classifications is necessary to ensure that distinctions based on these convictions do not manifest themselves as invidious governmental discrimination unrelated to a person’s ability to contribute to society.

29

CONCLUSION

The judgment below should be affirmed.

Respectfully submitted,

ANNE M. RODGERS

JONATHAN S. FRANKLIN*

LAUREN MILLER ETLINGER

FULBRIGHT & JAWORSKI L.L.P.

TRAVIS A. TORRENCE

801 Pennsylvania Ave., N.W.

TARA TUNE

Washington, D.C. 20004

ELIOT FIELDING TURNER

(202) 662-0466

JAMIE WHITNEY

jfranklin@fulbright.com

GERALDINE W. YOUNG

FULBRIGHT & JAWORSKI L.L.P. LISA BORNSTEIN

1301 McKinney

THE LEADERSHIP CONFERENCE

Suite 5100

ON CIVIL AND HUMAN RIGHTS

Houston, TX 77010

1629 K Street, NW, 10th Fl.

(713) 651-5151

Washington, DC 20006

(202) 466-3311

* Counsel of Record

Counsel for Amici Curiae

APPENDIX

1a

AMICI CURIAE

The Leadership Conference on Civil and

Human Rights (“The Leadership Conference”) is a

coalition of more than 200 organizations committed

to the protection of civil and human rights in the

United States.1 It is the nation’s oldest, largest, and

most diverse civil and human rights coalition. The

Leadership Conference was founded in 1950 by three

legendary leaders of the civil rights movement—A.

Philip Randolph of the Brotherhood of Sleeping Car

Porters; Roy Wilkins of the NAACP; and Arnold

Aronson of the National Jewish Community

Relations Advisory Council.

Its member

organizations represent people of all races,

ethnicities, and sexual orientations. The Leadership

Conference works to build an America that is

inclusive and as good as its ideals, and toward this

end, urges the Court to hold that sexual orientation

classifications should be subject to heightened

scrutiny. The Leadership Conference believes that

every person in the United States deserves to be free

from discrimination based on race, ethnicity, gender,

or sexual orientation.

9to5 is a national membership-based organization of women in low-wage jobs dedicated to achieving economic justice and ending discrimination. Our membership includes lesbian, bisexual and transgender women. Our members and constituents are directly affected by workplace discrimination and poverty, among other issues. 9to5 is committed to combating all forms of oppression, and has actively supported local, state and federal policy efforts to

1 A list of the Leadership Conference’s participating members is included at the end of this Appendix.

2a
prohibit discrimination based on sexual orientation, gender identity and gender expression in the workplace, in the legal system, in educational institutions, in public programs, and in family rights. The outcome of this case will directly affect our members’ and constituents’ rights and economic wellbeing, and that of their families.
The American Association of University Women (“AAUW”), an organization of more than 150,000 members and supporters, has been a catalyst for the advancement of women and their transformations of American society for 132 years,. In more than 1,000 branches across the country, AAUW members work to break through barriers for women and girls. AAUW’s member-adopted Public Policy Principles opposes “all forms of discrimination” and supports the “constitutional protection for the civil rights of all individuals.” It also supports “freedom in the definition of family and guarantee of civil rights in all family structures.” AAUW has an established record of opposing the Defense of Marriage Act, which forbids same-sex couples from receiving federal marriage benefit, and is a strong advocate for marriage equality. AAUW members in several states have endorsed and promoted marriage equality ballot initiatives, and opposed Proposition 8 when it came to a vote in 2008.
The American Civil Liberties Union (“ACLU”) is a nationwide, nonprofit, nonpartisan organization with over 500,000 members dedicated to defending the principles embodied in the Constitution and our nation’s civil rights laws. The ACLU has worked for 77 years to oppose discrimination on the basis of sexual orientation and to protect the basic civil rights and liberties of lesbian, gay, bisexual, and

3a
transgender people. The ACLU of Northern California and the ACLU of San Diego and Imperial Counties are ACLU affiliates in California.
API Equality–Northern California (“APIENC”) is a grassroots community-based organization working at the intersections of the Asian Pacific Islander (“API”) and Lesbian, Gay, Bisexual, Trans, and Queer/Questioning (“LGBTQ”) communities of Northern California to reduce prejudice and oppression between and amongst community members and organizations. API Equality–Northern California is dedicated to empowering community members, advancing civil rights protections, and promoting respect and understanding for cultural and community diversity.
Asian American Institute (“AAI”) is a pan-Asian, non-partisan, not-for-profit organization located in Chicago, Illinois, whose mission is to empower the Asian American community through advocacy, coalition-building, education, and research. AAI is a member of the Asian American Center for Advancing Justice, whose other members include Asian American Justice Center, Asian Law Caucus, and Asian Pacific American Legal Center. AAI is deeply concerned about the discrimination and exclusion faced by Asian Americans and other marginalized groups, including lesbian, gay, and bisexual members of the Asian American community. Accordingly, AAI has a strong interest in this case.
Asian American Justice Center (“AAJC”), a member of the Asian American Center for Advancing Justice, is a national non-profit, non-partisan organization in Washington, D.C. whose mission is to advance the civil and human rights of Asian

4a
Americans and build and promote a fair and equitable society for all. Founded in 1991, AAJC engages in litigation, public policy advocacy, and community education and outreach on a range of issues, including anti-discrimination. AAJC is committed to challenging barriers to equality for all sectors of our society and has supported same-sex marriage rights in numerous amicus briefs.
The Asian & Pacific Islander American Health Forum (“APIAHF”), headquartered in San Francisco, California, is a national health justice organization which influences policy, mobilizes communities, and strengthens programs and organizations to improve the health and well-being of more than 18 million Asian Americans, Native Hawaiians, and Pacific Islanders living in the United States and its jurisdictions. We believe that no individual or family should be subject to discriminatory treatment, and that the ability to marry is a crucial aspect to achieving health equity and justice for our communities.
The Asian Law Caucus, founded in 1972, is the country’s oldest civil rights and public interest legal organization dedicated to serving Asian and Pacific Islanders communities. The Asian Law Caucus is a member of the Asian American Center for Advancing Justice. Recognizing that social, economic, political, and racial inequalities continue to exist in the United States, the Asian Law Caucus is committed to the pursuit of equality and justice for all sectors of our society and in advancing the integrity of the core constitutional principle of equal protection under the law to all Americans.
The Boston Bar Association (“BBA”) traces its origins to meetings convened by John Adams in 1761,

5a
thirty-six years before he became United States President. The BBA works to advance the highest standards of excellence for the legal profession, to serve the community at large, and to advocate for access to justice, including the right of all persons to equality under law.
The Center for American Progress is an independent nonpartisan educational institute dedicated to improving the lives of Americans through progressive ideas and action. Building on the achievements of progressive pioneers such as Teddy Roosevelt and Martin Luther King, our work addresses 21st-century challenges such as energy, national security, economic growth and opportunity, immigration, education, and health care. We develop new policy ideas, critique the policy that stems from conservative values, challenge the media to cover the issues that truly matter, and shape the national debate.
The Charles Houston Bar Association is the oldest and largest African American bar association in the San Francisco Bay Area. The mission of the Association is to improve access to justice; to promote equal protection under the law; to be proactive in increasing diversity within the legal community and to the bench; and to bring services to the community.
Chinese for Affirmative Action (“CAA”) is a community-based nonprofit organization founded to defend civil rights and advance multiracial democracy. Though our constituency includes the broader Asian American and Pacific Islander community, we prioritize the needs of the most marginalized. Our community building, research and analysis, and policy advocacy activities promote equality in a number of areas including immigrant

6a
rights, language diversity, racial justice, and marriage equality.
The Connecticut Women’s Education and Legal Fund (“CWEALF”) is a non-profit women’s rights organization dedicated to empowering women, girls and their families to achieve equal opportunities in their personal and professional lives. CWEALF defends the rights of individuals in the courts, educational institutions, workplaces and in their private lives. Since its founding in 1973, CWEALF has provided legal education and advocacy and conducted research and public policy work to advance women's rights and end sex discrimination.
The Courage Campaign (“Courage”) is a leading multi-issue advocacy organization working to bring progressive change to California and full equality to America’s lesbian, gay, bisexual and transgender citizens and families. Courage empowers more than 750,000 grassroots and netroots activists. Courage Campaign Institute (“the Institute”) is an affiliated organization of the Courage Campaign. Through a variety of groundbreaking public education campaigns, the Institute has played an integral role in keeping the public informed about Hollingsworth v. Perry, legal challenges to the so-called Defense of Marriage Act, and other LGBT equality cases.
Empire Justice Center is a statewide, not-forprofit public interest law firm in New York with offices in Rochester, Albany, White Plains, and Central Islip. Established in 1973, Empire Justice Center’s mission is to protect and strengthen the legal rights of people in New York State who are poor, disabled or disenfranchised through systems change advocacy, direct representation, as well as training and support to other advocates and organizations in

7a
a range of substantive law areas. Since our founding, Empire Justice Center has worked to oppose discrimination and challenge barriers to equality, including barriers based upon sexual orientation or gender identity.
Empire State Pride Agenda (“ESPA”) is New York’s statewide lesbian, gay, bisexual and transgender (“LGBT”) civil rights and advocacy group. ESPA is committed to winning equality and justice for LGBT New Yorkers and their families. ESPA has been involved with advancing legislation securing equitable rights for all New Yorkers, and was a driving force behind New York State’s enactment of marriage equality in 2011. ESPA also has participated as amicus curiae in litigation involving marriage equality.
Equal Rights Washington works to promote dignity, safety, and equality for LGBT Washingtonians. We have been one of the lead organizations working to achieve the freedom to marry in Washington State, and we continues to work on LGBT civil rights issues including making sure that couples who are legal married can access the federal rights and responsibilities of civil marriage.
EqualityMaine is the oldest and largest organization in Maine that advocates for LGBT rights and equality. EqualityMaine has participated as amicus curiae in litigation in support of marriage equality and was one of the primary supporters of the effort to authorize marriage licensing for samesex couples in Maine.
Equality Maryland is the largest LGBT rights group in Maryland. Equality Maryland helped

8a
introduce and was instrumental in obtaining passage of the Maryland Civil Marriage Protection Act in 2012. Equality Maryland also has participated as amicus curiae in litigation in support of marriage equality.
Hispanic National Bar Association (“HNBA”) is an incorporated, not-for-profit, national membership organization that represents the interests of the more than 100,000 attorneys, judges, law professors, legal professionals, and law students of Hispanic descent in the United States, its territories, and Puerto Rico. HNBA supports equal application of the law to all.
Human Rights Campaign (“HRC”), the largest national lesbian, gay, bisexual and transgender political organization, envisions an America where lesbian, gay, bisexual and transgender people are ensured of their basic equal rights, and can be open, honest and safe at home, at work and in the community. Among those basic rights is equal access for same-sex couples to marriage and the related protections, rights, benefits and responsibilities.
The Japanese American Citizens League (“JACL”) was founded in 1929 and is the oldest and largest Asian American civil rights organization in the United States. It led the fight for redress for Japanese Americans incarcerated during World War II and has also fought for the civil liberties of all people including the right to vote, own real property, get a job, and marry a person of one’s choice.
The League of United Latin American Citizens (“LULAC”) is the nation’s largest and oldest civil rights volunteer-based organization that empowers Hispanic Americans and builds strong Latino

9a
communities. Headquartered in Washington, DC, with 900 councils around the United States and Puerto Rico, LULAC’s programs, services and advocacy address the most important issues for Latinos, meeting critical needs of today and the future. The mission of the League of United Latin American Citizens is to advance the economic condition, educational attainment, political influence, housing, health and civil rights of the Hispanic population of the United States. LULAC has a longstanding history of advancing equal justice under law for all Latinos—including our lesbian, gay, bisexual and transgender (“LGBT”) sisters and brothers. Through direct action and national resolutions, LULAC and its membership have stood firm on the right for LGBT Americans to be protected from hate crimes, the right to work free from discrimination, the right to serve openly and honestly in the U.S. Armed Services, the right to allow bi-national couples to stay together by updating antiquated immigration laws, and officially oppose federal marriage laws that discriminate against couples who have entered legal unions in their state.
The Legal Aid Society is a private, not-for-profit legal services organization, the oldest and largest in the nation, dedicated since 1876 to providing quality legal representation to low-income New Yorkers. It is dedicated to one simple but powerful belief: that no New Yorker should be denied access to justice because of poverty. With a commitment to equal justice for all and eliminating discrimination on the basis of numerous classifications including sexual orientation and gender identity, the Society handles 300,000 individual cases and matters annually and

10a
provides a comprehensive range of legal services in three areas: the Civil, Criminal and Juvenile Rights Practices. In recognition that its LGBT clients are living at disproportionately higher poverty rates and are more likely to be dependent on public benefit programs, the Society is an outspoken advocate committed to removing barriers to equality for these persons.
The Lesbian, Gay, Bisexual & Transgender Community Center in New York City (“LGBT Community Center”), is the largest LGBT multiservice organization on the East Coast and the second largest LGBT community center in the country, offering many programs for the LGBT community, including Center Families. More than 2,500 families in the tri-state area participate in the Center Families program, which promotes the legitimacy and visibility of LGBT families. Consistent with its mission of supporting these families, the LGBT Community Center joins in this brief due to its strong belief that same-sex couples must have equal access to marriage and the same protections, rights, benefits and responsibilities afforded to heterosexual married couples in this country.
The LGBT Bar Association of Greater New York (“LeGaL”) was one of the nation’s first bar associations of the lesbian, gay, bisexual, and transgender (“LGBT”) legal community and remains one of the largest and most active organizations of its kind in the country. Serving the New York metropolitan area, LeGaL is dedicated to improving the administration of the law, ensuring full equality for members of the LGBT community and promoting

11a
the expertise and advancement of LGBT legal professionals.
The Massachusetts LGBTQ Bar Association is a statewide professional association of LGBT and queer lawyers and allies providing a visible LGBTQ presence within the Massachusetts legal community.
MassEquality, founded in 2001 to promote and protect marriage equality in the first state to end marriage discrimination, is today the leading statewide grassroots advocacy organization in Massachusetts working to ensure that everyone across Massachusetts can thrive from cradle to grave without discrimination and oppression based on sexual orientation, gender identity, or gender expression. MassEquality works to achieve full equality for lesbian, gay, bisexual, transgender and queer people in all spheres of society through advocacy in the legislature and executive branches and through public education.
The Mattachine Society of Washington, D.C. is a non-profit, non-partisan research and educational society whose members support its original archival research. The mission of The Mattachine Society is to uncover the often-deleted pasts of LGBT Americans who faced persecution and discrimination by the federal government. Such persecution and discrimination often resulted in the loss of jobs and ruination of careers of gay and lesbian citizens simply because of their sexual orientation which rendered them “mentally ill” or a “security risk.” The original Mattachine Society of Washington, D.C. founded in 1961, by Dr. Franklin Kameny, was the first gay civil rights organization in Washington, D.C. The current Mattachine Society is proud to continue this work with renewed passion and commitment.

12a
The Mexican American Legal Defense and Educational Fund (“MALDEF”) is a national civil rights organization established in 1968. Its principal objective is to secure the civil rights of Latinos living in the United States through litigation, advocacy, and education. MALDEF defends the rights of all Latino families, including those headed by lesbian or gay Latinos as well as Latino children who are disadvantaged because their same-sex parents are denied full recognition under the law.
The National Association for the Advancement of Colored People (“NAACP”) is the country’s largest and oldest civil rights organization. Founded in 1909, The NAACP is a New York not-for-profit corporation. The mission of the NAACP is to ensure the political, social, and economic equality of rights of all persons, and to eliminate racial hatred and racial discrimination. In fulfilling its mission, the NAACP has filed numerous amicus briefs on behalf of litigants in civil rights litigation in federal and state courts across the country.
The NAACP Legal Defense and Educational Fund, Inc. (“LDF”) is a non-profit legal organization that for more than seven decades has fought to enforce the guarantees of the United States Constitution against discrimination. See, e.g., Brown v. Bd. of Educ., 347 U.S. 483 (1954); McLaurin v. Okla. State Regents for Higher Educ., 339 U.S. 637 (1950); Sweatt v. Painter, 339 U.S. 629 (1950); Sipuel v. Bd. of Regents of Univ. of Okla., 332 U.S. 631 (1948); Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938). LDF has sought to eradicate barriers to the full and equal enjoyment of social and political rights, including in the context of partner or spousal

13a
relationships, see, e.g., McLaughlin v. Florida, 379 U.S. 184 (1964), and has participated as amicus curiae in cases across the nation that affect the rights of gay people, including Romer v. Evans, 517 U.S. 620 (1996); Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010); Strauss v. Horton, 207 P.3d 48 (Cal. 2009); In re Marriage Cases, 183 P.3d 384 (Cal. 2008); Conaway v. Deane, 932 A.2d 571 (Md. 2007); and Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006).
National Action Network (“NAN”) is one of the leading civil rights organizations in the nation, with chapters throughout the United States. Founded in 1991 by Reverend Al Sharpton, NAN works within the spirit and tradition of Dr. Martin Luther King, Jr. to promote a modern civil rights agenda that includes the fight for one standard of justice, decency and equal opportunities for all people. That effort is incomplete without working to ensure the equality of opportunities and treatment for the LGBT community. So long as one group is denied equal treatment under the law, the nation falls short of guaranteeing the right of all persons to life, liberty and the pursuit of happiness.
The National Black Justice Coalition (“NBJC”) is a civil rights organization dedicated to empowering Black lesbian, gay, bisexual and transgender (“LGBT”) people. NBJC’s mission is to end racism and homophobia. As America’s leading national Black LGBT civil rights organization focused on federal public policy, NBJC has accepted the charge to lead Black families in strengthening the bonds and bridging the gaps between the movements for racial justice and LGBT equality.
The National Council of La Raza (“NCLR”)—the largest national Hispanic civil rights and advocacy

14a
organization in the United States—works to improve opportunities for Hispanic Americans. Through its network of nearly 300 affiliated community-based organizations, NCLR reaches millions of Hispanics each year in 41 states, Puerto Rico, and the District of Columbia. To achieve its mission, NCLR conducts applied research, policy analysis, and advocacy, providing a Latino perspective in five key areas— assets/investments, civil rights/immigration, education, employment and economic status, and health. In addition, it provides capacity-building assistance to its Affiliates who work at the state and local level to advance opportunities for individuals and families. Founded in 1968, NCLR is a private, nonprofit, nonpartisan, tax-exempt organization headquartered in Washington, DC, serving all Hispanic subgroups in all regions of the country. It has regional offices in Chicago, Los Angeles, New York, Phoenix, and San Antonio and state operations throughout the nation.
The National Gay and Lesbian Task Force Foundation (the “Task Force”), founded in 1973, is the oldest national LGBT civil rights and advocacy organization. As part of a broader social justice movement, the Task Force works to create a world in which all people may fully participate in society, including the full and equal participation of same-sex couples in the institution of civil marriage.
The National LGBT Bar Association (“LGBT Bar”) is a non-partisan, membership-based professional association of lawyers, judges, legal academics, law students and affiliated lesbian, gay, bisexual and transgender legal organizations. The LGBT Bar promotes justice in and through the legal profession for the LGBT community in all its

15a
diversity. This case stands to impact our membership both professionally and personally. A ruling in favor of marriage equality would greatly increase our attorneys’ ability to protect their clients’ best interests and to safeguard the families and relationships they have formed in their own lives. Recently, we were privileged to see 30 of our openlyLGBT members inducted into the Supreme Court Bar, joining in the same time-honored, formal process with attorneys from all over the United States. Increasing inclusion in cherished civil institutions is one of the most storied arcs in the history of our nation, and we believe that marriage equality is a profound step in the right direction towards equitable treatment under the law for all citizens.
National Organization for Women Foundation (“NOW”) is a 501(c)(3) organization devoted to furthering women’s rights through education and litigation. For decades, NOW has advocated for equal rights and full protection of the law for LGBT persons and has led the effort for recognition of same-sex couples’ equal marriage rights.
The New York Legal Assistance Group (“NYLAG”), founded in 1990, is a not-for-profit organization dedicated to providing free civil legal services to New York’s low-income individuals and families. The LGBT Law Project of NYLAG provides free legal consultations and legal representation to low-income LGBT community members in areas such as child custody, visitation, divorce and dissolution, second-parent adoption, legal name change, employment discrimination and immigration. The LGBT Project recognizes and addresses the unique

16a
legal needs in the LGBT communities and provides culturally competent services.
The New York State Bar Association (“NYSBA”) was founded in 1876, and is the largest voluntary bar association in the United States, with over 76,000 members. NYSBA serves the profession and the public by, inter alia, promoting reform in the law and facilitating the administration of justice. NYSBA has long supported marriage equality for same-sex couples. In 2009, NYSBA passed a resolution supporting same-sex marriage; and in 2010 the NYSBA was a lead sponsor of the American Bar Association’s resolution in support of same-sex marriage. The NYSBA supports allowing same-sex couples to marry and recognizing marriages if contracted elsewhere as the Association believes only marriage can grant full equality to same-sex couples and their families.
OCA – Asian Pacific American Advocates, a national membership driven organization dedicated to advancing the social, political and economic wellbeing of Asian Pacific Americans, consistent with its national resolution passed in 2007, denounces discriminatory policies and practices based on sexual orientation. We ardently support policies that uphold the importance of familial relationships without limitation based on race, religion, ethnicity, gender, or sexual orientation as a fundamental human right.
One Iowa supports full equality for LGBT individuals living in Iowa through grassroots efforts and education. As the largest LGBT organization in Iowa, we are honored to sign on to both cases.

17a
Out & Equal Workplace Advocates is a nonprofit, national organization headquartered in San Francisco that addresses LGBT issues in the workplace.
Permanent Commission on the Status of Women (“PCSW”) was established by the Connecticut State Legislature in 1973. PCSW works to eliminate sex discrimination in Connecticut by informing leaders about the nature and scope of discrimination, serving as a liaison between government and private interest groups concerned with services for women, promoting consideration of women for governmental positions, and working with state agencies to access programs that affect women.
Public Advocates Inc. is a California-based civil rights law firm and advocacy organization that challenges the systemic causes of poverty and racial discrimination by strengthening community voices in public policy and achieving tangible legal victories. Since our founding in 1971, we have engaged in a wide range of cutting edge civil rights issues from school finance, urban development, transportation policy, and climate justice, to language access, employment discrimination, and health services disparities. The issues of this case are strongly aligned with Public Advocates’ mission to fight discrimination and advance equal opportunity for marginalized populations.
The Rainbow PUSH Coalition supports marriage equality. All people deserve equal protection under the law. We believe in human rights for all human beings. We must measure human rights by one yardstick. That principle resides in the moral center and still applies— everything flows from this position. We seek to

18a

uphold the principles of due process, of equal protection under the law, of fighting against discrimination against any and all people based on race, religion, gender or sexual orientation. Discrimination against one group of people is discrimination against all of us. The State—and the courts—should not sanction discrimination. No group of people should be denied their fundamental constitutional liberties, like equal protection under the law, simply because of who they are. Keep Hope Alive.

Secular Woman is a non-profit organization whose mission is to amplify the voice, presence, and influence of non-religious women. The Family & Relationship Values of Secular Woman are: (1) we hold that each person has the right to seek happiness through consensual relationships that enhance their lives. We support full marriage equality nationwide and (2) we embrace diverse concepts of family and parenthood. Love and security come in many forms.

The South Asian Bar Association of

Connecticut (“SABAC”) was formed in 2003 to

serve as a resource to South Asian lawyers and law

students for mentoring, networking, advocacy and

education, and community outreach. SABAC is a

member organization of the North American South

Asian Bar Association (“NASABA”) and has played

an active role in the formation of NASABA. SABAC

members include attorneys who practice in a wide

variety of organizations including law firms,

corporate

legal

departments,

non-profit

organizations, government, and academic

institutions. SABAC and its members have

particular interest in cases where the rights of

19a
minorities to receive equal and fair treatment under the laws of the United States are at issue.
The Vermont Freedom to Marry Task Force is Vermont’s educational resource on all issues related to marriage equality. We are an advocacy organization calling for the end of discriminatory laws such as the Defense of Marriage Act that prohibit federal recognition of the legal marriages of same-sex couples in Vermont and deny same-sex couples and their families the full protections and responsibilities of civil marriage.
Women’s Bar Association of the State of New York (“WBASNY”) is a statewide not-for-profit organization of attorneys, with eighteen chapters and more than 3,600 members. WBASNY is dedicated to fair and equal administration of justice and has been a vanguard for the rights of women, same-sex couples, and LGBT persons. It has participated as an amicus in numerous cases supporting equal rights under the law for all persons, regardless of sexual orientation. * The Leadership Conference’s participating members include:
A. Philip Randolph Institute AARP Advancement Project African Methodist Episcopal Church Alaska Federation of Natives Alliance for Retired Americans Alpha Kappa Alpha Sorority, Inc. Alpha Phi Alpha Fraternity, Inc.

20a
American-Arab Anti-Discrimination Committee American Association for Affirmative Action American Association of People with Disabilities AAUW American Baptist Churches, U.S.A. - National Ministries American Civil Liberties Union American Council of the Blind American Ethical Union American Federation of Government Employees American Federation of Labor-Congress of Industrial Organizations American Federation of State, County & Municipal Employees, AFL-CIO American Federation of Teachers, AFL-CIO American Friends Service Committee American Islamic Congress (AIC) American Jewish Committee American Nurses Association American Society for Public Administration American Speech-Language-Hearing Association Americans for Democratic Action Amnesty International USA Anti-Defamation League Appleseed Asian American Justice Center Asian Pacific American Labor Alliance Association for Education and Rehabilitation of the Blind and Visually Impaired

21a
B’nai B’rith International Brennan Center for Justice at New York University School of Law Building & Construction Trades Department, AFLCIO Center for Community Change Center for Responsible Lending Center for Women Policy Studies Children’s Defense Fund Church of the Brethren-World Ministries Commission Church Women United Coalition of Black Trade Unionists Common Cause Communications Workers of America Community Action Partnership Community Transportation Association of America Compassion & Choices DC Vote Delta Sigma Theta Sorority DEMOS: A Network for Ideas & Action Disability Rights Education and Defense Fund Division of Homeland Ministries-Christian Church (Disciples of Christ) Epilepsy Foundation of America Episcopal Church-Public Affairs Office Equal Justice Society Evangelical Lutheran Church in America FairVote: The Center for Voting and Democracy

22a
Families USA Federally Employed Women Feminist Majority Friends Committee on National Legislation Gay, Lesbian and Straight Education Network (GLSEN) General Board of Church & Society of the United Methodist Church Global Rights: Partners for Justice GMP International Union Hip Hop Caucus Human Rights Campaign Human Rights First Immigration Equality Improved Benevolent & Protective Order of Elks of the World International Association of Machinists and Aerospace Workers International Association of Official Human Rights Agencies International Brotherhood of Teamsters International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) Iota Phi Lambda Sorority, Inc. Japanese American Citizens League Jewish Council for Public Affairs Jewish Labor Committee Jewish Women International

23a
Judge David L. Bazelon Center for Mental Health Law Kappa Alpha Psi Fraternity Labor Council for Latin American Advancement Laborers’ International Union of North America Lambda Legal LatinoJustice PRLDEF Lawyers’ Committee for Civil Rights Under Law League of United Latin American Citizens League of Women Voters of the United States Legal Aid Society – Employment Law Center Legal Momentum Mashantucket Pequot Tribal Nation Matthew Shepard Foundation Mexican American Legal Defense and Educational Fund Na’Amat USA NAACP NAACP Legal Defense and Educational Fund, Inc. NALEO Educational Fund National Alliance of Postal & Federal Employees National Association for Equal Opportunity in Higher Education National Association of Colored Women’s Clubs, Inc. National Association of Community Health Centers National Association of Consumer Advocates (NACA) National Association of Human Rights Workers National Association of Negro Business & Professional Women’s Clubs, Inc.

24a
National Association of Neighborhoods National Association of Social Workers 9 to 5 National Association of Working Women National Bar Association National Black Caucus of State Legislators National Black Justice Coalition National CAPACD – National Coalition For Asian Pacific American Community Development National Center for Transgender Equality National Center on Time & Learning National Coalition for the Homeless National Coalition on Black Civic Participation National Coalition to Abolish the Death Penalty National Committee on Pay Equity National Community Reinvestment Coalition National Conference of Black Mayors, Inc. National Congress for Puerto Rican Rights National Congress of American Indians National Consumer Law Center National Council of Churches of Christ in the U.S. National Council of Jewish Women National Council of La Raza National Council of Negro Women National Council on Independent Living National Disability Rights Network National Education Association National Employment Lawyers Association National Fair Housing Alliance

25a
National Farmers Union National Federation of Filipino American Associations National Gay & Lesbian Task Force National Health Law Program National Hispanic Media Coalition National Immigration Forum National Immigration Law Center National Korean American Service and Education Consortium, Inc. (NAKASEC) National Latina Institute for Reproductive Health National Lawyers Guild National Legal Aid & Defender Association National Low Income Housing Coalition National Organization for Women National Partnership for Women & Families National Senior Citizens Law Center National Sorority of Phi Delta Kappa, Inc. National Urban League National Women’s Law Center National Women’s Political Caucus Native American Rights Fund Newspaper Guild OCA (formerly known as Organization of Chinese Americans) Office of Communications of the United Church of Christ, Inc. Omega Psi Phi Fraternity, Inc. Open Society Policy Center

26a
ORT America OutServe-SLDN Paralyzed Veterans of America Parents, Families, Friends of Lesbians and Gays People for the American Way Phi Beta Sigma Fraternity, Inc. Planned Parenthood Federation of America, Inc. PolicyLink Poverty & Race Research Action Council (PRRAC) Presbyterian Church (USA) Pride at Work Progressive National Baptist Convention Project Vote Public Advocates Religious Action Center of Reform Judaism Retail Wholesale & Department Store Union, AFLCIO SAALT (South Asian Americans Leading Together) Secular Coalition for America Service Employees International Union Sierra Club Sigma Gamma Rho Sorority, Inc. Sikh American Legal Defense and Education Fund Sikh Coalition Southeast Asia Resource Action Center (SEARAC) Southern Christian Leadership Conference Southern Poverty Law Center Teach For America

27a
The Association of Junior Leagues International, Inc The Association of University Centers on Disabilities The National Conference for Community and Justice The National PTA TransAfrica Forum Union for Reform Judaism Unitarian Universalist Association UNITE HERE! United Brotherhood of Carpenters and Joiners of America United Church of Christ-Justice and Witness Ministries United Farm Workers of America (UFW) United Food and Commercial Workers International Union United Mine Workers of America United States International Council on Disabilities United States Students Association United Steelworkers of America United Synagogue of Conservative Judaism Women of Reform Judaism Workers Defense League Workmen’s Circle YMCA of the USA, National Board YWCA USA Zeta Phi Beta Sorority, Inc.

 
 No. 12-144
In the Supreme Court of the United States
DENNIS HOLLINGSWORTH, ET AL., PETITIONERS v.
KRISTIN M. PERRY, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING RESPONDENTS
DONALD B. VERRILLI, JR. Solicitor General Counsel of Record
STUART F. DELERY Principal Deputy Assistant Attorney General
SRI SRINIVASAN Deputy Solicitor General
PRATIK A. SHAH Assistant to the Solicitor General
MICHAEL JAY SINGER HELEN L. GILBERT JEFFREY E. SANDBERG
Attorneys Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217

QUESTION PRESENTED
The United States will address the following question presented by this case: whether Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.
(I)

TABLE OF CONTENTS
Page Interest of the United States ........................................................1 Statement ......................................................................................... 2 Summary of argument ...................................................................6 Argument:
Proposition 8 violates equal protection ..................................9 A. Classifications based on sexual orientation should be subject to heightened scrutiny..................12 B. Proposition 8 fails heightened scrutiny .....................16 1. The interests asserted by petitioners in defense of Proposition 8 fail heightened scrutiny .....................................................................18 a. Responsible procreation and child-rearing ....18 b. Proceeding with caution ....................................25 c. Democratic self-governance .............................26 2. The remaining, actual purposes of Proposition 8 also fail heightened scrutiny ...............................28 a. Traditional definition of marriage ...................28 b. Protecting children from being taught about same-sex marriage .............................................31
Conclusion ...................................................................................... 33
TABLE OF AUTHORITIES
Cases:
Baker v. Nelson: 409 U.S. 810 (1972)........................................................7, 13 191 N.W.2d 185 (Minn. 1971)...........................................13
Bernal v. Fainter, 467 U.S. 216 (1984) .................................14 Board of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356
(2001) ......................................................................................32 Bowers v. Hardwick, 478 U.S. 186 (1986) ......................29, 31 Bray v. Alexandria Women’s Health Clinic, 506 U.S.
263 (1993) ...............................................................................16
(III)

IV

Cases—Continued:

Page

Christian Legal Soc’y v. Martinez, 130 S. Ct. 2971 (2010) ......................................................................................16
City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993) ...............................................................25
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) ...............................................................2, 11, 12, 27
City of Richmond v. J. A. Croson Co., 488 U.S. 469 (1989) ......................................................................................12
Clark v. Jeter, 486 U.S. 456 (1988) ..................................15, 16
Edelman v. Jordan, 415 U.S. 651 (1974)..............................13
Fiallo v. Bell, 430 U.S. 787 (1977) .........................................14
Goldman v. Weinberger, 475 U.S. 503 (1986) ......................14
Goodridge v. Department of Pub. Health, 798 N.E.2d 941 (Mass. 2003)..............................................................19, 23
Greater New Orleans Broad. Ass’n v. United States, 527 U.S. 173 (1999) .........................................................23, 24
Heckler v. Mathews, 465 U.S. 728 (1984) .............................24
Heller v. Doe, 509 U.S. 312 (1993) .........................................29
Hunter v. Erickson, 393 U.S. 385 (1969)........................26, 27
Iowa-Des Moines Nat’l Bank v. Bennett, 284 U.S. 239 (1931) ...............................................................................24
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) ...........29
Johnson v. California, 543 U.S. 499 (2005) .........................15
Johnson v. Robison, 415 U.S. 361 (1974) .............................20
Kerrigan v. Commissioner of Pub. Health, 957 A.2d 447 (Conn. 2008)....................................................................30
Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993).....................................................24
Lawrence v. Texas, 539 U.S. 558 (2003) ...................... passim
Loving v. Virginia, 388 U.S. 1 (1967) ...................7, 15, 19, 27
Marriage Cases, In re, 183 P.3d 384 (Cal. 2008).............2, 28

V

Cases—Continued:

Page

Massachusetts v. United States Dep’t of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012), petitions for cert. pending, Nos. 12-13 (filed June 29, 2012), 12-15 (filed July 3, 2012), and 12-97 (filed July 20, 2012) .......................................................................................22
Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307 (1976) ......................................................................................13
Mathews v. Diaz, 426 U.S. 67 (1976).....................................14
Nyquist v. Mauclet, 432 U.S. 1 (1977) ..................................23
Palmore v. Sidoti, 466 U.S. 429 (1984) .................................28
Professional Eng’rs in Cal. Gov’t v. Kempton, 155 P.3d 226 (Cal. 2007) .......................................................17
Romer v. Evans, 517 U.S. 620 (1996)................................6, 28
Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011) .............24
Strauss v. Horton, 207 P.3d 48 (Cal. 2009) ............3, 4, 11, 17
Turner v. Safley, 482 U.S. 78 (1987) .................................7, 19
United States v. Virginia, 518 U.S. 515 (1996) ...9, 12, 17, 29
United States v. Windsor, 699 F.3d 169 (2d Cir.), cert. granted, 133 S. Ct. 786 (2012) ........................14, 15, 21
Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) ..................30
Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) ......................................................................................27
Watson v. City of Memphis, 373 U.S. 526 (1963)............8, 25
Zelman v. Simmons-Harris, 536 U.S. 639 (2002) ..............28

Constitutions and statutes:
U.S. Const.: Art. III..................................................................................5 Amend. XIV .........................................................................4 Due Process Clause ..................................................4, 5 Equal Protection Clause ......................4, 11, 28, 30, 31

VI

Constitution and statutes—Continued:

Page

Cal. Const. art. I, § 7.5 (West 2013 Supp.) .............................3 Defense of Marriage Act, Pub. L. No. 104-199, § 3,
110 Stat. 2419 (1 U.S.C. 7) .....................................................2 Cal. Educ. Code:
§ 51500 (West 2013 Supp.) ...............................................32 § 51933 (West 2006) ..........................................................32 Cal. Elec. Code: § 342 (West 2013 Supp.) .....................................................2 § 9065(d) (West 2003)........................................................17 Cal. Fam. Code (West 2013 Supp.): § 297.5(a).........................................................................3, 10 § 297.5(d) ............................................................................22 § 400(a)................................................................................28 Del. Code Ann. tit. 13 (2012 Supp.): § 212 ....................................................................................11 § 214 ....................................................................................11 Haw. Rev. Stat. Ann. § 572B-9 (LexisNexis 2012 Supp.) .....................................................................................11 750 Ill. Comp. Stat. Ann. § 75/20 (West 2012 Supp.) ..........11 Nev. Rev. Stat. Ann. § 122A.200 (LexisNexis 2010)...........11 N.J. Stat. Ann. (West 2012 Supp.): § 37:1-31..............................................................................11 § 37:1-32..............................................................................11 Or. Rev. Stat. § 106.340 (2011)...............................................11 R.I. Gen. Laws (LexisNexis 2012 Supp.): § 15-3.1-6.............................................................................11 § 15-3.1-7.............................................................................11

VII

Miscellaneous:

Page

Am. Acad. of Child & Adolescent Psychiatry, Gay, Lesbian, Bisexual, or Transgender Parents Policy Statement, 2009, http://www.aacap.org/cs/root/ policy_statements/gay_lesbian_transgender_and_ bisexual_parents_policy_statement ................................... 21
Am. Acad. of Pediatrics, Coparent or Second-Parent Adoption by Same-Sex Parents, Feb. 2002, http:// aappolicy.aappublications.org/cgi/content/full/ pediatrics;109/2/339 ..............................................................21
Am. Med. Ass’n, AMA Policies on GLBT Issues, http://www.ama-assn.org/ama/pub/about-ama/ourpeople/member-groups-sections/glbt-advisorycommittee/ama-policy-regarding-sexualorientation.shtml (last visited Feb. 27, 2013)....................22
Am. Psychological Ass’n, Sexual Orientation, Parents, & Children, July 2004, http://www.apa.org/ about/governance/council/policy/parenting. aspx ......................................................................................... 21
Timothy J. Biblarz & Judith Stacey, How Does the Gender of Parents Matter?, 72 J. Marriage & Family (2010).................................................................................21
Child Welfare League of Am., Position Statement on Parenting of Children by Lesbian, Gay, and Bisexual Adults, http://www.cwla.org/programs/ culture/glbtqposition.htm (last visited Feb. 27, 2013) .......................................................................................22
Letter from Eric H. Holder, Jr., Attorney General of the United States, to John A. Boehner, Speaker, U.S. House of Representatives (Feb. 23, 2011)..................1
ProtectMarriage.com, Ballot Arguments in Favor of Prop 8, http://protectmarriage.com/ballotarguments-in-favor-of-prop-8-2008 ...................................... 3

In the Supreme Court of the United States
No. 12-144 DENNIS HOLLINGSWORTH, ET AL., PETITIONERS
v. KRISTIN M. PERRY, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING RESPONDENTS
INTEREST OF THE UNITED STATES
This case presents the question whether California’s denial of the right to marry to same-sex couples violates equal protection. The United States has an interest in the Court’s resolution of that question, particularly in light of its participation in United States v. Windsor, No. 12-307 (cert. granted Dec. 7, 2012), now pending before the Court. The President and Attorney General have determined that classifications based on sexual orientation should be subject to heightened scrutiny for equal protection purposes. 12-307 J.A. 183-194 (Letter from Eric H. Holder, Jr., Attorney General of the United States, to John A. Boehner, Speaker, U.S. House of Representatives (Feb. 23, 2011)). This case, like Windsor, presents the Court with the opportunity to address the question whether laws that target gay and lesbian people for discriminatory treatment should be subject to
(1)

2
heightened scrutiny. The United States has participated as amicus curiae in other cases to address the level of scrutiny to be applied to a particular classification for equal protection purposes. E.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985). Certain interests articulated in support of Proposition 8 in this case also have been raised in Windsor in support of Section 3 of the Defense of Marriage Act, and the Court’s approach when examining those interests therefore is of significance to the United States.
STATEMENT
1. In May 2008, the Supreme Court of California held that the California Constitution guaranteed to same-sex couples the fundamental right to marry, and invalidated a state statute that had restricted civil marriage to opposite-sex couples. See In re Marriage Cases, 183 P.3d 384 (Cal. 2008). Following that decision, approximately 18,000 same-sex couples legally married in California.
Five California citizens, including four of five petitioners here, qualified a ballot initiative to “[c]hange[] the California Constitution to eliminate the right of same-sex couples to marry in California.” Pet. App. 26a (brackets in original; citation omitted). Those citizens were designated the official proponents of the ballot initiative, known as Proposition 8. See Cal. Elec. Code § 342. The pro-ballot argument, approved by the official proponents for inclusion in California’s voter information guide (Voter Guide), explained that Proposition 8 “does three simple things”: (1) “restores the definition of marriage to what * * * human history has understood marriage to be”; (2) “overturns the outrageous decision of four activist Supreme Court judges who ignored the will of the people”; and (3) “protects our children from being taught in public schools that ‘same-

3 sex marriage’ is the same as traditional marriage.” J.A. Exh. 56 (emphasis omitted). The pro-ballot argument also emphasized that “Proposition 8 doesn’t take away any rights or benefits of gay or lesbian domestic partnerships.” Ibid.1
In November 2008, a majority of California voters approved Proposition 8. The California Constitution therefore was amended to provide that “[o]nly marriage between a man and a woman is valid or recognized in California.” Cal. Const. art. I, § 7.5. The California Supreme Court subsequently upheld Proposition 8 against a state constitutional challenge. See Strauss v. Horton, 207 P.3d 48 (Cal. 2009). That court construed Proposition 8 as “carv[ing] out” only a “narrow and limited exception” to the state constitutional rights otherwise guaranteed to same-sex couples, id. at 61, and emphasized that such couples “continue to enjoy * * * the constitutional right to enter into an officially recognized and protected family relationship [i.e., domestic partnership] with the person of one’s choice and to raise children in that family if the couple so chooses,” id. at 102. Under California law, domestic partnerships carry all of the substantive rights and obligations of marriage: domestic partners in California have “the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law * * * as are granted to and imposed upon spouses.” Cal. Fam. Code § 297.5(a). The court further deter-
1 The website of petitioner ProtectMarriage.com, the ballot measure committee formed by four of the five individual proponents of Proposition 8, contains substantially similar arguments in support of the initiative. See ProtectMarriage.com, Ballot Arguments in Favor of Prop 8, http://protectmarriage.com/ballot-arguments-in-favor-ofprop-8-2008.

4 mined that Proposition 8 did not invalidate the 18,000 marriages involving same-sex couples performed before its enactment. Strauss, 207 P.3d at 119-122.
2. Private respondents, two same-sex couples who wish to marry, brought suit in federal district court to challenge Proposition 8 under the Fourteenth Amendment to the United States Constitution. Respondent City and County of San Francisco was granted leave to intervene as a plaintiff. The named defendants— California’s governor, its attorney general, and several state and county officials involved in the enforcement of state marriage laws—declined to defend Proposition 8, and the California Attorney General conceded that it was unconstitutional. The proponents of Proposition 8, including petitioners here, intervened in order to defend the initiative.
The district court, following trial, held Proposition 8 unconstitutional under the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Pet. App. 137a-317a. In its equal protection analysis, the court found that gay and lesbian people are “the type of minority strict scrutiny was designed to protect,” id. at 300a, and that “strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation,” id. at 301a. The court ultimately held, however, that Proposition 8 was unconstitutional under any standard of review because proponents had “failed to identify any rational basis Proposition 8 could conceivably advance” in denying the right to marry to same-sex couples. Id. at 312a. The court also ruled that Proposition 8 “unconstitutionally burdens the exercise of the fundamental right to marry” under the Due Process Clause. Id. at 286a.

5 The court of appeals stayed the district court’s judgment pending appeal. 3. a. Following briefing and argument, the court of appeals determined that petitioners’ standing to appeal might depend on the authority conferred by state law. The court therefore certified to the California Supreme Court the question whether, under California law, “the official proponents of an initiative measure possess * * * the authority to assert the State’s interest in the initiative’s validity * * * when the public officials charged with th[e] duty [to defend the constitutionality of the initiative] refuse to do so.” Pet. App. 416a. The Supreme Court of California answered that, under the circumstances presented in this case, California law entitled petitioners to represent the State and to assert its interest in the validity of Proposition 8. Id. at 318a402a. b. The court of appeals, after determining that petitioners had Article III standing, affirmed the district court’s judgment. Pet. App. 1a-95a. Declining to decide whether classifications based on sexual orientation warrant heightened scrutiny (id. at 57a n.13, 70a n.19), the court held that Proposition 8 violated equal protection on the ground that it withdrew from gay and lesbian people the right to marry—a right they had previously enjoyed under California law—without a rational basis for doing so. Id. at 47a-92a. The court emphasized that Proposition 8, while denying gay and lesbian couples access to the designation of marriage, left fully intact their access to the legal incidents of marriage through domestic partnerships. Id. at 17a, 47a-54a, 57a-58a. The court concluded that the “sole purpose and effect” of Proposition 8 was impermissibly to “singl[e] out a certain class of citizens for disfavored legal status.” Id. at

6
57a-58a, 91a (quoting Romer v. Evans, 517 U.S. 620, 633 (1996)).
Judge N.R. Smith agreed that petitioners had standing to appeal, but dissented on the merits. Pet. App. 95a-136a. Judges O’Scannlain, Bybee, and Bea dissented from the denial of rehearing en banc. Id. at 445a446a. The court of appeals stayed its mandate pending final disposition by this Court. Id. at 444a.
SUMMARY OF ARGUMENT
Private respondents, committed gay and lesbian couples, seek the full benefits, obligations, and social recognition conferred by the institution of marriage. California law provides to same-sex couples registered as domestic partners all the legal incidents of marriage, but it nonetheless denies them the designation of marriage allowed to their opposite-sex counterparts. Particularly in those circumstances, the exclusion of gay and lesbian couples from marriage does not substantially further any important governmental interest. Proposition 8 thus violates equal protection.
A. As the government explained in its merits brief (Br. 18-36) in United States v. Windsor, No. 12-307, classifications based on sexual orientation call for application of heightened scrutiny. Each of the four relevant considerations identified by this Court supports that conclusion: (1) gay and lesbian people have suffered a significant history of discrimination in this country; (2) sexual orientation generally bears no relation to ability to perform or contribute to society; (3) discrimination against gay and lesbian people is based on an immutable or distinguishing characteristic that defines them as a group; and (4) notwithstanding certain progress, gay and lesbian people—as Proposition 8 itself underscores—are a minority group with limited power to

7 protect themselves from adverse outcomes in the political process. The district court’s factual findings in this case reinforce that conclusion, Pet. App. 226a-279a, and the Court’s summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972), does not foreclose it.
Petitioners proffer two reasons for declining to apply heightened scrutiny to classifications based on sexual orientation in the marriage context: (1) the distinction between same-sex couples and opposite-sex couples “reflects biological realities closely related to society’s traditional interest in marriage” (Pet. Br. 29 n.1); and (2) the states traditionally possess “predominant” authority over marriage (id. at 30). Those considerations, however, relate (at most) to whether a classification based on sexual orientation in the marriage context survives heightened scrutiny (the second step of the analysis), not to the antecedent question whether heightened scrutiny applies to the classification at all.
B. Proposition 8 fails heightened scrutiny. Neither the interests asserted by petitioners nor Proposition 8’s “actual purposes” as approved by its official sponsors suffice under that standard.
1. First, petitioners’ central argument is that Proposition 8 advances an interest in responsible procreation and child-rearing because only heterosexual couples can produce “unintended pregnancies,” and because the “overriding purpose” of marriage is to address that reality by affording a stable institution for procreation and child-rearing. But, as this Court has recognized, marriage is far more than a societal means of dealing with unintended pregnancies. See Turner v. Safley, 482 U.S. 78, 95-96 (1987); Loving v. Virginia, 388 U.S. 1, 12 (1967). Even assuming, counterfactually, that the point of Proposition 8 was to account for accidental offspring

8 by opposite-sex couples, its denial of the right to marry to same-sex couples does not substantially further that interest.
To the extent the Voter Guide offered a distinct rationale favoring child-rearing by married opposite-sex couples, Proposition 8 neither promotes that interest nor prevents same-sex parenting. The overwhelming expert consensus is that children raised by gay and lesbian parents are as likely to be well adjusted as children raised by heterosexual parents. In any event, notwithstanding Proposition 8, California law continues to grant same-sex domestic partners the full extent of parental rights accorded to married couples. In that context, the exclusion of same-sex couples from marriage bears no substantial relation to any interest in promoting responsible procreation and child-rearing.
Second, petitioners argue that Proposition 8 furthers an interest in proceeding with caution before departing from the traditional understanding of marriage. That was not one of the contemporaneous justifications for Proposition 8 and thus cannot properly be considered under heightened scrutiny. In any event, similar calls to wait have been advanced—and properly rejected—in the context of racial integration, for example. See, e.g., Watson v. City of Memphis, 373 U.S. 526, 528-529 (1963). Even if proceeding with caution were important enough to deny gay and lesbian people the right to marry in California now, Proposition 8 does not embody such an approach but rather goes to the opposite extreme. It permanently amends the California Constitution to bar any legislative change to the definition of marriage.
Third, petitioners contend that Proposition 8 serves an interest in returning the issue of marriage to the

9
democratic process. But use of a voter initiative to promote democratic self-governance cannot save a law like Proposition 8 that would otherwise violate equal protection. The point of heightened scrutiny is to protect disfavored minority groups from unjustified targeting in the democratic process.
2. Petitioners do not rely on two of Proposition 8’s actual purposes as expressed in the Voter Guide. Those interests fail under heightened scrutiny in any event.
First, preserving a tradition of limiting marriage to heterosexuals is not itself a sufficiently important interest to justify Proposition 8. See, e.g., United States v. Virginia, 518 U.S. 515, 535-536 (1996). Nor do petitioners point to any evidence that permitting same-sex couples to marry will affect the “traditional” marriages of opposite-sex couples.
Second, protecting children from being taught about same-sex marriage is not a permissible interest insofar as it rests on a moral judgment about gay and lesbian people or their intimate relationships. See Lawrence v. Texas, 539 U.S. 558, 577-578 (2003). Nor does Proposition 8 substantially further any such interest given California’s educational policies, which have never required teaching children about same-sex marriage and which prohibit instruction that discriminates based on sexual orientation.
ARGUMENT PROPOSITION 8 VIOLATES EQUAL PROTECTION
The Court can resolve this case by focusing on the particular circumstances presented by California law and the recognition it gives to committed same-sex relationships, rather than addressing the equal protection issue under circumstances not present here. Under California law, same-sex partners may “enter into an

10 official, state-recognized relationship,” i.e., a domestic partnership. Pet. App. 48a. State law grants domestic partners all of the substantive rights and obligations of a married couple: domestic partners have “the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law * * * as are granted to and imposed upon spouses.” Cal. Fam. Code § 297.5(a). Same-sex partners in California may, inter alia, raise children with the same rights and obligations as spouses; adopt each other’s children; gain a presumption of parentage for a child born to or adopted by one partner; become foster parents; file joint state tax returns; participate in a partner’s health-insurance policy; visit their partner when hospitalized; make medical decisions for a partner; and, upon the death of a partner, serve as the conservator of the partner’s estate. Pet. App. 49a-50a. California has therefore recognized that same-sex couples form deeply committed relationships that bear the hallmarks of their neighbors’ opposite-sex marriages: they establish homes and lives together, support each other financially, share the joys and burdens of raising children, and provide care through illness and comfort at the moment of death.
Proposition 8 nevertheless forbids committed samesex couples from solemnizing their union in marriage, and instead relegates them to a legal status—domestic partnership—distinct from marriage but identical to it in terms of the substantive rights and obligations under state law. Indeed, Proposition 8 made clear that it left undisturbed California’s conferral of the same substantive rights and obligations of marriage on same-sex domestic partners and that its sole purpose was to deny same-sex partners access to marriage. See p. 3, supra;

11 see also Strauss v. Horton, 207 P.3d 48, 61 (Cal. 2009) (Proposition 8 “leav[es] undisturbed all of the other extremely significant substantive” protections afforded same-sex couples.). California is not alone in this regard. Seven other states provide, through comprehensive domestic partnership or civil union laws, same-sex couples rights substantially similar to those available to married couples, yet still restrict marriage to oppositesex couples: Delaware (Del. Code Ann. tit. 13, §§ 212, 214), Hawaii (Haw. Rev. Stat. Ann. § 572B-9), Illinois (750 Ill. Comp. Stat. Ann. § 75/20), Nevada (Nev. Rev. Stat. Ann. § 122A.200), New Jersey (N.J. Stat. Ann. §§ 37:1-31, 37:1-32), Oregon (Or. Rev. Stat. § 106.340), and Rhode Island (R.I. Gen. Laws §§ 15-3.1-6, 15-3.1-7). The designation of marriage, however, confers a special validation of the relationship between two individuals and conveys a message to society that domestic partnerships or civil unions cannot match.
Proposition 8’s denial of marriage to same-sex couples, particularly where California at the same time grants same-sex partners all the substantive rights of marriage, violates equal protection. The Fourteenth Amendment’s guarantee of equal protection embodies a defining constitutional ideal that “all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). The object of California’s establishment of the legal relationship of domestic partnership is to grant committed same-sex couples rights equivalent to those accorded a married couple. But Proposition 8, by depriving samesex couples of the right to marry, denies them the “dignity, respect, and stature” accorded similarly situated opposite-sex couples under state law, Strauss, 207 P.3d at 72, and does not substantially further any important

12
governmental interest. It thereby denies them equal protection under the law.
A. Classifications Based On Sexual Orientation Should Be Subject To Heightened Scrutiny
Legislation is generally presumed valid and sustained as long as the “classification drawn by the statute is rationally related to a legitimate state interest.” Cleburne, 473 U.S. at 440. For certain protected classes, however, heightened scrutiny enables courts to ascertain whether the government has employed the classification for a significant and proper purpose, and provides an enhanced measure of protection in circumstances where there is a greater danger that the classification results from impermissible prejudice or stereotypes. See, e.g., City of Richmond v. J. A. Croson Co., 488 U.S. 469, 493 (1989) (plurality opinion); United States v. Virginia, 518 U.S. 515, 533 (1996) (VMI). Because sexual orientation is a factor that “generally provides no sensible ground for differential treatment,” Cleburne, 473 U.S. at 440-441, laws that classify based on sexual orientation should be subject to heightened scrutiny.
As explained in the government’s merits brief (Br. 18-36) in United States v. Windsor, No. 12-307, all four of the factors relied on by this Court in assessing the applicability of heightened scrutiny to a classification support that conclusion: (1) gay and lesbian people have suffered a significant history of discrimination in this country (id. at 22-27); (2) sexual orientation generally bears no relation to ability to perform or contribute to society (id. at 27-29); (3) discrimination against gay and lesbian people is based on an immutable or distinguishing characteristic that defines them as a group (id. at 29-32); and (4) notwithstanding a measure of recent progress, gay and lesbian people are minorities with

13 limited power to protect themselves from adverse outcomes in the political process, as Proposition 8 itself indicates (id. at 32-35). The district court’s extensive factual findings below, based on a trial record replete with expert and other evidence, reinforce each of those determinations. See Pet. App. 227a-234a (immutability/distinguishing characteristic), 234a-236a (capacity to contribute to society), 264a-272a (history of discrimination), 276a-279a (political process). The Court has understandably reserved the application of heightened constitutional scrutiny to a small number of classifications, but it is manifest that sexual orientation falls squarely in the category of classifications for which heightened scrutiny is designed.
Contrary to petitioners’ contention (Br. 27-28), this Court’s one-line summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972), in which it dismissed an appeal as of right from a state supreme court decision denying marriage status to a same-sex couple, neither forecloses the application of heightened scrutiny nor dictates the result in this case. Summary dispositions are “not of the same precedential value as would be an opinion of this Court treating the question on the merits.” Edelman v. Jordan, 415 U.S. 651, 670-671 (1974); see Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 309 n.1 (1976) (per curiam). In any event, neither the underlying state supreme court decision, Baker v. Nelson, 191 N.W.2d 185, 187 (Minn. 1971), nor the questions presented in the plaintiffs’ jurisdictional statement, addressed the applicability of heightened scrutiny to classifications based on sexual orientation, 12-307 J.A. 559; see also id. at 570 (describing equal protection challenge as based on the “arbitrary” nature of the state law); id. at 574 (stating that “[t]he discrimination in this case is one of gender”).

14
Not surprisingly, the Court’s summary order gives no indication that it considered the applicable level of scrutiny. Indeed, this Court had not yet recognized intermediate scrutiny as an equal protection standard. See United States v. Windsor, 699 F.3d 169, 178-179 (2d Cir.) (noting “manifold changes to the Supreme Court’s equal protection jurisprudence” since Baker), cert. granted, 133 S. Ct. 786 (2012). Baker thus does not govern whether a state law excluding same-sex couples from the right to marry survives heightened scrutiny— much less where, as here (and unlike in Baker), the state provides all the substantive rights of marriage but denies access to the designation.
Petitioners alternatively contend that a more deferential standard of review might be applied to laws pertaining to the “traditional definition of marriage” than to “other sorts of laws that classify individuals based on sexual orientation.” Pet. Br. 29 n.1. As a general matter,2 however, this Court has rejected invitations to vary the standard of review applicable to a suspect or quasisuspect class because of the deference traditionally accorded to the particular regulatory context. See, e.g.,
2 Alienage, the only example cited by petitioners (Br. 29 n.1), entails distinctive considerations. See, e.g., Fiallo v. Bell, 430 U.S. 787, 792-793 (1977) (recognizing a “need for special judicial deference to congressional policy choices in the immigration context”); Mathews v. Diaz, 426 U.S. 67, 78-85 (1976) (applying deferential review where classification concerns relationship “between aliens and the Federal Government” given its “broad power over naturalization and immigration”); Bernal v. Fainter, 467 U.S. 216, 220-221 (1984) (applying “narrow exception” to strict scrutiny for citizenship-based classification where law relates to a “political function”). The deference accorded in cases involving management of the military, e.g., Goldman v. Weinberger, 475 U.S. 503, 507 (1986), similarly involves considerations not relevant here.

15 Johnson v. California, 543 U.S. 499, 505 (2005) (observing that Court “ha[s] insisted on strict scrutiny in every context, even for so-called ‘benign’ racial classifications”) (emphasis added); Clark v. Jeter, 486 U.S. 456, 461 (1988) (holding that intermediate scrutiny applies to “classifications based on sex or illegitimacy” without noting context-dependent exceptions). Petitioners suggest two reasons for a different result here, but neither suffices.
First, petitioners assert (Br. 29 n.1) that the distinction between same-sex couples and opposite-sex couples “reflects biological realities closely related to society’s traditional interest in marriage.” Even if true, however, that consideration would bear only on whether the distinction withstands heightened scrutiny in this case (the second step of the equal protection analysis), not to whether heightened scrutiny applies at all (the first step). See Windsor, 699 F.3d at 183 (relevance of the classification to the specific interests at issue in a particular law “bear[s] upon whether the law withstands scrutiny (the second step of analysis) rather than upon the level of scrutiny to apply”) (citing Clark, 486 U.S. at 461); see also 12-307 Gov’t Merits Br. 29.
Second, petitioners invoke (Br. 30, 59-60) the states’ traditionally “predominant” authority over marriage. That authority, however, does not afford state marriage laws that disfavor protected classes an exemption from heightened scrutiny; the regulation of marriage is thus subject to the same equal protection principles applicable in other contexts. See Loving v. Virginia, 388 U.S. 1, 11 (1967) (applying the “most rigid scrutiny” under the Equal Protection Clause to state prohibition on interracial marriage) (citation omitted). Because gay and lesbian people meet the criteria for treatment as a

16
protected class, this Court should apply heightened scrutiny in this case.3
B. Proposition 8 Fails Heightened Scrutiny
Because a classification based on sexual orientation calls for the application of heightened scrutiny, petitioners must establish that Proposition 8, at a minimum, is “substantially related to an important governmental objective.” Clark, 486 U.S. at 461. And under heightened scrutiny, a law must be defended by reference to the “actual state purposes” behind it, not “rationaliza-
3 As petitioners recognize (Br. 28), although Proposition 8 does not expressly refer to “sexual orientation,” it nonetheless classifies on that basis. Proposition 8 denies recognition of a class of marriages into which, as a practical matter, only gay and lesbian people are likely to enter. See Pet. App. 239a-240a (“Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals.”); J.A. Exh. 56-57 (Voter Guide’s pro-Proposition 8 argument: urging voters to ban “gay marriage” and stating that “[g]ays and lesbians * * * do not have the right to redefine marriage for everyone else”). This Court has squarely rejected any distinction between the status and conduct of gay and lesbian people. See Christian Legal Soc’y v. Martinez, 130 S. Ct. 2971, 2990 (2010) (rejecting contention that the organization “does not exclude individuals because of sexual orientation, but rather ‘on the basis of a conjunction of conduct and the belief that the conduct is not wrong’ ” because the Court’s “decisions have declined to distinguish between status and conduct in this context”); Lawrence v. Texas, 539 U.S. 558, 575 (2003) (“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination.”); id. at 583 (O’Connor, J., concurring in judgment) (“While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] law is targeted at more than conduct. It is instead directed toward gay persons as a class.”); cf. Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (1993) (“A tax on wearing yarmulkes is a tax on Jews.”).

17
tions for actions in fact differently grounded.” VMI, 518 U.S. at 535-536; see also id. at 533 (“The justification must be genuine, not hypothesized or invented post hoc in response to litigation.”).
The Voter Guide, which included the state’s compilation of the arguments in favor of Proposition 8 as authorized by its official proponents (Pet. App. 357a; Cal. Elec. Code § 9065(d)), sets forth the specific governmental interests purportedly advanced by Proposition 8:
YES on Proposition 8 does three simple things: It restores the definition of marriage to what the vast majority of California voters already approved and human history has understood marriage to be. It overturns the outrageous decision of four activist Supreme Court judges who ignored the will of the people. It protects our children from being taught in public schools that “same-sex marriage” is the same as traditional marriage. J.A. Exh. 56. The Voter Guide further states that “the best situation for a child is to be raised by a married mother and father.” Ibid.; see, e.g., Strauss, 207 P.3d at 120-121 (“When an initiative measure is at issue, the most potentially informative extrinsic source is usually the material contained in the ballot pamphlet that is mailed to each voter.”); Professional Eng’rs in Cal. Gov’t v. Kempton, 155 P.3d 226, 239 (Cal. 2007) (“[B]allot summaries and arguments may be considered when determining the voters’ intent and understanding of a ballot measure.”) (internal quotation marks and citation omitted). Because petitioners contend that rational-basis review, rather than heightened scrutiny, applies in this

18
case (Br. 29-31), petitioners make little effort to justify Proposition 8 under heightened scrutiny. Petitioners do assert (Br. 28, 36), though, that the central justification they advance in support of Proposition 8—viz., that the initiative furthers society’s interest in responsible procreation and child-rearing—would satisfy “any level of equal protection scrutiny.” The interest in promoting responsible procreation and child-rearing fails to justify Proposition 8 under heightened scrutiny, particularly in light of California’s grant of all the substantive rights of marriage to same-sex domestic partners. The additional justifications advanced by petitioners, as well as the remaining purposes that actually gave rise to Proposition 8, likewise fail heightened scrutiny.
1. The interests asserted by petitioners in defense of Proposition 8 fail heightened scrutiny
Petitioners defend the constitutionality of Proposition 8 on the basis of three governmental interests purportedly served by the initiative: (i) an interest in promoting responsible procreation and child-rearing; (ii) an interest in proceeding with caution before recognizing same-sex marriage; and (iii) an interest in restoring democratic authority over an issue of significance to the state’s citizens. None of those interests satisfies heightened scrutiny.
a. Responsible procreation and child-rearing
i. Petitioners contend (Br. 33) that the “overriding purpose of marriage” is “to regulate sexual relationships between men and women so that the unique procreative capacity of such relationships benefits rather than harms society.” Based upon that premise, petitioners centrally defend Proposition 8 on the ground that “traditional” marriage serves to address the problem of “unin-

19 tended pregnancies.” Id. at 47; see, e.g., id. at 33 (describing “irresponsible procreation and child-rearing” as “the all-too-frequent result of casual or transient sexual relationships between men and women”); id. at 41 (“Sexual relationships between men and women, and only such relationships, can produce children—often unintentionally.”) (emphasis added).
As this Court has recognized, marriage is much more than a means to deal with accidental offspring. See, e.g., Turner v. Safley, 482 U.S. 78, 95-96 (1987) (recognizing that marriage constitutes an “expression[] of emotional support and public commitment” and that “[t]hese elements are an important and significant aspect of the marital relationship”); Loving, 388 U.S. at 12 (recognizing that marriage is a “vital personal right[] essential to the orderly pursuit of happiness”); see also Lawrence v. Texas, 539 U.S. 558, 578 (2003) (recognizing the liberty interests of “married persons” in the privacy of their sexual conduct “even when not intended to produce offspring”) (citation omitted); Goodridge v. Department of Pub. Health, 798 N.E.2d 941, 961 (Mass. 2003) (“[I]t is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage.”) (footnote omitted). The district court in this case accordingly found that civil marriage, inter alia, enhances public order by organizing individuals into stable and cohesive households; assigns individuals to care for one another and thereby limits the public’s liability to care for the vulnerable; facilitates the accumulation, management, and transmission of property; and enables individuals to increase productivity through the division of household and other labor. Pet. App. 221a-226a. Petitioners’ un-

20 duly narrow conception of the institution of marriage would hardly be recognizable to most of its participants.
But even assuming that creating a safety net for “unintended pregnancies” was an actual and adequate justification, Proposition 8 does not advance—much less bear a substantial relation to—that interest. Petitioners (unsurprisingly) cite no evidence that denying same-sex couples the designation of marriage operates in any way to encourage opposite-sex couples to marry and procreate responsibly; it is difficult to conceive of any logical connection, let alone a substantial one, between that interest and Proposition 8. See Pet. App. 75a (“We are aware of no basis on which this argument would be even conceivably plausible.”); cf. Lawrence, 539 U.S. at 605 (Scalia, J., dissenting) (rejecting “encouragement of procreation” as a basis for prohibiting same-sex marriage “since the sterile and the elderly are allowed to marry”).
Petitioners instead defend their “responsible procreation” rationale exclusively on the basis that a classification may be upheld under rational-basis review when “the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not.” Pet. Br. 8, 40 (quoting Johnson v. Robison, 415 U.S. 361, 383 (1974)). Because opposite-sex couples pose a risk of unintended offspring but same-sex couples do not, petitioners argue, marriage can rationally be limited to the former. Id. at 38-43. That logic would suggest that a state could deny—at least consistent with equal protection—a sterile or elderly opposite-sex couple the right to marry. In any event, petitioners’ contention cannot satisfy heightened scrutiny, under which petitioners must provide some important reason for

21
excluding gay and lesbian people from the right to marry. Petitioners offer none.
ii. The Voter Guide arguably offered a distinct but related child-rearing justification for Proposition 8: “the best situation for a child is to be raised by a married mother and father.” J.A. Exh. 56. Petitioners here do not appear to invoke that interest, which at any rate also fails heightened scrutiny.
As an initial matter, no sound basis exists for concluding that same-sex couples who have committed to marriage are anything other than fully capable of responsible parenting and child-rearing. To the contrary, many leading medical, psychological, and social-welfare organizations have issued policy statements opposing restrictions on gay and lesbian parenting based on their conclusion, supported by numerous scientific studies,4 that children raised by gay and lesbian parents are as likely to be well adjusted as children raised by heterosexual parents.5
4 The weight of the scientific literature strongly supports the view that same-sex parents are just as capable as opposite-sex parents. See, e.g., Timothy J. Biblarz & Judith Stacey, How Does the Gender of Parents Matter?, 72 J. Marriage & Family 3 (2010); see also APA Amicus Br. 5-6, 15-23, Windsor v. United States, 699 F.3d 169 (2d Cir. 2012) (No. 12-2335) (concluding, based on a rigorous review of the literature, that “there is no scientific basis for concluding that gay and lesbian parents are any less fit or capable than heterosexual parents, or that their children are any less psychologically healthy and well adjusted”).
5 See, e.g., Am. Acad. of Pediatrics, Coparent or Second-Parent Adoption by Same-Sex Parents, Feb. 2002, http://aappolicy. aappublications.org/cgi/content/full/pediatrics;109/2/339; Am. Psychological Ass’n, Sexual Orientation, Parents, & Children, July 2004, http://www.apa.org/about/governance/council/policy/ parenting.aspx; Am. Acad. of Child & Adolescent Psychiatry, Gay, Lesbian, Bisexual, or Transgender Parents Policy Statement, 2009,

22
Moreover, as the court of appeals determined (Pet. App. 71a), “Proposition 8 had absolutely no effect on the ability of same-sex couples to become parents or the manner in which children are raised in California.” As explained (p. 3, supra), California law, both before and after Proposition 8, grants registered domestic partners the same parental rights and benefits accorded to married couples. See, e.g., Cal. Fam. Code § 297.5(d); see also Resp. S.F. Br. 43-48. And Proposition 8 does not alter California’s adoption, fostering, or presumedparentage laws, which “continue to apply equally to same-sex couples.” Pet. App. 71a-72a; cf. Massachusetts v. United States Dep’t of Health & Human Servs., 682 F.3d 1, 14 (1st Cir. 2012) (“DOMA cannot preclude same-sex couples in Massachusetts from adopting children or prevent a woman partner from giving birth to a child to be raised by both partners.”), petitions for cert. pending, Nos. 12-13 (filed June 29, 2012), 12-15 (filed July 3, 2012), and 12-97 (filed July 20, 2012). In light of California’s conferral of full rights of parenting and child-rearing on same-sex couples, Proposition 8’s denial to same-sex couples of the right to marry bears no cognizable relation, let alone a substantial one, to any interest in responsible procreation and child-rearing (however defined). Indeed, because a substantial number of California children are raised in households headed by same-sex couples, see Pet. App. 237a, Proposition 8
http://www.aacap.org/cs/root/policy_statements/gay_lesbian_ transgender_and_bisexual_parents_policy_statement; Am. Med. Ass’n, AMA Policies on GLBT Issues, http://www.ama-assn.org/ama/ pub/about-ama/our-people/member-groups-sections/glbt - advisory-committee/ama-policy-regarding-sexual-orientation.shtml; Child Welfare League of Am., Position Statement on Parenting of Children by Lesbian, Gay, and Bisexual Adults, http://www.cwla. org/programs/culture/glbtqposition.htm.

23 actually disserves the goal of improving child welfare by denying families access to the added stability and social acceptance provided by marriage. See, e.g., id. at 247a (“[C]hildren * * * benefit when their parents can marry.”); cf. Goodridge, 798 N.E.2d at 964 (“It cannot be rational * * * to penalize children by depriving them of State benefits because the State disapproves of their parents’ sexual orientation.”).
Petitioners’ principal rejoinder (Br. 44-46) is that California’s election to grant gay and lesbian domestic partners “all the substantive rights and responsibilities” of marriage should not “doom” Proposition 8’s denial of marriage. Under heightened scrutiny, however, a court evaluates the fit between a proffered interest and the challenged classification not in isolation or in the abstract, but in the context of the regulatory regime as it actually exists. See, e.g., Nyquist v. Mauclet, 432 U.S. 1, 9-12 (1977) (evaluating New York’s exclusion of resident aliens from tuition assistance program in light of program as a whole and other laws governing resident aliens); see also Greater New Orleans Broad. Ass’n v. United States, 527 U.S. 173, 192-193 (1999) (speech restriction “had to be evaluated in the context of the entire regulatory scheme” and “invalidated * * * based on the overall irrationality of the Government’s regulatory scheme”) (internal quotations marks omitted). Petitioners cite no precedent requiring (or even permitting) a court to shut its eyes to the actual operation and effect of the law in context.
To the contrary, a number of this Court’s decisions recognize that, in certain circumstances, the conferral by the government of certain rights to some individuals precludes the denial of those same rights to others— even if there was no obligation to confer any rights in

24 the first place. See, e.g., Heckler v. Mathews, 465 U.S. 728, 740 (1984) (“[W]hen the ‘right invoked is that to equal treatment,’ the appropriate remedy is a mandate of equal treatment, a result that can be accomplished by withdrawal of benefits from the favored class as well as by extension of benefits to the excluded class.”) (quoting Iowa-Des Moines Nat’l Bank v. Bennett, 284 U.S. 239, 247 (1931)); Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 390-395 (1993) (although “the District need not have permitted after-hours use of its property for any of the uses permitted by [New York law],” once it did so, it had created a limited public forum and could not discriminate on the basis of speaker identity).
Notably, in the commercial-speech context, in which the Court applies a form of heightened scrutiny, the Court has cited the lack of adequate fit between a challenged speech restriction and the asserted governmental interests by pointing to speech or speakers not restricted by the government. That line of cases thus relies on the fact that the government allowed speech under laws more permissive than constitutionally required. See, e.g., Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2668 (2011) (while state could have adopted a “more coherent policy” through greater restrictions, because it “made prescriber-identifying information available to an almost limitless audience,” “the State’s asserted interest in physician confidentiality d[id] not justify the burden”); Greater New Orleans, 527 U.S. at 191-193 (finding “ ‘little chance’ that the speech restriction could have directly and materially advanced [the government’s] aim” in part because government’s failure to impose greater restrictions on casino advertising “undermine[d] the asserted justifications for the restriction”); City of

25
Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 427-428 (1993) (while city arguably could have banned newsracks entirely, “the distinction Cincinnati has drawn has absolutely no bearing on the interests it has asserted” because of the “absence of some basis for distinguishing between ‘newspapers’ and ‘commercial handbills’ that is relevant to an interest asserted by the city”). So too, here, California’s extension of parental and other rights to gay and lesbian couples particularly undermines any contention that Proposition 8 furthers an interest in responsible child-rearing.
b. Proceeding with caution
Petitioners argue (Br. 48) that Proposition 8 “serves California’s interest in proceeding with caution before fundamentally redefining a bedrock social institution.” “[C]hanging the public meaning of marriage,” they submit (Br. 51), “would necessarily entail a significant risk of adverse consequences over time.” The asserted interest in proceeding slowly cannot justify Proposition 8 under heightened scrutiny because it was not a justification for the initiative identified by its official sponsors in the Voter Guide. See pp. 16-17, supra. In any event, it fails heightened scrutiny.
Petitioners cite no law for the proposition that “proceeding with caution” is sufficiently important to deny a protected class the ability to participate in something as important as marriage. Similar calls to wait were made—and properly rejected—with respect to racial integration, for example. See, e.g., Watson v. City of Memphis, 373 U.S. 526, 528 (1963) (rejecting city’s attempt to “justify its further delay in conforming fully and at once to constitutional mandates by urging the need and wisdom of proceeding slowly and gradually in its desegregation efforts”).

26 In any event, Proposition 8 does not substantially further that interest. Nothing about Proposition 8 suggests that it was intended as a temporary measure pending the results of state experimentation. It amends the California Constitution and permanently bars the legislature from altering the definition of marriage.6 See Pet. App. 80a (“The purpose and effect of Proposition 8 was ‘to eliminate the right of same-sex couples to marry in California’ ” rather than “to ‘suspend’ or ‘study’ that right.”) (quoting J.A. Exh. 56). Nor can Proposition 8 be justified on the theory that administrative processes for recognition of same-sex marriage would be difficult or time-consuming to implement; before Proposition 8 was enacted, California had sanctioned 18,000 marriages between same-sex couples. Id. at 78a-79a. As the court of appeals thus concluded, no connection exists between the “asserted purpose of ‘proceeding with caution’ and the enactment of an absolute ban, unlimited in time, on same-sex marriage in the state constitution.’ ” Ibid.; cf. Hunter v. Erickson, 393 U.S. 385, 392 (1969) (rejecting argument that city charter amendment could be “justif[ied]” as a “public decision to move slowly in the delicate area of race relations” where amendment was “unnecessary” to achieving that purpose).
c. Democratic self-governance
The proponents of Proposition 8 stated an interest in reserving to the “will of the people” of California—and withdrawing from the California courts—ultimate authority over the definition of marriage. J.A. Exh. 56. Although the interest in promoting democratic self-
6 Eleven states that do not permit same-sex couples to marry lack a state constitutional bar requiring that result. See 12-307 Windsor, Gov’t Merits Br. 34 & n.8.

27 governance was not pressed or passed upon as an independent argument justifying Proposition 8 below, petitioners now advance it before this Court (Pet. Br. 55-61).
Promoting democratic self-governance and accountability is a laudable governmental interest, but it is not one that can justify a law that would otherwise violate the Constitution. “The sovereignty of the people is itself subject to * * * constitutional limitations.” Hunter, 393 U.S. at 392. The very premise of heightened scrutiny is that certain classifications are “seldom relevant to the achievement of any legitimate state interest,” but that they burden classes that are unlikely to acquire protection through the democratic process. Cleburne, 473 U.S. at 440. The judiciary plays a “special role in safeguarding” those protected classes. Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 486 (1982).
Marriage hardly stands alone among issues implicating equal protection or due process that may involve “various important but potentially conflicting interests, as well as competing values and understandings of the public good that are strongly and sincerely held by both supporters and opponents of such change.” Pet. Br. 56. That such issues engender active public debate does not insulate them from constitutional scrutiny. If use of a voter initiative could itself provide a sufficient justification (i.e., democratic self-governance) for a suspect classification, it would render the Equal Protection Clause nugatory in that context. Just as a state could not rely on an interest in democratic self-governance to prohibit marriage between individuals of a different race (cf. Loving, supra), it cannot rely on such an interest to prohibit marriage between individuals of the same sex— at least to the extent that exclusion would violate equal protection. Petitioners’ reliance on the state interest in

28
democratic self-governance thus ultimately begs the question presented by this case.7
2. The remaining, actual purposes of Proposition 8 also fail heightened scrutiny
a. Traditional definition of marriage
The Voter Guide asserts in favor of Proposition 8 an interest in adopting the definition of marriage as between a man and a woman, consistent with what “human history has understood marriage to be.” J.A. Exh. 56. Although petitioners state that Proposition 8 “pre-
7 Petitioners assert in passing, in a footnote (Br. 31 n.2), that Proposition 8 advances an “important” interest in “accommodating the First Amendment and other fundamental rights of institutions and individuals who support the traditional definition of marriage on religious or moral grounds.” Even if the Court were to consider that post hoc rationalization, it would fail heightened scrutiny. Before Proposition 8, “no religion [was] required to change its religious policies or practices with regard to same-sex couples, and no religious officiant [was] required to solemnize a marriage in contravention of his or her religious beliefs.” In re Marriage Cases, 183 P.3d 384, 451452 (Cal. 2008); see Cal. Fam. Code § 400(a). Proposition 8 therefore does not affect, let alone substantially further, the liberty of people of faith who object to same-sex marriage on religious grounds. To the extent the asserted interest aims to ensure that civil law reflects religious views concerning the sacrament of marriage or the morality of same-sex relationships, it could not justify Proposition 8 either. See p. 31, infra (citing Lawrence); Romer v. Evans, 517 U.S. 620, 635 (1996) (rejecting proffered justification grounded in “personal or religious objections to homosexuality”); Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (‘‘Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.’’); cf. Zelman v. Simmons-Harris, 536 U.S. 639, 648-649 (2002) (“The Establishment Clause of the First Amendment, applied to the States through the Fourteenth Amendment, prevents a State from enacting laws that have the ‘purpose’ or ‘effect’ of advancing or inhibiting religion.”).

29 serve[s] the traditional definition of marriage” (Br. 2), they do not raise that interest as an independent justification for Proposition 8. Rather, petitioners rely on what they describe as “plausible reasons” for California’s adherence to the traditional definition of marriage (Br. 61 (citation omitted)), including the interests in responsible procreation and child-rearing (Br. 36) and proceeding cautiously (Br. 48), that indirectly implicate an interest in the traditional definition.
That is for good reason: reference to tradition, no matter how long established, cannot by itself justify a discriminatory law under equal protection principles. See VMI, 518 U.S. at 535-536 (invalidating longstanding tradition of single-sex education at Virginia Military Institute); see also Lawrence, 539 U.S. at 577-578 (“[N]either history nor tradition could save a law prohibiting miscegenation from constitutional attack.”) (quoting Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J., dissenting)); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 143 n.15 (1994) (“Many of ‘our people’s traditions,’ such as de jure segregation and the total exclusion of women from juries, are now unconstitutional even though they once coexisted with the Equal Protection Clause.”) (citation omitted); Heller v. Doe, 509 U.S. 312, 326 (1993) (“Ancient lineage of a legal concept does not give [a law] immunity from attack for lacking a rational basis.”). Indeed, marriage has changed in certain significant ways over time—such as the demise of coverture and the elimination of racial restrictions on marital partners—that could have been characterized as traditional or fundamental to the institution. See Pet. App. 212a-213a. As this Court has observed, “laws once thought necessary and proper” may in fact “serve only to oppress,” and, “[a]s the Constitution endures, persons

30 in every generation can invoke its principles in their own search for greater freedom.” Lawrence, 539 U.S. at 579.
The state therefore must explain what interests support continuing a “tradition,” especially when that tradition is defined by a classification burdening a minority group. See, e.g., Varnum v. Brien, 763 N.W.2d 862, 898 (Iowa 2009) (“When a certain tradition is used as both the governmental objective and the classification to further that objective, the equal protection analysis is transformed into the circular question of whether the classification * * * maintain[s] the classification.”); Kerrigan v. Commissioner of Pub. Health, 957 A.2d 407, 478 (Conn. 2008) (“[T]he classification * * * must advance a state interest that is separate from the classification itself. * * * [T]he justification of ‘tradition’ does not explain the classification; it merely repeats it.”). Here, the central interest supporting the traditional definition of marriage identified by petitioners is the interest in promoting responsible procreation and child-rearing. But that interest, as explained (pp. 18-25, supra), fails to support maintaining the traditional definition under heightened scrutiny, particularly in light of California’s conferral of full parental rights on same-sex domestic partners.
Nor does Proposition 8 substantially further any purported interest in strengthening the institution (as opposed to preserving a definition) of “traditional” marriage. Petitioners give no reason to believe Proposition 8’s denial of the right to marry to same-sex couples makes heterosexual marriages more widespread, more stable, or more enduring. To the contrary, the best available evidence suggests that “[p]ermitting same-sex couples to marry will not affect the number of oppositesex couples who marry, divorce, cohabit, have children

31
outside of marriage or otherwise affect the stability of opposite-sex marriages.” Pet. App. 245a.
b. Protecting children from being taught about samesex marriage
The Voter Guide expressed in favor of Proposition 8 an interest in ensuring that children will not be taught that same-sex marriage is “okay.” J.A. Exh. 56; see ibid. (“[Proposition 8] protects our children from being taught in public schools that ‘same-sex marriage’ is the same as traditional marriage.”). Notably, petitioners abandoned that interest below and do not advance it in this Court.
Any such “educational” interest cannot sustain Proposition 8. Insofar as the asserted interest in insulating children from any lesson that same-sex marriage is “okay” is founded on a moral judgment, that interest is inadequate under this Court’s precedents. See Lawrence, 539 U.S. at 577 (“[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.”) (quoting Bowers, 478 U.S. at 216 (Stevens, J., dissenting)); id. at 582-583 (O’Connor, J., concurring in judgment) (“Moral disapproval of [gay and lesbian people], like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.”).
In any event, Proposition 8 does not substantially further such an interest given California educational practices. As the court of appeals explained, “[b]oth before and after Proposition 8, schools have not been required to teach anything about same-sex marriage”; “[b]oth before and after Proposition 8, schools have retained control over the content of [any sexual-health

32
education] lessons”; and “both before and after Proposition 8, schools and individual teachers have been prohibited from giving any instruction that discriminates on the basis of sexual orientation.” Pet. App. 82a-83a (citing Cal. Educ. Code §§ 51500, 51933). That California law authorizes domestic partnerships for gay and lesbian couples and expressly grants them the incidents of marriage—a fact about California’s legal regime that could be taught just like any other fact relevant to a class—makes this interest all the more tenuous as a purported justification for Proposition 8.
* * * * * California’s extension of all of the substantive rights and responsibilities of marriage to gay and lesbian domestic partners particularly undermines the justifications for Proposition 8. It indicates that Proposition 8’s withholding of the designation of marriage is not based on an interest in promoting responsible procreation and child-rearing—petitioners’ central claimed justification for the initiative—but instead on impermissible prejudice. As the court of appeals observed (Pet. App. 87a), that is not necessarily to say “that Proposition 8 is the result of ill will on the part of the voters of California.” ‘‘Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.” Board of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J., concurring). Prejudice may not, however, be the basis for differential treatment under the law.

33
CONCLUSION
The judgment of the court of appeals should be affirmed.
Respectfully submitted.
DONALD B. VERRILLI, JR. Solicitor General
STUART F. DELERY Principal Deputy Assistant Attorney General
SRI SRINIVASAN Deputy Solicitor General
PRATIK A. SHAH Assistant to the Solicitor General
MICHAEL JAY SINGER HELEN L. GILBERT JEFFREY E. SANDBERG
Attorneys
FEBRUARY 2013

 
 No. 12-144

IN THE
pìéêÉãÉ=`çìêí=çÑ=íÜÉ=råáíÉÇ=pí~íÉë=
_______________

DENNIS HOLLINGSWORTH, ET AL., Petitioners,
v.

KRISTIN M. PERRY, ET AL.,

_______________

Respondents.

On Writ Of Certiorari To The United States Court Of Appeals
For The Ninth Circuit
_______________

BRIEF FOR RESPONDENTS
_______________

DAVID BOIES

THEODORE B. OLSON

BOIES, SCHILLER & FLEXNER LLP Counsel of Record

333 Main Street

MATTHEW D. MCGILL

Armonk, N.Y. 10504

AMIR C. TAYRANI

(914) 749-8200

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

THEODORE J. BOUTROUS, JR.

Washington, D.C. 20036

CHRISTOPHER D. DUSSEAULT

(202) 955-8500

THEANE EVANGELIS KAPUR

tolson@gibsondunn.com

ENRIQUE A. MONAGAS

JOSHUA S. LIPSHUTZ

JEREMY M. GOLDMAN

GIBSON, DUNN & CRUTCHER LLP BOIES, SCHILLER & FLEXNER LLP

333 South Grand Avenue

1999 Harrison Street, Suite 900

Los Angeles, CA 90071

Oakland, CA 94612

(213) 229-7000

(510) 874-1000

Counsel for Respondents Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo

TABLE OF CONTENTS

Page

INTRODUCTION ........................................................ 1

STATEMENT ..............................................................4

SUMMARY OF ARGUMENT ................................... 13

ARGUMENT ............................................................. 16

I. PROPONENTS LACK STANDING TO APPEAL .......................................................... 16

II. PROPOSITION 8, BY DENYING GAY MEN AND LESBIANS THE RIGHT TO MARRY, VIOLATES DUE PROCESS................................19

A. The Right To Marry Is Fundamental For All People.................21

B. The Trial Record And Factual

Findings

Establish

That

“Responsible Procreation” Is Not

The Defining Purpose Of Marriage ...... 25

III. PROPOSITION 8, BY DENYING GAY MEN AND LESBIANS THE RIGHT TO MARRY, VIOLATES EQUAL PROTECTION ...................... 27
A. Discrimination On The Basis Of Sexual Orientation Triggers Heightened Scrutiny .............................28
B. Laws That Prohibit Gay Men And Lesbians From Marrying Cannot Survive Rational Basis Review, Let Alone Heightened Scrutiny ............36

C. Proposition 8 Is Unconstitutional Because It Was Motivated By A Bare Desire To Make Gay Men And Lesbians Unequal To Everyone Else..................................................51

CONCLUSION ..........................................................53

ii
TABLE OF AUTHORITIES
Page(s)
CASES
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) ..............................................29
Arizonans for Official English v. Arizona, 520 U.S. 43 (1997)..............................11, 13, 16, 17
Baker v. Nelson, 409 U.S. 810 (1972) ..............................................20
Baldwin v. Reese, 541 U.S. 27 (2004)................................................18
Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) ........................................42, 53
Boddie v. Connecticut, 401 U.S. 371 (1971) ........................................20, 22
Bowen v. Gilliard, 483 U.S. 587 (1987) ..............................................29
Bowers v. Hardwick, 478 U.S. 186 (1986) ..............................................51
Brown v. Bd. of Educ., 349 U.S. 294 (1955) ..............................................48
Brown v. Bd. of Educ., 347 U.S. 483 (1954) ..........................................1, 38
Buchanan v. Warley, 245 U.S. 60 (1917)................................................49
Califano v. Yamasaki, 442 U.S. 682 (1979) ..............................................18
Carey v. Population Servs. Int’l, 431 U.S. 678 (1977) ............................20, 21, 23, 27

iii
Christian Legal Soc’y v. Martinez, 130 S. Ct. 2971 (2010)..........................................33
City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985) ............................37, 38, 42, 47
City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283 (1982) ..............................................17
Cleburne Living Ctr., Inc. v. City of Cleburne, 726 F.2d 191 (1984)..............................................38
Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974) ........................................13, 19
Cooper v. Aaron, 358 U.S. 1 (1958)..................................................48
Craig v. Boren, 429 U.S. 190 (1976) ..............................................19
Crawford v. Bd. of Educ., 458 U.S. 527 (1982) ..................................36, 37, 53
Diamond v. Charles, 476 U.S. 54 (1986)................................................17
Don’t Bankrupt Wash. Comm. v. Cont’l Ill. Nat’l Bank & Trust Co. of Chi., 460 U.S. 1077 (1983) ............................................17
Eisenstadt v. Baird, 405 U.S. 438 (1972) ..............................................23
Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993) .................................32
FCC v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) ..............................................38
Frontiero v. Richardson, 411 U.S. 677 (1973) ..............................................35

iv
Griffin v. Illinois, 351 U.S. 12 (1956)................................................28
Griswold v. Connecticut, 381 U.S. 479 (1965) ...................................... passim
GTE Sylvania, Inc. v. Consumers Union of U.S., Inc., 445 U.S. 375 (1980) ..............................................18
Harper v. Va. Bd. of Elections, 383 U.S. 663 (1966) ..............................................28
Heller v. Doe, 509 U.S. 312 (1993) ...................................... passim
INS v. Chadha, 462 U.S. 919 (1983) ..............................................17
Johnson v. Robison, 415 U.S. 361 (1974) ..............................................41
Karcher v. May, 484 U.S. 72 (1987)................................................17
Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407 (Conn. 2008).............................29, 30
Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621 (1969) ..............................................28
Lawrence v. Texas, 539 U.S. 558 (2003) ...................................... passim
Lewis v. Casey, 518 U.S. 343 (1996) ........................................18, 19
Loving v. Virginia, 388 U.S. 1 (1967) .......................................... passim
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..............................................16

v
Lyng v. Castillo, 477 U.S. 635 (1986) ..............................................29
M.L.B. v. S.L.J., 519 U.S. 102 (1996) ........................................20, 21
Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753 (1994) ..............................................19
In re Marriage Cases, 183 P.3d 384 (Cal. 2008) .............................. passim
Mass. Bd. of Ret. v. Murgia, 427 U.S. 307 (1976) ............................10, 14, 28, 29
Mathews v. Diaz, 426 U.S. 67 (1976)................................................40
Maynard v. Hill, 125 U.S. 190 (1888) ..............................................20
Meyer v. Nebraska, 262 U.S. 390 (1923) ..............................................20
Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743 (2010)..........................................19
Moore v. City of E. Cleveland, 431 U.S. 494 (1977) ..............................................20
New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) ..............................................50
Nyquist v. Mauclet, 432 U.S. 1 (1977)..................................................29
Palmore v. Sidoti, 466 U.S. 429 (1984) ..............................................52
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) ..............................................20
Plessy v. Ferguson, 163 U.S. 537 (1896) ..........................................4, 49

vi
Plyler v. Doe, 457 U.S. 202 (1982) ........................................27, 38
Pullman-Standard v. Swint, 456 U.S. 273 (1982) ..............................................38
Reitman v. Mulkey, 387 U.S. 369 (1967) ..............................................36
Republican Party of Minn. v. White, 536 U.S. 765 (2002) ..............................................41
Richmond v. J. A. Croson Co., 488 U.S. 469 (1989) ..............................................50
Roe v. Wade, 410 U.S. 113 (1973) ..............................................20
Romer v. Evans, 517 U.S. 620 (1996) ...................................... passim
Salve Regina Coll. v. Russell, 499 U.S. 225 (1991) ..............................................38
Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) ..............................................20
Strauss v. Horton, 207 P.3d 48 (Cal. 2009) ........................5, 40, 43, 46
Turner v. Safley, 482 U.S. 78 (1987)..............................13, 20, 22, 23
United States v. Virginia, 518 U.S. 515 (1996) ..............................................38
U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973) ..................................37, 43, 48
U.S. Dep’t of Labor v. Triplett, 494 U.S. 715 (1990) ..............................................17
U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166 (1980) ..............................................41

vii
Vance v. Bradley, 440 U.S. 93 (1979)..............................37, 40, 41, 44
Vill. of Willowbrook v. Olech, 528 U.S. 562 (2000) ..............................................48
Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765 (2000) ........................................16, 17
Warth v. Seldin, 422 U.S. 490 (1975) ........................................17, 19
Williams v. Illinois, 399 U.S. 235 (1970) ..............................................50
Zablocki v. Redhail, 434 U.S. 374 (1978) ...................................... passim
CONSTITUTIONAL PROVISIONS Cal. Const. art. V, § 1 ................................................18 STATUTES 29 U.S.C. § 206 ..........................................................35 42 U.S.C. § 2000e-2 ...................................................35 Cal. Civ. Code § 51 ....................................................43 Cal. Fam. Code § 297 ..................................................5 Cal. Fam. Code § 297.5 ...............................................5 Cal. Fam. Code § 308.5 ...............................................4 Cal. Prob. Code § 4716 ................................................6 Cal. Rev. & Tax. Code § 18521....................................6 Cal. Welf. & Inst. Code § 16013............................6, 43 RULES Fed. R. Civ. P. 52 .......................................................38

viii
OTHER AUTHORITIES
William Blackstone, Commentaries..........................39
David Blankenhorn, How My View on Gay Marriage Changed, N.Y. Times, June 22, 2012 ..................52
Divorce Rates by State, http://www.cdc.gov/nchs/data/dvs/ divorce_rates_90_95_99-11.pdf ...........................47
Amy Doherty, Constitutional Methodology and SameSex Marriage, 11 J. Contemp. Legal Issues 110 (2000)............................................23, 24
The Federalist No. 78 (Alexander Hamilton) (E.H. Scott ed., 1898) ......50
Letter from Eric H. Holder Jr., Att’y Gen., to John A. Boehner, Speaker, House of Representatives (Feb. 23, 2011) ..............29, 30, 32
Chris Kirk & Hanna Rosin, Does Gay Marriage Destroy Marriage?: A Look at the Data, Slate (May 23, 2012, 8:00 AM)......................................47
Ned Martel, For a Change, Gay Rights Activists Welcome Election Day Results, Wash. Post, Nov. 8, 2012 .....................................34

BRIEF FOR RESPONDENTS
INTRODUCTION
This case is about marriage, “the most important relation in life,” Zablocki v. Redhail, 434 U.S. 374, 384 (1978), a relationship and intimate decision that this Court has variously described at least 14 times as a right protected by the Due Process Clause that is central for all individuals’ liberty, privacy, spirituality, personal autonomy, sexuality, and dignity; a matter fundamental to one’s place in society; and an expression of love, emotional support, public commitment, and social status.
This case is also about equality. After a $40 million political campaign during which voters were urged to “protect our children” from exposure to the notion that “gay marriage is okay,” J.A. Exh. 56, and “the same as traditional marriage,” J.A. Exh. 67, and thus deserving of equal dignity and respect, Proposition 8 engraved into California’s constitution the cardinal principle that unions among gay men and lesbians are not valid or recognized as marriages, and therefore second-class and not equal to heterosexual marriages. Proposition 8 thus places the full force of California’s constitution behind the stigma that gays and lesbians, and their relationships, are not “okay,” that their life commitments “are not as highly valued as opposite-sex relationships,” Pet. App. 262a, and that gay and lesbian individuals are different, less worthy, and not equal under the law. That “generates a feeling of inferiority” among gay men and lesbians—and especially their children— “that may affect their hearts and minds in a way unlikely ever to be undone.” Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954).

2
Proponents accuse Plaintiffs (repeatedly) of “redefining marriage.” E.g., Prop. Br. 2. But it is Proponents who have imagined (not from any of this Court’s decisions) a cramped definition of marriage as a utilitarian incentive devised by and put into service by the State—society’s way of channeling heterosexual potential parents into “responsible procreation.” In their 65-page brief about marriage in California, Proponents do not even mention the word “love.” They seem to have no understanding of the privacy, liberty, and associational values that underlie this Court’s recognition of marriage as a fundamental, personal right. Ignoring over a century of this Court’s declarations regarding the emotional bonding, societal commitment, and cultural status expressed by the institution of marriage, Proponents actually go so far as to argue that, without the potential for procreation, marriage might not “even . . . exist[ ] at all” and “there would be no need of any institution concerned with sex.” Id. at 35 (internal quotation marks omitted). Thus, under Proponents’ peculiar, litigation-inspired concept of marriage, samesex couples have no need to be married and no cause to complain that they are excluded from the “most important relation in life.” Indeed, Proponents’ state-centric construct of marriage means that the State could constitutionally deny any infertile couple the right to marry, and could prohibit marriage altogether if it chose to pursue a society less committed to “responsible” procreation.
This, of course, reflects a complete “failure to appreciate the extent of the liberty at stake,” Lawrence v. Texas, 539 U.S. 558, 567 (2003), not to mention matters such as love, commitment, and intimacy that most Americans associate with marriage. As Proponents see it, marriage exists solely to serve society’s

3
interest; it makes no sense to speak of an individual’s right to marry.
Proponents view this case as a referendum on whether the institution of marriage should exist in the first place, focusing almost exclusively on why it makes sense for the States to grant heterosexuals the right to marry. But this case is not about whether marriage should be abolished or diminished. Quite the contrary, Plaintiffs agree with Proponents that marriage is a unique, venerable, and essential institution. They simply want to be a part of it—to experience all the benefits the Court has described and the societal acceptance and approval that accompanies the status of being “married.”
The only substantive question in this case is whether the State is entitled to exclude gay men and lesbians from the institution of marriage and deprive their relationships—their love—of the respect, and dignity and social acceptance, that heterosexual marriages enjoy. Proponents have not once set forth any justification for discriminating against gay men and lesbians by depriving them of this fundamental civil right. They have never identified a single harm that they, or anyone else, would suffer as a result of allowing gay men and lesbians to marry. Indeed, the only harms demonstrated in this record are the debilitating consequences Proposition 8 inflicts upon tens of thousands of California families, and the pain and indignity that discriminatory law causes the nearly 40,000 California children currently being raised by same-sex couples.
The unmistakable purpose and effect of Proposition 8 is to stigmatize gay men and lesbians—and them alone—and enshrine in California’s Constitution that they are “unequal to everyone else,” Romer

4
v. Evans, 517 U.S. 620, 635 (1996), that their committed relationships are ineligible for the designation “marriage,” and that they are unworthy of that “most important relation in life.” Neither tradition, nor fear of change, nor an “interest in democratic selfgovernance” (Prop. Br. 55), can absolve society, or this Court, of the obligation to identify and rectify discrimination in all its forms. If a history of discrimination were sufficient to justify its perpetual existence, as Proponents argue, our public schools, drinking fountains, and swimming pools would still be segregated by race, our government workplaces and military institutions would still be largely offlimits to one sex—and to gays and lesbians, and marriage would still be unattainable for interracial couples. Yet the Fourteenth Amendment could not tolerate those discriminatory practices, and it similarly does not tolerate the permanent exclusion of gay men and lesbians from the most important relation in life. “In respect of civil rights, all citizens are equal before the law.” Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting).
STATEMENT
1. In 2000, California voters adopted Proposition 22, which amended the Family Code to provide that “[o]nly marriage between a man and a woman is valid or recognized in California.” Cal. Fam. Code § 308.5. In May 2008, the California Supreme Court struck down Proposition 22, holding that it violated the due process and equal protection guarantees of the California Constitution, and ordered the State to issue marriage licenses without regard to the sex of the prospective spouses. In re Marriage Cases, 183 P.3d 384 (Cal. 2008).

5
In response to the California Supreme Court’s decision in the Marriage Cases, Proponents financed and orchestrated a $40 million campaign to “[c]hange[ the] California Constitution to eliminate the right of same-sex couples to marry [in California].” J.A. Exh. 53. The measure—Proposition 8— was placed on the ballot for the November 2008 election, and proposed to add a new Article I, § 7.5 to the California Constitution stating that “[o]nly marriage between a man and a woman is valid or recognized in California.” The Official Voter Information Guide urged voters to support Proposition 8 in order to protect California’s children. See J.A. Exh. 56 (“[v]oting YES protects our children”); see also, e.g., J.A. Exh. 154 (campaign poster with text “Restoring Marriage and Protecting California Children”).
Proposition 8 was approved by the voters and went into effect on November 5, 2008, the day after the election. See Strauss v. Horton, 207 P.3d 48, 68 (Cal. 2009). The California Supreme Court subsequently upheld Proposition 8 against a state constitutional challenge, but held that the new amendment to the California Constitution did not invalidate the 18,000 marriages of same-sex couples that had been performed before its enactment. See id. at 122; see also Pet. App. 142a-143a.
Proposition 8 did not alter existing California law allowing same-sex couples to form so-called “domestic partnerships,” Cal. Fam. Code § 297, which provides that “domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties . . . as are granted to and imposed upon spouses.” Id. § 297.5(a). Accordingly, same-sex couples registered as domestic partners in California share community property, see id. § 297.5(k), file state taxes

6
jointly, see Cal. Rev. & Tax. Code § 18521(d), and make medical decisions on behalf of an incapacitated partner, see Cal. Prob. Code § 4716.
In addition, California protects the right of samesex couples to be foster parents and to adopt children by forbidding discrimination on the basis of sexual orientation. See Cal. Welf. & Inst. Code § 16013(a). Thus, when same-sex couples choose to raise children, they are treated identically to opposite-sex parents under California law. Pet. App. 237a-238a. In fact, 18% of same-sex couples in California are raising children under the age of 18. Pet. App. 238a.
2. As a direct result of Proposition 8, Plaintiffs— gay and lesbian Californians who are in committed, long-term relationships and who wish to marry— were deprived of the right to marry solely because their prospective spouses are of the same sex. Because Proposition 8 denies their family relationships the same dignity and respect afforded to opposite-sex couples and their families, Pet. App. 243a-245a, Plaintiffs filed suit to challenge the constitutionality of Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The Governor and Attorney General of California continued to enforce, but refused to defend, Proposition 8, and the district court permitted Proponents to intervene to defend the measure. The district court also permitted the City and County of San Francisco to intervene as a plaintiff in the case.
The district court conducted a twelve-day bench trial, during which the parties were “given a full opportunity to present evidence in support of their positions.” Pet. App. 152a. At trial, the parties called 19 witnesses—17 of them by Plaintiffs—and played the video depositions of other witnesses as well. Pet.

7
App. 153a. Plaintiffs’ witnesses included leading experts in American history, sociology, psychology, and political science. Pet. App. 172a-181a.
After hearing more than six hours of closing arguments and considering hundreds of pages of proposed findings of fact and conclusions of law submitted by the parties, the district court declared Proposition 8 unconstitutional under both the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and permanently enjoined its enforcement. See Pet. App. 287a (citing Loving v. Virginia, 388 U.S. 1, 12 (1967)); Pet. App. 294a-295a (citing Zablocki, 434 U.S. at 388); Pet. App. 313a-316a (citing Lawrence, 539 U.S. at 579; Romer, 517 U.S. at 634); Pet. App. 316a-317a. The district court issued 80 separate findings of fact, summarizing the evidence that supported each one. Pet. App. 202a-285a.
The district court began by examining the history, purpose, and benefits of civil marriage in the United States and, particularly, in California based on the evidence submitted during the trial. Pet. App. 202a-285a. The court found that marriage had long been predicated upon a “presumption[ ] of a division of labor along gender lines” and, under the doctrine of coverture, the “husband was the legal head of [the] household.” Pet. App. 214a-215a. With the end of the doctrine of coverture, however, “marital partners [began to] share the same obligations to one another and to their dependents,” “[r]egardless of their sex or gender.” Pet. App. 219a. Thus, marriage is no longer defined in this country by the traditional gender roles of the respective spouses. Rather, marriage is animated by “recognition and approval of a couple’s choice to live with each other, and to remain committed to one another and to form a household based on their own feelings about one another and to join in

8
an economic partnership and support one another and any dependents.” Pet. App. 220a-221a. Other animating purposes include “[f]acilitating governance and public order by organizing individuals into cohesive family units,” “[d]eveloping a realm of liberty, intimacy and free decision-making by spouses,” “[c]reating stable households,” “[l]egitimating children,” “[a]ssigning individuals to care for one another and thus limiting the public’s liability to care for the vulnerable,” and “[f]acilitating property ownership.” Pet. App. 221a-223a; see also J.A. 409.
Marriage also “expresses the . . . liberty to be able to consent validly.” Pet. App. 211a (internal quotation marks omitted). Indeed, “[b]ecause slaves were considered property of others at the time, they lacked the legal capacity to consent and were thus unable to marry. After emancipation, former slaves viewed their ability to marry as one of the most important new rights they had gained.” Pet. App. 212a. “[F]ree consent” has “always” been a requirement for marriage in all States. Pet. App. 212a. California, however, “has never required that individuals entering a marriage be willing or able to procreate.” Pet. App. 211a.
The district court found that there are many unique benefits to marriage. Marriage “creates economic support obligations between consenting adults,” “promot[es] physical and psychological health,” results in “legal protection and social support,” “allows spouses to specialize in their labor,” and “encourages spouses to increase household efficiency by dividing labor to increase productivity.” Pet. App. 223a-225a. Married people are “less likely to engage in behaviors detrimental to their health, like smoking or drinking heavily,” and “live longer on

9
average than unmarried individuals.” Pet. App. 223a.
In addition, these “benefits of marriage flow to a married couple’s children,” regardless whether the married couple is an opposite-sex or same-sex pairing. Pet. App. 226a, 247a. In fact, the testimony and other evidence regarding the welfare of children of same-sex couples shows that the sex of a child’s parents is not a factor in a child’s adjustment. Pet. App. 263a-264a. “Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted.” Pet. App. 263a. And “California law . . . encourages gays and lesbians to become parents.” Pet. App. 237a.
The district court therefore concluded that unions between individuals of the same sex “encompass the historical purpose and form of marriage.” Pet. App. 291a. As the district court explained, Plaintiffs are “not seek[ing] recognition of a new right,” but access to the fundamental right to marry constitutionally guaranteed to all persons. Pet. App. 291a. Because Proposition 8 “unconstitutionally burdens the exercise of the fundamental right to marry” and “cannot withstand rational basis review”—let alone the strict scrutiny required when a measure infringes on a fundamental right—the district court concluded that it violates the Due Process Clause. Pet. App. 286a, 295a.
The district court also held that Proposition 8 violates the Equal Protection Clause because it “creates an irrational classification on the basis of sexual orientation.” Pet. App. 286a. As an initial matter, “the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was

10
designed to protect.” Pet. App. 300a (citing Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313 (1976) (per curiam)); see also infra Part III.A. “All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation.” Pet. App. 301a.
The court found it unnecessary, however, to evaluate Proposition 8 under strict scrutiny because the measure fails even rational basis review. Pet. App. 301a. Proponents abandoned at trial the Protect Our Children rationale that had been the hallmark of the Proposition 8 campaign. And “[p]ermitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sexmarriages.” Pet. App. 245a-247a (discussing studies by the U.S. Department of Health and Human Services, the American Anthropological Association, and other evidence). Moreover, as with the elimination of anti-miscegenation laws, Pet. App. 212a-214a, and the advent of no-fault divorce laws, Pet. App. 217a218a, eliminating the barriers to marriage by individuals of the same sex would do nothing to “deprive[ ] the institution of marriage of its vitality.” Pet. App. 219a.
In fact, the district court found, the only direct effect of Proposition 8 is to make it “less likely that California children will be raised in stable households” by reducing the number of families who can be married. Pet. App. 308a (emphasis added). As Proponents’ principal expert testified, “adopting samesex marriage would be likely to improve the wellbeing of gay and lesbian households and their children.” J.A. 903 (Blankenhorn). Indeed, nearly

11
40,000 children in California are being raised by gay and lesbian couples. Pet. App. 238a.
“[D]espite ample opportunity and a full trial,” the district court concluded that Proponents “failed to identify any rational basis Proposition 8 could conceivably advance.” Pet. App. 312a. “In the absence of a rational basis, what remains of proponents’ case is an inference . . . that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples.” Pet. App. 312a-313a. And, as the district court found, that inference is “amply supported by evidence in the record.” Pet. App. 312a. For example, “[t]he campaign to pass Proposition 8 relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships.” Pet. App. 284a. The “campaign [also] relied on fears that children exposed to the concept of same-sex marriage may become gay or lesbian” and “that parents should dread having a gay or lesbian child.” Pet. App. 279a-280a. The campaign materials even suggested that Proposition 8 was necessary to protect children from gay men and lesbians themselves. See, e.g., J.A. Exh. 103.
3. Proponents appealed the district court’s decision to the Ninth Circuit after the State defendants elected not to do so. As a preliminary matter, the court asked the parties to address Proponents’ standing to seek review of the district court’s order in light of Arizonans for Official English v. Arizona, 520 U.S. 43 (1997). Pet. App. 420a. The Ninth Circuit then certified to the California Supreme Court the question whether, under California law, “the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity.” Pet. App. 416a.

12
In response, the California Supreme Court concluded that “the official proponents of the initiative are authorized under California law to appear and assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so.” Pet. App. 327a. In so ruling, the court declined to “decide whether the official proponents of an initiative measure possess a particularized interest in the initiative’s validity once the measure has been approved by the voters.” Pet. App. 351a.
After receiving the California Supreme Court’s answer to its certified question, the Ninth Circuit affirmed the district court’s decision. On the jurisdictional issue, the court ruled that Proponents had standing to appeal because they “are authorized to represent the People’s interest” in upholding Proposition 8. Pet. App. 40a.
Addressing the merits, the Ninth Circuit focused on the “unprecedented” and “unusual” nature of Proposition 8—an initiative that left gay men and lesbians with “the incidents [of marriage] but took away the status and dignity.” Pet. App. 53a-54a; see also Pet. App. 59a-60a. Although the court of appeals assumed, arguendo, the legitimacy of the governmental interests supposedly advanced by Proposition 8, it determined that Proponents had failed to “explain how rescinding access to the designation of ‘marriage’ is rationally related” to any of those interests. Pet. App. 74a. As in Romer, the court therefore concluded that “[Proposition 8] was enacted with only the constitutionally illegitimate basis of ‘animus toward the class it affects.’” Pet. App. 62a (quoting 517 U.S. at 632). The court of appeals found it unnecessary to decide “the more general questions pre-

13
sented”—namely, whether Proposition 8 infringes on Plaintiffs’ fundamental right to marry, or whether laws that discriminate on the basis of sexual orientation are subject to heightened scrutiny. Pet. App. 94a; see also Pet. App. 46a-47a.
SUMMARY OF ARGUMENT
Proposition 8 is an arbitrary, irrational, and discriminatory measure that denies gay men and lesbians their fundamental right to marry in violation of the Due Process and Equal Protection Clauses. The judgment below should be affirmed.
I. As an initial matter, Proponents lack standing to pursue their appeal. Proponents have never contended—and do not contend before this Court—that they would personally suffer any injury if gay men and lesbians were permitted to marry in California. And their mere desire to defend Proposition 8 is insufficient to satisfy the requirements of Article III. Arizonans, 520 U.S. at 65.
II. Proposition 8 violates the Due Process Clause because it denies gay men and lesbians their fundamental right to marry without furthering a legitimate—let alone a compelling—state interest.
A. This Court has recognized on more than a dozen occasions that the right to marry is “one of the liberties protected by the Due Process Clause.” Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639 (1974); see also Loving, 388 U.S. at 12. The Court has never limited that right to persons willing or able to procreate, see, e.g., Turner v. Safley, 482 U.S. 78, 96 (1987), but has instead recognized that “the right to marry is of fundamental importance for all individuals.” Zablocki, 434 U.S. at 384 (emphasis added). Indeed, the decision of whom to marry is at

14
the core of individual autonomy and personal liberty. See Lawrence, 539 U.S. at 574.
B. The evidence at trial confirms that liberty, privacy, association, and commitment are defining purposes of marriage. Over time, marriage has shed its attributes of inequality, including race-based restrictions and gender-based distinctions, but its essential character has not changed. Eliminating the final discriminatory feature of California’s marriage law—its prohibition on marriage by individuals of the same sex—thus would not require the recognition of a new right, but would instead afford gay men and lesbians access to the fundamental right to marry guaranteed to all persons.
III. Proposition 8 violates the Equal Protection Clause because in denying the right to marry on the basis of sexual orientation and the sex of one’s chosen spouse, it prevents gay men and lesbians from marrying, thereby making them “unequal to everyone else.” Romer, 517 U.S. at 635.
A. Restrictions like Proposition 8 are subject to heightened equal protection scrutiny because marriage is a fundamental right and because gay men and lesbians are a suspect class. Gay men and lesbians meet all of the criteria that this Court traditionally considers in determining suspect-class status. It is undisputed that gay and lesbian individuals have been the victims of a long and reprehensible history of discrimination based on a characteristic that has absolutely no bearing on their ability to contribute to society. That fact alone is sufficient to afford gay men and lesbians heightened equal protection scrutiny. See Mass. Bd. of Ret., 427 U.S. at 313. This conclusion is reinforced by the immutability of sexual orientation and the relative political powerlessness

15
of gay and lesbian individuals to overcome a deeply engrained pattern and practice of discrimination in this country.
B. Proposition 8 cannot satisfy the requirements of strict scrutiny—or any other standard of constitutional review. Although Proponents proffer several state interests that may have been furthered by the existence of the institution of marriage in the first place and for granting heterosexual couples access to it, they fail to identify a single legitimate state interest that supports excluding gay men and lesbians from that institution. While they no longer rely on the Protect Our Children argument they used during the campaign, they instead now principally contend that Proposition 8 is rationally related to the State’s interest in “responsible procreation.” But denying gay and lesbian individuals the right to marry does not increase the likelihood that opposite-sex couples capable of procreating will decide to get married; nor would permitting gay men and lesbians to marry decrease that likelihood. And it is undisputed that the Constitution protects the right of all heterosexual individuals—including the infertile, the elderly, and the incarcerated—to marry irrespective of their ability or desire to procreate. Proposition 8 singles out gay men and lesbians, and them alone, for disfavored treatment.
Nor can Proposition 8 be justified based on voters’ fears about the repercussions of allowing individuals of the same sex to marry. The evidence at trial exposed those fears as wholly unsubstantiated. In any event, permitting a tradition of discrimination, or uncertainty about the consequences of eliminating discrimination, to justify that discrimination would make inequality self-perpetuating.

16

C. The absence of any rational basis for Proposition 8—together with the evidence of anti-gay rhetoric in the Yes on 8 campaign—leads inexorably to the conclusion that Proposition 8 was enacted solely for the purpose of making gay men and lesbians unequal to everyone else. Because a “bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest,” Romer, 517 U.S. at 634 (internal quotation marks omitted; alteration in original), Proposition 8 is unconstitutional.

ARGUMENT

I.

PROPONENTS LACK STANDING TO

APPEAL.

To invoke the jurisdiction of the federal courts, an appellant must meet the requirements of Article III standing. See Arizonans, 520 U.S. at 64-65. Because Proponents cannot satisfy this threshold requirement for appellate jurisdiction, their Ninth Circuit appeal should have been—and this appeal should be—dismissed.

A. Throughout this litigation, Proponents have never once suggested that permitting same-sex couples to marry could harm them—or anyone else— personally. See, e.g., Pet. App. 150a-151a; J.A. 307. Proponents’ claim of standing therefore rests solely on the California Supreme Court’s decision that they “are authorized under California law to appear and assert the state’s interest in the initiative’s validity . . . .” Pet. App. 327a (emphasis added).

That decision, however, does not—and cannot— alter Proponents’ inability to meet the “irreducible constitutional minimum” requirements of standing established by Article III. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); see also Vt. Agency

17
of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000); Warth v. Seldin, 422 U.S. 490, 499 (1975). As this Court has explained, “[s]tanding to defend on appeal in the place of an original defendant . . . demands that the litigant possess a direct stake in the outcome” (Arizonans, 520 U.S. at 64 (emphasis added; internal quotation marks omitted)), which cannot be satisfied by the invocation of another party’s interests. See, e.g., U.S. Dep’t of Labor v. Triplett, 494 U.S. 715, 720 (1990); Warth, 422 U.S. at 499.
Further, this Court has already determined that status as an initiative proponent is insufficient to confer Article III standing. See Don’t Bankrupt Wash. Comm. v. Cont’l Ill. Nat’l Bank & Trust Co. of Chi., 460 U.S. 1077 (1983); Arizonans, 520 U.S. at 66 (expressing “grave doubts” whether initiative proponents have standing to defend an initiative on appeal). And Proponents, who are not public officials, do not have a close relationship with the State like the state legislators did in Karcher v. May, 484 U.S. 72, 81-82 (1987). Because Proponents themselves will suffer no judicially cognizable injury if gay men and lesbians are permitted to marry, they have no standing to appeal. See Diamond v. Charles, 476 U.S. 54, 68-69 (1986).1
1 There can be no question, however, that the district court had jurisdiction even though the Attorney General agreed that Proposition 8 was unconstitutional. Such a concession does not deprive a federal court of jurisdiction to redress constitutional injuries. See INS v. Chadha, 462 U.S. 919, 939 (1983) (“[It] would be a curious result if, in the administration of justice, a person could be denied access to the courts because the Attorney General . . . agreed with the legal arguments asserted by the individual.”); City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982). In any event, not all of the parties before

18
B. Faced with their own lack of standing on appeal, Proponents assert that the district court “lacked remedial jurisdiction to award any relief beyond a default judgment limited to the four named plaintiffs.” Prop. Br. 18. But Proponents did not object to the scope of the injunction in the district court and further waived the issue when they failed to raise it in their petition for certiorari. See Baldwin v. Reese, 541 U.S. 27, 34 (2004). In addition, if this Court holds that Proponents lack standing to appeal the district court’s decision, then they also lack standing to challenge the scope of the district court’s injunction.
Nor is Proponents’ argument a jurisdictional issue that this Court must address irrespective of waiver or Proponents’ lack of standing. See Prop. Br. 18 (citing Lewis v. Casey, 518 U.S. 343, 357 (1996)). The rule that Proponents invoke—that “the scope of injunctive relief is dictated by the extent of the violation established”—is a waivable “principle[ ] of equity jurisprudence,” not a requirement of Article III. Califano v. Yamasaki, 442 U.S. 682, 702 (1979); see also Lewis, 518 U.S. at 360 n.7 (“Our holding regarding the inappropriateness of systemwide relief for
[Footnote continued from previous page]
the district court agreed that Proposition 8 was unconstitutional or sought “precisely the same result” from that court. GTE Sylvania, Inc. v. Consumers Union of U.S., Inc., 445 U.S. 375, 383 (1980) (internal quotation marks omitted). At that stage, Proponents themselves were parties to the proceedings and vigorously argued in defense of Proposition 8’s constitutionality. Moreover, the Governor of California, who is charged with executing state law (Cal. Const. art. V, § 1), filed an answer stating that he intended to enforce Proposition 8 until enjoined from doing so. See Pet. App. 28a, 331a, 419a. And, in fact, he has continued to enforce Proposition 8 throughout this litigation.

19
illiterate inmates does not rest upon the application of standing rules . . . .”); Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 & n.3 (1994). Article III is satisfied as long as the district court’s injunctive relief redresses injuries that Plaintiffs themselves have suffered—which is unquestionably the case here. Lewis, 518 U.S. at 357.
In any event, the district court’s injunction in this case was entirely appropriate because Proposition 8 imposes an identical injury on all gays and lesbians throughout California—there is no possible non-injurious application of the law. Contra Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2760 (2010) (injunction overbroad because the Department of Agriculture could have issued a narrower, non-injurious regulation); Lewis, 518 U.S. at 360 n.7 (“Our holding . . . [rests] upon the respondents’ failure to prove that denials of access to illiterate prisoners pervaded the State’s prison system.”) (internal quotation marks omitted). The district court therefore was within its power to enjoin enforcement of the amendment statewide. See Warth, 422 U.S. at 499 (a court’s judgment is proper “even though [it] may benefit others collaterally,” so long as the plaintiff has suffered the actual injury being remedied); see also Craig v. Boren, 429 U.S. 190, 193-95 (1976) (citing Griswold v. Connecticut, 381 U.S. 479, 481 (1965)).
II. PROPOSITION 8, BY DENYING GAY MEN AND LESBIANS THE RIGHT TO MARRY, VIOLATES DUE PROCESS.
In more than a dozen cases over the last century, this Court has reaffirmed that the right to marry is “one of the liberties protected by the Due Process Clause,” Cleveland Bd. of Educ., 414 U.S. at 639; “es-

20
sential to the orderly pursuit of happiness by free men,” Loving, 388 U.S. at 12; and “sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.” M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996).2 Based on this settled line of precedent, the district court held that Proposition 8 unconstitutionally denies gay men and lesbians the fundamental right to marry. Although the Ninth Circuit perceived it to be unnecessary to address that ruling, this Court can and should affirm on that ground. See Loving, 388 U.S. at 12 (striking down anti-miscegenation law on both equal protection and due process grounds).
As the Court noted in Lawrence, “[e]quality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests.” 539 U.S. at 575 (emphasis added). Thus, “[t]o deny [gay and lesbian Americans] th[e] fundamental freedom” to marry would not only be “directly subversive of the principle of equality at the heart of the Fourteenth Amendment,” Loving, 388 U.S. at 12, but
2 See also Lawrence, 539 U.S. at 574; Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992); Turner, 482 U.S. at 95-96; Zablocki, 434 U.S. at 384; Carey v. Population Servs. Int’l, 431 U.S. 678, 685 (1977); Moore v. City of E. Cleveland, 431 U.S. 494, 499 (1977) (plurality); Roe v. Wade, 410 U.S. 113, 152 (1973); Boddie v. Connecticut, 401 U.S. 371, 376, 383 (1971); Griswold, 381 U.S. at 486; Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942); Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Maynard v. Hill, 125 U.S. 190, 205 (1888). The summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972)—on which Proponents rely (Prop. Br. 27-28)—was issued well before many of these cases, including Lawrence and Turner, and thus lacks any precedential or persuasive force.

21
would also deny them “their dignity as free persons.” Lawrence, 539 U.S. at 567. Because Proposition 8 prevents gay men and lesbians from expressing this most basic aspect of their autonomy and personhood, and is not “narrowly drawn” to further a “compelling state interest[ ],” Carey v. Population Servs. Int’l, 431 U.S. 678, 686 (1977), it violates due process.
Proponents nonetheless claim that marriage— and thus the fundamental right to marry—excludes same-sex couples as a definitional matter. They contend that “marriage” categorically excludes same-sex couples because society’s alleged interest in “responsible procreation and childrearing” is the defining purpose of marriage. Prop. Br. 34. Proponents’ newly constructed understanding of the contours, implications, and meaning of marriage conflicts with longstanding controlling precedent from this Court and the overwhelming record evidence in this case.
A. The Right To Marry Is Fundamental For All People.
This Court has characterized the right to marry as one of the most fundamental rights—if not the most fundamental right—of an individual. Loving, 388 U.S. at 12. The Court has defined marriage as a right of liberty (Zablocki, 434 U.S. at 384), privacy (Griswold, 381 U.S. at 486), intimate choice (Lawrence, 539 U.S. at 574), and association (M.L.B., 519 U.S. at 116). “Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” Griswold, 381 U.S. at 486 (emphasis added). The right “is of fundamental importance for all individuals.” Zablocki, 434 U.S. at 384 (emphasis added).

22
The right to marry has always been based on, and defined by, the constitutional liberty to select the partner of one’s choice. See generally Loving, 388 U.S. 1; Turner, 482 U.S. 78. As this Court explained in Lawrence, “our laws and tradition afford constitutional protection to personal decisions relating to marriage . . . [and] family relationships” because of “the respect the Constitution demands for the autonomy of the person in making these choices”—and “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” 539 U.S. at 574.
This Court has never conditioned the right to marry on the ability to procreate. Rather, the Court has expressly recognized that the right to marry extends to individuals not in a position to procreate with their spouse, see Turner, 482 U.S. at 95, and that married couples have a fundamental right not to procreate. See Griswold, 381 U.S. at 485-86. And the Court has held that the liberty interest in an individual’s choice of marriage is so fundamental that it prohibits filing fee barriers to divorce—barriers that would seem unobjectionable, or even desirable, if the right to marry were tied to the State’s interest in responsible (marital) procreation. Boddie v. Connecticut, 401 U.S. 371, 380 (1971); see also Prop. Br. 37-38 (discussing the adverse effects of “parental divorce” on children).
Further, this Court has expressly distinguished between the right to marry and the right to procreate. In Turner, for example, this Court held that incarcerated prisoners—even those with no right to conjugal visits—have a fundamental right to marry because “[m]any important attributes of marriage remain . . . after taking into account the limitations imposed by prison life . . . [including the] expressions

23
of emotional support and public commitment,” the “exercise of religious faith,” and the “expression of personal dedication,” which “are an important and significant aspect of the marital relationship.” 482 U.S. at 95-96. These attributes of the right to marry extend far beyond the limited procreational purpose Proponents advocate. Indeed, Turner acknowledged procreation as only one among many goals of marriage. Id. at 96. And it recognized that, while many “inmate marriages are formed in the expectation that they ultimately will be fully consummated,” some are not. Id.
Similarly, in Zablocki, the Court struck down a Wisconsin statute that barred residents with child support obligations from marrying. 434 U.S. at 37677. The Court distinguished between the right to marry and the separate rights of “procreation, childbirth, child rearing, and family relationships.” Id. at 386; see also Carey, 431 U.S. at 685 (distinguishing between separate rights of “marriage” and “procreation”); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (“If the right of privacy means anything, it is the right of the individual, married or single, to . . . [decide] whether to bear or beget a child.”) (emphasis altered).
Undeterred by this long and consistent line of authority from this Court, Proponents unabashedly contend that their procreative understanding of marriage has been universally “understood and accepted” throughout history. Prop. Br. 35. But “[n]o State marriage statute mentions procreation or even the desire to procreate among its conditions for legal marriage,” and “[n]o State requires that heterosexual couples who wish to marry be capable or even desirous of procreation.” Amy Doherty, Constitutional Methodology and Same-Sex Marriage, 11 J. Con-

24
temp. Legal Issues 110, 113 (2000); cf. Lawrence, 539 U.S. at 604-05 (Scalia, J., dissenting) (absent “moral disapprobation . . . what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.”) (citations and alteration omitted).
In California, for example, “the constitutional right to marry never has been viewed as the sole preserve of individuals who are physically capable of having children.” Marriage Cases, 183 P.3d at 431. Indeed, the California Supreme Court has held “that the right to marry is the right to enter into a relationship that is ‘the center of the personal affections that ennoble and enrich human life.’” Id. at 432 (citation omitted).
Nor is there any “authority whatsoever to support the proposition that an individual who is physically incapable of bearing children does not possess a fundamental constitutional right to marry.” Marriage Cases, 183 P.3d at 431. Indeed, many persons become parents through adoption or assisted reproduction and exercise their constitutional rights to marry and raise those children in a recognized family unit. Id. Yet Proponents’ assertions about marriage—and that is all that they are—would leave adoptive parents and infertile couples without any constitutional protection against a State that prohibits them from marrying.

25
B. The Trial Record And Factual Findings Establish That “Responsible Procreation” Is Not The Defining Purpose Of Marriage.
Proponents completely disregard the extensive evidence and detailed factual findings of the district court. But that evidence and fact-finding also clearly establish that liberty—not simply “responsible procreation”—is a defining purpose of marriage. The trial record amply supports the district court’s finding that “[t]he right to marry has been historically and remains the right to choose a spouse and . . . join together and form a household.” Pet. App. 290a. And spouses have never been required to “have an ability or willingness to procreate in order to marry.” Pet. App. 290a.
The district court further found that “California, like every other state, has never required that individuals entering a marriage be willing or able to procreate.” Pet. App. 211a. Indeed, as Professor Nancy Cott testified, and Proponents did not refute, “[t]here has never been a requirement that a couple produce children in order to have a valid marriage,” “people beyond procreative age have always been allowed to marry,” and “procreative ability has never been a qualification for marriage.” J.A. 410-11. Rather, civil marriage serves society primarily by “creat[ing] stable households, which in turn form the basis of a stable, governable populace.” Pet. App. 288a; see also Pet. App. 155a (citing J.A. 409).
The trial evidence also demonstrates that not every historical characteristic of marriage is core to the purpose or definition of marriage. Over time, marriage has “shed its attributes of inequality”— including race-based restrictions and gender-based

26
distinctions such as coverture—and “has been altered to adjust to changing circumstances so that it remains a very alive and vigorous institution today.” J.A. 435. In “as many as 41 states and territories,” including California, laws once placed restrictions on “marriage between a white person and a person of color.” J.A. 415. Racially restrictive marriage laws “prevented individuals from having complete choice on whom they married, in a way that designated some groups as less worthy than other groups.” J.A. 424. Like defenders of same-sex marriage bans, defenders of race-based restrictions on the right to marry argued that these laws were “naturally-based and God’s plan”; “people who supported [racially restrictive marriage laws] saw these as very important definitional features of who could and should marry, and who could not and should not.” J.A. 425-26.
“When [this] Court invalidated race restrictions in Loving, the definition of the right to marry did not change.” Pet. App. 289a (citing Loving, 388 U.S. at 12). Rather, “the Court recognized that race restrictions, despite their historical prevalence, stood in stark contrast to the concepts of liberty and choice inherent in the right to marry.” Pet. App. 289a.
The only trial testimony presented by Proponents on the history and purpose of marriage was that of think-tank founder David Blankenhorn, who conceded that the willingness or ability to procreate or consummate a relationship is not a precondition to marriage. See J.A. 916-17. Based on this unequivocal and uncontradicted evidentiary record, the district court therefore quite correctly found that the purposes of marriage go far beyond procreation, and include “the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based

27
on their own feelings about one another and to join in an economic partnership and support one another and any dependents.” Pet. App. 220a-221a (citing J.A. 395-96, 399).
This is precisely the venerated, officially sanctioned relationship that Plaintiffs seek to enter. See, e.g., Pet. App. 154a (Plaintiff “Zarrillo wishes to marry Katami because marriage has a ‘special meaning’ that would alter their relationships with family and others.”) (citing J.A. 333); J.A. 341 (Plaintiff Katami); J.A. 387 (Plaintiff Stier). And it is precisely the relationship that Proposition 8 forbids. For that reason, Proposition 8 can withstand constitutional scrutiny only if it is “narrowly drawn” to serve a “compelling state interest[ ].” Carey, 431 U.S. at 686; see also Pet. App. 294a-295a. But, as explained below, Proponents do not come remotely close to establishing a permissible basis for denying gay men and lesbians this essential aspect of their autonomy, personhood, and freedom. See infra Parts III.B, C. Because Proposition 8 denies Plaintiffs a fundamental right without a compelling—or even legitimate—or even rational—reason, it is unconstitutional under the Due Process Clause.
III. PROPOSITION 8, BY DENYING GAY MEN AND LESBIANS THE RIGHT TO MARRY, VIOLATES EQUAL PROTECTION.
Proposition 8 also violates equal protection, as it is antithetical to the “principles of equality” on which this “Nation . . . prides itself.” Plyler v. Doe, 457 U.S. 202, 219 (1982). It creates a permanent “underclass” of hundreds of thousands of gay and lesbian Californians, id., who are denied the fundamental right to marry available to all other Californians simply because a majority of voters deems gay and lesbian re-

28
lationships inferior, morally reprehensible, religiously unacceptable, or simply not “okay.” With the full authority of the State behind it, Proposition 8 sends a clear and powerful message to gay men and lesbians: You are not good enough to marry. Your loving relationship is not equal to or respected enough to qualify to be called a marriage. As Plaintiff Kris Perry explained at trial, “if Prop. 8 were undone,” and gay and lesbian “kids . . . could never know what this felt like, then . . . their entire lives would be on a higher arc. They would live with a higher sense of themselves that would improve the quality of their entire life.” J.A. 377; see also Pet. App. 248a-249a; J.A. 912.
A. Discrimination On The Basis Of Sexual Orientation Triggers Heightened Scrutiny.
As an initial matter, because Proposition 8 creates unequal access to the fundamental right to marry, see supra Part II, it violates the Equal Protection Clause unless Proponents can demonstrate that it is narrowly tailored to further a compelling state interest. See, e.g., Harper v. Va. Bd. of Elections, 383 U.S. 663, 670 (1966); Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 632-33 (1969); Griffin v. Illinois, 351 U.S. 12, 18 (1956) (plurality).
In addition, Proposition 8 discriminates against gay men and lesbians, a group that has experienced a “history of purposeful unequal treatment or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities.” Mass. Bd. of Ret., 427 U.S. at 313 (internal quotation marks omitted). The undisputed fact that gay men and lesbians have been subjected to a history of discrimination based on a trait that bears

29
no relationship to their ability to contribute to society is sufficient, in and of itself, to render classifications based on sexual orientation “suspect” and to give rise to heightened scrutiny.
Classifications based on sexual orientation also trigger heightened scrutiny because sexual orientation is “immutable” or beyond the group member’s control, see Lyng v. Castillo, 477 U.S. 635, 638 (1986), and because gays and lesbians are “a minority” that is “politically powerless” to prevent discrimination by the majority. Bowen v. Gilliard, 483 U.S. 587, 602 (1987) (internal quotation marks omitted).3 Indeed, all four factors recently led the President and Attorney General to conclude that “classifications based on sexual orientation should be subject to a more heightened standard of scrutiny.” Letter from Eric H. Holder Jr., Att’y Gen., to John A. Boehner, Speaker, House of Representatives (Feb. 23, 2011) (“AG Letter”) at 5. This Court should reach the same conclusion.
History of Discrimination. Proponents do not—and cannot—dispute that gay men and lesbians have been subjected to a history of pervasive and intolerable discrimination. See J.A. 924. This undisputed history of public and private discrimination has been recognized by numerous courts, including this Court. See, e.g., Lawrence, 539 U.S. at 571 (“[F]or centuries there have been powerful voices to condemn homosexual conduct as immoral.”); Kerri-
3 This Court has not considered these additional factors in every case (see, e.g., Mass. Bd. of Ret., 427 U.S. at 313), and has applied heightened scrutiny in cases where those factors were not present. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 235 (1995); Nyquist v. Mauclet, 432 U.S. 1, 9 n.11 (1977).

30
gan v. Comm’r of Pub. Health, 957 A.2d 407, 434 (Conn. 2008). And it has been acknowledged by the Government. See AG Letter at 2 (“There is, regrettably, a significant history of purposeful discrimination against gay and lesbian people . . . .”). In fact, the Government has accepted responsibility for contributing to such discrimination. See Br. for the United States at 16, Windsor v. United States, 699 F.3d 169 (2d Cir. 2012) (Nos. 12-2335, 12-2435) (“U.S. Windsor Br.”) (“The federal government has played a significant and regrettable role in the history of discrimination against gays and lesbian individuals.”).
Further, the evidence at trial confirms, beyond question, that gay men and lesbians have faced and continue to face severe discrimination based on naked prejudice and unfounded stereotypes. See Pet. App. 264a-279a. As one expert testified, gay men and lesbians “have experienced widespread and acute discrimination from both public and private authorities over the course of the 20th century.” J.A. 438 (Chauncey). Gay men and lesbians have been banned from federal employment, J.A. Exhs. 192-99, excluded from public accommodations, J.A. 445, denied child custody and visitation rights, U.S. Windsor Br. at 21, categorically denied entry into the United States as noncitizens, id. at 19, and, until last year, were barred from serving in the military unless they concealed their sexual orientation, J.A. 450-55, i.e., denied who they were. Even the IRS, in denying tax exempt status to Pride Foundation, declared the goal of advancing the welfare of the gay community to be “perverted and deviate behavior” and “contrary to public policy.” J.A. Exhs. 203-04.
Such pervasive discrimination continues to this day. See Pet. App. 266a-268a; see also J.A. 504. In

31
29 States, it is legal to fire an employee and deny housing on the basis of sexual orientation. J.A. 743. Religious and political leaders continue to condemn homosexual conduct as immoral. See Lawrence, 539 U.S. at 571; see also Pet. App. 272a. Gay men and lesbians continue to be stereotyped as “disease vectors” and “child molesters who recruit young children into homosexuality,” even though “[n]o evidence supports these stereotypes.” Pet. App. 268a. For example, official proponent William Tam—one of the people who put Proposition 8 on the ballot—posted a letter on his website warning voters that, after gay men and lesbians secured the right to marry, they would continue to pursue their agenda, including “legaliz[ing] having sex with children,” and that, without Proposition 8, “[m]ore children would become homosexuals.” J.A. Exh. 103. And, in recent years, “there has actually been an increase in violence directed toward gay men and lesbians,” to the point that there “is simply no other person in society who endures the likelihood of being harmed as a consequence of their identity than a gay man or lesbian.” Pet. App. 267a; see also id. (in 2008, hate crimes motivated by sexual orientation comprised 71% of all hate-motivated murders and 55% of all hatemotivated rapes).
Ability to Contribute to Society. It is equally clear and uncontroverted that an individual’s sexual orientation bears no relation to his or her ability to perform or contribute to society. Once again, Proponents admit as much. See J.A. Exh. 121 (“same-sex sexual orientation does not result in any impairment in judgment or general social and vocational capabilities”). And their admission is consistent with extensive, unrefuted evidence that gay men and lesbians make meaningful contributions to all aspects of soci-

32
ety without the slightest impairment attributable to their sexual orientation. See, e.g., J.A. 827 (Herek: “There’s no inherent relationship between a person’s sexual orientation and their ability to be productive and contributing members of society”); AG Letter at 3; U.S. Windsor Br. at 31-32.
Immutability. Based on the extensive trial record before it, the district court found that “[i]ndividuals do not generally choose their sexual orientation” and that “[n]o credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.” Pet. App. 231a; see also Pet. App. 158a-159a; Pet. App. 232a (“[M]any people . . . most likely because of societal stigma, wanted very much to change their sexual orientation and were not able to do so.”).
Even if sexual orientation could shift over time for some individuals, as Proponents, without the benefit of evidence, argued below, that would not affect this Court’s immutability analysis. Cf. Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993) (Alito, J.) (defining an “immutable characteristic” as one that “the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences”) (internal quotation marks omitted). As the Government has explained, “[s]exual orientation . . . is fundamental to one’s identity, and gay and lesbian individuals should not be required to abandon it to gain access to fundamental rights guaranteed to all people.” U.S. Windsor Br. at 25 (internal quotation marks omitted).
Moreover, even if a minority of gay men and lesbians may report that their sexuality experienced

33
changes over their lifetime, that does not establish that they chose, or could choose, to make such a change. To the contrary, Ryan Kendall testified at trial about the devastating effects of the “reversal therapy” that his parents forced him to attend as a juvenile. See J.A. 734-35 (“I realized, at one point, that if I didn’t stop going [to reversal therapy] . . . I would have probably killed myself.”). Nor would evidence of change in the sexual orientation of a small minority of gay men and lesbians justify denying the protection of heightened scrutiny to the vast majority of gay men and lesbians who are “consistent in selfidentification, behavior, and attraction throughout their adult lives.” Pet. App. 227a.
The district court also properly rejected Proponents’ argument that sexual orientation is too “complex” and “amorphous” to warrant heightened scrutiny as refuted by the evidence. See Pet. App. 228a230a. This Court had no difficulty treating gays and lesbians as an identifiable class in Romer. See 517 U.S. at 633, 635; see also Christian Legal Soc’y v. Martinez, 130 S. Ct. 2971, 2990 (2010) (“[o]ur decisions have declined to distinguish between [homosexual] status and conduct”). And the Proposition 8 campaign itself, and its many references to “homosexuals,” “assumed voters understood the existence of homosexuals as individuals distinct from heterosexuals.” Pet. App. 230a.
Relative Political Powerlessness. Plaintiffs presented extensive evidence at trial regarding the political powerlessness of gays and lesbians, including their repeated inability to eliminate significant statutory disadvantages at the state and federal level. See, e.g., J.A. 738-764. For example, gay and lesbian individuals have been unable to secure federal legislation to protect themselves from discrimination

34
in housing, employment, or public accommodations; and they lack similar protections in 29 States, including seven of the ten largest. J.A. 743. Moreover, “there is no group in American society who has been targeted by ballot initiatives more than gays and lesbians.” J.A. 750. Same-sex marriage aside, gays and lesbians have lost approximately 70% of initiatives pertaining to other issues in the last 20 years— typically initiatives to pass, or prevent the repeal of, basic antidiscrimination protections that the majority and other minority groups already enjoy. See J.A. 741, 750. And voters nationwide have used initiatives or referenda to repeal or prohibit marriage rights for gay and lesbian individuals 34 times; in contrast, such measures have been defeated just five times—and one of those victories was undone by voters in the next election cycle. J.A. 752.
In addition, there remain large and influential segments of the population, including some of the proponents of Proposition 8, who consider gays and lesbians immoral and unworthy of the concern and respect extended to other citizens—so much so that “elected officials [feel] that they can say bad things about gays and lesbians, and that could be politically advantageous to them because, indeed, many parts of the electorate feel the same way.” J.A. 756. Few, if any, other minority groups in this country can claim that dubious distinction.
To be sure, gays and lesbians have achieved limited recent success at the ballot box in some areas of the country. See Ned Martel, For a Change, Gay Rights Activists Welcome Election Day Results, Wash. Post, Nov. 8, 2012, at A38 (describing victories in Maryland, Maine, Minnesota, and Washington, but noting that “North Carolina voters delivered another drubbing in a string of 30-plus statewide losses

35
for gay-marriage activists”). Those recent results, however, do not alter the discrimination that gays and lesbians have faced, and continue to face, nationwide—and do not affect the applicability of heightened scrutiny to laws targeting gays and lesbians. See Frontiero v. Richardson, 411 U.S. 677, 684-86 (1973) (plurality) (even though “the position of women in America has improved markedly in recent decades,” there is a “long and unfortunate history of sex discrimination”). Indeed, women had achieved far more legislative success when this Court first declared gender classifications to be subject to heightened scrutiny in 1973, including the 1963 Equal Pay Act, see 29 U.S.C. § 206(d), and the 1964 Civil Rights Act, see, e.g., 42 U.S.C. § 2000e-2.
Moreover, the fact that the current Administration and a narrow majority in a handful of States have expressed support for marriage equality is no guarantee that a future Administration or populace will not target gays and lesbians for discrimination. See Romer, 517 U.S. at 623-24 (describing the antidiscrimination ordinances enacted by several Colorado municipalities, which were then repealed by statewide referendum). In fact, in 15 of 21 referenda held on the sole question whether an existing law or executive order prohibiting sexual orientation discrimination should be repealed, a majority voted for repeal. See U.S. Windsor Br. at 28. Thus, as much as any other minority group, gay men and lesbians require the protections of heightened scrutiny to shield them from the often-discriminatory whims of the political process.

36
B. Laws That Prohibit Gay Men And Lesbians From Marrying Cannot Survive Rational Basis Review, Let Alone Heightened Scrutiny.
Proponents make no serious attempt to defend Proposition 8 under heightened scrutiny, insisting instead that rational basis review must apply to any challenge to Proposition 8’s enshrinement of inequality. But Proposition 8 fails even this most relaxed level of constitutional scrutiny.
As an initial matter, Proponents again frame the wrong inquiry, asking whether it is rational for a State to support opposite-sex marriage (Prop. Br. 28-31) rather than whether it was rational for California to exclude same-sex couples from marriage. When the inquiry is properly framed, the Ninth Circuit was of course correct that Proposition 8—which “has no practical effect except to strip” gay men and lesbians of a preexisting right to marry, Pet. App. 59a—is irrational. Proponents quote this Court as “‘reject[ing] the contention that once a State chooses to do “more” than the Fourteenth Amendment requires, it may never recede.’” Prop. Br. 19 (quoting Crawford v. Bd. of Educ., 458 U.S. 527, 535 (1982)). But Plaintiffs do not dispute that contention; the problem is that Proponents ignore the important corollary to that rule: Crawford, even before Romer, recognized that “if the purpose of repealing legislation is to disadvantage a . . . minority, the repeal is unconstitutional for this reason.” 458 U.S. at 539 n.21; see also Reitman v. Mulkey, 387 U.S. 369, 381 (1967) (invalidating a voter-enacted California constitutional provision that extinguished state-law protections that minorities had previously possessed against housing discrimination). Moreover, unlike Proposition 8, the amendment at issue in Crawford

37
did not reduce or eliminate the substantive rights of any particular group, but “simply remove[d] one means of achieving the state-created right to desegregated education.” 458 U.S. at 544 (emphasis added).
This Court’s precedent makes clear that rational basis review does not mean no review at all. Government action that discriminates against a discrete class of citizens must “bear[ ] a rational relation to some legitimate end.” Romer, 517 U.S. at 631. The State’s supposed rationales “must find some footing in the realities of the subject addressed by the legislation,” Heller v. Doe, 509 U.S. 312, 321 (1993), and must be ones that could “reasonably be conceived to be true by the governmental decisionmaker.” Vance v. Bradley, 440 U.S. 93, 111 (1979). And, of course, “‘a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.’” Romer, 517 U.S. at 634 (alteration in original) (quoting U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973)).
Further, even if there is a legitimate purpose that the State conceivably might have adopted in enacting the law at issue, the Equal Protection Clause requires that the State’s disparate treatment bear at least a rational relationship to the governmental objective. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 446 (1985). A State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational. Id. at 447. By “insist[ing] on knowing the relation between the classification adopted and the object to be attained,” courts “ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” Romer, 517 U.S. at 632, 633.

38
Proponents objected to a trial in this case and, of course, deride the district court’s decision to develop a factual record regarding the purpose and effects of Proposition 8, Prop. Br. 52, while essentially ignoring every one of the factual findings resulting from the trial. But the resolution of these disputed factual issues through the trial process is consistent with a long line of constitutional cases. See, e.g., United States v. Virginia, 518 U.S. 515, 523 (1996); Plyler, 457 U.S. at 207; Brown, 347 U.S. at 494 n.10; Cleburne Living Ctr., Inc. v. City of Cleburne, 726 F.2d 191, 193 (5th Cir. 1984), aff’d in part, 473 U.S. 432.4 Measured against the factual record that the district court compiled, Proponents’ hypothesized rationales for Proposition 8 disintegrate.5
Responsible Procreation. Having abandoned at trial the main Protect Our Children argument they made during the Proposition 8 campaign, Pro-
4 This Court’s statement in FCC v. Beach Communications, Inc. that “a legislative choice is not subject to courtroom factfinding” is not to the contrary. 508 U.S. 307, 315 (1993). Beach itself explains that its statement was just “other words” for the uncontroversial proposition that, to sustain its classification under rational basis review, the government is not required to adduce “legislative facts explaining the distinction on the record.” Id. (internal quotation marks and alteration omitted). And this Court’s subsequent decision in Heller v. Doe (which itself quotes Beach’s statement on “courtroom factfinding,” 509 U.S. at 320) makes clear that a State’s classification “must find some footing in the realities of the subject.” Id. at 321.
5 The district court’s findings are entitled to deference on appeal. See Fed. R. Civ. P. 52(a)(6); see also Pullman-Standard v. Swint, 456 U.S. 273, 287 (1982) (the clearly-erroneous standard “does not make exceptions or purport to exclude certain categories of factual findings [or] divide facts into categories”); Salve Regina Coll. v. Russell, 499 U.S. 225, 233 (1991).

39
ponents’ primary argument in this Court—that denying gay men and lesbians their right to marry somehow “furthers society’s vital interests in responsible procreation and childrearing” (Prop. Br. 36)—is one that consumed very little of their attention at trial. Proponents now contend that prohibiting same-sex couples from marrying is consonant with the State’s desire to channel those opposite-sex couples who might beget children “unintentionally” into marital family units. Id. at 41. Although they make what some might consider a superficially plausible argument for including heterosexual couples in the marriage institution, Proponents offer no rational basis whatsoever for excluding gay couples from that institution.6
Even applying a standard of mere rationality, Proponents’ non-sequitur argument cannot sustain Proposition 8. In the words of the court of appeals,
6 Rather than rely on witnesses at trial, who would have been exposed to cross-examination, Proponents now rely on historical writings by dozens of philosophers, sociologists, and political scientists—from Locke to Blackstone, Montesquieu to Kingsley Davis (a sociologist who advocated “zero population growth” while fathering four children with three different women, including a son at age 79)—to support their view that marriage is suited only to opposite-sex couples. See Prop. Br. 31-35. None of those authorities, however—not one—expresses an opinion about same-sex marriage or argues that allowing gay men and lesbians to marry would harm the institution. In fact, to provide but one example, Blackstone enumerates the four “disabilities” that render marriage legally void ab initio—(1) prior marriage to another living spouse (polygamy), (2) want of age, (3) want of consent of parents or guardians, and (4) want of reason—and touches upon interracial marriage, a servant’s marrying without consent of his or her master, and other illegal marriages, but does not even mention same-sex marriage. 1 William Blackstone, Commentaries 424-28.

40
“There is no rational reason to think that taking away the designation of ‘marriage’ from same-sex couples would advance the goal of encouraging California’s opposite-sex couples to procreate more responsibly.” Pet. App. 75a. And, of course, no one testified to this assertion at trial.
1. As authoritatively construed by the California Supreme Court, Proposition 8 does one thing and one thing only: It “eliminates the ability of same-sex couples to enter into an official relationship designated ‘marriage.’” Strauss, 207 P.3d at 77. Proponents suggest no reason to believe—indeed, they make no argument at all—that prohibiting same-sex couples from entering relationships designated “marriage” will make it more likely that heterosexual couples in California will marry.
Proponents instead argue that, under rational basis review, they need not show that Proposition 8 furthers their proffered interest in seeing heterosexual couples of childbearing capacity marry. Rational basis review, Proponents contend, permits a State to “‘dr[aw] a line around those groups’” not “‘pertinent to its objective’” and exclude them from a stateconferred benefit—here, the “special recognition, encouragement, and support” of a state-recognized marriage—even though excluding the group serves no purpose at all. Prop. Br. 42, 45 (quoting Vance, 440 U.S. at 109). That is incorrect.
As an initial matter, this Court’s cases upholding “line-drawing” exercises under rational basis review all have been premised on the fundamental truth that where resources of the State are scarce, “some line is essential, [and] any line must produce some harsh and apparently arbitrary consequences.” Mathews v. Diaz, 426 U.S. 67, 83 (1976) (Medicare

41
benefits); see also U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980) (railroad retirement benefits); Vance, 440 U.S. at 109 (mandatory retirement from government employment); Johnson v. Robison, 415 U.S. 361, 383 (1974) (veterans’ educational benefits). Marriage licenses, however, are not remotely a scarce commodity. Because limitations on marriage licenses are not essential or inevitable, they must advance some legitimate objective.
But Proponents’ argument fails even on its own terms because “the line” Proposition 8 “draws” bears no relationship whatsoever to Proponents’ stated objective of tying marriage to procreation. There are many classes of heterosexual persons who cannot procreate unintentionally, including the old, the infertile, and the incarcerated. And there are still other classes of heterosexual persons who might have the capacity to procreate, but who have no desire to do so. All of these classes of heterosexual persons are as unlikely to procreate by accident as a samesex couple, yet Proposition 8 is concerned with none of them. Proposition 8 targets gay men and lesbians for exclusion and them alone.
Sometimes, a “means of pursuing [an] objective” can be “so woefully underinclusive as to render belief in that purpose a challenge to the credulous.” Republican Party of Minn. v. White, 536 U.S. 765, 780 (2002); see also Romer, 517 U.S. at 633 (holding that Amendment 2 “confounds” the “normal process of judicial review” under rational basis scrutiny because it is “at once too narrow and too broad”). This is not a question of an enactment having merely an “imperfect fit between means and ends” or drawing a line that lacks “mathematical nicety.” Heller, 509 U.S. at 321 (internal quotation marks omitted). If Proposition 8 is intended to reserve the “special recognition”

42

of marriage for couples that can procreate “by accident” (an argument not presented to California voters, J.A. Exhs. 52-57, 71-73), it “ma[k]e[s] no sense in light of how [it] treat[s] other groups similarly situated in relevant respects.” Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 366 n.4 (2001).

Further, even if same-sex couples are somehow different from infertile or incarcerated heterosexual couples, any such difference is “irrelevant unless [same-sex couples] would threaten [Proponents’ interest] in a way that [infertile heterosexual couples] would not.” Cleburne, 473 U.S. at 448. Same-sex couples pose no unique threat to Proponents’ effort to channel instances of accidental procreation into marriage, and thus the same-sex nature of the union is not a “rational[ ] justif[ication]” for singling them out for disfavored treatment. Id. at 450.

Ironically, the surest and most direct impact of

Proposition 8 on children is not to increase the like-

lihood that they will be raised in stable and enduring

family units, but, instead, as the district court found,

to make it “less likely that California children will be

raised in stable households” by reducing the number

of families who can be married. Pet. App. 308a (em-

phasis added).

And because Proponents

acknowledge “the undisputed truth that children suf-

fer when procreation and childrearing take place

outside stable family units,” Prop. Br. 37, they must

also acknowledge that the undeniable effect of Prop-

osition 8 is to cause “suffer[ing]” among the nearly

40,000 children in California being raised by gay and

lesbian couples. See Pet. App. 238a. Indeed, Propo-

nents’ principal expert testified that “adopting same-

sex marriage would be likely to improve the well-

being of gay and lesbian households and their chil-

dren.” J.A. 903 (Blankenhorn). By categorically

43
denying all those children the benefits of marriage, Proposition 8 reveals itself to be not merely “imprecise,” but “wholly without any rational basis.” Moreno, 413 U.S. at 538.
2. To the extent Proponents and their amici are asserting that Proposition 8 furthers a purported interest in raising children in what Proponents have deemed to be the “optimal social structure” for child development (Prop. Br. 37)—“that children will be born to and raised by the mothers and fathers who brought them into the world” (id. at 36)—that, too, fails even the most cursory scrutiny. As the California Supreme Court has explained, the State’s “current policies and conduct . . . recognize that gay individuals are fully capable of . . . responsibly caring for and raising children.” Marriage Cases, 183 P.3d at 428. California law not only permits gay men and lesbians to raise children, but the California Supreme Court has also recognized that, under the state constitution, it is their “basic civil right of personal autonomy and liberty” to do so—a right that they enjoy on the same terms and to the same extent as heterosexual persons. Id. at 429.
In accordance with that constitutional command, the California Legislature has enacted some of the Nation’s most progressive gay-rights protections, broadly prohibiting any discrimination in any business’s provision of services on the basis of sexual orientation, see Cal. Civ. Code § 51, and specifically prohibiting discrimination against foster parents or adoptive parents on the basis of sexual orientation, see Cal. Welf. & Inst. Code § 16013(a). Proposition 8 diminished none of these protections. See Strauss, 207 P.3d at 61.

44
Moreover, Proponents’ view has no “footing in the realities” of parenting, as the evidence before the district court overwhelmingly demonstrated. Heller, 509 U.S. at 321. In fact, the district court squarely and unequivocally found that “[c]hildren raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted.” Pet. App. 263a. Proponents offered no evidence to the contrary.
Thus, in suggesting that Proposition 8 could be predicated on a belief that heterosexual couples create an “optimal” environment for childrearing that gay and lesbian couples cannot, Proponents ask this Court to foist upon the State a rationale that its robust antidiscrimination laws and, indeed, its constitution, reject. For this reason alone, Proponents’ “optimal social structure” rationale is not one the State possibly could “conceive[ ] to be true,” Vance, 440 U.S. at 111, and thus cannot support Proposition 8.
Proceeding With Caution. Proponents’ second proffered justification for depriving gay men and lesbians of their right to marry is the purported interest in “proceed[ing] with caution,” Prop. Br. 49, which supposedly will forestall the possibility of “long-term social consequences” from allowing gay men and lesbians equal access to marriage. Id. at 51. More specifically, Proponents speculate that marriage equality might sever civil marriage from its “traditional [procreative] purposes,” resulting in a corrosion of marital norms and ultimately social devaluation of marriage as an institution. Id. at 52-53.
1. It bears noting at the outset that Proponents are not proffering as a justification a factually supported belief that permitting gay men and lesbians to marry is likely to cause the parade of horribles their

45
brief conjures. While that was their argument during the campaign and perhaps even at the outset of this case, that changed dramatically as this litigation progressed. Indeed, when the district court asked their counsel point blank what harm would come to opposite-sex married couples if gay and lesbian couples could marry, Proponents’ counsel mustered only “I don’t know. I don’t know.” Pet. App. 151a; see also J.A. 307.7
Moreover, Proponents presented no witness who discussed data or studies tending to show that permitting gay men and lesbians to marry harms the institution of marriage. Proponents’ “deinstitutionalization” expert, David Blankenhorn, had not even seen a seminal 2009 study that empirically tested his theory of deinstitutionalization—a study that concluded that “laws permitting same-sex marriage or civil unions have no adverse effect on marriage, divorce, and abortion rates, the percent of children born out of wedlock, or the percent of households with children under 18 headed by women.” Pet. App. 194a (internal quotation marks omitted). Mr. Blankenhorn offered “absolutely no explanation why manifestations of the deinstitutionalization of marriage would be exacerbated (and not, for example, ameliorated) by the presence of marriage for samesex couples.” Pet. App. 195a. In fact, he declared during his direct testimony that “heterosexuals . . . did the deinstitutionalizing” through the growing prevalence of divorce, nonmarital cohabitation, and other factors. J.A. 896.
7 Counsel later stated that he regretted those words. J.A. 928-929. But he did not—and could not—answer the question differently.

46
In the absence of any factually supported belief that marriage equality would have negative effects on society, Proponents have nothing but a theory— unsupported by empirical evidence or other facts— that marriage equality might have negative effects. See Prop. Br. 55 (“[T]he ultimate outcome of redefining marriage cannot yet be foreseen with confidence from our current vantage point.”). The question is whether that theory constitutes a basis for perpetuating inequality. For at least two reasons, it does not.
First, Proponents’ unsubstantiated fear that negative externalities might flow from marriage equality fails to come to grips with the fact that, before Proposition 8 was enacted, some 18,000 samesex couples were married in California, and those marriages remain valid and recognized today. Strauss, 207 P.3d at 121-22. Even beyond that, California has among the most robust legal protections for same-sex couples in the Nation, providing them with all the rights, incidents, and benefits of marriage under state law, save the designation of their relationships as “marriages.” Marriage Cases, 183 P.3d at 434-35. Yet, despite the thousands of instances in which California has distinguished between marriage (and its incidents) and its purported “traditional procreative purposes,” Proponents do not even suggest that the purported “deinstitutionalization” of marriage is occurring more rapidly in California than in other States. They submitted not one affidavit—not even an unverified allegation—that a single resident of California either was less likely to get married or viewed his or her marriage as less valuable or less stable because California had extended some measure of marriage equality to samesex couples.

47

In fact, in the five States that were first to allow

same-sex marriage, “divorce rates following legaliza-

tion have been lower on average than the years pre-

ceding it, even as the national divorce rates grew.”

Chris Kirk & Hanna Rosin, Does Gay Marriage De-

stroy Marriage?: A Look at the Data, Slate (May 23,

2012, 8:00 AM), http://www.slate.com/articles/

double_x/doublex/2012/05/does_gay_marriage_affect_

marriage_or_divorce_rates_.html. And Massachu-

setts, the State with the longest track record on

same-sex marriage, has the third lowest divorce rate

in the Nation.

Divorce Rates by State,

http://www.cdc.gov/nchs/data/dvs/divorce_rates_90_9

5_99-11.pdf (last visited Feb. 20, 2013).

That complete failure of proof by Proponents is accurately reflected in the district court’s factual finding that “[p]ermitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of oppositesex marriages.” Pet. App. 245a. The Ninth Circuit agreed, holding that “the argument that withdrawing the designation of ‘marriage’ from same-sex couples could on its own promote the strength or stability of opposite-sex marital relationships lacks any such footing in reality.” Pet. App. 78a. Against the background of California’s short, but entirely uneventful, experience with providing marriage rights to same-sex couples, these conclusions are based upon ample, uncontradicted evidence and wholly unassailable.

Second, and perhaps more importantly, if Proponents are correct that an unsubstantiated fear of negative externalities of equality is sufficient to justify inequality, then discrimination is self-justifying. See Cleburne, 473 U.S. at 448 (“mere negative atti-

48
tudes, or fear, unsubstantiated by factors which are properly cognizable . . . are not permissible bases for” differential treatment). And the more valued the institution from which a class is excluded—which is to say, the more injurious the inequality—then the stronger the self-justification for the inequality becomes. On this view, in Moreno, the mere articulation of a fear that unrelated persons living in a single household might be fraudsters would have been sufficient to dispose of the equal protection attack on the statute excluding them from Food Stamps benefits. But see 413 U.S. at 535-37. And in Romer, the actually-stated fear that gay men and lesbians might flood legislatures and city councils with demands for antidiscrimination laws would have been sufficient to sustain Colorado’s Amendment 2. But see 517 U.S. at 635.
It cannot be the law that public concern about equal treatment itself can justify a denial of equal treatment. See Brown v. Bd. of Educ., 349 U.S. 294, 300 (1955) (“[I]t should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.”). If it were, then in Little Rock in 1958, the “drastic opposing action on the part of the Governor of Arkansas who dispatched units of the Arkansas National Guard to the Central High School grounds and placed the school ‘off limits’ to colored students” itself could have been enough to justify the continuation of segregation. Cooper v. Aaron, 358 U.S. 1, 9 (1958). Of course, it was not. Nor could it be, given the promise of the Equal Protection Clause “to secure every person within the State’s jurisdiction against intentional and arbitrary discrimination.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per

49
curiam); see also Buchanan v. Warley, 245 U.S. 60, 81 (1917).
In any event, by enacting Proposition 8, “the People of California” did not simply opt to “proceed with caution when considering a fundamental change to the institution of marriage.” Prop. Br. 49. Rather, they upended the status quo by enshrining a blanket prohibition on same-sex marriage in the State’s charter, preventing the legislature from authorizing same-sex unions. As the court of appeals concluded, “there could be no rational connection between the asserted purpose of ‘proceeding with caution’ and the enactment of an absolute ban, unlimited in time, on same-sex marriage in the state constitution.” Pet. App. 79a. Proponents’ “proceed-withcaution” justification therefore fails on its own terms.
2. Grasping for some justification for Proposition 8, Proponents fall back on the claim that the tradition of restricting marriage to opposite-sex couples is itself a rational justification for continuing to do so. See Prop. Br. 6 (“[A] social institution that has prevailed continuously in our history and traditions . . . can justly be said to be rational per se.”); see also id. at 50. It is beyond peradventure, however, that a tradition of discrimination—no matter how continuous or longstanding—cannot justify the perpetual marginalization and exclusion of a minority group. See Lawrence, 539 U.S. at 577-78 (“[N]either history nor tradition could save a law prohibiting miscegenation from constitutional attack.”) (internal quotation marks omitted). Indeed, relying on tradition to justify state-sanctioned inequality has an unfortunate pedigree. See, e.g., Plessy, 163 U.S. at 550-51 (upholding segregation based on “the established usages, customs and traditions of the people”).

50
As this Court recently explained, “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.” Lawrence, 539 U.S. at 579. And “[a]ncient lineage of a legal concept does not give it immunity from attack for lacking a rational basis.” Heller, 509 U.S. at 326-27; see also Williams v. Illinois, 399 U.S. 235, 239 (1970) (“the antiquity of a practice” does not “insulate[ ] it from constitutional attack”).
Democratic Self-Governance. Finally, Proponents proclaim that Proposition 8 survives constitutional scrutiny because it was enacted through the democratic process and therefore reflects the “will of the people.” Prop. Br. 56 (internal quotation marks omitted).
Needless to say, Proponents have it backwards. “[T]he judiciary’s role under the Equal Protection Clause is to protect discrete and insular minorities from majoritarian prejudice or indifference,” not to yield to the majority’s preference. Richmond v. J. A. Croson Co., 488 U.S. 469, 495 (1989) (internal quotation marks omitted); see also The Federalist No. 78, at 428 (Alexander Hamilton) (E.H. Scott ed., 1898) (“This independence of the Judges is equally requisite to guard the Constitution and the rights of individuals, from . . . serious oppressions of the minor party in the community.”). Although our federal system enables States, in many contexts, to serve as laboratories of democracy, see Prop. Br. 60 (citing New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting)), our Constitution does not permit States “the power to experiment with the fundamental liberties of citizens.” Griswold, 381 U.S. at 496 (Goldberg, J., concurring) (internal quotation marks omitted). “[N]either the length of time

51
a majority has held its convictions or the passions with which it defends them can withdraw legislation from this Court’s scrutiny.” Bowers v. Hardwick, 478 U.S. 186, 210-11 (1986) (Blackmun, J., dissenting). If anything, “[i]t is precisely because the issue raised by this case touches the heart of what makes individuals what they are that we should be especially sensitive to the rights of” gays and lesbians, even when those rights “upset the majority.” Id.8
C. Proposition 8 Is Unconstitutional Because It Was Motivated By A Bare Desire To Make Gay Men And Lesbians Unequal To Everyone Else.
The absence of any rational justification for depriving gay men and lesbians of their right to marry, and marking their relationships as inferior to those of heterosexual couples, leads inexorably to the conclusion that Proposition 8’s principal purpose was to advance the majority’s moral disapproval of gay rela-
8 Proponents’ amici are equally unsuccessful in their efforts to identify a rational basis for Proposition 8. Amicus United States Conference of Catholic Bishops (“USCCB”), for example, contends that Proposition 8 is rationally related to the State’s interest in protecting religious liberties, arguing that religious groups will face liability under California antidiscrimination laws if they distinguish between married couples of the opposite sex and married couples of the same sex. USCCB Br. 21-24. Those fears are unfounded. Any such application of California law would raise serious constitutional concerns under the Free Exercise Clause of the First Amendment. And the California Supreme Court has already determined as a matter of state law that “no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.” Marriage Cases, 183 P.3d at 451-52.

52
tionships. As the district court held, that conclusion is “amply supported by evidence in the record,” Pet. App. 312a, including campaign materials that “relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships.” Pet. App. 284a. The Yes on 8 campaign, for example, publicly argued that, “if we have same-sex marriage legalized, it’s really giving implicitly our political blessing to this thing. . . . It’s an affirmation that it’s just as good. And then we’re going to have this society that eventually is going to come to believe it.” J.A. Exhs. 160-61 (emphasis added). Some of the campaign materials went so far as to suggest that Proposition 8 was necessary to protect children from gay men and lesbians themselves, and to prevent children from becoming gay. See, e.g., J.A. Exhs. 90, 103, 169.
Even Proponents’ principal expert witness—the only witness who purported to provide any rational basis for Proposition 8—recently announced his support for marriage equality and acknowledged that “to [his] deep regret, much of the opposition to gay marriage seems to stem, at least in part, from an underlying anti-gay animus.” David Blankenhorn, How My View on Gay Marriage Changed, N.Y. Times, June 22, 2012. Such unvarnished discrimination is unconstitutional even when based on sincerely held and widely shared moral beliefs. See Lawrence, 539 U.S. at 577 (“[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.”) (internal quotation marks omitted); Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (“Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”).

53
Of course, this does not mean that every voter who supported Proposition 8 was motivated by malice or hostility toward gay men and lesbians— although, to be sure, some of the campaign messages reflected and plainly sought to inspire those feelings. “Prejudice . . . rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.” Garrett, 531 U.S. at 374 (Kennedy, J., concurring).
But, whatever the reason that voters supported Proposition 8, the fact remains that it embodies an irrational and discriminatory classification that denies gay men and lesbians the fundamental right to marry enjoyed by all other citizens. See Romer, 517 U.S. at 634; Crawford, 458 U.S. at 539 n.21. That reason, standing alone, is sufficient to condemn Proposition 8 as unconstitutional.
CONCLUSION
Because of their sexual orientation—a characteristic with which they were born and which they cannot change—Plaintiffs and hundreds of thousands of gay men and lesbians in California and across the country are being excluded from one of life’s most precious relationships. They may not marry the person they love, the person with whom they wish to partner in building a family and with whom they wish to share their future and their most intimate and private dreams. Although opening to them participation in the unique and immensely valuable institution of marriage will not diminish the value or status of marriage for heterosexuals, withholding it causes infinite and permanent stigma, pain, and iso-

54

lation. It denies gay men and lesbians their identity and their dignity; it labels their families as secondrate. That outcome cannot be squared with the principle of equality and the unalienable right to liberty and the pursuit of happiness that is the bedrock promise of America from the Declaration of Independence to the Fourteenth Amendment, and the dream of all Americans. This badge of inferiority, separateness, and inequality must be extinguished. When it is, America will be closer to fulfilling the aspirations of all its citizens.
The judgment of the court of appeals should be affirmed.
Respectfully submitted.

DAVID BOIES

THEODORE B. OLSON

BOIES, SCHILLER & FLEXNER LLP Counsel of Record

333 Main Street

MATTHEW D. MCGILL

Armonk, N.Y. 10504

AMIR C. TAYRANI

(914) 749-8200

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

THEODORE J. BOUTROUS, JR.

Washington, D.C. 20036

CHRISTOPHER D. DUSSEAULT

(202) 955-8500

THEANE EVANGELIS KAPUR

tolson@gibsondunn.com

ENRIQUE A. MONAGAS

JOSHUA S. LIPSHUTZ

JEREMY M. GOLDMAN

GIBSON, DUNN & CRUTCHER LLP BOIES, SCHILLER & FLEXNER LLP

333 South Grand Avenue

1999 Harrison Street, Suite 900

Los Angeles, CA 90071

Oakland, CA 94612

(213) 229-7000

(510) 874-1000

Counsel for Respondents Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo
February 21, 2013

 
 No. 12-144 ================================================================
In The
Supreme Court of the United States
---------------------------------  ---------------------------------
DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ, MARK A. JANSSON,
PROTECTMARRIAGE.COM – YES ON 8, A PROJECT OF CALIFORNIA RENEWAL,
Petitioners, v.
KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, JEFFREY J. ZARRILLO, CITY AND COUNTY OF SAN FRANCISCO,
Respondents.
---------------------------------  ---------------------------------
On Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit
---------------------------------  ---------------------------------
BRIEF OF RESPONDENT CITY AND COUNTY OF SAN FRANCISCO
---------------------------------  ---------------------------------
SAN FRANCISCO CITY ATTORNEY’S OFFICE
DENNIS J. HERRERA City Attorney THERESE M. STEWART Chief Deputy City Attorney
Counsel of Record CHRISTINE VAN AKEN AILEEN M. MCGRATH VINCE CHHABRIA MOLLIE M. LEE SARA J. EISENBERG LEILA K. MONGAN Deputy City Attorneys
City Hall Room 234 One Dr. Carlton B. Goodlett Pl. San Francisco, California 94102 Telephone: (415) 554-4800 Facsimile: (415) 554-4763 E-Mail: therese.stewart@sfgov.org
Counsel for Respondent City and County of San Francisco
================================================================
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831

i
QUESTIONS PRESENTED
1. Do Petitioners, the proponents of Proposition 8, a California constitutional amendment adopted via ballot initiative, have standing under Article III of the U.S. Constitution to appeal the federal district court’s judgment enjoining enforcement of Proposition 8 as unconstitutional?
2. Does Proposition 8 violate the Equal Protection Clause of the U.S. Constitution by extinguishing lesbian and gay couples’ right to marry under the California Constitution for no purpose other than to classify them as unequal?

ii
TABLE OF CONTENTS Page
QUESTIONS PRESENTED ................................ i
TABLE OF CONTENTS ...................................... ii
TABLE OF AUTHORITIES ................................. iv
INTRODUCTION ................................................ 1
STATEMENT OF THE CASE.............................. 3
SUMMARY OF ARGUMENT .............................. 9
ARGUMENT ........................................................ 11
I. Petitioners Lack Standing To Challenge The District Court’s Judgment.................. 11
A. Petitioners Cannot Invoke Article III Jurisdiction Because They Suffer No Cognizable Injury ................................ 11
B. Petitioners Cannot Challenge The Scope Of The District Court’s Injunction ...... 16
II. Proposition 8 Violates The Equal Protection Clause Even Under Rational Basis Review ....................................................... 20
A. The Particular Context And Effect Of Proposition 8 Must Inform The Equal Protection Inquiry ............................... 20
B. Proposition 8’s Sole Purpose And Effect Is To Denigrate Lesbian And Gay Relationships ....................................... 25
1. Proposition 8 classifies same-sex relationships in a separate and unequal category................................. 26

iii
TABLE OF CONTENTS – Continued
Page
2. The campaign made clear Proposition 8’s purpose to denigrate samesex relationships............................. 30
3. Proposition 8’s removal of rights from an unpopular minority makes it especially suspect ........................ 36
III. Proposition 8 Does Not Advance The Justifications Petitioners Claim For It ..... 40
A. Proposition 8 Is Not Rationally Related To Any Interest California Has Relating To Children Or Procreation ....... 40
1. Marriage in California has many purposes in addition to procreation........ 41
2. Before and after Proposition 8, samesex couples may parent children on an equal basis regardless of their marital status ................................. 43
3. Withdrawing rights from same-sex couples does not promote responsible procreation ................................ 49
B. Proposition 8 Does Not Advance Any Interest In “Going Slowly” Before Altering Marriage Rights .................... 53
IV. That Public Debate On Marriage Rights Continues Does Not Save Proposition 8.... 56
CONCLUSION..................................................... 61

iv
TABLE OF AUTHORITIES Page
CASES
Alfred L. Snapp & Sons, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592 (1982) .................................................12
Alicia R. v. Timothy M., 34 Cal. Rptr. 2d 868 (Cal. Ct. App. 1994) ...............46
Anderson v. Martin, 375 U.S. 399 (1964) .................................................50
Arizonans for Official English v. Arizona, 520 U.S. 43 (1997).............................................13, 14
Astrue v. Capato ex rel. B.N.C., ___ U.S. ___, 132 S. Ct. 2021 (2012) .......................52
Bd. of Regents of Univ. of Wisconsin Sys. v. Southworth, 529 U.S. 217 (2000) .................................................14
Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356 (2001) .................................................36
Bender v. Williamsport Area Sch. Dist., 475 U.S. 534 (1986) .................................................16
Bowen v. Gilliard, 483 U.S. 587 (1987) .................................................24
Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993) .................................................35
Brian C. v. Ginger K., 92 Cal. Rptr. 2d 294 (Cal. Ct. App. 2000) ...............46
Brown v. Bd. of Educ., 347 U.S. 483 (1954) .................................................59

v
TABLE OF AUTHORITIES – Continued
Page
Brown v. Plata, ___ U.S. ___, 131 S. Ct. 1910 (2011) .......................18
Califano v. Yamasaki, 442 U.S. 682 (1979) ...........................................17, 19
Camreta v. Greene, ___ U.S. ___, 131 S. Ct. 2020 (2011) .................15, 16
Carney v. Carney, 598 P.2d 36 (Cal. 1971) ...........................................47
Cent. State Univ. v. American Ass’n of Univ. Professors, 526 U.S. 124 (1999) .................................................24
City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985) .....................................20, 50, 53
City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188 (2003) .................................................35
City of New Orleans v. Dukes, 427 U.S. 297 (1976) .................................................24
Comino v. Kelley, 30 Cal. Rptr. 2d 728 (Cal. Ct. App. 1994) ...............46
Craig L. v. Sandy S., 22 Cal. Rptr. 3d 606 (Cal. Ct. App. 2004) ...............46
Crawford v. Bd. of Educ. of Los Angeles, 458 U.S. 527 (1982) .....................................22, 37, 40
Dep’t of Mental Hygiene v. Kolts, 55 Cal. Rptr. 437 (Cal. Ct. App. 1966) ....................42

vi
TABLE OF AUTHORITIES – Continued
Page
Diamond v. Charles, 476 U.S. 54 (1986)...................................................16
Dist. Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52 (2009)...................................................58
Doe No. 1 v. Reed, ___ U.S. ___, 130 S. Ct. 2811 (2010) .......................17
Don’t Bankrupt Washington Comm. v. Cont’l Illinois Nat’l Bank & Trust Co. of Chicago, 460 U.S. 1077 (1983) ...............................................13
E.C. v. E.V., 136 Cal. Rptr. 3d 339 (Cal. Ct. App. 2012) .............47
Edwards v. Aguillard, 482 U.S. 578 (1987) .................................................35
Eisenstadt v. Baird, 405 U.S. 438 (1972) .................................................23
Elden v. Sheldon, 758 P.2d 582 (Cal. 1988) ...................................26, 42
Elisa B. v. Superior Court, 117 P.3d 660 (Cal. 2005)..........................................47
Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011)....................................17
Glona v. American Guar. & Liab. Ins. Co., 391 U.S. 73 (1968).............................................51, 52
Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003)..................................50

vii
TABLE OF AUTHORITIES – Continued Page
Gregg Dyeing Co. v. Query, 286 U.S. 472 (1932) .................................................23
Griswold v. Connecticut, 381 U.S. 479 (1965) ...........................................42, 43
Heller v. Doe, 509 U.S. 312 (1993) .................................................20
Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) ........................................49
Hunter v. Erickson, 393 U.S. 385 (1969) .................................................55
In re M.C., 123 Cal. Rptr. 3d 856 (Cal. Ct. App. 2011) .......44, 46
In re Marriage Cases, 183 P.3d 384 (Cal. 2008) .......................3, 4, 5, 28, 44
In re Marriage of Buzzanca, 72 Cal. Rptr. 2d 280 (Cal. Ct. App. 1998) ...............47
INS v. Chadha, 462 U.S. 919 (1983) .................................................16
Jimenez v. Weinberger, 417 U.S. 628 (1974) .................................................52
Johnson v. Calvert, 851 P.2d 776 (Cal. 1993) .........................................45
Jones v. Barlow, 154 P.3d 808 (Utah 2007)........................................29
Karcher v. May, 484 U.S. 72 (1987).......................................13, 14, 16

viii
TABLE OF AUTHORITIES – Continued Page
Knight v. Superior Court, 26 Cal. Rptr. 3d 687 (Cal. Ct. App. 2005) ...............44
Kristine H. v. Lisa R., 117 P.3d 690 (Cal. 2005)..........................................47
Langan v. St. Vincent’s Hosp. of New York, 802 N.Y.S.2d 476 (N.Y. App. Div. 2005)..................29
Lawrence v. Texas, 539 U.S. 558 (2003) .................................................58
Lewis v. Casey, 518 U.S. 343 (1996) ...........................................17, 18
Lockyer v. City & County of San Francisco, 95 P.3d 459 (Cal. 2004) ...........................................19
Loving v. Virginia, 388 U.S. 1 (1967).........................................55, 58, 60
Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713 (1964) .................................................60
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .................................................15
Lunding v. New York Tax Appeals Tribunal, 522 U.S. 287 (1998) .................................................60
Lyng v. Int’l Union, United Auto. Workers of America, 485 U.S. 360 (1988) .................................................24
Maine v. Taylor, 477 U.S. 131 (1986) .................................................13
Marin County v. Superior Court, 349 P.2d 526 (Cal. 1960) .........................................19

ix
TABLE OF AUTHORITIES – Continued
Page
Marvin v. Marvin, 557 P.2d 106 (Cal. 1976) .........................................42
Massachusetts v. EPA, 549 U.S. 497 (2007) .................................................15
Michael H. v. Gerald D., 491 U.S. 110 (1989) .................................................44
Michael M. v. Superior Court, 450 U.S. 464 (1981) .................................................34
Monsanto Co. v. Geertson Seed Farms, ___ U.S. ___, 130 S. Ct. 2743 (2010) .......................18
New Jersey Welfare Rights Org. v. Cahill, 411 U.S. 619 (1973) ...........................................51, 52
Northeastern Florida Chapter Associated Gen. Contractors of America v. City of Jacksonville, 508 U.S. 656 (1993) .................................................18
Pac. Bell Tel. Co. v. Linkline Commc’ns, 555 U.S. 438 (2009) .................................................16
Palmore v. Sidoti, 466 U.S. 429 (1984) .................................................50
Pedersen v. Office of Personnel Mgmt., 881 F. Supp. 2d 294 (D. Conn. 2012) ......................56
People v. Sorenson, 437 P.2d 495 (Cal. 1968) .........................................47
Perry v. Brown, 265 P.3d 1002 (Cal. 2011)........................................15

x
TABLE OF AUTHORITIES – Continued Page
Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) .......................6
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) ...........................................30, 60
Plessy v. Ferguson, 163 U.S. 537 (1896) .................................................30
Plyler v. Doe, 457 U.S. 202 (1982) .................................................40
Powers v. Ohio, 499 U.S. 400 (1991) .................................................12
Raines v. Byrd, 521 U.S. 811 (1997) .................................................13
Reitman v. Mulkey, 387 U.S. 369 (1967) .........................21, 22, 35, 38, 50
Reynolds v. Sims, 377 U.S. 533 (1964) .................................................58
Richardson v. United States, 526 U.S. 813 (1999) ..................................................60
Romer v. Evans, 517 U.S. 620 (1996) ......................................... passim
Schweiker v. Wilson, 450 U.S. 221 (1981) .................................................21
Sharon S. v. Superior Court, 73 P.3d 554 (Cal. 2003) ...........................................47
Sierra Club v. Morton, 405 U.S. 727 (1972) .................................................12

xi
TABLE OF AUTHORITIES – Continued Page
Sprint Commc’ns Co. v. APCC Servs., Inc., 554 U.S. 269 (2011) .................................................12
Stepanek v. Stepanek, 14 Cal. Rptr. 793 (Cal. Ct. App. 1961) ....................42
Steven W. v. Matthew S., 39 Cal. Rptr. 2d 535 (Cal. Ct. App. 1995) ...............46
Strauss v. Horton, 207 P.3d 48 (Cal. 2009) .............................5, 25, 38, 45
Sweatt v. Painter, 339 U.S. 629 (1950) .................................................29
Trimble v. Gordon, 430 U.S. 762 (1977) ...........................................51, 52
Turner v. Safley, 482 U.S. 78 (1987).............................................42, 60
U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973) ...........................................20, 23
U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166 (1980) .................................................24
United States v. Salerno, 481 U.S. 739 (1987) .................................................17
United States v. Virginia, 518 U.S. 515 (1996) ...........................................29, 51
Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765 (2000) .................................................12

xii
TABLE OF AUTHORITIES – Continued
Page
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1982) .................................................23
Vill. of Hoffman Estates v. Flipside, Hoffman Estates Inc., 455 U.S. 489 (1982) .................................................17
Warth v. Seldin, 422 U.S. 490 (1975) ...........................................12, 18
Washington v. Glucksberg, 521 U.S. 702 (1997) ............................................57, 58
Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) .................................................35
Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164 (1972) ...........................................51, 52
West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) .................................................57
Williams v. Vermont, 472 U.S. 14 (1985).............................................23, 56
Windsor v. United States, 699 F.3d 169 (2d Cir.), cert. granted, 133 S. Ct. 786 (2012)...............................................29
Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353 (2009) .................................................24
Zablocki v. Redhail, 434 U.S. 374 (1978) .................................................60

xiii
TABLE OF AUTHORITIES – Continued Page
CONSTITUTIONS AND STATUTES U.S. Const. art. III, § 2 ....................................... passim U.S. Const. amend. XIV, § 1 ............................... passim 750 Ill. Comp. Stat. Ann. § 75/20 ...............................37 Cal. Const. art. I, § 7.5 (Proposition 8) ............. passim Cal. Fam. Code § 297.5.....................................4, 25, 44 Cal. Fam. Code § 760..................................................26 Cal. Fam. Code § 3040................................................47 Cal. Fam. Code § 4300................................................26 Cal. Fam. Code § 4301................................................42 Cal. Fam. Code § 7602................................................45 Cal. Fam. Code § 7611 ................................................45 Cal. Fam. Code § 7612..........................................45, 46 Cal. Fam. Code § 7613................................................45 Cal. Fam. Code § 7614................................................45 Cal. Fam. Code § 9000................................................45 Cal. Stats. 1977, ch. 339, § 1 ........................................3 Cal. Stats. 1999, ch. 588, § 2 ........................................3 Cal. Stats. 2003, ch. 421...............................................3 Cal. Welf. & Inst. Code § 16013 .................................47 Colo. Const. art. II, § 30 (Amendment 2).......22, 33, 36 Del. Code Ann. tit. 13, § 212.......................................37 Del. Code Ann. tit. 13, § 214.......................................37

xiv
TABLE OF AUTHORITIES – Continued Page
Fed. R. Civ. P. 55 .........................................................16 Fed. R. Civ. P. 65 .........................................................19 Haw. Rev. Stat. § 572B-9 ............................................37 N.J. Stat. § 37:1-31 .....................................................37 N.J. Stat. § 37:1-32 .....................................................37 Nev. Rev. Stat. § 122A.200 .........................................37 Or. Rev. Stat. § 106.340 ..............................................37 R.I. Gen. Laws § 15-3.1-6 ...........................................37 R.I. Gen. Laws § 15-3.1-7 ...........................................37
OTHER AUTHORITIES Alexander M. Bickel, THE LEAST DANGEROUS
BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS (Bobbs-Merrill Co. 1986) (1962).........57, 59 Brief for Respondents, Romer v. Evans, 517 U.S. 620 (1996) (No. 94-1039), 1995 WL 417786 .....................................................................33 Darlene Clark Hine, The Briggs v. Elliot Legacy: Black Culture, Consciousness, and Community Before Brown, 1930-1954, 2004 U. ILL. L. REV. 1059.................................................................30 David Blankenhorn, Op.-Ed., How My View on Gay Marriage Changed, N.Y. TIMES, June 22, 2012, http://www.nytimes.com/2012/06/23/ opinion/how-my-view-on-gay-marriage-changed. html .........................................................................27

xv
TABLE OF AUTHORITIES – Continued
Page
Howard N. Rabinowitz, From Exclusion to Segregation: Health and Welfare Services for Southern Blacks, 1865-1890, 48 SOC. SERV. REV. NO. 3 (Sept. 1974) ...........................................30
Jesse H. Choper, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS: A FUNCTIONAL RECONSIDERATION OF THE ROLE OF THE SUPREME COURT (1980)............................................57
John G. Roberts, Jr., Article III Limits on Statutory Standing, 42 DUKE L.J. 1219 (1993).............13

1
INTRODUCTION
When Proposition 8 was enacted by California voters in November 2008, it took away lesbian and gay couples’ right to marry. Yet it left intact their well-established rights to form families and raise children on the same basis as opposite-sex couples. Indeed, the same rights and benefits that California offers to married couples remain available to samesex couples who enter into domestic partnerships. In many ways, this case is about a name.
But what a name it is. Marriage has a social meaning and significance that no other relationship designation can approach – certainly not “domestic partnership,” a label whose very purpose is to differentiate the relationships of same-sex couples from marriages. Removing the title and honor of marriage from lesbian and gay relationships inflicted harm and humiliation on these couples, and it must be justified, at a minimum, by some legitimate purpose.
The justification for Proposition 8 cannot be that the hundreds of thousands of gay couples in California are not the equals of opposite-sex couples in taking on mutual and lifelong responsibilities of care and support; those duties are equally imposed by domestic partnership. Nor can it be that the many gay couples raising children together in California are not equally capable as parents; the laws of parenthood in California are as indifferent to sexual orientation and gender after Proposition 8 as they were before it. Instead, the true justification for

2
Proposition 8 is simply to signify that lesbian and gay couples are still not accepted as equals even though they function as equals in society. As the messages of the Proposition 8 campaign showed, and as its peculiar effect on a cherished name alone confirms, asserting the inferiority of same-sex couples was the purpose and effect of Proposition 8. But relegating gay couples to a lesser status simply to brand them as different and less worthy than opposite-sex couples is not a legitimate purpose.
Petitioners contend that the purpose of Proposition 8 is to reserve the honor of marriage as an incentive to opposite-sex couples, to encourage them to raise their accidental children in wedlock. Any effect on the rights of gay couples, they claim, is merely an unavoidable consequence of the traditional definition of marriage. The problem with this argument is that it says nothing about why, once gay couples received the right to marry in California, their right had to be rescinded for marriage to remain an incentive for opposite-sex couples to take responsibility for their children. It is implausible that more opposite-sex couples will marry, and have children in wedlock, if same-sex couples cannot marry as well. Nor can Proposition 8 be justified as an exercise in promoting the well-being of children or families. It has no effect on gay couples’ ability to raise children, and in fact it denies tens of thousands of children who have samesex parents the security and esteem of living in a marital family.

3
Extinguishing the equal stature of gay people’s relationships was not simply a side effect of Proposition 8; it was the measure’s overriding purpose. And the justifications Petitioners offer for Proposition 8 are so far removed from its actual effects that it is impossible to credit them. Proposition 8 thus fails even rational basis scrutiny under the Equal Protection Clause.
---------------------------------  ---------------------------------
STATEMENT OF THE CASE
In 1977, California amended its civil marriage statute, which previously made no reference to gender, to specify that marriage was restricted to opposite-sex couples. Cal. Stats. 1977, ch. 339, § 1.1 In 1999, California created a statewide domestic partnership registry for same-sex couples. Cal. Stats. 1999, ch. 588, § 2. Domestic partnership in 1999 offered few substantive benefits beyond hospital visitation privileges, but the California Legislature gradually expanded the rights available to same-sex domestic partners with new enactments. This process culminated in 2003, when California enacted the Domestic Partner Rights and Responsibilities Act. Cal. Stats. 2003, ch. 421. The act granted registered domestic partners the same rights, and imposed on
1 Voters later adopted this definition of marriage in an initiative statute that also forbade California from recognizing marriages of same-sex couples solemnized elsewhere. See In re Marriage Cases, 183 P.3d 384, 409, 410 (Cal. 2008).

4
them the same legal obligations, “as are granted to and imposed upon spouses.” Cal. Fam. Code § 297.5(a). It also provided that “[t]he rights and obligations of registered domestic partners with respect to a child of either of them shall be the same as those of spouses.” Id. § 297.5(d).
In 2008, the California Supreme Court determined that providing official recognition to same-sex couples’ intimate relationships, and allowing them to form families and parent children, are guaranteed to lesbians and gay men by the California Constitution. In re Marriage Cases, 183 P.3d 384, 399 (Cal. 2008). Independent of that holding, the California Supreme Court ruled that excluding same-sex couples from the designation of marriage violated their state constitutional rights. Id. at 401-02, 433-46. It reasoned that where marriage is a universally known and cherished institution, relegating same-sex couples’ family relationships to the novel and little-recognized designation of domestic partnership could send a message that their families were of “lesser stature,” mark them as “second-class citizen[s],” and invite further discrimination against gay people. Id. at 445-46, 452.
Shortly after the California Supreme Court’s decision, Petitioners qualified Proposition 8, an initiative constitutional amendment, for the November 2008 ballot. The measure proposed to amend the California Constitution to eliminate same-sex couples’ constitutional right to marry, providing that “[o]nly marriage between a man and a woman is valid or

5
recognized in California.” J.A. Exh. 58. Petitioners and their allies launched a heated campaign with the central message that while same-sex couples could retain all of the legal incidents of marriage through domestic partnership, the State must not recognize their relationships as “the same” as traditional marriages. J.A. Exh. 56. Proposition 8 was adopted with a slim majority of votes and was codified as article I, section 7.5 of the California Constitution. Pet. App. 26a.
After Proposition 8’s enactment, San Francisco joined with gay couples and advocacy groups in a suit challenging the measure as not adopted in accordance with the procedural requirements of the California Constitution. While the California Supreme Court affirmed the measure’s procedural validity, it held that Proposition 8 did not repeal the Marriage Cases holdings. Instead, Proposition 8 created a “new substantive state constitutional rule” that “carv[ed] out an exception” to the state constitution’s liberty, privacy, and equality guarantees for gay people alone. Strauss v. Horton, 207 P.3d 48, 63, 75, 78, 103 (Cal. 2009). This exception eliminated same-sex couples’ right to the title and stature of marriage, but left untouched their constitutional rights to form family relationships and raise children on the same basis that opposite-sex couples enjoy. Id. at 75, 102. The California Supreme Court also determined that Proposition 8 did not invalidate the marriages of more than 18,000 same-sex couples who wed before its passage. Id. at 121-22.

6
California government officials enforced Proposition 8 and refused marriage licenses to same-sex couples. Pet. App. 28a. Plaintiffs-Respondents filed this action challenging Proposition 8’s validity in May 2009, and San Francisco intervened as a plaintiff shortly thereafter. Ibid. The government defendants opposed Plaintiffs’ motion for a preliminary injunction and answered the complaint, making clear they would continue to enforce Proposition 8 absent a court order to the contrary.2 Petitioners intervened as the official proponents of Proposition 8. Id. at 28a29a.
During a twelve-day bench trial, Respondents called seventeen witnesses and submitted evidence to establish many points, including that sexual orientation is a normal manifestation of human sexuality, same-sex relationships are as healthy and functional as opposite-sex relationships, the children of samesex couples fare as well as those of opposite-sex couples, and Proposition 8 was motivated by hurtful and misguided stereotypes about gay people. Petitioners presented testimony from two witnesses. Pet.
2 See Pet. App. 143a and filings in Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) (No. C-09-2292): Administration’s Answer to Complaint for Declaratory, Injunctive, or Other Relief at ¶ 49; [Los Angeles County Registrar’s] Answer to Complaint for Declaratory, Injunctive, or Other Relief at 9; Answer of Defendant Patrick O’Connell at ¶ 36; Administration’s Opposition to Plaintiffs’ Motion for Preliminary Injunction; Attorney General’s Opposition to Plaintiffs’ Motion for Preliminary Injunction.

7
App. 181a-202a. Based on this evidence, the district court made extensive findings. Id. at 202a-285a. It ultimately held that Proposition 8 denies gay people the fundamental right to marry and fails any level of scrutiny under the Equal Protection Clause. Id. at 294a, 299a.
Petitioners, but not the government defendants, appealed to the Ninth Circuit. That court questioned whether Petitioners had standing to seek review of the judgment and accordingly certified questions about their status under state law to the California Supreme Court. Pet. App. 415a. After the California Supreme Court determined that initiative proponents are authorized by state law to defend initiative measures where state officials do not, the Ninth Circuit held that Petitioners had standing to appeal. Id. at 43a.
The Ninth Circuit then affirmed the district court’s judgment. On the principle of deciding constitutional questions narrowly where possible, the circuit court addressed not whether “same-sex couples may ever be denied the right to marry,” Pet. App. 17a (emphasis in original), but instead whether there was a rational basis for enacting Proposition 8, the purpose and effect of which was to revoke gay couples’ access to marriage in California and label their relationships as domestic partnerships instead, id. at 54a. The court held that none of the rationales Petitioners offered to justify revoking same-sex couples’ marriage rights withstood rational basis review. It held that any purported interest in encouraging the

8
formation of families with “two biological parents” was irrational in light of California law, which expresses no preference for “biological” families and treats various family structures equally, including families headed by gay people. Id. at 70a-72a. The court rejected Petitioners’ proffered justification of encouraging “responsible procreation,” because “[g]iven the realities of California law” and “human nature,” Proposition 8 could have no effect on the extent to which opposite-sex couples would choose to marry or take responsibility for their children. Id. at 74a-75a. The court also refused to credit Petitioners’ argument that Proposition 8 was an effort to “proceed cautiously” in expanding access to marriage, holding that Proposition 8’s targeted exclusion of gay people through a constitutional amendment could not be construed as an attempt merely “to study the matter further.” Id. at 81a.
The Ninth Circuit ultimately found it impossible to conclude that Proposition 8 had any purpose other than to give effect to “private disapproval” of samesex couples by proclaiming the “lesser worth” of gay men and lesbians as a class. Pet. App. 88a, 92a. It affirmed the district court’s judgment holding Proposition 8 unconstitutional, id. at 92a, and denied Petitioners’ request for en banc review, id. at 444a.
---------------------------------  ---------------------------------

9
SUMMARY OF ARGUMENT
Petitioners lack standing to appeal because they are not personally injured by the district court’s judgment that Proposition 8 is unconstitutional. Although the California Supreme Court held that Petitioners are authorized to represent the interests of the State of California in this case, that state-law determination cannot expand the bounds of federal jurisdiction. This Court has never before held that Article III is satisfied by a State’s delegation of litigation authority to a private person who has neither suffered a personal injury nor possesses a concrete interest in the case’s outcome. If Petitioners have standing in this case, then any private person to whom the State has assigned an interest may have recourse to sue in federal court. This result cannot be squared with the actual injury requirement.
On the merits, San Francisco joins fully in PlaintiffsRespondents’ arguments that heightened scrutiny should apply here, and Proposition 8 fails that scrutiny. But even on rational basis review, the Equal Protection Clause forbids the classification of people for the purpose of branding them as inferior. Romer v. Evans, 517 U.S. 620, 635 (1996). In light of the unique circumstances of its enactment, Proposition 8 does precisely that. The measure is unlike any other State’s marriage law in that it takes away same-sex couples’ existing right to marry. But even as it denies these couples the revered title of marriage, it leaves untouched long-established California laws treating them as equal to opposite-sex couples in all matters

10
touching parenting and family relationships. And the campaign to enact Proposition 8 sent an unequivocal message that revoking same-sex couples’ marriage rights was necessary because including them in marriage would taint the institution beyond repair.
Under these circumstances, Proposition 8 cannot be explained as helping children, because it only harms the children of same-sex couples by diminishing the stature of their families. Nor can it be explained as preventing opposite-sex couples from having children out of wedlock, because it is inconceivable that removing same-sex couples’ marriage rights would have that effect. And Proposition 8 cannot be deemed to serve any legitimate interest in “going slowly” in recognizing new family structures, because Proposition 8 is not about family structures at all – it is about taking away the title of marriage from gay couples even while California encourages them to raise children. California, of all places, cannot credibly claim that it needs more time before deciding to recognize these families. Instead, Proposition 8 can only be explained as a “status-based enactment” that relegates gay families to the separate and inferior status of domestic partners, “not to further a proper legislative end but to make them unequal to everyone else.” Romer, 517 U.S. at 635.
At the end of the day, Petitioners stake their justifications for Proposition 8 not in any claim that California had to revoke same-sex couples’ marriage rights to prevent concrete consequences, but instead in nebulous claims of harm to children and families.

11
In similar vein, they warn this Court that the issue of marriage for same-sex couples is simply too controversial for the Court to do anything but allow public debate on the matter to continue. But in contrast to the substantive due process cases that Petitioners rely on to buttress their warning, where social consensus about the existence of the right informs the inquiry, this case involves the equal protection rights of a minority group. The Court has never held that an equal protection violation can wait for resolution by the political process, and the prospect of future democratic consensus about marriage rights for same-sex couples does not redress the harm these couples suffer today.
---------------------------------  ---------------------------------
ARGUMENT
I. Petitioners Lack Standing To Challenge The District Court’s Judgment.
A. Petitioners Cannot Invoke Article III Jurisdiction Because They Suffer No Cognizable Injury.
The Ninth Circuit held that Petitioners have standing solely by virtue of the California Supreme Court’s ruling that they have the authority to litigate this case in place of state officials. But Article III’s bounds are a matter of federal law that cannot be expanded by the States. This Court has never held that initiative proponents like Petitioners may rely on state-law litigating authority to invoke Article III

12
jurisdiction, and it should not do so here. Extending Article III to grant Petitioners standing is inconsistent with the actual-injury requirement and would undermine Article III’s vital gatekeeping function.
This Court has steadfastly required a party invoking federal jurisdiction to identify “a distinct and palpable injury to himself.” Warth v. Seldin, 422 U.S. 490, 501 (1975). A plaintiff appointed as a “representative of the public” may not sue in federal court unless he is personally affected by the conduct he challenges. Sierra Club v. Morton, 405 U.S. 727, 73637 (1972). The same is true of other plaintiffs suing on behalf of third parties, Powers v. Ohio, 499 U.S. 400, 410-11 (1991), including States who seek to sue as parens patriae, Alfred L. Snapp & Sons, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 600-01 (1982). Even parties who sue as assignees of another’s injury must have some concrete interest in the outcome of the case, and their standing is only assured by the federal courts’ long tradition of adjudicating assignees’ claims. See Sprint Commc’ns Co. v. APCC Servs., Inc., 554 U.S. 269, 285, 287 (2011); Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 772-73 (2000) (qui tam relators).
Petitioners suffer no personal injury from a judgment enjoining Proposition 8’s enforcement, and their interest in Proposition 8’s validity is no different from that of any Californian who campaigned or voted for it. This Court has never before recognized that an initiative proponent is injured by a judgment

13
striking down the initiative. See Don’t Bankrupt Washington Comm. v. Cont’l Illinois Nat’l Bank & Trust Co. of Chicago, 460 U.S. 1077 (1983); Arizonans for Official English v. Arizona, 520 U.S. 43, 45 (1997). Rather, it is the State alone that has an interest in the “continued enforceability” of its laws. Maine v. Taylor, 477 U.S. 131, 137 (1986).
Petitioners assert that once the State has delegated its litigating authority, Article III is satisfied. Br. at 16. But complete deference to a State’s delegation cannot be squared with the rule that legislatures may not expand Article III’s boundaries. See Raines v. Byrd, 521 U.S. 811, 820 n.3 (1997). While a State may have some power to decide who may assert its interest in litigation, see Karcher v. May, 484 U.S. 72, 8182 (1987), its delegation must be consistent with Article III’s limits. Cf. John G. Roberts, Jr., Article III Limits on Statutory Standing, 42 DUKE L.J. 1219, 1229 (1993) (“[O]ne thing [Congress] may not do is ask the courts in effect to exercise . . . oversight responsibility at the behest of any John Q. Public who happens to be interested in the issue.”).
This Court has found a State’s delegation of litigating authority to legislative officials permissible under Article III. Karcher, 484 U.S. at 77-78, 81-82. But it has never held that a State may designate private individuals who suffer no personal injury, and will receive no bounty if they prevail, to litigate on its behalf in federal court. Petitioners mistakenly rely on dicta from Arizonans for Official English as indicating that any delegate of the State’s litigating authority

14
axiomatically has Article III standing. 520 U.S. at 6465. This Court in Arizonans did note that it had “grave doubts” regarding initiative sponsors’ standing in part because state law did not appoint them representatives of the State to defend the validity of ballot measures. Id. at 65-66. But in light of the principles that a litigant must show actual injury and that federal constitutional law alone determines Article III’s boundaries, the Court’s observation cannot be understood to mean that the federal courts must defer to any delegation of litigating power a State may make. Rather, Arizonans is better understood as explaining that a State’s choice to delegate litigating power will satisfy Article III only where two conditions are met: the designee is a public official, and state law appoints that official as an “agent[ ] of the people.” See ibid. (“[Proponents] are not elected representatives, and we are aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend . . . the constitutionality of initiatives. . . .”) (emphasis added). This understanding is consistent with Karcher but does not go further than that case.
Drawing a distinction for Article III purposes between elected leaders like those in Karcher and private individuals like Petitioners is sensible. Elected leaders have official responsibility to protect the State’s interests, remain accountable to the electorate for their decisions, and are likely to balance the costs and benefits to the State in deciding whether and how to defend a law. See Bd. of Regents of Univ. of Wisconsin Sys. v. Southworth, 529 U.S. 217, 235

15
(2000). Their duties are often directly affected by the outcome of the case. See Camreta v. Greene, ___ U.S. ___, 131 S. Ct. 2020, 2029 (2011). There are no comparable checks on initiative proponents, who remain “private individuals” and not state officials. Perry v. Brown, 265 P.3d 1002, 1030 (Cal. 2011). They are typically self-interested and issue-specific actors, are unlikely to balance the totality of the State’s interests when making litigation decisions, are not subject to removal by election, and will enjoy lifetime tenure to make litigation decisions at their whim.
If Petitioners’ view of standing prevailed, there would likely be a sharp increase in the number of plaintiffs who could litigate in federal court without satisfying Article III’s otherwise “irreducible” personal injury requirement. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Drafters throughout the country could include a provision granting themselves full litigation authority in every constitutional initiative. Nor does Petitioners’ argument find a logical stopping point at initiatives. If States have full authority to delegate their litigating power, presumably they could grant statutory authorization to private citizens to file federal suits vindicating other state interests as well. Given that Article III requirements are already relaxed for States, see Massachusetts v. EPA, 549 U.S. 497, 519-20 (2007), requiring the federal courts to defer to any state delegation of litigating authority could fill their dockets with litigants who have nothing more than generalized grievances. See Lujan, 504 U.S. at 575.

16
Because Petitioners lack standing to seek review of the district court’s judgment, the Ninth Circuit lacked authority to decide Petitioners’ appeal. See Diamond v. Charles, 476 U.S. 54, 64 (1986). This Court should vacate the Ninth Circuit’s opinion and remand with instructions to dismiss the appeal. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 548-49 (1986).
B. Petitioners Cannot Challenge The Scope Of The District Court’s Injunction.
Petitioners offer an additional “standing” argument that is not really about standing at all. They contend that even if the district court had jurisdiction, it lacked authority to enter anything beyond a default judgment and an injunction directing that Plaintiffs alone may marry. But a default judgment is only appropriate where defendants fail to “plead or otherwise defend.” Fed. R. Civ. P. 55(a). Here, the government defendants answered the complaint and put Plaintiffs to their proof, and there is no question they would have continued to enforce Proposition 8 unless the court ordered otherwise. Article III’s requirements were satisfied, see INS v. Chadha, 462 U.S. 919, 939-40 (1983), and the district court had the full benefit of adversity and clash on the issues before it, see Camreta, 131 S. Ct. at 2028; Pac. Bell Tel. Co. v. Linkline Commc’ns, 555 U.S. 438, 447 (2009). The district court’s entry of a judgment on the merits was proper, and Petitioners’ lack of standing to appeal does not affect it. See Karcher, 484 U.S. at 82.

17
Petitioners’ challenge to the scope of the district court’s injunction likewise fails. Petitioners assert that the district court could not enjoin Proposition 8’s enforcement because Plaintiffs did not represent a class. Br. at 18. There is no rule that a facial constitutional challenge to a state law must proceed as a class action for the plaintiffs to obtain an injunction prohibiting the law’s enforcement. Petitioners rely on cases standing for the proposition that a remedy is “dictated by the extent of the violation established,” such that a court may only enjoin practices proven unlawful. Califano v. Yamasaki, 442 U.S. 682, 702 (1979); see also Lewis v. Casey, 518 U.S. 343, 357 (1996). This authority reflects the understanding that some laws have both constitutional and unconstitutional applications. But when an unconstitutional law has uniform effects on its subjects, it is “incapable of any valid application.” Vill. of Hoffman Estates v. Flipside, Hoffman Estates Inc., 455 U.S. 489, 495 n.5 (1982) (internal quotation marks omitted). Proposition 8 operates identically on all lesbian and gay Californians by denying them the ability to marry; “no set of circumstances exists” in which it can constitutionally be applied. United States v. Salerno, 481 U.S. 739, 745 (1987). It was therefore proper for the district court to “reach beyond the particular circumstances of these plaintiffs” and issue an injunction prohibiting Proposition 8’s enforcement altogether. Doe No. 1 v. Reed, ___ U.S. ___, 130 S. Ct. 2811, 2817 (2010); see also Ezell v. City of Chicago, 651 F.3d 684, 697-99 (7th Cir. 2011) (enjoining enforcement of Chicago gun ordinance was proper because “the

18
claimed [Second Amendment] violation inheres in the terms of the statute”).
An injunction precluding Proposition 8’s enforcement is particularly appropriate in light of the injury Proposition 8 inflicts. It harms lesbians and gay men not simply by denying them marriage licenses, but by marking them as second-class citizens. See infra Part II.B. The injury to be remedied is not only the denial of a benefit but also the stigmatizing effect of Proposition 8 – that is, the “denial of equal treatment resulting from the imposition of the barrier” itself. See Northeastern Florida Chapter Associated Gen. Contractors of America v. City of Jacksonville, 508 U.S. 656, 666 (1993). The remedy for that injury must be tailored to the “inadequacy that produced” it – here Proposition 8’s very existence. Lewis, 518 U.S. at 357. The district court acted well within its discretion to eliminate that barrier by enjoining Proposition 8 altogether.3
In any case, whether a remedial order is overbroad is a question of the district court’s discretion, not its jurisdiction, as the cases Petitioners rely on make clear. See Monsanto Co. v. Geertson Seed Farms, ___ U.S. ___, 130 S. Ct. 2743, 2761 (2010);
3 Nor does the district court’s injunction impermissibly give relief to non-parties. Pet. Br. at 18. The fact that other gay couples will benefit from the judgment is simply a permissible collateral consequence of an otherwise proper injunction. See Brown v. Plata, ___ U.S. ___, 131 S. Ct. 1910, 1940-41 (2011); Warth, 422 U.S. at 499.

19
Califano, 442 U.S. at 702-03. Thus, because Petitioners lack standing to appeal, this Court has no jurisdiction to consider their objections to the scope of the district court’s injunction. 4
4 Also not before the Court is the state-law question whether county officials other than those named as defendants in this case are enjoined from enforcing Proposition 8 under the district court’s ruling. The answer, in any event, is yes. The ruling states: “Defendants in their official capacities, and all persons under the control or supervision of defendants, are permanently enjoined from applying or enforcing” Proposition 8. Pet. App. 419a. This is in accordance with the rule that injunctions bind the “officers” and “agents” of a party, as well as “other persons who are in active concert or participation with” a party or its officers and agents. Fed. R. Civ. P. 65(d)(2). With respect to administration of marriage laws, not only are county clerks in active concert with the State, they are officers and agents of the State, and are therefore bound by an injunction against the state defendants.
Counties in California are subdivisions of state government, and therefore exercise “only the powers of the state, granted by the state.” Marin County v. Superior Court, 349 P.2d 526, 530 (Cal. 1960) (internal quotation marks omitted). Although state law leaves some functions to the discretion of county officials, marriage administration is not among them. Marriage is indisputably a matter of “statewide concern” in which county officials act solely in a “ministerial” role on behalf of the State. Lockyer v. City & County of San Francisco, 95 P.3d 459, 471 (Cal. 2004). In fact, when it comes to marriage, the county clerk or recorder acts “as a state officer.” Id. at 472. This is because of “the importance of having uniform rules and procedures apply throughout the state to the subject of marriage.” Id. at 471. Accordingly, the district court’s injunction requires the state defendants responsible for uniform execution of the marriage laws to notify county officials of the injunction and instruct them not to enforce Proposition 8.

20
II. Proposition 8 Violates The Equal Protection Clause Even Under Rational Basis Review.
A. The Particular Context And Effect Of Proposition 8 Must Inform The Equal Protection Inquiry.
The Equal Protection Clause “is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). Where a law does not rely on classifications deemed inherently suspect, it is subject only to rational basis review. Id. at 446. But even under that standard, the classification must “find some footing in the realities of the subject addressed by the legislation.” Heller v. Doe, 509 U.S. 312, 321 (1993). “By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” Romer, 517 U.S. at 633. Such a purpose is never legitimate. See, e.g., U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973) (“[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”).
Petitioners contend that in assessing whether Proposition 8 serves a legitimate state purpose, this Court should disregard the fact that Proposition 8 removed the existing marriage rights of same-sex

21
couples. On their view, a law removing rights is treated the same as a law that does not grant them in the first place, Br. at 23-24, and thus this Court simply asks whether allowing opposite-sex couples to marry advances some policy aim, Br. at 40, without considering Proposition 8’s effect on the very people whose rights it eliminated. Moreover, Petitioners would have the Court disregard the particular context in which Proposition 8 operates – whereby California law treats same-sex couples as equals with respect to family responsibilities and child rearing, and eliminates only their right to the stature of marriage.
Petitioners’ cabined approach to equal protection is wrong for several reasons. First, legislation must classify “the persons it affects in a manner rationally related to legitimate governmental objectives.” Schweiker v. Wilson, 450 U.S. 221, 230 (1981) (emphasis added). Taking away marriage from samesex couples is not merely an “unavoidable consequence” of Proposition 8, as Petitioners have put it, J.A. 235 (internal quotation marks omitted), but its entire effect. Its constitutionality cannot be evaluated without focusing on how it affected gay people.
Second, far from disregarding the particular circumstances of Proposition 8’s enactment, the Court evaluates a challenged law based on its “immediate objective,” along with “its ultimate effect and its historical context and the conditions existing prior to its enactment.” Reitman v. Mulkey, 387 U.S. 369, 376 (1967) (internal quotation marks omitted). The fact

22
that gay Californians once enjoyed the right to marry and then had it taken away is therefore relevant to the equal protection inquiry. This is apparent from Reitman, which struck down an initiative that repealed fair housing laws in California on equal protection grounds, id. at 375-76, even though the Fourteenth Amendment did not require States to prohibit private housing discrimination, id. at 374-75. Similarly, in Romer the Court invalidated Colorado’s Amendment 2, which repealed anti-discrimination provisions and made protections against discrimination for gay people alone unattainable through ordinary political processes. 517 U.S. at 624, 631. Romer did not hold that Colorado was required to prohibit sexual orientation discrimination in the first place; indeed, many jurisdictions, including the federal government, still offer no such statutory protection. J.A. 743-44. Crawford v. Board of Education of Los Angeles also makes clear that removing rights matters. 458 U.S. 527 (1982). While Crawford allows that a State may “recede” from granting more rights than the Fourteenth Amendment requires where it has a legitimate reason to do so, id. at 535, this Court nonetheless made clear that withdrawing a right without a legitimate purpose would be unlawful, id. at 539 n.21. For this reason, Crawford examined the particular enactment – withdrawing busing as a remedy that can be imposed for state constitutional violations – to determine its constitutionality, instead of merely resting on the fact that California offered all remedies required by the Fourteenth Amendment. Id. at 537.

23
Third, in determining whether a law classifies arbitrarily, this Court does not confine its review to the “four corners” of a challenged law. Gregg Dyeing Co. v. Query, 286 U.S. 472, 479-80 (1932). Rather, it “read[s] together” the law with related enactments and determines whether the State’s action “taken in its totality, is within the state’s constitutional power.” Id. at 480; see also Williams v. Vermont, 472 U.S. 14, 15, 26 (1985) (rejecting Vermont’s proffered justification for sales and use tax regime where it was contradicted by other sales tax provisions); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266-67 (1982) (discerning the purpose of a law is a “sensitive inquiry” turning on “circumstantial and direct evidence,” “the impact of the official action,” and the “historical background”); Moreno, 413 U.S. at 536-37 (separate anti-fraud provisions in Food Stamp Act “cast[ ] considerable doubt” on anti-fraud justification offered by the government); Eisenstadt v. Baird, 405 U.S. 438, 449-50 (1972) (law prohibiting distribution of contraceptives could not be deemed anti-fornication provision where conviction for distributing contraceptives carried sentence 20 times longer than fornication conviction). Thus, in this case, it is relevant not only that California has abrogated same-sex couples’ existing right to marry, but also that California continues to treat them as similarly situated to opposite-sex couples in all other respects, see infra Section III.A.2 – a fact Petitioners would have this Court ignore.

24
Petitioners bolster their claim that the withdrawal of a right is treated identically to the failure to grant it by citing cases that do not aid their argument. Br. at 23-24. In each of the equal protection cases they cite, this Court held not that withdrawal of a right or benefit was irrelevant, but that the withdrawal was rational because it advanced the purpose of the statutory scheme. See Cent. State Univ. v. American Ass’n of Univ. Professors, 526 U.S. 124, 128 (1999) (eliminating collective bargaining concerning professors’ teaching loads would advance objective of “increas[ing] the time spent by faculty in the classroom”); Lyng v. Int’l Union, United Auto. Workers of America, 485 U.S. 360, 372-73 (1988) (excluding striking workers from eligibility for food stamps “is rationally related to the stated objective of maintaining neutrality in private labor disputes”); U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 169 (1980) (eliminating “windfall benefits” from retirees would “place the [pension] system on a ‘sound financial basis’ ”); City of New Orleans v. Dukes, 427 U.S. 297, 304 (1976) (per curiam) (excluding pushcart vendors from historic area helped preserve “charm and beauty” of area).5 These cases teach that the question here is whether
5 Other cases Petitioners cite for the proposition that this Court makes no distinction between state action to eliminate rights and state action to grant them are irrelevant here because they do not concern equal protection jurisprudence. See Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 356, 360 n.2 (2009) (First Amendment claim); Bowen v. Gilliard, 483 U.S. 587, 598-601 (1987) (Takings Clause claim).

25
California’s rescission of same-sex couples’ right to marry served any legitimate purpose in light of its history, context, and actual effects.
B. Proposition 8’s Sole Purpose And Effect Is To Denigrate Lesbian And Gay Relationships.
Proposition 8 had a peculiar effect: It removed only the honored stature of marriage from same-sex couples, yet altered none of their rights to the traditional incidents of marriage, including the rights to form a family and raise children. Strauss, 207 P.3d at 75, 102. The official ballot pamphlet admitted as much, stating that Proposition 8 “doesn’t take away any rights or benefits of gay or lesbian domestic partnerships,” which give them the “ ‘same rights, protections, and benefits’ as married spouses.” J.A. Exh. 56 (quoting Cal. Fam. Code § 297.5). Nonetheless, the ballot pamphlet insisted, Proposition 8 must pass to avoid the message that “there is no difference between gay marriage and traditional marriage.” J.A. Exh. 56 (emphasis in original). In short, the stated purpose of Proposition 8 was to ensure that even as lesbians and gay men keep the rights and responsibilities of marriage, they cannot and must not have its honored status.
Because Proposition 8 operates only on the status and honor accorded to same-sex couples’ relationships, it is a “status-based enactment.” Romer, 517 U.S. at 635. It classifies these couples “not to further

26
a proper legislative end” but only to brand them as unequal. Ibid. Whatever differences Petitioners or their amici claim exist between same-sex couples and opposite-sex couples as a justification for this differential treatment – capacity for bearing accidental children, parenting ability, permanence of commitment – have already been disavowed by California as relevant to its legislative ends. Because California recognizes same-sex couples as identical to oppositesex couples with respect to the legal incidents of marriage and parenting, it can claim no rational justification to exclude them from the honor and status of marriage. The fact that Proposition 8 has no rational justification is only confirmed by the pernicious and degrading campaign to enact it, and by the fact that it withdrew rights from gay couples in an unprecedented way.
1. Proposition 8 classifies same-sex relationships in a separate and unequal category.
In California, as in many States, marriage is a combination of legal contract, intimate and spiritual union, and social symbol. Marriage in California binds a couple together as an economic unit. Cal. Fam. Code §§ 760, 4300. But marriage is more than a bundle of state-created rights. For two people seeking to build a life together, marriage is an expression to each other of their mutual dedication and devotion, and California’s recognition of marriage signifies that it, too, supports the vows they have made. See Elden

27
v. Sheldon, 758 P.2d 582, 586 (Cal. 1988). The unique social meaning of marriage joins not merely a couple but their extended families. Marriage is also the way a couple signals to the community their commitment to each other, shaping how they are perceived by their families, neighbors, and colleagues and enlisting the community to help the couple sustain their bond. It confers a social status and prestige that no other institution can. In the testimony of historian Nancy Cott, “there is nothing that is like marriage except marriage.” J.A. 404. Petitioners’ trial expert David Blankenhorn agreed: “When we say the word ‘marriage,’ . . . it’s much bigger, much more powerful and potent as a role in society than merely or only the enumeration of its legal incidents.” Trial Tr. (“Tr.”) 2790:5-9.6
Taking marriage away from same-sex couples is therefore of great significance for those couples, their children, and their communities, and this harm is not remedied by the availability of domestic partnerships. Domestic partnerships cannot offer the intangible benefits that flow from the immense social meaning of marriage. See J.A. 412 (Cott testimony); see also J.A. 575 (testimony of psychiatric epidemiologist Ilan
6 Since the trial, Blankenhorn has changed his views on whether same-sex couples should be allowed to marry, based in part on his realization that “the time for denigrating or stigmatizing same-sex relationships is over.” David Blankenhorn, Op.Ed., How My View on Gay Marriage Changed, N.Y. TIMES, June 22, 2012, http://www.nytimes.com/2012/06/23/opinion/how-my-viewon-gay-marriage-changed.html.

28
Meyer that “domestic partnership has almost no meaning, . . . it’s incomprehensible to people as a social institution”); J.A. 654-55 (testimony of witness Helen Zia describing family members’ struggle to understand or describe her domestic partnership); see generally Brief of Bay Area Lawyers for Individual Freedom et al. as Amici Curiae in Support of Respondents. Same-sex couples have likened forming a domestic partnership to signing a will: a dry chore, not an event to be celebrated. J.A. 371-72; see also J.A. 647.
Indeed, the whole point of domestic partnerships is that they are not marriages; the designation exists “solely to differentiate same-sex unions.” Pet. App. 294a. For that reason, they are a mark not of prestige but of “second class citizenship.” J.A. 335-36; see also J.A. 716; Tr. 1342:14-23. As the California Supreme Court recognized, withholding a title with a “long and celebrated history,” amounted to an official statement “that the family relationship of same-sex couples is not of comparable stature or equal dignity” to married couples. Marriage Cases, 183 P.3d at 452. Furthermore, by taking affirmative steps to eject same-sex couples from the institution of marriage, Proposition 8 sends a message that gay people are less deserving of fair treatment in all aspects of life. J.A. 554-55. California’s official message of inferiority, in turn, “becomes an excuse for the public to do exactly the same thing.” J.A. 676 (testimony of San Diego Mayor and former Police Chief Jerry Sanders).

29
Relegating gay couples to domestic partnership inflicts more tangible harms as well. For instance, domestic partners’ relationships with each other or their children may not be recognized in other States. See, e.g., Langan v. St. Vincent’s Hosp. of New York, 802 N.Y.S.2d 476, 479 (N.Y. App. Div. 2005) (finding that member of Vermont civil union lacked standing as spouse in New York wrongful death action); Jones v. Barlow, 154 P.3d 808, 810, 812 (Utah 2007) (refusing to recognize lesbian ex-partner as parent of child born into Vermont civil union through assisted reproduction). If this Court determines in Windsor v. United States, No. 12-307, that the federal government must recognize the marriages of same-sex couples, California domestic partners will continue to be denied the many rights and benefits granted to married couples under federal law. See Windsor v. United States, 699 F.3d 169, 187 (2d Cir.), cert. granted, 133 S. Ct. 786 (2012).
Petitioners claim that the continued existence of domestic partnerships has no relevance to whether Proposition 8’s classification of same-sex couples is rational. Br. at 44-46. To the contrary, the fact that Proposition 8 returned same-sex couples to a parallel but undeniably inferior designation only confirms the equal protection violation. Maintaining separate institutions to reinforce status-based distinctions does not cure a denial of equal protection. See, e.g., United States v. Virginia, 518 U.S. 515, 553-54 (1996); Sweatt v. Painter, 339 U.S. 629, 634 (1950). Instead, over time, society has come to understand that the

30
very existence of separate institutions “stigmatize[s] those who [are] segregated with a ‘badge of inferiority.’ ” Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 863 (1992) (quoting Plessy v. Ferguson, 163 U.S. 537, 551 (1896)). Here, California’s understanding of the ability of same-sex couples to shoulder the rights and obligations of marriage has led it to disavow any differences between gay and heterosexual couples with respect to those rights. It therefore has no reason to create a separate designation for same-sex couples except to mark them as inferior.7
2. The campaign made clear Proposition 8’s purpose to denigrate samesex relationships.
The fact that Proposition 8 was aimed squarely at diminishing same-sex couples’ status in society is apparent from the fact that it altered only their right to the title “marriage” and not its legal incidents. This is further confirmed by the Yes on 8 campaign
7 It is irrelevant that advocacy groups have lauded California’s protections for gay families, as Petitioners note. Br. at 2526. Black communities also fought for segregated schools and public facilities because segregated facilities were better than no facilities at all. See Darlene Clark Hine, The Briggs v. Elliot Legacy: Black Culture, Consciousness, and Community Before Brown, 1930-1954, 2004 U. ILL. L. REV. 1059, 1065-66; Howard N. Rabinowitz, From Exclusion to Segregation: Health and Welfare Services for Southern Blacks, 1865-1890, 48 SOC. SERV. REV. NO. 3, pp. 342-43 (Sept. 1974).

31
messages that were ubiquitous in California in the months leading up to November 2008. J.A. 390, 643; J.A. Exh. 111. These messages make clear that Proposition 8 declared the inferiority of lesbians and gay men by removing the equal status that marriage had all too briefly given them.
Proposition 8 is hardly the first popular initiative to target the rights of gay people. Far from it: “There is no group in American society who has been targeted by ballot initiatives more than gays and lesbians.” J.A. 750. Their rights have been subject to more than 200 state and local initiatives and referenda in the past 40 years. Ibid. During that time, gay people have lost more than 70% of elections concerning their rights to matters other than marriage and adoption, and at the time of trial in January 2010, they had lost every single election concerning their rights to marry or adopt. Ibid. Their handful of successes at the ballot box this past November, Pet. Br. at 58, does not erase this overwhelming history, or the decades of public and private discrimination against them. See generally J.A. 438-94 (testimony of historian George Chauncey); Brief of the Organization of American Historians and the American Studies Association as Amici Curiae in Support of Respondents.
The Proposition 8 campaign tapped directly into this history, playing on many of the same stereotypes and tropes as past ballot campaigns. A primary theme of the Yes on 8 campaign, and one that appeared even in the official ballot pamphlet, was that children must

32
be protected from learning that “there is no difference between gay marriage and traditional marriage.” J.A. Exh. 56 (emphasis in original); see also Trial Exh. PX0042, at 2 (“The impact of gay marriage on California public schools has emerged as the top issue in the Proposition 8 campaign.”); J.A. Exh. 75, 105. The campaign presented mere exposure to gay people, and the normalization of gay relationships, as threatening to children. See, e.g., J.A. Exh. 87, 89 (if Proposition 8 does not pass “children will face a constant onslaught of the message that homosexuality is not only something to tolerate, it’s something to celebrate”); J.A. Exh. 87, 90 (video advertisement asserting that “the specter of children being raised in same-sex homes also turns nature on its head”); Trial Exh. PX0514, at 2 (deeming marriages of same-sex couples “a ‘frontal attack on the rights of children, and an attack on humanity and reason’ ”). Those messages were intended to animate “fears that children exposed to the concept of same-sex marriage might become gay or lesbian themselves.” Pet. App. 279a; see also J.A. 48889; J.A. Exh. 103 (statement by official proponent that “[i]f we lose . . . [e]very child, when growing up, would fantasize marrying someone of the same sex. More children would become homosexuals.”). The Yes on 8 campaign’s “Protect Your Children” theme sharply echoed past campaigns to roll back gay rights, such as Anita Bryant’s notorious “Save Our Children” campaign of 1977, which successfully sought repeal of an anti-discrimination ordinance by portraying gay people as child molesters who sought to turn children

33
gay. J.A. 156, 477-82, 486-89; Trial Exh. PX0864, at 303-04, 309.8
Trial evidence showed that while the Proposition 8 campaign was at times “more polite” than older campaigns like Bryant’s, it nonetheless reflected and reinforced the same stereotypes as past campaigns. J.A. 488-92. These stereotypes included describing gay sexual orientation as “the gay lifestyle,” a choice gay people could make “in their private lives” but that society should not have to acknowledge. J.A. Exh. 56 (emphasis in original). At other times the campaign spoke more directly, asserting the immorality or perversion of gay people. See, e.g., Trial Exh. PX0506, at 12 (transcript of campaign event asserting that if same-sex couples can marry, “any combination would have to be allowed” including marriages to children and horses); J.A. Exh. 176 (print materials claiming “[h]omosexuality is linked to pedophilia” and arguing that “[h]omosexuals are 12 times more likely to molest children”); J.A. Exh. 81 (claim that same-sex relationships “harm the body of society”); J.A. Exh. 102 (message from official proponent that the “gay
8 The success of the Bryant campaign spawned many imitators. See, e.g., PX0618, at 13-3 to 13-10 (describing campaigns in many States that attempted to roll back protections for gay people, often based on characterizations of gay people as perverse or deviant); Brief for Respondents, Romer v. Evans, 517 U.S. 620 (1996) (No. 94-1039), 1995 WL 417786, at *7 (describing campaign materials for Colorado’s Amendment 2 vilifying gay people as “morally depraved” and child molesters).

34
agenda” is “Satan[ic]” and wishes to “legalize prostitution” and “legalize having sex with children”).
The campaign also insisted that including gay couples in the institution of marriage would irredeemably taint it, and perhaps even destroy it. For example, the arguments in the ballot pamphlet exhorted that gay couples “do not have the right to redefine marriage for everyone else.” J.A. Exh. 56 (emphasis in original). As one of the architects of the Yes on 8 campaign put it, “[w]e needed to convince voters that gay marriage was not simply ‘live and let live,’ ” but that if Proposition 8 did not pass “they would have to accept gay marriage as being equivalent to traditional marriage.” J.A. Exh. 109; see also J.A. Exh. 67 (“If Proposition 8 is defeated, the sanctity of marriage will be destroyed. . . .”); J.A. Exh. 104 (“The narrow decision of the State Supreme Court effectively renders all civil marriage meaningless. . . .”). The proponents of Proposition 8 likened same-sex couples’ marriage rights to the September 11th attacks and to an oncoming freight train that would destroy marriage and the family itself. J.A. Exh. 91 (video), 86 (video). This portrayal of members of a minority group as dangerous outsiders itself reflected prejudice.
Petitioners would erase the Yes on 8 campaign messages from this Court’s view, contending that voters’ purported motives are irrelevant. Br. at 14 (citing Michael M. v. Superior Court, 450 U.S. 464, 472 n.7 (1981) (plurality)). But this Court has frequently considered the “facts and circumstances”

35
surrounding the passage of popular measures to understand their objective purposes. Reitman, 387 U.S. at 378. In the context of an initiative, those factors include not only the text itself but also the initiative’s historical background and the public messages of initiative sponsors or campaign leaders. See City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 196-97 (2003) (“statements made by decisionmakers or referendum sponsors during deliberation” may be evidence of intent); Edwards v. Aguillard, 482 U.S. 578, 587 (1987) (considering stated purpose of legislative sponsor); Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 471 (1982) (citing district court’s reliance on statements of initiative sponsor and campaigner to determine initiative’s purpose); Reitman, 387 U.S. at 373 (considering objective, effect, and historical context of initiative measure).
To say that the messages of the campaign confirm that Proposition 8’s purpose was to brand samesex couples as inferior, however, is not to say the Californians who voted for it did so out of malice. Prejudice need not mean deliberate hatred or spite. Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 269-70 (1993). Rather,
[p]rejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism

36
to guard against people who appear to be different in some respects from ourselves.
Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 375 (2001) (Kennedy, J., concurring). San Diego Mayor Jerry Sanders explained in similar terms at trial that he realized his opposition to marriage rights for same-sex couples was “grounded in prejudice” when he finally understood that his view was tantamount to telling his lesbian daughter “that her relationship was less than the relationship and marriage my wife and I had.” J.A. 680; see also J.A. Exh. 77. Concluding that Proposition 8 serves no legitimate purpose does not impugn the people of California as bigots, just as this Court did not so label Coloradans when it invalidated Amendment 2 in Romer.
3. Proposition 8’s removal of rights from an unpopular minority makes it especially suspect.
“[D]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.” Romer, 517 U.S. at 633 (internal quotation marks omitted). Proposition 8 is unusual in the way it deprives lesbians and gay men of the title “marriage” but not its incidents. And it is unique in American law in extinguishing an existing state

37
constitutional right of lesbians and gay men to marry.9
Proposition 8 withers under the “careful consideration” that unusual classifications demand because it strips rights away without reason. It is true that the Equal Protection Clause does not require States to forever adhere to laws granting rights that the federal Constitution does not require. Crawford, 458 U.S. at 539-40. But it does require a State to have a reason to withdraw rights – and that reason cannot be mere fears or stereotypes. In Romer, this Court rejected Colorado’s “principal argument” that an initiative constitutional amendment prohibiting gay people from receiving protection from discrimination did nothing more than remove “special rights” that Colorado was not obligated to offer. 517 U.S. at 626. Even if those rights were not required in the first
9 Only seven States besides California have domestic partner or civil union laws that offer same-sex couples all or nearly all of the legal incidents of marriage. See Del. Code Ann. tit. 13, §§ 212, 214; Haw. Rev. Stat. § 572B-9; 750 Ill. Comp. Stat. Ann. § 75/20; Nev. Rev. Stat. § 122A.200; N.J. Stat. §§ 37:131, 37:1-32; Or. Rev. Stat. § 106.340; R.I. Gen. Laws §§ 15-3.1-6, 15-3.1-7. No State has withdrawn a right to marry that gay couples previously enjoyed.
Petitioners claim that to treat California’s withdrawal of marriage rights as significant would discourage other States from offering protections to gay people, for fear those protections could never be withdrawn. Br. at 59. The fact that a State within the Ninth Circuit granted marriage rights to same-sex couples after the Ninth Circuit’s decision rebuts this claim. Washington Referendum Measure No. 74, Nov. 2012.

38
place, taking them away by a constitutional amendment served no purpose other than to harm gay Coloradans and render them “stranger[s] to [the] law.” Id. at 635. Similarly, this Court in Reitman affirmed the California Supreme Court’s determination that California’s initiative repealing discrimination protections, which were not required by federal law, “was intended to authorize . . . racial discrimination in the housing market,” an illegitimate purpose. 387 U.S. at 376, 381.
Proposition 8 is the same. As the Ninth Circuit recognized, “[t]he action of changing something suggests a more deliberate purpose than does the inaction of leaving it as it is.” Pet. App. 55a. Perhaps for that reason, taking away a right that an unpopular minority has finally come to enjoy is especially stinging. Before 2008, marriage seemed so far out of reach for many gay people that they did not allow themselves even to imagine marrying the person they loved. J.A. 359 (Plaintiff Kristin Perry testimony that “[g]rowing up as a lesbian, you don’t let yourself want it, because everyone tells you you are never going to have it”). After the California Supreme Court recognized their right to marry, same-sex couples finally let themselves want marriage, as the 18,000 weddings that took place during the summer of 2008 attest. See Strauss, 207 P.3d at 121. Helen Zia described what it felt like to get married: “You know, the idea that we would be families, that we – for a brief moment in time we experienced a feeling of . . . what

39
equality is . . . . And we tasted the water that was sweeter there.” J.A. 662.
But Proposition 8 inflicted the wound of unequal treatment on lesbians and gay men anew, reigniting the feelings of shame, isolation and humiliation they had experienced throughout their lives. J.A. 546, 55455 (Meyer testimony); J.A. 344-45 (Plaintiff Paul Katami testimony) (Proposition 8 supporter’s statement that “marriage is not for you people anyway,” brought him “back to that place” where “regardless of how proud you are, you still feel a bit ashamed. . . . [I]n that moment, being gay means I’m unequal. . . . I have been relegated to a corner.”); J.A. Exh. 364-65 (Perry testimony) (invalidation of her 2004 marriage to Plaintiff Sandra Stier evoked feelings that as a lesbian she “[didn’t] really deserve things,” and that she was “not good enough to be married”); J.A. Exh. 376-77 (Perry testimony) (calling the decision to marry “the most important decision I was going to make as an adult”; “There’s something so humiliating about everybody knowing that you want to make that decision and you don’t get to [do] that, you know, it’s hard to face the people at work and the people even here right now. And many of you have this, but I don’t.”); J.A. Exh. 383-85 (Perry testimony) (because of the outrage, hurt and humiliation she and Stier felt when their 2004 marriage was invalidated, they decided to refrain from marrying until the right could not be taken away); J.A. Exh. 337 (Plaintiff Jeffrey Zarrillo testimony) (since Proposition 8 passed there are “daily reminders of what I can’t have”).

40
To impose the kinds of harms that Proposition 8 worked demands justification. Plyler v. Doe, 457 U.S. 202, 223-24 (1982) (“In light of [the] countervailing costs, the discrimination contained in § 21.031 can hardly be considered rational unless it furthers some substantial goal of the State.”). The justifications that Petitioners now offer for it – post hoc justifications different from the ones advanced to the voters during the Yes on 8 campaign, Pet. App. 149a-150a – relate mostly to their claims about the benefits of extending the honor of marriage only to opposite-sex couples, and say almost nothing about the justification for removing same-sex couples’ marriage rights. Crawford acknowledges that gratuitous benefits may be withdrawn if they prove “unworkable or harmful.” 458 U.S. at 540. But surely they cannot be withdrawn for unrelated reasons, as Petitioners apparently believe.
III. Proposition 8 Does Not Advance The Justifications Petitioners Claim For It.
A. Proposition 8 Is Not Rationally Related To Any Interest California Has Relating To Children Or Procreation.
To justify the singular harm that Proposition 8 works on same-sex couples – many of whom are raising children together – Petitioners contend that Proposition 8 serves an abstract interest in the welfare of children that they call “responsible procreation.” They argue that it is unnecessary to allow

41
same-sex couples to marry (and therefore permissible to take that right away) because the purpose of marriage is to steer opposite-sex couples into that institution to diminish the chances that their accidental children will be born out of wedlock. The responsible-procreation argument for rescinding gay people’s marriage rights has no connection to reality. Marriage in California is about much more than procreation, and California law is concerned with advancing children’s welfare by promoting responsible parenting – including parenting by same-sex couples – regardless of the circumstances of a child’s conception. Because tens of thousands of same-sex couples in California have children, and because prohibiting same-sex couples from marrying hurts their children, Proposition 8 is inimical to California’s policy interests – something Petitioners’ responsibleprocreation rationale ignores. What is more, even on its own terms, the responsible-procreation rationale is untenable, because taking away marriage rights from same-sex couples could not conceivably make opposite-sex couples more responsible in their procreative activity.
1. Marriage in California has many purposes in addition to procreation.
Petitioners’ exclusive focus on procreation as the “overriding purpose of marriage,” Br. at 33, understates and distorts the role of marriage in

42
society. California has long recognized that two people can choose to marry for many reasons, including to form bonds of support and companionship, to take on mutual responsibilities of care, and to promote their mutual happiness. See Elden, 758 P.2d at 586-87; Marvin v. Marvin, 557 P.2d 106, 122 (Cal. 1976). The State, too, has interests in marriage unrelated to children. Marriage provides “an institutional basis for defining the fundamental relational rights and responsibilities of persons in organized society.” Elden, 758 P.2d at 587 (internal quotation marks omitted). Married couples take on “important responsibilities toward one another,” ibid., that can relieve the State from shouldering the costs of their support. See Cal. Fam. Code § 4301; Dep’t of Mental Hygiene v. Kolts, 55 Cal. Rptr. 437, 444 (Cal. Ct. App. 1966) (husband required to pay for care of mentally ill wife). Unsurprisingly in light of the many personal and societal purposes served by marriage beyond reproduction, California does not condition the right to marry on the willingness or ability to conceive or parent a child. See Stepanek v. Stepanek, 14 Cal. Rptr. 793, 794 (Cal. Ct. App. 1961).
This Court, too, has understood marriage as an institution founded on more than reproductive capacity. It has defined marriage as a union founded on the “coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” Griswold v. Connecticut, 381 U.S. 479, 486 (1965); see also Turner v. Safley, 482 U.S. 78, 95 (1987) (marriages are “expressions of emotional support and

43
public commitment”). This Court has never adopted an exclusively procreative understanding of marriage. Griswold upheld a married couple’s right to prevent procreation, and described laws restricting birth control as having a “maximum destructive impact upon [the marital] relationship.” 381 U.S. at 485. Turner held that the constitutional right to marry extends to individuals confined to prison because the “attributes of marriage remain [even] after taking into account the limitations imposed by prison life.” 428 U.S. at 96.
On Petitioners’ exclusively child-centered account, by contrast, the State could prohibit the infertile or those past childbearing age from marrying, at least without raising equal protection concerns, since the inclusion of those groups would not advance the purpose of marriage. That is plainly not the law, and Petitioners’ myopic account of marriage only demonstrates the unreliability of their justifications for Proposition 8.
2. Before and after Proposition 8, same-sex couples may parent children on an equal basis regardless of their marital status.
Even if the purpose of marriage were singularly limited to the bearing and raising of children, Proposition 8 still bears no relation to a legitimate interest in light of California’s laws related to families. Proposition 8 cannot be justified as advancing California’s

44
interest in promoting the “optimal social structure” of a man, a woman, and their biological children, Pet. Br. at 37 (internal quotation marks omitted), because California family law does not privilege that social structure in any respect. California recognizes that same-sex couples are fully qualified to parent children by affording the same parenting rights to domestic partners that it grants married couples. Cal. Fam. Code § 297.5(d). Indeed, one of the foundational purposes of California’s domestic partnership statute was to signify that “[t]he children of [same-sex couples’] unions are no less deserving of the protections afforded the children of heterosexual marriages.” Knight v. Superior Court, 26 Cal. Rptr. 3d 687, 698 (Cal. Ct. App. 2005). “[A] stable two-parent family relationship, supported by the state’s official recognition and protection, is equally as important for the numerous children in California who are being raised by same-sex couples as for those children being raised by opposite-sex couples. . . .” Marriage Cases, 183 P.3d at 433 (emphasis added).
In accord with this policy, all of the parental rights that flow from opposite-sex couples’ marriages apply equally to same-sex couples’ unions. Just as a husband is the presumed parent of any child born to his wife while he cohabits with her, see, e.g., Michael H. v. Gerald D., 491 U.S. 110, 119 (1989), a woman is the presumed mother of a child born to her wife or domestic partner during their union, regardless of how the child was conceived, see In re M.C., 123 Cal. Rptr. 3d 856, 871-72 (Cal. Ct. App. 2011). Domestic

45
partners are permitted to adopt each others’ children through the same streamlined legal procedure that California affords for step-parent adoptions by married partners. Cal. Fam. Code § 9000. Proposition 8 had no effect on these family rights. Strauss, 207 P.3d at 102.10
Rather, for married couples and domestic partners alike, the parental rights and responsibilities that rise or fall with marital or partnered status are few, and California has decoupled the rights and responsibilities of marriage or domestic partnership from parenthood in many respects. California’s laws establishing parental responsibilities largely disregard marital status. Cal. Fam. Code § 7602; Johnson v. Calvert, 851 P.2d 776, 778-79 (Cal. 1993). Instead, California employs a series of presumptions creating a legal claim to parenthood not merely in a person married to a child’s parent or biologically related to the child, but also in a person who has caused the child to be conceived through assisted reproduction or who has formed a parental relationship with the child. Cal. Fam. Code §§ 7611-7614. Where there are
10 Petitioners may claim that Proposition 8 impliedly repealed any policy that same-sex couples are the equal of opposite-sex couples with respect to parenting. This claim is foreclosed by the ballot pamphlet’s insistence that the measure would not take away any of same-sex couples’ rights or benefits other than marriage, J.A. Exh. 56, and by the California Supreme Court’s ruling that Proposition 8 left gay couples’ rights to form families and have children untouched, Strauss, 207 P.3d at 102.

46
competing claims of parenthood by different putative parents, neither biology nor marriage to an undisputed parent necessarily trumps. See, e.g., Steven W. v. Matthew S., 39 Cal. Rptr. 2d 535, 539 (Cal. Ct. App. 1995); In re M.C., 123 Cal. Rptr. 3d at 876-77. Instead, courts assign legal parent status to the person whose claim reflects “weightier considerations of policy and logic.” Cal. Fam. Code § 7612(b). Where there is an existing parent-child relationship, preserving that relationship is a far weightier concern than connecting a child to a biological parent. See Craig L. v. Sandy S., 22 Cal. Rptr. 3d 606, 613 (Cal. Ct. App. 2004) (“[I]ncreasingly over the last three decades, our courts have resolved paternity disputes by looking to the existence and nature of the social relationship between the putative father and child.”); Brian C. v. Ginger K., 92 Cal. Rptr. 2d 294, 303 (Cal. Ct. App. 2000) (emphasizing “theme of relationship (as distinct from mere biological parenthood)”). Similarly, California courts have repeatedly declined to presume parenthood in a husband whose wife bears a child where it does not further the best interest of the child, often because the child has formed a parent-child relationship with someone else. See, e.g., Comino v. Kelley, 30 Cal. Rptr. 2d 728, 731 (Cal. Ct. App. 1994) (putative father’s relationship with child trumped husband’s “conclusive” presumption of fatherhood); Alicia R. v. Timothy M., 34 Cal. Rptr. 2d 868, 871 (Cal. Ct. App. 1994).
California’s parentage presumptions are applied without regard to sexual orientation, even where a

47
same-sex couple has not formalized a domestic partnership. Thus, a gay man or lesbian can become the legal parent of a child that he or she lives with and holds out as his or her own child, regardless of a lack of biological connection between them. Elisa B. v. Superior Court, 117 P.3d 660, 666-67 (Cal. 2005) (biological mother conceived child through insemination during lesbian relationship); E.C. v. E.V., 136 Cal. Rptr. 3d 339, 343, 346-47 (Cal. Ct. App. 2012) (biological mother conceived child in previous romantic relationship with a man). The intended parent doctrine, under which parents who create a child through assisted reproduction are responsible for the child, applies equally to same-sex and opposite-sex couples. Compare People v. Sorenson, 437 P.2d 495, 499 (Cal. 1968), and In re Marriage of Buzzanca, 72 Cal. Rptr. 2d 280, 282 (Cal. Ct. App. 1998), with Elisa B., 117 P.3d at 666-68. Similarly, California’s “public policy favoring that a child have two parents rather than one” applies equally to gay couples. Kristine H. v. Lisa R., 117 P.3d 690, 696 (Cal. 2005). Single gay people and gay couples are afforded the same opportunities to become foster parents and adoptive parents that heterosexual singles and unmarried couples have. See Cal. Welf. & Inst. Code § 16013(a); Sharon S. v. Superior Court, 73 P.3d 554, 569-70 (Cal. 2003). Nor does California privilege one or the other gender in parenting, or expect people to parent in accordance with traditional gender roles. Cal. Fam. Code § 3040; Carney v. Carney, 598 P.2d 36, 41-43 (Cal. 1971). California law simply does not treat sexual orientation or gender as relevant to parental fitness in any respect, before or after Proposition 8.

48
In sum, California seeks stable, two-parent households for all children, no matter how they are conceived and no matter the gender of the parents. It advances the welfare of children not by discouraging same-sex couples from parenting but by encouraging them, using exactly the same legal rights and responsibilities that it uses to support opposite-sex parents. Petitioners’ arguments about the ideal family structure might at least require consideration in evaluating the marriage laws of States that, for example, prefer heterosexual couples as parents or expect parents to reinforce traditional gender roles. But in California, where the laws reflect an understanding of the equal fitness of gay couples as parents, such arguments have no relevance at all.
Indeed, Proposition 8 not only fails to advance California’s interest in supporting family relationships, it has precisely the opposite effect insofar as it targets same-sex couples and their families for disfavored treatment. According to trial testimony based on 2000 Census data, nearly 40,000 children in California were being raised by same-sex couples. Tr. 1348-50 (economist Lee Badgett). California law has long endeavored to protect these children to the same extent as any other children. Yet Proposition 8 undercuts the goal of promoting children’s welfare by denying these children the greater stability and social status of having married parents – as even Proposition 8’s supporters admitted. J.A. 806-07 (official proponent William Tam); J.A. 902-03, 912 (Blankenhorn). In fact, the evidence at trial showed that children of

49
same-sex couples “suffer” and are “disadvantaged” by their parents’ inability to marry. Trial Exh. PX2879, at 3; Trial Exh. PX2880, at 11; see generally Brief of Family Equality Council et al. as Amici Curiae in Support of Respondents. These are anomalous results for a measure intended to protect children and families. Pet. Br. at 37-38.11
3. Withdrawing rights from same-sex couples does not promote responsible procreation.
Even though Proposition 8 cannot be justified by a preference for a particular family structure given California’s repudiation of such a preference, and even though Proposition 8 actually harms children being raised by same-sex couples in California, Petitioners insist that an interest in promoting responsible procreation justifies the measure. This justification was first crafted as a defense for marriage laws that reserve the honor and financial benefits of marriage to opposite-sex couples in the first instance, see, e.g., Hernandez v. Robles, 855 N.E.2d 1, 7 (N.Y. 2006), not a law like Proposition 8 that strips same-sex couples of an existing right to marry. Petitioners attempt to graft the defense onto this case as
11 Moreover, if Proposition 8 were really intended to advance the welfare of children by excluding people from marriage based on their fitness to raise children, it could have picked better targets, such as people who had harmed children in the past.

50
a justification for Proposition 8, but they simply cannot explain how withdrawing the status of marriage from same-sex couples encourages opposite-sex couples to marry or reduces the likelihood that accidental children will be born out of wedlock. The fact that their brief nowhere asserts that these consequences actually will occur, but only makes vague claims of “a significant risk of adverse consequences over time,” Br. at 51, demonstrates how implausible Petitioners’ responsible-procreation account is here. Surely such a farfetched theory – dubious enough in jurisdictions that have never allowed gay couples to marry, see Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 961-62 (Mass. 2003) – is not enough to justify removing a right as precious as marriage. And in fact, evidence at trial disproved Petitioners’ claim; jurisdictions where the right to marry has been granted to same-sex couples have seen no meaningful change in opposite-sex couples’ marriage rates. J.A. 427, 436-37, 518-20, 703-04, 710.
But even if Petitioners’ account were plausible – even if there were reason to suspect that opposite-sex couples began to value the status of marriage less once it became available to same-sex couples – California may not create a separate relationship classification for gay couples simply to give effect to “negative attitudes” or “private biases.” See City of Cleburne, 473 U.S. at 448; Palmore v. Sidoti, 466 U.S. 429, 433 (1984); Reitman, 387 U.S. at 378-79; Anderson v. Martin, 375 U.S. 399, 404 (1964). Classifications cannot be drawn on the ground that equal

51
access to a revered institution will somehow diminish it. Virginia, 518 U.S. at 542-43 (“The notion that admission of women would downgrade VMI’s stature . . . is . . . a prediction hardly different from other selffulfilling prophec[ies], once routinely used to deny rights or opportunities.”) (internal citations and quotation marks omitted).
Finally, if Proposition 8 truly helped stabilize opposite-sex couples’ relationships by bestowing an honored title on them alone, then it would do so at the expense of same-sex couples, and their children, whose claim to that title has been extinguished. States once routinely invoked the purpose of promoting “traditional family life” to justify laws disfavoring illegitimate children. New Jersey Welfare Rights Org. v. Cahill, 411 U.S. 619, 620 (1973) (per curiam) (internal quotation marks omitted); see also Trimble v. Gordon, 430 U.S. 762, 769 (1977); Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 173 (1972). In a series of cases, this Court categorically rejected “the argument that a State may attempt to influence the actions of men and women by imposing sanctions on the children born of their illegitimate relationships,” denying those children the benefits owed to legitimate children. Trimble, 430 U.S. at 769. Punishing illegitimate children, this Court found, is too “attenuated” from the act of extramarital procreative sex to serve as any effective deterrent. Id. at 768; Weber, 406 U.S. at 173, 175 (finding this purported deterrent ineffectual). Indeed, the Court has deemed this justification “farfetched.” Glona v. American Guar. &

52
Liab. Ins. Co., 391 U.S. 73, 75 (1968). The Court has also noted the fundamental unfairness of punishing children for the acts of their parents, stating that “visiting this condemnation on the head of an infant is illogical and unjust.” Weber, 406 U.S. at 175. After all, “illegitimate children can affect neither their parents’ conduct nor their own status.” Trimble, 430 U.S. at 770. The Court has extended this reasoning to state laws that disfavor not just children but unmarried parents as well. New Jersey Welfare Rights Org., 411 U.S. at 620-21 (invalidating state law denying welfare benefits to nonmarital families).12
12 Petitioners may claim these cases are inapplicable because illegitimacy is a quasi-suspect classification. But this Court applies intermediate scrutiny to “laws burdening illegitimate children for the sake of punishing the illicit relations of their parents” precisely because of the Court’s determination that “visiting this condemnation on the head of an infant is illogical and unjust.” Astrue v. Capato ex rel. B.N.C., ___ U.S. ___, 132 S. Ct. 2021, 2033 (2012) (internal quotation marks and brackets omitted). Moreover, the Court has found that illegitimacy laws lack even a rational basis. See, e.g., Glona, 391 U.S. at 75 (finding that there is “no possible rational basis” to believe that burdening illegitimate children will encourage wedlock births); Weber, 406 U.S. at 176 (striking down legitimacy classification because “the classification is justified by no legitimate state interest, compelling or otherwise”); Jimenez v. Weinberger, 417 U.S. 628, 636 (1974) (rejecting claim that excluding illegitimate children from benefits is “reasonably related to the prevention of spurious claims”).

53
The reasoning of these cases has equal force here. It is “farfetched” to believe that taking an honored title away from lesbian and gay families will make heterosexual couples more likely to marry and have children within wedlock. And denying lesbian and gay couples, and their children, access to the revered institution of marriage in order to promote marriage among other families is just as fundamentally unfair as punishing illegitimate children for their parents’ conduct. “The State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.” City of Cleburne, 473 U.S. at 446. The responsibleprocreation justification is so attenuated from the means California uses to safeguard the welfare of children, and so harmful to the children of same-sex couples, that this justification does not supply a rational basis for Proposition 8.
B. Proposition 8 Does Not Advance Any Interest In “Going Slowly” Before Altering Marriage Rights.
Petitioners further argue that it was reasonable for California voters to “proceed with caution” by stripping marriage rights from same-sex couples because of uncertainty about the long-term consequences of granting them marriage rights. Br. at 5055. Californians were entitled, Petitioners argue, to rescind these couples’ marriage rights while they observe the outcome of marriage equality in other jurisdictions.

54
This justification does not supply a rational basis for Proposition 8 because it is nothing more than a watered-down reframing of other, inadequate justifications. Petitioners assert that “redefin[ing]” marriage as a “genderless institution” severed from natural procreation will make parents less likely to “remain married[ ] and play an active role in raising their children.” Br. at 55. But this argument is simply a “what if ” restatement of Petitioners’ responsibleprocreation rationale, which is no rationale at all. The fact that the responsible-procreation interest cannot be credited at all makes any “fear” of an effect on this interest unreasonable.
The same is true of Petitioners’ assertion that marriage might be “weaken[ed]” in some undetermined way by including same-sex couples. Br. at 5152. Petitioners introduced a single witness, David Blankenhorn, in support of this theory at trial. Pet. App. 157a-158a. Blankenhorn presented no data or other evidence supporting the claim that permitting gay men and lesbians to marry diminishes the likelihood that opposite-sex couples will do so, or that the institution of marriage will be affected in any demonstrable way. Id. at 151a. Indeed, when the district court asked what harm might come to opposite-sex married couples if gay and lesbian couples could marry, Petitioners’ counsel answered “I don’t know. I don’t know.” Ibid. The court found, based on the trial evidence, that permitting same-sex couples to marry would have no effect on the number or stability of opposite-sex couples’ marriages. Id. at 245a.

55
Furthermore, Petitioners’ claim that the voters could reasonably be hesitant about the effects of “redefining marriage” is based on a misconception that gay couples want to marry in order to transform the institution into “essentially an emotional union without any inherent connection to procreation and family life.” Br. at 52 (internal quotation marks omitted). This claim – that gay couples seek marriage only to gratify their adult needs and desires – in itself regrettably reflects longstanding, unfounded stereotypes about gay people. All of the evidence at trial showed that lesbians and gay men seek to marry for the same reasons that opposite-sex couples do: to create a stable foundation for having children, J.A. 335, 342, 359-60; to deepen and enrich their commitment to each other, J.A. 519; and to bind their extended families together into a new community, J.A. 653-59. These reasons fully accord with the established understanding of the meaning of marriage.
Petitioners are not the first to offer a “proceed with caution” defense to a discriminatory statute. The State of Virginia contended that “the scientific evidence” regarding the effects of “interracial marriages . . . is substantially in doubt,” and that this uncertainty warranted “defer[ence] to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages.” Loving v. Virginia, 388 U.S. 1, 8 (1967). The City of Akron attempted to justify a popular referendum that entrenched discriminatory housing practices as “simply a public decision to move slowly in the delicate area of race relations.” Hunter

56
v. Erickson, 393 U.S. 385, 392 (1969). This Court has unfailingly rejected these justifications – and for good reason. The “proceeding with caution” justification would turn longstanding equal protection principles on their head by “permitting discrimination until equal treatment is proven, by some unknown metric, to be warranted.” Pedersen v. Office of Personnel Mgmt., 881 F. Supp. 2d 294, 345-46 (D. Conn. 2012). Indeed, giving credence to a fear that granting equality might alter the “social meaning” of an institution, Pet. Br. at 50 (internal quotation marks omitted), could allow inequality in perpetuity. But the Equal Protection Clause forbids the use of classifications absent some connection to an independent justification. See Williams, 472 U.S. at 27 (“[A] classification must reflect pre-existing differences; it cannot create new ones that are supported only by their own bootstraps.”).
IV. That Public Debate On Marriage Rights Continues Does Not Save Proposition 8.
Finally, Petitioners argue that because gay couples’ marriage rights are being debated throughout the country, the Court should uphold Proposition 8 even if an application of conventional equal protection principles required that it be struck down. Because the issue is controversial, they contend, it is best addressed in the democratic process so that “decisions” about whether gay people can marry “are more likely to be regarded by a free people as legitimate.” Br. at 57. At the same time, Petitioners point

57
to recent ballot measures extending marriage rights to lesbians and gay men, as if to imply that today’s discrimination is of less concern because tomorrow’s generation will come to understand the harm that Proposition 8 inflicts. Br. at 58.
Petitioners’ argument derogates the most important role this Court serves in our democracy: to protect the constitutional rights of minorities from encroachment by an unsympathetic majority. The responsibility to protect individual rights does not transfer to the political process when the dispute happens to be “controversial.” Pet. Br. at 56. Quite the contrary. In this circumstance more than any other, constitutional rights “may not be submitted to vote; they depend on the outcome of no elections.” West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943). The Court must adjudicate those rights “unabated by its judgment about whether a particular result will be subject to criticism, hostility, or disobedience.” Jesse H. Choper, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS: A FUNCTIONAL RECONSIDERATION OF THE ROLE OF THE SUPREME COURT 167 (1980). This is the very principle “whose integrity the Court is charged with maintaining.” Alexander M. Bickel, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 129 (Bobbs-Merrill Co. 1986) (1962).
Petitioners rely on cases such as Washington v. Glucksberg, 521 U.S. 702 (1997), for the idea that the Court should uphold Proposition 8 to allow the “debate” about marriage rights “to continue, as it should

58
in a democratic society.” Br. at 58-59 (internal quotation marks omitted). It is telling that these cases involve substantive due process, not equal protection. In substantive due process cases, the question whether an asserted right exists in the first place depends on consensus in society about its importance. Glucksberg, 521 U.S. at 722-23; see also Dist. Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 72 (2009).13
Equal protection cases, however, are different. See, e.g., Reynolds v. Sims, 377 U.S. 533, 566 (1964) (“[A] denial of constitutionally protected rights demands judicial protection; our oath and our office require no less of us.”). Equal protection takes as a given the existence of a controversy about whether the government may treat a class of people unequally, and the Court’s role is to resolve that controversy by applying constitutional principles objectively to ensure that minorities are not victims of irrational discrimination simply because they are outnumbered. Just as the Court would never have considered legitimizing school segregation by upholding it
13 Whether a fundamental right exists at all is decided in part by considering whether there is a long tradition of safeguarding that right. Glucksberg, 521 U.S. at 723. But disagreement about who has access to a right already acknowledged as fundamental does not depend on societal opinion. See, e.g., Loving, 388 U.S. at 6 n.5, 12 (finding interracial couple’s due process right to marry infringed by miscegenation ban notwithstanding sixteen states’ laws prohibiting interracial marriage); Lawrence v. Texas, 539 U.S. 558, 571 (2003).

59
for political reasons in Brown v. Board of Education, 347 U.S. 483 (1954), it should not consider upholding Proposition 8 if it concludes the measure inflicts a constitutional wrong on gay people and their families.14
To be sure, concerns about the judicial role in our democracy remain relevant in equal protection cases, albeit within the bounds of the Court’s responsibility to decide cases objectively. But the Ninth Circuit showed full awareness of this, reserving larger questions involving the right to marry and focusing on the context in which Proposition 8 was enacted and the peculiar harm it inflicted on gay and lesbian Californians. This approach avoided cutting off legislative and political debate throughout the circuit, while vindicating the rights of the minorities directly affected by the discrimination, as was the Ninth Circuit’s duty. What the Ninth Circuit did not do, and what no court should do, is legitimize the discrimination by declaring it “not unconstitutional” even when it is. Bickel, supra, at 129 (internal quotation marks omitted).
14 Even in an equal protection case, presumably it would be appropriate to consider arguments about controversy and the democratic conversation at the certiorari stage. Perhaps these are even reasons to hold that Petitioners lack standing, as one article cited by Petitioners urges the Court to do. Br. at 50. But “Keeping Out Entirely” (as that article is titled) does not mean rejecting valid claims of discrimination for political reasons.

60
Petitioners also contend that conventional equal protection analysis applies differently here because marriage has long been regulated at the state level. Br. at 59. But while States and the public may have the general right to define the terms on which marriages can take place, the Constitution places firm limits on the barriers the States may impose. See Turner, 482 U.S. at 94-99; Zablocki v. Redhail, 434 U.S. 374, 390-91 (1978); Loving, 388 U.S. at 7. In this respect, marriage is no different from countless other matters traditionally reserved to state control, but subject to limitation by the Federal Constitution. See, e.g., Richardson v. United States, 526 U.S. 813, 820 (1999) (state criminal law); Lunding v. New York Tax Appeals Tribunal, 522 U.S. 287, 314 (1998) (state tax law); Casey, 505 U.S. at 849. Petitioners’ federalism argument is thus question-begging. As in any equal protection case, California may not rest on the fact that marriage is traditionally regulated by the States, but must have a legitimate policy-based reason for its decision to stop gay people from getting married.
That California voters could decide to let samesex couples marry again someday does not change the substantive constitutional question presented here, where every day that Proposition 8 is in effect it denies the equal protection of the laws to hundreds of thousands of California citizens. The possibility of repeal does not change that reality, nor does it alter this Court’s responsibility to apply established equal protection jurisprudence to a case it has determined to review. See Lucas v. Forty-Fourth Gen. Assembly,

61
377 U.S. 713, 736 (1964) (“Courts sit to adjudicate controversies involving alleged denials of constitutional rights” despite the potential “existence of a nonjudicial remedy through which relief against the alleged [denial] . . . might be achieved.”).
In short, Petitioners make a plea that no matter what this Court actually believes about the constitutionality of Proposition 8, it should nonetheless uphold the measure based on political concerns. That plea cannot be countenanced. If this Court finds that Proposition 8 takes the right to marry away from same-sex couples for no purpose other than to brand them as inferior, then its duty, consistent with its longstanding and vital role in our system of government, is to hold the measure unconstitutional.
---------------------------------  ---------------------------------
CONCLUSION
Petitioners lack standing to appeal the district court’s judgment striking Proposition 8 because they suffer no particularized harm from that judgment. The Court should therefore vacate the Ninth Circuit’s opinion with instructions to dismiss the appeal. In the alternative, if the Court finds it has jurisdiction, it should affirm the judgment. Because Proposition 8 does not advance the purposes that Petitioners claim for it, and because it serves only to classify lesbian and gay couples’ committed relationships as unequal,

62
it is unconstitutional under any standard of equal protection review.
Respectfully submitted,
SAN FRANCISCO CITY ATTORNEY’S OFFICE
DENNIS J. HERRERA City Attorney THERESE M. STEWART Chief Deputy City Attorney
Counsel of Record CHRISTINE VAN AKEN AILEEN M. MCGRATH VINCE CHHABRIA MOLLIE M. LEE SARA J. EISENBERG LEILA K. MONGAN Deputy City Attorneys
Counsel for Respondent City and County of San Francisco
February 21, 2013

 
 Hollingsworth v. Perry, 133 S.Ct. 2652 (2013)
133 S.Ct. 2652 Supreme Court of the United States
Dennis HOLLINGSWORTH et al., Petitioners v.
Kristin M. PERRY et al.
No. 12–144. | Argued March 26, 2013. | Decided June 26, 2013.
Synopsis Background: Same-sex couples who had been denied marriage licenses brought civil rights action against Governor of California and other state and local officials, alleging that California’s Proposition 8, a voter-enacted ballot initiative that amended the California Constitution to provide that only marriage between a man and a woman was valid, thereby eliminating the right of same-sex couples to marry, violated their rights to due process and equal protection under the Fourteenth Amendment to the Federal Constitution. Initiative’s official proponents intervened on behalf of defendants, and municipality and county intervened on behalf of plaintiffs. After a bench trial, the United States District Court for the Northern District of California, Vaughn R. Walker, Chief Judge, 704 F.Supp.2d 921, granted judgment for plaintiffs, and proponents’ motion to vacate was denied by the District Court, James Ware, Chief Judge, 790 F.Supp.2d 1119. Proponents appealed both decisions. The United States Court of Appeals for the Ninth Circuit, 628 F.3d 1191, certified question, and the California Supreme Court, 52 Cal.4th 1116, 134 Cal.Rptr.3d 499, 265 P.3d 1002, answered that question. The Court of Appeals, Reinhardt, Circuit Judge, 671 F.3d 1052,affirmed, and rehearing en banc was denied, 681 F.3d 1065. Certiorari was granted.
[Holding:] The Supreme Court, Chief Justice Roberts, held that proponents did not have standing to appeal district court’s order declaring the Proposition unconstitutional.
Vacated and remanded with instructions.
Justice Kennedy, joined by Justices Thomas, Alito, and Sotomayor, filed a dissenting opinion.

*2655 Syllabus*

*

The syllabus constitutes no part of the opinion of the

Court but has been prepared by the Reporter of

Decisions for the convenience of the reader. See United

States v. Detroit Timber & Lumber Co., 200 U.S. 321,

337, 26 S.Ct. 282, 50 L.Ed. 499.

After the California Supreme Court held that limiting marriage to opposite-sex couples violated the California Constitution, state voters passed a ballot initiative known as Proposition 8, amending the State Constitution to define marriage as a union between a man and a woman. Respondents, same-sex couples who wish to marry, filed suit in federal court, challenging Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth *2656 Amendment, and naming as defendants California’s Governor and other state and local officials responsible for enforcing California’s marriage laws. The officials refused to defend the law, so the District Court allowed petitioners—the initiative’s official proponents—to intervene to defend it. After a bench trial, the court declared Proposition 8 unconstitutional and enjoined the public officials named as defendants from enforcing the law. Those officials elected not to appeal, but petitioners did. The Ninth Circuit certified a question to the California Supreme Court: whether official proponents of a ballot initiative have authority to assert the State’s interest in defending the constitutionality of the initiative when public officials refuse to do so. After the California Supreme Court answered in the affirmative, the Ninth Circuit concluded that petitioners had standing under federal law to defend Proposition 8’s constitutionality. On the merits, the court affirmed the District Court’s order.
Held : Petitioners did not have standing to appeal the District Court’s order. Pp. 2660 – 2668.
(a) Article III of the Constitution confines the judicial power of federal courts to deciding actual “Cases” or “Controversies.” § 2. One essential aspect of this requirement is that any person invoking the power of a federal court must demonstrate standing to do so. In other words, the litigant must seek a remedy for a personal and tangible harm. Although most standing cases consider whether a plaintiff has satisfied the requirement when filing suit, Article III demands that an “actual controversy” persist throughout all stages of litigation. Already, LLC v. Nike, Inc., 568 U.S. ––––, ––––, 133 S.Ct. 721, 726, 184 L.Ed.2d 553. Standing “must be met
1

Hollingsworth v. Perry, 133 S.Ct. 2652 (2013)
by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.” Arizonans for Official English v. Arizona, 520 U.S. 43, 64, 117 S.Ct. 1055, 137 L.Ed.2d 170. The parties do not contest that respondents had standing to initiate this case against the California officials responsible for enforcing Proposition 8. But once the District Court issued its order, respondents no longer had any injury to redress, and the state officials chose not to appeal. The only individuals who sought to appeal were petitioners, who had intervened in the District Court, but they had not been ordered to do or refrain from doing anything. Their only interest was to vindicate the constitutional validity of a generally applicable California law. As this Court has repeatedly held, such a “generalized grievance”—no matter how sincere—is insufficient to confer standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 573–574, 112 S.Ct. 2130, 119 L.Ed.2d 351. Petitioners claim that the California Constitution and election laws give them a “ ‘unique,’ ‘special,’ and ‘distinct’ role in the initiative process,” Reply Brief 5, but that is only true during the process of enacting the law. Once Proposition 8 was approved, it became a duly enacted constitutional amendment. Petitioners have no role—special or otherwise—in its enforcement. They therefore have no “personal stake” in defending its enforcement that is distinguishable from the general interest of every California citizen. No matter how deeply committed petitioners may be to upholding Proposition 8, that is not a particularized interest sufficient to create a case or controversy under Article III. Pp. 2660 – 2663.
(b) Petitioners’ arguments to the contrary are unpersuasive. Pp. 2663 – 2667.
(1) They claim that they may assert the State’s interest on the State’s behalf, but it is a “fundamental restriction on our authority” that “[i]n the ordinary course, a *2657 litigant ... cannot rest a claim to relief on the legal rights or interests of third parties.” Powers v. Ohio, 499 U.S. 400, 410, 111 S.Ct. 1364, 113 L.Ed.2d 411. In Diamond v. Charles, 476 U.S. 54, 106 S.Ct. 1697, 90 L.Ed.2d 48, for example, a pediatrician engaged in private practice was not permitted to defend the constitutionality of Illinois’ abortion law after the State chose not to appeal an adverse ruling. The state attorney general’s “letter of interest,” explaining that the State’s interest in the proceeding was “ ‘essentially co-terminous with’ ” Diamond’s position, id., at 61, 106 S.Ct. 1697, was insufficient, since Diamond was unable to assert an injury of his own, id, at 65, 106 S.Ct. 1697. Pp. 2663 – 2664.

(2) Petitioners contend the California Supreme Court’s determination that they were authorized under California law to assert the State’s interest in the validity of Proposition 8 means that they “need no more show a personal injury, separate from the State’s indisputable interest in the validity of its law, than would California’s Attorney General or did the legislative leaders held to have standing in Karcher v. May, 484 U.S. 72, 108 S.Ct. 388, 98 L.Ed.2d 327 (1987).” Reply Brief 6. But far from supporting petitioners’ standing, Karcher is compelling precedent against it. In that case, after the New Jersey attorney general refused to defend the constitutionality of a state law, leaders of New Jersey’s Legislature were permitted to appear, in their official capacities, in the District Court and Court of Appeals to defend the law. What is significant about Karcher, however, is what happened after the Court of Appeals decision. The legislators lost their leadership positions, but nevertheless sought to appeal to this Court. The Court held that they could not do so. Although they could participate in the lawsuit in their official capacities as presiding officers of the legislature, as soon as they lost that capacity, they lost standing. Id., at 81, 108 S.Ct. 388. Petitioners here hold no office and have always participated in this litigation solely as private parties. Pp. 2663 – 2666.
(3) Nor is support found in dicta in Arizonans for Official English v. Arizona, supra. There, in expressing “grave doubts” about the standing of ballot initiative sponsors to defend the constitutionality of an Arizona initiative, the Court noted that it was “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.” Id., at 65, 117 S.Ct. 1055. Petitioners argue that, by virtue of the California Supreme Court’s decision, they are authorized to act as “agents of the people of California.” Brief for Petitioners 15. But that Court never described petitioners as “agents of the people.” All the California Supreme Court’s decision stands for is that, so far as California is concerned, petitioners may “assert legal arguments in defense of the state’s interest in the validity of the initiative measure” in federal court. 628 F.3d 1191, 1193. That interest is by definition a generalized one, and it is precisely because proponents assert such an interest that they lack standing under this Court’s precedents. Petitioners are also plainly not agents of the State. As an initial matter, petitioners’ newfound claim of agency is inconsistent with their representations to the District Court, where they claimed to represent their own interests as official proponents. More to the point, the basic features of an agency relationship are missing here:
2

Hollingsworth v. Perry, 133 S.Ct. 2652 (2013)
Petitioners are not subject to the control of any principal, and they owe no fiduciary obligation to anyone. As one amicus puts it, “the proponents apparently have an unelected appointment for an unspecified period of time as defenders *2658 of the initiative, however and to whatever extent they choose to defend it.” Brief for Walter Dellinger 23. Pp. 2665 – 2667.
(c) The Court does not question California’s sovereign right to maintain an initiative process, or the right of initiative proponents to defend their initiatives in California courts. But standing in federal court is a question of federal law, not state law. No matter its reasons, the fact that a State thinks a private party should have standing to seek relief for a generalized grievance cannot override this Court’s settled law to the contrary. Article III’s requirement that a party invoking the jurisdiction of a federal court seek relief for a personal, particularized injury serves vital interests going to the role of the Judiciary in the federal system of separated powers. States cannot alter that role simply by issuing to private parties who otherwise lack standing a ticket to the federal courthouse. Pp. 2667 – 2668.
671 F.3d 1052, vacated and remanded.
ROBERTS, C.J., delivered the opinion of the Court, in which SCALIA, GINSBURG, BREYER, and KAGAN, JJ., joined. KENNEDY, J., filed a dissenting opinion, in which THOMAS, ALITO, and SOTOMAYOR, JJ., joined.
Attorneys and Law Firms
Charles J. Cooper, for the petitioners.
Theodore B. Olson, for the respondents.
Donald B. Verrilli, Jr., Solicitor General, for the United States as amicus curiae, by special leave of the Court, supporting the respondents.
Pamela S. Karlan, Jeffrey L. Fisher, Stanford Law School, Stanford, CA, James D. Esseks, Joshua A. Block, Leslie Cooper, Steven R. Shapiro, American Civil Liberties, New York, NY, Roberta A. Kaplan, Counsel of Record, Walter Rieman, Jaren Janghorbani, Colin S. Kelly, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, Arthur Eisenberg, Mariko Hirose, New York Civil Liberties Union Foundation, New York, NY, for Respondent Edith Schlain Windsor.

Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Department of Justice, Washington, D.C., Stuart F. Delery, Principal Deputy Assistant, Attorney General, Sri Srinivasan, Deputy Solicitor General, Eric J. Feigin, Assistant to the Solicitor General, Michael Jay Singer, August E. Flentje, Helen L. Gilbert, Adam C. Jed, Attorneys, Department of Justice, Washington, D.C., for the United States on the Jurisdictional Questions.
Kerry W. Kircher, General Counsel, William Pittard, Deputy General Counsel, Christine Davenport, Senior Assistant Counsel, Todd B. Tatelman, Mary Beth Walker, Eleni M. Roumel, Assistant Counsels, Office of General Counsel, U.S. House of Representatives, Washington, D.C., Paul D. Clement, Counsel of Record, H. Christopher Bartolomucci, Nicholas J. Nelson, Michael H. McGinley, Bancroft PLLC, Washington, D.C., for Respondent The Bipartisan Legal Advisory Group of the United States House of Representatives.
Opinion
*2659 Chief Justice ROBERTS delivered the opinion of the Court.
The public is currently engaged in an active political debate over whether same-sex couples should be allowed to marry. That question has also given rise to litigation. In this case, petitioners, who oppose same-sex marriage, ask us to decide whether the Equal Protection Clause “prohibits the State of California from defining marriage as the union of a man and a woman.” Pet. for Cert. i. Respondents, same-sex couples who wish to marry, view the issue in somewhat different terms: For them, it is whether California—having previously recognized the right of same-sex couples to marry—may reverse that decision through a referendum.
[1] [2] Federal courts have authority under the Constitution to answer such questions only if necessary to do so in the course of deciding an actual “case” or “controversy.” As used in the Constitution, those words do not include every sort of dispute, but only those “historically viewed as capable of resolution through the judicial process.” Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). This is an essential limit on our power: It ensures that we act as judges, and do not engage in policymaking properly left to elected representatives.
[3] For there to be such a case or controversy, it is not enough that the party invoking the power of the court have a keen interest in the issue. That party must also
3

Hollingsworth v. Perry, 133 S.Ct. 2652 (2013)
have “standing,” which requires, among other things, that it have suffered a concrete and particularized injury. Because we find that petitioners do not have standing, we have no authority to decide this case on the merits, and neither did the Ninth Circuit.
I
In 2008, the California Supreme Court held that limiting the official designation of marriage to opposite-sex couples violated the equal protection clause of the California Constitution. In re Marriage Cases, 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384. Later that year, California voters passed the ballot initiative at the center of this dispute, known as Proposition 8. That proposition amended the California Constitution to provide that “[o]nly marriage between a man and a woman is valid or recognized in California.” Cal. Const., Art. I, § 7.5. Shortly thereafter, the California Supreme Court rejected a procedural challenge to the amendment, and held that the Proposition was properly enacted under California law. Strauss v. Horton, 46 Cal.4th 364, 474–475, 93 Cal.Rptr.3d 591, 207 P.3d 48, 122 (2009).
According to the California Supreme Court, Proposition 8 created a “narrow and limited exception” to the state constitutional rights otherwise guaranteed to same-sex couples. Id., at 388, 93 Cal.Rptr.3d 591, 207 P.3d, at 61. Under California law, same-sex couples have a right to enter into relationships recognized by the State as “domestic partnerships,” which carry “the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law ... as are granted to and imposed upon spouses.” Cal. Fam. Code Ann. § 297.5(a) (West 2004). In In re Marriage Cases, the California Supreme Court concluded that the California Constitution further guarantees same-sex couples “all of the constitutionally based incidents of marriage,” including the right to have that marriage “officially recognized” as such by the State. 43 Cal.4th, at 829, 76 Cal.Rptr.3d 683, 183 P.3d, at 433–434. Proposition 8, the court explained in Strauss, left those rights largely undisturbed, reserving only “the official designation *2660 of the term ‘marriage’ for the union of opposite-sex couples as a matter of state constitutional law.” 46 Cal.4th, at 388, 93 Cal.Rptr.3d 591, 207 P.3d, at 61.
Respondents, two same-sex couples who wish to marry, filed suit in federal court, challenging Proposition 8 under

the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Federal Constitution. The complaint named as defendants California’s Governor, attorney general, and various other state and local officials responsible for enforcing California’s marriage laws. Those officials refused to defend the law, although they have continued to enforce it throughout this litigation. The District Court allowed petitioners—the official proponents of the initiative, see Cal. Elec.Code Ann. § 342 (West 2003)—to intervene to defend it. After a 12–day bench trial, the District Court declared Proposition 8 unconstitutional, permanently enjoining the California officials named as defendants from enforcing the law, and “directing the official defendants that all persons under their control or supervision” shall not enforce it. Perry v. Schwarzenegger, 704 F.Supp.2d 921, 1004 (N.D.Cal.2010).
Those officials elected not to appeal the District Court order. When petitioners did, the Ninth Circuit asked them to address “why this appeal should not be dismissed for lack of Article III standing.” Perry v. Schwarzenegger, Civ. No. 10–16696 (C.A.9, Aug. 16, 2010), p. 2, 2010 WL 3212786. After briefing and argument, the Ninth Circuit certified a question to the California Supreme Court:
“Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.” Perry v. Schwarzenegger, 628 F.3d 1191, 1193 (2011).
The California Supreme Court agreed to decide the certified question, and answered in the affirmative. Without addressing whether the proponents have a particularized interest of their own in an initiative’s validity, the court concluded that “[i]n a postelection challenge to a voter-approved initiative measure, the official proponents of the initiative are authorized under California law to appear and assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so.” Perry v. Brown, 52 Cal.4th 1116, 1127, 134 Cal.Rptr.3d 499, 265 P.3d 1002, 1007 (2011).
4

Hollingsworth v. Perry, 133 S.Ct. 2652 (2013)
Relying on that answer, the Ninth Circuit concluded that petitioners had standing under federal law to defend the constitutionality of Proposition 8. California, it reasoned, “ ‘has standing to defend the constitutionality of its [laws],’ ” and States have the “prerogative, as independent sovereigns, to decide for themselves who may assert their interests.” Perry v. Brown, 671 F.3d 1052, 1070, 1071 (2012) (quoting Diamond v. Charles, 476 U.S. 54, 62, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986)). “All a federal court need determine is that the state has suffered a harm sufficient to confer standing and that the party seeking to invoke the jurisdiction of the court is authorized by the state to represent its interest in remedying that harm.” 671 F.3d, at 1072.
On the merits, the Ninth Circuit affirmed the District Court. The court held *2661 the Proposition unconstitutional under the rationale of our decision in Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). 671 F.3d, at 1076, 1095. In the Ninth Circuit’s view, Romer stands for the proposition that “the Equal Protection Clause requires the state to have a legitimate reason for withdrawing a right or benefit from one group but not others, whether or not it was required to confer that right or benefit in the first place.” 671 F.3d, at 1083–1084. The Ninth Circuit concluded that “taking away the official designation” of “marriage” from same-sex couples, while continuing to afford those couples all the rights and obligations of marriage, did not further any legitimate interest of the State. Id., at 1095. Proposition 8, in the court’s view, violated the Equal Protection Clause because it served no purpose “but to impose on gays and lesbians, through the public law, a majority’s private disapproval of them and their relationships.” Ibid.
We granted certiorari to review that determination, and directed that the parties also brief and argue “Whether petitioners have standing under Article III, § 2, of the Constitution in this case.” 568 U.S. ––––, 133 S.Ct. 786, 184 L.Ed.2d 526 (2012).
II
[4] [5] [6] [7] Article III of the Constitution confines the judicial power of federal courts to deciding actual “Cases” or “Controversies.” § 2. One essential aspect of this requirement is that any person invoking the power of a federal court must demonstrate standing to do so. This requires the litigant to prove that he has suffered a

concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In other words, for a federal court to have authority under the Constitution to settle a dispute, the party before it must seek a remedy for a personal and tangible harm. “The presence of a disagreement, however sharp and acrimonious it may be, is insufficient by itself to meet Art. III’s requirements.” Diamond, supra, at 62, 106 S.Ct. 1697.
[8] The doctrine of standing, we recently explained, “serves to prevent the judicial process from being used to usurp the powers of the political branches.” Clapper v. Amnesty Int’l USA, 568 U.S. ––––, ––––, 133 S.Ct. 1138, 1146, 185 L.Ed.2d 264 (2013). In light of this “overriding and time-honored concern about keeping the Judiciary’s power within its proper constitutional sphere, we must put aside the natural urge to proceed directly to the merits of [an] important dispute and to ‘settle’ it for the sake of convenience and efficiency.” Raines v. Byrd, 521 U.S. 811, 820, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997) (footnote omitted).
[9] [10] Most standing cases consider whether a plaintiff has satisfied the requirement when filing suit, but Article III demands that an “actual controversy” persist throughout all stages of litigation. Already, LLC v. Nike, Inc., 568 U.S. ––––, ––––, 133 S.Ct. 721, 726, 184 L.Ed.2d 553 (2013) (internal quotation marks omitted). That means that standing “must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.” Arizonans for Official English v. Arizona, 520 U.S. 43, 64, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). We therefore must decide whether petitioners had standing to appeal the District Court’s order.
[11] Respondents initiated this case in the District Court against the California *2662 officials responsible for enforcing Proposition 8. The parties do not contest that respondents had Article III standing to do so. Each couple expressed a desire to marry and obtain “official sanction” from the State, which was unavailable to them given the declaration in Proposition 8 that “marriage” in California is solely between a man and a woman. App. 59.
After the District Court declared Proposition 8 unconstitutional and enjoined the state officials named as defendants from enforcing it, however, the inquiry under Article III changed. Respondents no longer had any injury to redress—they had won—and the state officials chose
5

Hollingsworth v. Perry, 133 S.Ct. 2652 (2013)
not to appeal.
[12] The only individuals who sought to appeal that order were petitioners, who had intervened in the District Court. But the District Court had not ordered them to do or refrain from doing anything. To have standing, a litigant must seek relief for an injury that affects him in a “personal and individual way.” Defenders of Wildlife, supra, at 560, n. 1, 112 S.Ct. 2130. He must possess a “direct stake in the outcome” of the case. Arizonans for Official English, supra, at 64, 117 S.Ct. 1055 (internal quotation marks omitted). Here, however, petitioners had no “direct stake” in the outcome of their appeal. Their only interest in having the District Court order reversed was to vindicate the constitutional validity of a generally applicable California law.
[13] [14] We have repeatedly held that such a “generalized grievance,” no matter how sincere, is insufficient to confer standing. A litigant “raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy.” Defenders of Wildlife, supra, at 573–574, 112 S.Ct. 2130; see Lance v. Coffman, 549 U.S. 437, 439, 127 S.Ct. 1194, 167 L.Ed.2d 29 (2007) (per curiam ) (“Our refusal to serve as a forum for generalized grievances has a lengthy pedigree.”); Allen v. Wright, 468 U.S. 737, 754, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (“an asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court”); Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 67 L.Ed. 1078 (1923) (“The party who invokes the [judicial] power must be able to show ... that he has sustained or is immediately in danger of sustaining some direct injury ... and not merely that he suffers in some indefinite way in common with people generally.”).
Petitioners argue that the California Constitution and its election laws give them a “ ‘unique,’ ‘special,’ and ‘distinct’ role in the initiative process—one ‘involving both authority and responsibilities that differ from other supporters of the measure.’ ” Reply Brief 5 (quoting 52 Cal.4th, at 1126, 1142, 1160, 134 Cal.Rptr.3d 499, 265 P.3d, at 1006, 1017–1018, 1030). True enough—but only when it comes to the process of enacting the law. Upon submitting the proposed initiative to the attorney general, petitioners became the official “proponents” of Proposition 8. Cal. Elec.Code Ann. § 342 (West 2003).

As such, they were responsible for collecting the signatures required to qualify the measure for the ballot. §§ 9607–9609. After those signatures were collected, the proponents alone had the right to file the measure with election officials to put it on the ballot. § 9032. Petitioners also possessed control over the arguments in favor of the initiative that would appear in California’s ballot pamphlets. §§ 9064, 9065, 9067, 9069.
*2663 [15] But once Proposition 8 was approved by the voters, the measure became “a duly enacted constitutional amendment or statute.” 52 Cal.4th, at 1147, 134 Cal.Rptr.3d 499, 265 P.3d, at 1021. Petitioners have no role—special or otherwise—in the enforcement of Proposition 8. See id., at 1159, 134 Cal.Rptr.3d 499, 265 P.3d, at 1029 (petitioners do not “possess any official authority ... to directly enforce the initiative measure in question”). They therefore have no “personal stake” in defending its enforcement that is distinguishable from the general interest of every citizen of California. Defenders of Wildlife, supra, at 560–561, 112 S.Ct. 2130.
[16] Article III standing “is not to be placed in the hands of ‘concerned bystanders,’ who will use it simply as a ‘vehicle for the vindication of value interests.’ ” Diamond, 476 U.S., at 62, 106 S.Ct. 1697. No matter how deeply committed petitioners may be to upholding Proposition 8 or how “zealous [their] advocacy,” post, at 2669 (KENNEDY, J., dissenting), that is not a “particularized” interest sufficient to create a case or controversy under Article III. Defenders of Wildlife, 504 U.S., at 560, and n. 1, 112 S.Ct. 2130; see Arizonans for Official English, 520 U.S., at 65, 117 S.Ct. 1055 (“Nor has this Court ever identified initiative proponents as Article–III–qualified defenders of the measures they advocated.”); Don’t Bankrupt Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 460 U.S. 1077, 103 S.Ct. 1762, 76 L.Ed.2d 338 (1983) (summarily dismissing, for lack of standing, appeal by an initiative proponent from a decision holding the initiative unconstitutional).
III
A
[17] [18] Without a judicially cognizable interest of their own, petitioners attempt to invoke that of someone else.
6

Hollingsworth v. Perry, 133 S.Ct. 2652 (2013)
They assert that even if they have no cognizable interest in appealing the District Court’s judgment, the State of California does, and they may assert that interest on the State’s behalf. It is, however, a “fundamental restriction on our authority” that “[i]n the ordinary course, a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties.” Powers v. Ohio, 499 U.S. 400, 410, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). There are “certain, limited exceptions” to that rule. Ibid. But even when we have allowed litigants to assert the interests of others, the litigants themselves still “must have suffered an injury in fact, thus giving [them] a sufficiently concrete interest in the outcome of the issue in dispute.” Id., at 411, 111 S.Ct. 1364 (internal quotation marks omitted).
In Diamond v. Charles, for example, we refused to allow Diamond, a pediatrician engaged in private practice in Illinois, to defend the constitutionality of the State’s abortion law. In that case, a group of physicians filed a constitutional challenge to the Illinois statute in federal court. The State initially defended the law, and Diamond, a professed “conscientious object[or] to abortions,” intervened to defend it alongside the State. 476 U.S., at 57–58, 106 S.Ct. 1697.
After the Seventh Circuit affirmed a permanent injunction against enforcing several provisions of the law, the State chose not to pursue an appeal to this Court. But when Diamond did, the state attorney general filed a “ ‘letter of interest,’ ” explaining that the State’s interest in the proceeding was “ ‘essentially co-terminous with the position on the issues set forth by [Diamond].’ ” Id., at 61, 106 S.Ct. 1697. That was not enough, we held, to *2664 allow the appeal to proceed. As the Court explained, “[e]ven if there were circumstances in which a private party would have standing to defend the constitutionality of a challenged statute, this [was] not one of them,” because Diamond was not able to assert an injury in fact of his own. Id., at 65, 106 S.Ct. 1697 (footnote omitted). And without “any judicially cognizable interest,” Diamond could not “maintain the litigation abandoned by the State.” Id., at 71, 106 S.Ct. 1697.
For the reasons we have explained, petitioners have likewise not suffered an injury in fact, and therefore would ordinarily have no standing to assert the State’s interests.
B

Petitioners contend that this case is different, because the California Supreme Court has determined that they are “authorized under California law to appear and assert the state’s interest” in the validity of Proposition 8. 52 Cal.4th, at 1127, 134 Cal.Rptr.3d 499, 265 P.3d, at 1007. The court below agreed: “All a federal court need determine is that the state has suffered a harm sufficient to confer standing and that the party seeking to invoke the jurisdiction of the court is authorized by the state to represent its interest in remedying that harm.” 671 F.3d, at 1072. As petitioners put it, they “need no more show a personal injury, separate from the State’s indisputable interest in the validity of its law, than would California’s Attorney General or did the legislative leaders held to have standing in Karcher v. May, 484 U.S. 72, 108 S.Ct. 388, 98 L.Ed.2d 327 (1987).” Reply Brief 6.
In Karcher, we held that two New Jersey state legislators—Speaker of the General Assembly Alan Karcher and President of the Senate Carmen Orechio—could intervene in a suit against the State to defend the constitutionality of a New Jersey law, after the New Jersey attorney general had declined to do so. 484 U.S., at 75, 81–82, 108 S.Ct. 388. “Since the New Jersey Legislature had authority under state law to represent the State’s interests in both the District Court and the Court of Appeals,” we held that the Speaker and the President, in their official capacities, could vindicate that interest in federal court on the legislature’s behalf. Id., at 82, 108 S.Ct. 388.
[19] Far from supporting petitioners’ standing, however, Karcher is compelling precedent against it. The legislators in that case intervened in their official capacities as Speaker and President of the legislature. No one doubts that a State has a cognizable interest “in the continued enforceability” of its laws that is harmed by a judicial decision declaring a state law unconstitutional. Maine v. Taylor, 477 U.S. 131, 137, 106 S.Ct. 2440, 91 L.Ed.2d 110 (1986). To vindicate that interest or any other, a State must be able to designate agents to represent it in federal court. See Poindexter v. Greenhow, 114 U.S. 270, 288, 5 S.Ct. 903, 29 L.Ed. 185 (1885) (“The State is a political corporate body [that] can act only through agents”). That agent is typically the State’s attorney general. But state law may provide for other officials to speak for the State in federal court, as New Jersey law did for the State’s presiding legislative officers in Karcher. See 484 U.S., at 81–82, 108 S.Ct. 388.
What is significant about Karcher is what happened after the Court of Appeals decision in that case. Karcher and
7

Hollingsworth v. Perry, 133 S.Ct. 2652 (2013)
Orechio lost their positions as Speaker and President, but nevertheless sought to appeal to this Court. We held that they could not do so. We explained that while they were able to participate in the lawsuit in their official capacities as presiding officers *2665 of the incumbent legislature, “since they no longer hold those offices, they lack authority to pursue this appeal.” Id., at 81, 108 S.Ct. 388.
The point of Karcher is not that a State could authorize private parties to represent its interests; Karcher and Orechio were permitted to proceed only because they were state officers, acting in an official capacity. As soon as they lost that capacity, they lost standing. Petitioners here hold no office and have always participated in this litigation solely as private parties.
The cases relied upon by the dissent, see post, at 2673 – 2674, provide petitioners no more support. The dissent’s primary authorities, in fact, do not discuss standing at all. See Young v. United States ex rel. Vuitton et Fils S. A., 481 U.S. 787, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987); United States v. Providence Journal Co., 485 U.S. 693, 108 S.Ct. 1502, 99 L.Ed.2d 785 (1988). And none comes close to establishing that mere authorization to represent a third party’s interests is sufficient to confer Article III standing on private parties with no injury of their own.
The dissent highlights the discretion exercised by special prosecutors appointed by federal courts to pursue contempt charges. See post, at 2673 (citing Young, supra, at 807, 107 S.Ct. 2124). Such prosecutors do enjoy a degree of independence in carrying out their appointed role, but no one would suppose that they are not subject to the ultimate authority of the court that appointed them. See also Providence Journal, supra, at 698–707, 108 S.Ct. 1502 (recognizing further control exercised by the Solicitor General over special prosecutors).
The dissent’s remaining cases, which at least consider standing, are readily distinguishable. See Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 771–778, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) (justifying qui tam actions based on a partial assignment of the Government’s damages claim and a “well nigh conclusive” tradition of such actions in English and American courts dating back to the 13th century); Whitmore v. Arkansas, 495 U.S. 149, 162–164, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (justifying “next friend” standing based on a similar history dating back to the 17th century, requiring the next friend to prove a disability of the real party in interest and a “significant relationship” with that party); Gollust v. Mendell, 501 U.S. 115,

124–125, 111 S.Ct. 2173, 115 L.Ed.2d 109 (1991) (requiring plaintiff in shareholder-derivative suit to maintain a financial stake in the outcome of the litigation, to avoid “serious constitutional doubt whether that plaintiff could demonstrate the standing required by Article III’s case-or-controversy limitation”).
C
Both petitioners and respondents seek support from dicta in Arizonans for Official English v. Arizona, 520 U.S. 43, 117 S.Ct. 1055, 137 L.Ed.2d 170. The plaintiff in Arizonans for Official English filed a constitutional challenge to an Arizona ballot initiative declaring English “ ‘the official language of the State of Arizona.’ ” Id., at 48, 117 S.Ct. 1055. After the District Court declared the initiative unconstitutional, Arizona’s Governor announced that she would not pursue an appeal. Instead, the principal sponsor of the ballot initiative—the Arizonans for Official English Committee—sought to defend the measure in the Ninth Circuit. Id., at 55–56, 58, 117 S.Ct. 1055. Analogizing the sponsors to the Arizona Legislature, the Ninth Circuit held that the Committee was “qualified to defend [the initiative] on appeal,” *2666 and affirmed the District Court. Id., at 58, 61, 117 S.Ct. 1055.
Before finding the case mooted by other events, this Court expressed “grave doubts” about the Ninth Circuit’s standing analysis. Id., at 66, 117 S.Ct. 1055. We reiterated that “[s]tanding to defend on appeal in the place of an original defendant ... demands that the litigant possess ‘a direct stake in the outcome.’ ” Id., at 64, 117 S.Ct. 1055 (quoting Diamond, 476 U.S., at 62, 106 S.Ct. 1697). We recognized that a legislator authorized by state law to represent the State’s interest may satisfy standing requirements, as in Karcher, supra, at 82, 108 S.Ct. 388, but noted that the Arizona committee and its members were “not elected representatives, and we [we]re 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.” Arizonans for Official English, supra, at 65, 117 S.Ct. 1055.
Petitioners argue that, by virtue of the California Supreme Court’s decision, they are authorized to act “ ‘as agents of the people’ of California.” Brief for Petitioners 15 (quoting Arizonans for Official English, supra, at 65, 117 S.Ct. 1055). But that Court never described petitioners as “agents of the people,” or of anyone else. Nor did the
8

Hollingsworth v. Perry, 133 S.Ct. 2652 (2013)
Ninth Circuit. The Ninth Circuit asked—and the California Supreme Court answered—only whether petitioners had “the authority to assert the State’s interest in the initiative’s validity.” 628 F.3d, at 1193, 52 Cal.4th, at 1124, 134 Cal.Rptr.3d 499, 265 P.3d, at 1005. All that the California Supreme Court decision stands for is that, so far as California is concerned, petitioners may argue in defense of Proposition 8. This “does not mean that the proponents become de facto public officials”; the authority they enjoy is “simply the authority to participate as parties in a court action and to assert legal arguments in defense of the state’s interest in the validity of the initiative measure.” Id., at 1159, 134 Cal.Rptr.3d 499, 265 P.3d, at 1029. That interest is by definition a generalized one, and it is precisely because proponents assert such an interest that they lack standing under our precedents.
And petitioners are plainly not agents of the State—“formal” or otherwise, see post, at 2671. As an initial matter, petitioners’ newfound claim of agency is inconsistent with their representations to the District Court. When the proponents sought to intervene in this case, they did not purport to be agents of California. They argued instead that “no other party in this case w[ould] adequately represent their interests as official proponents.” Motion to Intervene in No. 09–2292 (ND Cal.), p. 6 (emphasis added). It was their “unique legal status” as official proponents—not an agency relationship with the people of California—that petitioners claimed “endow[ed] them with a significantly protectable interest” in ensuring that the District Court not “undo[ ] all that they ha[d] done in obtaining ... enactment” of Proposition 8. Id., at 10, 11.
[20] [21] [22] More to the point, the most basic features of an agency relationship are missing here. Agency requires more than mere authorization to assert a particular interest. “An essential element of agency is the principal’s right to control the agent’s actions.” 1 Restatement (Third) of Agency § 1.01, Comment f (2005) (hereinafter Restatement). Yet petitioners answer to no one; they decide for themselves, with no review, what arguments to make and how to make them. Unlike California’s attorney general, they are not elected at regular intervals—or elected at all. See *2667 Cal. Const., Art. V, § 11. No provision provides for their removal. As one amicus explains, “the proponents apparently have an unelected appointment for an unspecified period of time as defenders of the initiative, however and to whatever extent they choose to defend it.” Brief for Walter Dellinger 23.

[23] “If the relationship between two persons is one of agency ..., the agent owes a fiduciary obligation to the principal.” 1 Restatement § 1.01, Comment e. But petitioners owe nothing of the sort to the people of California. Unlike California’s elected officials, they have taken no oath of office. E.g., Cal. Const., Art. XX, § 3 (prescribing the oath for “all public officers and employees, executive, legislative, and judicial”). As the California Supreme Court explained, petitioners are bound simply by “the same ethical constraints that apply to all other parties in a legal proceeding.” 52 Cal.4th, at 1159, 134 Cal.Rptr.3d 499, 265 P.3d, at 1029. They are free to pursue a purely ideological commitment to the law’s constitutionality without the need to take cognizance of resource constraints, changes in public opinion, or potential ramifications for other state priorities.
[24] Finally, the California Supreme Court stated that “[t]he question of who should bear responsibility for any attorney fee award ... is entirely distinct from the question” before it. Id., at 1161, 134 Cal.Rptr.3d 499, 265 P.3d, at 1031. (emphasis added). But it is hornbook law that “a principal has a duty to indemnify the agent against expenses and other losses incurred by the agent in defending against actions brought by third parties if the agent acted with actual authority in taking the action challenged by the third party’s suit.” 2 Restatement § 8.14, Comment d. If the issue of fees is entirely distinct from the authority question, then authority cannot be based on agency.
Neither the California Supreme Court nor the Ninth Circuit ever described the proponents as agents of the State, and they plainly do not qualify as such.
IV
[25] The dissent eloquently recounts the California Supreme Court’s reasons for deciding that state law authorizes petitioners to defend Proposition 8. See post, at 2669 – 2670. We do not “disrespect[ ]” or “disparage[ ]” those reasons. Post, at 2674. Nor do we question California’s sovereign right to maintain an initiative process, or the right of initiative proponents to defend their initiatives in California courts, where Article III does not apply. But as the dissent acknowledges, see post, at 2668, standing in federal court is a question of federal law, not state law. And no matter its reasons, the fact that a State thinks a private party should have standing to seek
9

Hollingsworth v. Perry, 133 S.Ct. 2652 (2013)
relief for a generalized grievance cannot override our settled law to the contrary.
[26] [27] [28] The Article III requirement that a party invoking the jurisdiction of a federal court seek relief for a personal, particularized injury serves vital interests going to the role of the Judiciary in our system of separated powers. “Refusing to entertain generalized grievances ensures that ... courts exercise power that is judicial in nature,” Lance, 549 U.S., at 441, 127 S.Ct. 1194, and ensures that the Federal Judiciary respects “the proper—and properly limited—role of the courts in a democratic society,” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (internal quotation marks omitted). States cannot alter that role simply by issuing to private parties who otherwise lack standing a ticket to the federal courthouse.
* * *
*2668 We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.
Because petitioners have not satisfied their burden to demonstrate standing to appeal the judgment of the District Court, the Ninth Circuit was without jurisdiction to consider the appeal. The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction.
It is so ordered.
Justice KENNEDY, with whom Justice THOMAS, Justice ALITO, and Justice SOTOMAYOR join, dissenting.
The Court’s opinion is correct to state, and the Supreme Court of California was careful to acknowledge, that a proponent’s standing to defend an initiative in federal court is a question of federal law. Proper resolution of the justiciability question requires, in this case, a threshold determination of state law. The state-law question is how California defines and elaborates the status and authority of an initiative’s proponents who seek to intervene in court to defend the initiative after its adoption by the electorate. Those state-law issues have been addressed in a meticulous and unanimous opinion by the Supreme Court of California.

Under California law, a proponent has the authority to appear in court and assert the State’s interest in defending an enacted initiative when the public officials charged with that duty refuse to do so. The State deems such an appearance essential to the integrity of its initiative process. Yet the Court today concludes that this state-defined status and this state-conferred right fall short of meeting federal requirements because the proponents cannot point to a formal delegation of authority that tracks the requirements of the Restatement of Agency. But the State Supreme Court’s definition of proponents’ powers is binding on this Court. And that definition is fully sufficient to establish the standing and adversity that are requisites for justiciability under Article III of the United States Constitution.
In my view Article III does not require California, when deciding who may appear in court to defend an initiative on its behalf, to comply with the Restatement of Agency or with this Court’s view of how a State should make its laws or structure its government. The Court’s reasoning does not take into account the fundamental principles or the practical dynamics of the initiative system in California, which uses this mechanism to control and to bypass public officials—the same officials who would not defend the initiative, an injury the Court now leaves unremedied. The Court’s decision also has implications for the 26 other States that use an initiative or popular referendum system and which, like California, may choose to have initiative proponents stand in for the State when public officials decline to defend an initiative in litigation. See M. Waters, Initiative and Referendum Almanac 12 (2003). In my submission, the Article III requirement for a justiciable case or controversy does not prevent proponents from having their day in court.
These are the premises for this respectful dissent.
I
As the Court explains, the State of California sustained a concrete injury, sufficient to satisfy the requirements of Article III, when a United States District Court nullified a portion of its State Constitution. See ante, at 2664 (citing *2669 Maine v. Taylor, 477 U.S. 131, 137, 106 S.Ct. 2440, 91 L.Ed.2d 110 (1986)). To determine whether justiciability continues in appellate proceedings after the State Executive acquiesced in the District Court’s adverse judgment, it is necessary to ascertain what persons, if any, have “authority under state law to represent the State’s
10

Hollingsworth v. Perry, 133 S.Ct. 2652 (2013)
interests” in federal court. Karcher v. May, 484 U.S. 72, 82, 108 S.Ct. 388, 98 L.Ed.2d 327 (1987); see also Arizonans for Official English v. Arizona, 520 U.S. 43, 65, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997).
As the Court notes, the California Elections Code does not on its face prescribe in express terms the duties or rights of proponents once the initiative becomes law. Ante, at 2662. If that were the end of the matter, the Court’s analysis would have somewhat more force. But it is not the end of the matter. It is for California, not this Court, to determine whether and to what extent the Elections Code provisions are instructive and relevant in determining the authority of proponents to assert the State’s interest in postenactment judicial proceedings. And it is likewise not for this Court to say that a State must determine the substance and meaning of its laws by statute, or by judicial decision, or by a combination of the two. See Sweezy v. New Hampshire, 354 U.S. 234, 255, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957) (plurality opinion); Dreyer v. Illinois, 187 U.S. 71, 84, 23 S.Ct. 28, 47 L.Ed. 79 (1902). That, too, is for the State to decide.
This Court, in determining the substance of state law, is “bound by a state court’s construction of a state statute.” Wisconsin v. Mitchell, 508 U.S. 476, 483, 113 S.Ct. 2194, 124 L.Ed.2d 436 (1993). And the Supreme Court of California, in response to the certified question submitted to it in this case, has determined that State Elections Code provisions directed to initiative proponents do inform and instruct state law respecting the rights and status of proponents in postelection judicial proceedings. Here, in reliance on these statutes and the California Constitution, the State Supreme Court has held that proponents do have authority “under California law to appear and assert the state’s interest in the initiative’s validity and appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so.” Perry v. Brown, 52 Cal.4th 1116, 1127, 134 Cal.Rptr.3d 499, 265 P.3d 1002, 1007 (2011).
The reasons the Supreme Court of California gave for its holding have special relevance in the context of determining whether proponents have the authority to seek a federal-court remedy for the State’s concrete, substantial, and continuing injury. As a class, official proponents are a small, identifiable group. See Cal. Elec.Code Ann. § 9001(a) (West Cum.Supp. 2013). Because many of their decisions must be unanimous, see §§ 9001(b)(1), 9002(b), they are necessarily few in number. Their identities are public. § 9001(b)(2). Their

commitment is substantial. See §§ 9607–9609 (West Cum.Supp. 2013) (obtaining petition signatures); § 9001(c) (monetary fee); §§ 9065(d), 9067, 9069 (West 2003) (drafting arguments for official ballot pamphlet). They know and understand the purpose and operation of the proposed law, an important requisite in defending initiatives on complex matters such as taxation and insurance. Having gone to great lengths to convince voters to enact an initiative, they have a stake in the outcome and the necessary commitment to provide zealous advocacy.
Thus, in California, proponents play a “unique role ... in the initiative process.” 52 Cal.4th, at 1152, 134 Cal.Rptr.3d 499, 265 P.3d, at 1024. They “have a unique relationship to the voter-approved measure *2670 that makes them especially likely to be reliable and vigorous advocates for the measure and to be so viewed by those whose votes secured the initiative’s enactment into law.” Ibid.; see also id., at 1160, 134 Cal.Rptr.3d 499, 265 P.3d, at 1030 (because of “their special relationship to the initiative measure,” proponents are “the most obvious and logical private individuals to ably and vigorously defend the validity of the challenged measure on behalf of the interests of the voters who adopted the initiative into law”). Proponents’ authority under state law is not a contrivance. It is not a fictional construct. It is the product of the California Constitution and the California Elections Code. There is no basis for this Court to set aside the California Supreme Court’s determination of state law.
The Supreme Court of California explained that its holding was consistent with recent decisions from other States. Id., at 1161–1165, 134 Cal.Rptr.3d 499, 265 P.3d, at 1031–1033. In Sportsmen for I–143 v. Fifteenth Jud. Ct., 2002 MT 18, 308 Mont. 189, 40 P.3d 400, the Montana Supreme Court unanimously held that because initiative sponsors “may be in the best position to defend their interpretation” of the initiative and had a “direct, substantial, legally protectable interest in” the lawsuit challenging that interpretation, they were “entitled to intervene as a matter of right.” Id., at 194–195, 40 P.3d, at 403. The Alaska Supreme Court reached a similar unanimous result in Alaskans for a Common Language Inc. v. Kritz, 3 P.3d 906 (2000). It noted that, except in extraordinary cases, “a sponsor’s direct interest in legislation enacted through the initiative process and the concomitant need to avoid the appearance of [a conflict of interest] will ordinarily preclude courts from denying intervention as of right to a sponsoring group.” Id., at 914.
For these and other reasons, the Supreme Court of
11

Hollingsworth v. Perry, 133 S.Ct. 2652 (2013)
California held that the California Elections Code and Article II, § 8, of the California Constitution afford proponents “the authority ... to assert the state’s interest in the validity of the initiative” when State officials decline to do so. 52 Cal.4th, at 1152, 134 Cal.Rptr.3d 499, 265 P.3d, at 1024. The court repeated this unanimous holding more than a half-dozen times and in no uncertain terms. See id., at 1126, 1127, 1139, 1149, 1151, 1152, 1165, 134 Cal.Rptr.3d 499, 265 P.3d, at 1006, 1007, 1015, 1022, 1024, 1025, 1033; see also id., at 1169–1170, 134 Cal.Rptr.3d 499, 265 P.3d, at 1036–1037 (Kennard, J., concurring). That should suffice to resolve the central issue on which the federal question turns.
II
A
The Court concludes that proponents lack sufficient ties to the state government. It notes that they “are not elected,” “answer to no one,” and lack “ ‘a fiduciary obligation’ ” to the State. Ante, at 2673 – 2674 (quoting 1 Restatement (Third) of Agency § 1.01, Comments e, f (2005)). But what the Court deems deficiencies in the proponents’ connection to the State government, the State Supreme Court saw as essential qualifications to defend the initiative system. The very object of the initiative system is to establish a lawmaking process that does not depend upon state officials. In California, the popular initiative is necessary to implement “the theory that all power of government ultimately resides in the people.” 52 Cal.4th, at 1140, 134 Cal.Rptr.3d 499, 265 P.3d, at 1016 (internal quotation marks omitted). The right to adopt initiatives has been described by the California courts as “one of the most precious rights of [the State’s] democratic process.” Ibid. (internal quotation *2671 marks omitted). That historic role for the initiative system “grew out of dissatisfaction with the then governing public officials and a widespread belief that the people had lost control of the political process.” Ibid. The initiative’s “primary purpose,” then, “was to afford the people the ability to propose and to adopt constitutional amendments or statutory provisions that their elected public officials had refused or declined to adopt.” Ibid.
The California Supreme Court has determined that this purpose is undermined if the very officials the initiative process seeks to circumvent are the only parties who can

defend an enacted initiative when it is challenged in a legal proceeding. See id., at 1160, 134 Cal.Rptr.3d 499, 265 P.3d, at 1030; cf. Alaskans for a Common Language, supra, at 914 (noting that proponents must be allowed to defend an enacted initiative in order to avoid the perception, correct or not, “that the interests of [the proponents] were not being defended vigorously by the executive branch”). Giving the Governor and attorney general this de facto veto will erode one of the cornerstones of the State’s governmental structure. See 52 Cal.4th, at 1126–1128, 134 Cal.Rptr.3d 499, 265 P.3d, at 1006–1007. And in light of the frequency with which initiatives’ opponents resort to litigation, the impact of that veto could be substantial. K. Miller, Direct Democracy and the Courts 106 (2009) (185 of the 455 initiatives approved in Arizona, California, Colorado, Oregon, and Washington between 1900 and 2008 were challenged in court). As a consequence, California finds it necessary to vest the responsibility and right to defend a voter-approved initiative in the initiative’s proponents when the State Executive declines to do so.
Yet today the Court demands that the State follow the Restatement of Agency. See ante, at 2666 – 2667. There are reasons, however, why California might conclude that a conventional agency relationship is inconsistent with the history, design, and purpose of the initiative process. The State may not wish to associate itself with proponents or their views outside of the “extremely narrow and limited” context of this litigation, 52 Cal.4th, at 1159, 134 Cal.Rptr.3d 499, 265 P.3d, at 1029, or to bear the cost of proponents’ legal fees. The State may also wish to avoid the odd conflict of having a formal agent of the State (the initiative’s proponent) arguing in favor of a law’s validity while state officials (e.g., the attorney general) contend in the same proceeding that it should be found invalid.
Furthermore, it is not clear who the principal in an agency relationship would be. It would make little sense if it were the Governor or attorney general, for that would frustrate the initiative system’s purpose of circumventing elected officials who fail or refuse to effect the public will. Id., at 1139–1140, 134 Cal.Rptr.3d 499, 265 P.3d, at 1016. If there is to be a principal, then, it must be the people of California, as the ultimate sovereign in the State. See ibid., 134 Cal.Rptr.3d 499, 265 P.3d, at 1015–1016 (quoting Cal. Const., Art. II, § 1) (“ ‘All political power is inherent in the people’ ”). But the Restatement may offer no workable example of an agent representing a principal composed of nearly 40 million residents of a State. Cf. 1 Restatement (Second) of Agency, p. 2, Scope Note (1957) (noting that the Restatement “does not state the special
12

Hollingsworth v. Perry, 133 S.Ct. 2652 (2013)
rules applicable to public officers”); 1 Restatement (First) of Agency, p. 4, Scope Note (1933) (same).
And if the Court’s concern is that the proponents are unaccountable, that fear is neither well founded nor sufficient to overcome *2672 the contrary judgment of the State Supreme Court. It must be remembered that both elected officials and initiative proponents receive their authority to speak for the State of California directly from the people. The Court apparently believes that elected officials are acceptable “agents” of the State, see ante, at 2664 – 2665, but they are no more subject to ongoing supervision of their principal—i.e., the people of the State—than are initiative proponents. At most, a Governor or attorney general can be recalled or voted out of office in a subsequent election, but proponents, too, can have their authority terminated or their initiative overridden by a subsequent ballot measure. Finally, proponents and their attorneys, like all other litigants and counsel who appear before a federal court, are subject to duties of candor, decorum, and respect for the tribunal and co-parties alike, all of which guard against the possibility that initiative proponents will somehow fall short of the appropriate standards for federal litigation.
B
Contrary to the Court’s suggestion, this Court’s precedents do not indicate that a formal agency relationship is necessary. In Karcher v. May, 484 U.S. 72, 108 S.Ct. 388, 98 L.Ed.2d 327 (1987), the Speaker of the New Jersey Assembly (Karcher) and President of the New Jersey Senate (Orechio) intervened in support of a school moment-of-silence law that the State’s Governor and attorney general declined to defend in court. In considering the question of standing, the Court looked to New Jersey law to determine whether Karcher and Orechio “had authority under state law to represent the State’s interest in both the District Court and Court of Appeals.” Id., at 82, 108 S.Ct. 388. The Court concluded that they did. Because the “New Jersey Supreme Court ha[d] granted applications of the Speaker of the General Assembly and the President of the Senate to intervene as parties-respondent on behalf of the legislature in defense of a legislative enactment,” the Karcher Court held that standing had been proper in the District Court and Court of Appeals. Ibid. By the time the case arrived in this Court, Karcher and Orechio had lost their presiding legislative offices, without which they lacked the authority to represent the State under New Jersey law.

This, the Court held, deprived them of standing. Id., at 81, 108 S.Ct. 388. Here, by contrast, proponents’ authority under California law is not contingent on officeholder status, so their standing is unaffected by the fact that they “hold no office” in California’s Government. Ante, at 2665.
Arizonans for Official English v. Arizona, 520 U.S. 43, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997), is consistent with the premises of this dissent, not with the rationale of the Court’s opinion. See ante, at 2665 – 2666. There, the Court noted its serious doubts as to the aspiring defenders’ standing because there was “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, 117 S.Ct. 1055. The Court did use the word “agents”; but, read in context, it is evident that the Court’s intention was not to demand a formal agency relationship in compliance with the Restatement. Rather, the Court used the term as shorthand for a party whom “state law authorizes” to “represent the State’s interests” in court. Ibid.
Both the Court of Appeals and the Supreme Court of California were mindful of these precedents and sought to comply with them. The state court, noting the importance of Arizonans for Official English, expressed its understanding that *2673 “the high court’s doubts as to the official initiative proponents’ standing in that case were based, at least in substantial part, on the fact that the court was not aware of any ‘Arizona law appointing initiative sponsors as agents of the people of Arizona to defend ... the constitutionality of initiatives made law of the State.’ ” 52 Cal.4th, at 1136–1137, 134 Cal.Rptr.3d 499, 265 P.3d, at 1013–1014 (quoting 520 U.S., at 65, 117 S.Ct. 1055). Based on this passage, it concluded that “nothing in [Arizonans for Official English ] indicates that if a state’s law does authorize the official proponents of an initiative to assert the state’s interest in the validity of a challenged state initiative when the public officials who ordinarily assert that interest have declined to do so, the proponents would not have standing to assert the state’s interest in the initiative’s validity in a federal lawsuit.” Id., at 1137, 134 Cal.Rptr.3d 499, 265 P.3d, at 1014.
The Court of Appeals, too, was mindful of this requirement. Perry v. Brown, 671 F.3d 1052, 1072–1073 (C.A.9 2012). Although that panel divided on the proper resolution of the merits of this case, it was unanimous in concluding that proponents satisfy the requirements of Article III. Compare id., at 1070–1075 (majority opinion),
13

Hollingsworth v. Perry, 133 S.Ct. 2652 (2013)
with id., at 1096–1097 (N.R. Smith, J., concurring in part and dissenting in part). Its central premise, ignored by the Court today, was that the “State’s highest court [had] held that California law provides precisely what the Arizonans Court found lacking in Arizona law: it confers on the official proponents of an initiative the authority to assert the State’s interests in defending the constitutionality of that initiative, where state officials who would ordinarily assume that responsibility choose not to do so.” Id., at 1072 (majority opinion). The Court of Appeals and the State Supreme Court did not ignore Arizonans for Official English ; they were faithful to it.
C
The Court’s approach in this case is also in tension with other cases in which the Court has permitted individuals to assert claims on behalf of the government or others. For instance, Federal Rule of Criminal Procedure 42(a)(2) allows a court to appoint a private attorney to investigate and prosecute potential instances of criminal contempt. Under the Rule, this special prosecutor is not the agent of the appointing judge; indeed, the prosecutor’s “determination of which persons should be targets of the investigation, what methods of investigation should be used, what information will be sought as evidence,” whom to charge, and other “decisions ... critical to the conduct of a prosecution, are all made outside the supervision of the court.” Young v. United States ex rel. Vuitton et Fils S. A., 481 U.S. 787, 807, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987). Also, just as proponents have been authorized to represent the State of California, “ ‘[p]rivate attorneys appointed to prosecute a criminal contempt action represent the United States,’ ” United States v. Providence Journal Co., 485 U.S. 693, 700, 108 S.Ct. 1502, 99 L.Ed.2d 785 (1988). They are “appointed solely to pursue the public interest in vindication of the court’s authority,” Young, supra, at 804, 107 S.Ct. 2124, an interest that—like California’s interest in the validity of its laws—is “unique to the sovereign,” Providence Journal Co., supra, at 700, 108 S.Ct. 1502. And, although the Court dismisses the proponents’ standing claim because initiative proponents “are not elected” and “decide for themselves, with no review, what arguments to make and how to make them” in defense of the enacted initiative, ante, at 2666, those same charges could be leveled with equal if not greater force at the special *2674 prosecutors just discussed. See Young, supra, at 807, 107 S.Ct. 2124.

Similar questions might also arise regarding qui tam actions, see, e.g., Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 771–778, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000); suits involving “next friends” litigating on behalf of a real party in interest, see, e.g., Whitmore v. Arkansas, 495 U.S. 149, 161–166, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990); or shareholder-derivative suits, see, e.g., Gollust v. Mendell, 501 U.S. 115, 125–126, 111 S.Ct. 2173, 115 L.Ed.2d 109 (1991). There is no more of an agency relationship in any of these settings than in the instant case, yet the Court has nonetheless permitted a party to assert the interests of another. That qui tam actions and “next friend” litigation may have a longer historical pedigree than the initiative process, see ante, at 2664 – 2665, is no basis for finding Article III’s standing requirement met in those cases but lacking here. In short, the Court today unsettles its longtime understanding of the basis for jurisdiction in representative-party litigation, leaving the law unclear and the District Court’s judgment, and its accompanying statewide injunction, effectively immune from appellate review.
III
There is much irony in the Court’s approach to justiciability in this case. A prime purpose of justiciability is to ensure vigorous advocacy, yet the Court insists upon litigation conducted by state officials whose preference is to lose the case. The doctrine is meant to ensure that courts are responsible and constrained in their power, but the Court’s opinion today means that a single district court can make a decision with far-reaching effects that cannot be reviewed. And rather than honor the principle that justiciability exists to allow disputes of public policy to be resolved by the political process rather than the courts, see, e.g., Allen v. Wright, 468 U.S. 737, 750–752, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984), here the Court refuses to allow a State’s authorized representatives to defend the outcome of a democratic election.
The Court’s opinion disrespects and disparages both the political process in California and the well-stated opinion of the California Supreme Court in this case. The California Supreme Court, not this Court, expresses concern for vigorous representation; the California Supreme Court, not this Court, recognizes the necessity to avoid conflicts of interest; the California Supreme Court, not this Court, comprehends the real interest at stake in this litigation and identifies the most proper party to
14

Hollingsworth v. Perry, 133 S.Ct. 2652 (2013)
defend that interest. The California Supreme Court’s opinion reflects a better understanding of the dynamics and principles of Article III than does this Court’s opinion.
Of course, the Court must be cautious before entering a realm of controversy where the legal community and society at large are still formulating ideas and approaches to a most difficult subject. But it is shortsighted to misconstrue principles of justiciability to avoid that subject. As the California Supreme Court recognized, “the question before us involves a fundamental procedural issue that may arise with respect to any initiative measure, without regard to its subject matter.” 52 Cal.4th, at 1124, 134 Cal.Rptr.3d 499, 265 P.3d, at 1005 (emphasis in original). If a federal court must rule on a constitutional point that either confirms or rejects the will of the people expressed in an initiative, that is when it is most necessary, not least necessary, to insist on rules that ensure the most committed and vigorous adversary *2675 arguments to inform the rulings of the courts.
* * *
In the end, what the Court fails to grasp or accept is the

basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century. “Through the structure of its government, and the character of those who exercise government authority, a State defines itself as sovereign.” Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991). In California and the 26 other States that permit initiatives and popular referendums, the people have exercised their own inherent sovereign right to govern themselves. The Court today frustrates that choice by nullifying, for failure to comply with the Restatement of Agency, a State Supreme Court decision holding that state law authorizes an enacted initiative’s proponents to defend the law if and when the State’s usual legal advocates decline to do so. The Court’s opinion fails to abide by precedent and misapplies basic principles of justiciability. Those errors necessitate this respectful dissent.
	  

15

 
 Perry v. Brown, 725 F.3d 968 (2013)

725 F.3d 968 United States Court of Appeals,
Ninth Circuit.
Kristin M. PERRY; Sandra B. Stier; Paul T. Katami; Jeffrey J. Zarrillo, Plaintiffs–Appellees,
City and County of San Francisco, Intervenor–Plaintiff–Appellee, v.
Edmund G. BROWN, Jr., in his official capacity as Governor of California; Kamala D. Harris, in her official capacity as Attorney General of California; Mark B. Horton, in his official capacity as Director of the California Department of Public Health & State Registrar of Vital Statistics; Linette Scott, in her official capacity as Deputy Director of Health
Information & Strategic Planning for the California Department of Public Health; Patrick
O’Connell, in his official capacity as Clerk–Recorder for the County of Alameda; Dean
C. Logan, in his official capacity as Registrar–Recorder/County Clerk for the County
of Los Angeles, Defendants, Hak–Shing William Tam, Intervenor–Defendant,
and Dennis Hollingsworth; Gail Knight; Martin F.
Gutierrez; Mark A. Jansson; Protectmarriage.Com–Yes on 8, A Project of California Renewal, as official proponents of
Proposition 8, Intervenor–Defendants–Appellants. Kristin M. Perry; Sandra B. Stier; Paul T. Katami; Jeffrey J. Zarrillo, Plaintiffs–Appellees,
City and County of San Francisco, Intervenor–Plaintiff–Appellee, v.
Edmund G. Brown, Jr., in his official capacity as Governor of California; Kamala D. Harris, in her official capacity as Attorney General of California; Mark B. Horton, in his official capacity as Director of the California Department of Public Health & State Registrar of Vital Statistics; Linette Scott, in her official capacity as Deputy Director of Health
Information & Strategic Planning for the California Department of Public Health; Patrick
O’Connell, in his official capacity as Clerk–Recorder for the County of Alameda; Dean

C. Logan, in his official capacity as Registrar–Recorder/County Clerk for the County
of Los Angeles, Defendants, Hak–Shing William Tam, Intervenor–Defendant,
and Dennis Hollingsworth; Gail J. Knight; Martin F.
Gutierrez; Mark A. Jansson; Protectmarriage.Com–Yes on 8, A Project of California Renewal, as official proponents of
Proposition 8, Intervenor–Defendants–Appellants.
Nos. 10–16696, 11–16577. | June 28, 2013.
Attorneys and Law Firms
David Boies, Rosanne C. Baxter, Esquire, Boies, Schiller & Flexner LLP, Armonk, NY, Theodore Olson, Matthew McGill, Amir C. Tayrani, Gibson Dunn & Crutcher, LLP, Washington, DC, Theodore J. Boutrous, Jr., Esquire, Christopher D. Dusseault, Theane Evangelis Kapur, Gibson Dunn & Crutcher, LLP, Los Angeles, CA, Ethan Douglas Dettmer, Esquire, Enrique Antonio Monagas, Gibson, Dunn & Crutcher LLP, San Francisco, CA, Jeremy Michael Goldman, Esquire, Boies, Schiller & Flenxer, LLP, Oakland, CA, Theodore H. Uno, Bois Schiller & Flexner LLP, Hollywood, FL, for Plaintiffs–Appellees.
Ronald P. Flynn, Therese Stewart, Chief Deputy City, Christine Van Aken, Deputy City, Erin Bernstein, Deputy City, San Francisco City Attorney’s Office, Vince Chhabria, Esquire, Dennis J. Herrera, *970 City, Mollie Mindes Lee, Deputy City, Office of the City Attorney, San Francisco, CA, Danny Chou, San Jose, CA, for Intervenor–Plaintiff–Appellee.
Before: REINHARDT, HAWKINS, and N.R. SMITH, Circuit Judges.
Opinion
The stay in the above matter is dissolved effective immediately.
	  

1

Perry v. Brown, 725 F.3d 968 (2013) 2

 
 Make Change, Not Lawsuits
Now that we’ve won marriage in five states, should we be bringing lawsuits in other states or suing the federal government? If not, what can we do to help secure the freedom to marry nationwide?
Bottom Line: If you’re ready and it’s right for you, get married. If you do, claim the name and act like what you are―married. But don’t go suing right away. Most lawsuits will likely set us all back. There are other ways to fight that are more likely to win.
Summary: The fastest way to win the freedom to marry throughout America is by getting marriage through state courts (to show that fairness requires it) and state legislatures (to show that people support it). We need to start with states where we have the best odds of winning, and then ask Congress and the Executive Branch to end the federal government’s discrimination against same-sex couples. When we’ve won in a critical mass of states and have basic support in federal law and policy, we can turn to the federal courts and ask that the U.S. government end any remaining discrimination against LGBT people. And we’ll ask that all states give equal treatment to all marriages and civil unions that are celebrated in other states. Couples who want to should get married where they can, call themselves married, and ask that family, friends, neighbors, businesses, employers and the community treat their marriages with respect. Making the marriages of same-sex couples a conspicuous part of American society will help us get something we’ll need to win ultimately: public acceptance of equal treatment for LGBT families. [A word to the wise: getting married could have unintended and damaging consequences for some people. If you are in the military, on a visa, thinking about adopting or getting government benefits, you should talk to a lawyer who knows that area, or get in touch with one of the LGBT legal organizations]
These are among the many things people can and should do—urgently—to get marriage nationwide. Working together we can defend the transformative wins in Massachusetts, Connecticut, Iowa, Vermont, and Maine and build on them until we win equality, liberty and justice for all.
But one thing couples shouldn’t do is just sue the federal government or, if they are from other states, go sue their home state or their employer to recognize their marriage or open up the health plan for same-sex spouses. Pushing the federal government with multiple lawsuits before we have a critical mass of states recognizing same-sex relationships or suing in states where the
1

courts aren’t ready is likely to lead to bad rulings. Bad rulings will make it much more difficult for us to win marriage, and will certainly make it take much longer.
1. Should we use the good court decisions on marriage (in MA, CA, CT, and IA) to get marriage in other states?
Absolutely, but not necessarily by filing a lawsuit. We all need to be smart about how we go about making progress on this issue. We’ve now won marriage in four state courts (MA, CA, CT, and IA) and didn’t win marriage, but at least got civil unions in two others (NJ and VT). But marriage cases have lost altogether, for now, in five other state courts (AZ, IN, MD, NY, and WA) in the past ten years. So far, we’ve gotten civil unions and domestic partnerships from legislatures (without court orders) in seven states (CA, CT, HI, ME, NH, OR, WA) and this spring three state legislatures passed marriage laws (VT, ME, NH). And while we won an inspiring marriage victory in court in California, we also lost that right (at least for now) at the ballot box just months later, after an exhausting and expensive fight.
So, going forward, we’ll use the brilliant reasoning and stirring language from the good court decisions and recent legislative debates to try to persuade more legislatures to end marriage discrimination in several states that are nearly ready to pass marriage laws. We also will defend the good new laws in Maine and Washington that may be subject to voter referenda. We’ll work as well to identify other state legislatures and courts that may be ready to do the right thing. And we'll need everyone to help create the climate that helps judges and legislators to do the right thing.
Right now, we need to choose the courts and legislatures where we have the best chance of winning for two reasons. First, these efforts take time and money, and we don’t have unlimited resources. We have to pick. Second, as answer number 3 (below) explains in a bit more detail, losses hurt. Courts and legislatures pay attention to what is going on in other states. When we lose in one state, the loss makes it tougher to win in others.
2. Should folks travel from their home state to other states to get married, and then sue to get their home states and employers to recognize the marriages?
Probably not. Courts have already said that New York will respect marriages that same-sex couples legally enter in other states and countries. But the legal arguments that worked in New York probably won’t work in most states because they have passed laws or constitutional amendments saying that they will refuse to respect the marriages of same-sex couples. It will be tougher to win in those states. We need to lay the groundwork by changing the climate— convincing community leaders, moving public opinion—before we rush into court.
Since states generally do honor marriages from other states, people tend to think the federal constitution, through “full faith and credit,” requires that. Actually, for the most part, states honor out-of-state marriages voluntarily, for common-sense reasons. Occasionally states refuse, for example with marriage of couples too young to marry in their home state. So far, the U.S. Supreme Court hasn’t said the Constitution requires “full faith and credit” for things like marriage licenses. Using state laws that support honoring other states’ marriages (the legal doctrine of "comity"), rather than the federal constitutional doctrine of “full faith and credit,” is the better place to start.
And in a state with a law against honoring the marriages of same-sex couples, suing a private employer or other institution that isn’t part of the government over its refusal to honor your
2

marriage is almost always a really bad idea. Private employers don’t make the law, so they are likely to seem like an innocent bystander to many juries and judges. That makes the odds of winning even more remote and it could unnecessarily anger a public whose support we ultimately want to have. At the same time, there is every reason to try to convince employers to honor marriages from out-of-state. See question 7.
3. What’s the problem with losing a few cases? Since we can’t marry in many states now, we’re no worse off, right?
Wrong. Losses hurt, for three reasons.
1. It will take longer to win the right to marry in states where we first lose cases, than it would if we waited and took other steps first. As society gets more used to same-sex couples being married, it will be easier to win cases in states that look iffy now. In a few years, the cases just won't seem like such a big jump. If we plunge ahead and lose cases in those states now, the courts will have to overrule themselves later to go our way. That usually takes a few years at least, and often much longer. That means it is likely to take longer to get a good decision than it would have taken if we hadn't brought a case early on and lost it.
2. It will slow us down in stronger states. It will be easier for us to convince courts and legislatures that the marriage ban should be ended if we win a series of cases, especially if we win more marriage cases than we lose. Currently we’ve got 4 wins and 5 losses among the marriage cases brought in state courts over the last ten years. And the handful of cases brought years ago and more recently in federal courts all have lost. Courts pay attention to what other courts do. If we win most cases, that will confirm that we have the stronger constitutional arguments. And while legislatures don’t have to agree, court rulings that say the exclusion is unfair and unequal are a major help to our political arguments. Courts still have considerable moral authority in America, especially on the constitutional requirements of fairness and equal treatment. By contrast, early and unnecessary court losses in Arizona and Indiana hurt our other cases, including the ones in New York, Washington, and Maryland, where we lost by close margins and the courts adopted contorted reasoning from those earlier decisions. And because, so far, more marriage cases have been lost than won, taking on a principled but long-shot case and racking up more losses now would just make it harder to convince other courts and legislatures.
3. It will hurt LGBT people on other issues. The constitutional arguments that we make in the marriage cases also appear in our cases about other issues, such as employment, adoption, or child custody. If we bring a marriage case in which a court says that the constitution does not protect us, we’ll be harmed in these other contexts as well.
4. Shouldn’t we try to bring a federal case and get it to the U.S. Supreme Court as soon as possible to settle the issue once and for all?
No. The history is pretty clear: the U.S. Supreme Court typically does not get too far ahead of either public opinion or the law in the majority of states. For example, few states still had laws requiring racial segregation or outlawing interracial marriage by the time the Court struck those laws down. Most states had already struck down or repealed their own laws against same-sex intimacy when the Supreme Court finally invalidated Texas's law.
3

Right now, we need to make gains in both public opinion and state law. The current Supreme Court has been taking a pretty narrow view of civil rights and civil liberties. Even the strongest LGBT rights decision the Court has issued—the Lawrence v. Texas case striking down laws against intimacy for same-sex couples—explicitly commented that it was not saying
anything about formal recognition of same-sex relationships. The arguments in the briefs are not the only thing that influences the Court’s decisions. The climate of receptivity and momentum in the country on these issues matter as well. There is much we can and should do together to strengthen our hand before we put a federal marriage case before the justices.
There are also serious risks if we go to the Supreme Court and lose, especially if we’ve asked it to set aside state limits on marriage. We could still ask state courts to strike down marriage bans under state constitutions, and we could still ask state legislatures to pass marriage laws. But most state courts and legislatures pay attention to what the U.S. Supreme Court says about constitutional principles of fairness and equality. It will be harder for us to get state courts to strike down laws excluding same-sex couples from marriage (and many from civil unions, too) if the U.S. Supreme Court has said such laws are okay under the federal constitution.
A loss now may make it harder to go to court later, and we may need to. It will take us a lot longer to get a good Supreme Court decision if the Court has to overrule itself. Let's not forget: it took 17 years to undo Bowers v. Hardwick, the 1986 Supreme Court decision that upheld Georgia’s sodomy law. That was fast for the Supreme Court. And during that time, many LGBT Americans lost jobs, lost custody of their children, and suffered other harms because the Bowers decision was taken as a license to discriminate against us.
5. Should we get married and then sue the federal government to get it to honor our marriages, say for example, for immigration, tax, or social security?
No. In 1996, Congress passed a law saying that the federal government would discriminate against the marriages of same-sex couples (the so-called “Defense of Marriage Act” or DOMA) by denying them all the protections that the federal government gives to all other validly married couples. As a result, the federal government for five years has been discriminating against the married same-sex couples of Massachusetts. It will, as things now stand, continue to deny equal treatment to same-sex couples that marry in Connecticut, Iowa, Vermont, and Maine, and to those who married in California in 2008.
There are two ways to get rid of "DOMA": going to court to have the law declared unconstitutional or getting Congress to repeal it (something President Obama has said he supports). These approaches can work together, and we are doing both. We’re working with members of Congress on repeal legislation now. In addition, Gay & Lesbian Advocates & Defenders (GLAD) has filed a thoughtfully constructed lawsuit in federal court on behalf of a diverse group of plaintiffs married for years in Massachusetts. These plaintiffs are eligible for a range of federal benefits, applied for those benefits, and were denied following extensive administrative procedures. If that lawsuit succeeds, it should establish a principle that will be fatal to DOMA, and we can bring other lawsuits addressing other federal protections to build on it.
GLAD’s lawsuit challenging DOMA is more modest than a case claiming there is a federal constitutional right to marry. Until DOMA was passed, the federal government deferred to the
4

states' determinations of marital status. DOMA creates a "gay exception" and says the federal government will not honor a state's marriage of same-sex couples. GLAD’s legal challenge to DOMA simply asks that the courts tell the federal government to go back to doing what it did before—recognize all marriages that a state has approved. In contrast, a federal case arguing that it is unconstitutional not to let same-sex couples marry would ask the courts in effect to order that couples be allowed to marry in every state, overthrowing most state marriage laws. That case asks for much bolder action from the courts, and it requires a much bigger development in constitutional law. We think the courts aren’t ready to do that yet.
And last, but not least, before bringing any federal case, people should beware of unintended consequences. For example, a case focused on immigration could lead to the deportation of the non-American member of a bi-national couple.
6. If we’re not going to win by suing more states or the federal government now, how are we going to win?
There are two things we need to do to win the freedom to marry nationwide. First, we need to change the law. Like other civil rights movements, we are doing that state by state, starting with the states where we have the best shot. In some states, we’ll get marriage through the state legislature, to emphasize that it has popular support. In other states, we’ll go to the courts, to highlight that excluding same-sex couples is inconsistent with basic principles of fair play.
When we’ve been successful in the states most likely to go our way, it will be easier to win in other states. As we build significant support among the states, we’ll be able to ask Congress and the Obama Administration to give our marriages the same treatment the federal government gives all other marriages, by including them in federal laws and programs. Congress could do that in a single bill. The Administration also could increase LGBT equality through countless federal regulations and Executive Branch policies.
Even as America embraces, state by state and in the federal government, the view that it is unfair to exclude same-sex couples from marriage, a few states may hold out against the emerging consensus. Ultimately, the key to national equality may be the federal government, as it has been in all the other civil rights movements – but national resolution comes after groundwork, not in one quick roll of the dice.
The second thing we need to do, as explained more in the answer to question 7, is convince America to accept the change, to accept the idea that our constitution does not allow discrimination. Equal treatment under the law is all we are asking for – not more, not less.
7. So if we shouldn't generally be suing, what should we be doing?
Neither court decisions nor legislatures can make effective, enduring change in a democratic republic as diverse as this one unless people either come to agree with the change or to accept that it is required by an important higher principle. That was true with racial segregation, it was true with sex discrimination, and it will be true with discrimination against same-sex couples in marriage.
Changing the law through court decisions based on fundamental principles of fairness and equality helps persuade people that change is the right thing. But the most powerful agent of change in America is people.
5

Nothing moves Americans on LGBT rights generally and marriage in particular more effectively than conversations that all LGBT people can have with our friends and family members about how it feels to be treated differently and why that is so unfair. Believe it or not, many of our friends and family members don’t realize the burdens and barriers we face, but most would agree that our constitution guarantees the same equal protections to everyone, and that no one should be treated differently. The most important thing you can do to make progress in our fight for marriage is to talk to your family, friends, co-workers and community about your marriage if you have married, or about why you want to have the choice to marry, if you have not. Talk in very practical terms about why it is so important. Talk about what it means to be able to marry and have all the fundamental freedoms that others have. Go to www.tell-three.org to see a campaign endorsed by all of our groups, and many others, that explains how to get these conversations started.
Simply getting married (if you can and it’s right for you) and telling people will help get those conversations going. But you shouldn’t stop there. Changing people’s minds happens over time and after long-term, incremental campaigns. California’s history on recognizing same-sex relationships is a case in point. Cities in California started adopting Domestic Partnership policies in the mid 80s. The state adopted its first law in 1999, and expanded it over the next six years. Courts in California have been deciding important cases about anti-LGBT discrimination since the 70s. With the marriage victories in five states so far, we should be able to win marriage more quickly in other states and to open serious conversations among members of Congress and Executive Branch officials. But we still need to lay the groundwork at the local level. Ask your employer to include your spouse in the health and benefit plans; ask them to do a domestic partnership policy if they decline. Ask your town to establish a local domestic partnership registry if you don’t have one yet. These are some of the concrete tasks and tactics that people can do that will create the climate for the advances we all want, rather than rolling the dice on litigation. You can connect with your local LGBT advocacy group here: www.equalityfederation.org.
Doing those things will have practical benefits. But maybe more important, they’ll spark the conversations we need to make the changes in law enduring and real at a day-to-day level.
8. We all have a stake in defending marriage in Maine and winning it back in California at the ballot box.
While we engage in personal conversations to change hearts and minds in all 50 states, and work to win the freedom to marry in more states in the months and years ahead, there are two fights looming now that will be crucial to our continuing to make progress on marriage for same-sex couples: Maine and California.
In Maine, the state legislature overwhelmingly passed a marriage equality bill and the Governor signed it. Now those who oppose equality are forcing a referendum vote on the new marriage law this November. It is critical that we all help defend this legislative breakthrough and it is entirely doable. With support from those of us across the country who are benefiting from Maine’s strong example, the state should be able to hold onto marriage in November.
In California, we won marriage in the courts but then lost it at the ballot. Now that the California Supreme Court has refused to overturn that vote, we need to return to the state ballot box to win marriage back.
6

These fights are important nationally because holding marriage in Maine and regaining it in California will be huge steps forward in the fight for the freedom to marry. As the first popular vote on marriage after Prop 8 and after all of the legislative and court wins this spring, the Maine election is important both for Maine and for the rest of the country. Success in California will have vast influence because California is the largest state, because it is so important to the national economy, and because California is our national trendsetter. But winning these next battles won’t be easy. Antigay groups already are gathering their resources to attempt to swamp Maine with divisive, defamatory propaganda. And in California, there are literally hundreds of thousands of fair-minded people who aren’t with us yet and need to be convinced. Convincing the reachable middle in both states needs to happen on a retail level – by engaging them in conversations that will make them more comfortable with LGBT people, more understanding of the challenges we face, and more willing to agree that allowing us to marry gives us crucial protections and does not harm them. So please, now’s the time to contribute – in time, in energy, in conversations, and in money – to the efforts currently being organized to hold onto marriage in Maine and to win it back at the ballot box in California. May 2009
7