United States District Court

For the Northern District of California

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

KRISTIN M PERRY, SANDRA B STIER,

PAUL T KATAMI and JEFFREY J

ZARRILLO,

Plaintiffs,

CITY AND COUNTY OF SAN FRANCISCO,

Plaintiff-Intervenor,

v

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 registrarrecorder/county clerk for the

County of Los Angeles, 

Defendants,

DENNIS HOLLINGSWORTH, GAIL J

KNIGHT, MARTIN F GUTIERREZ,

HAKSHING WILLIAM TAM, MARK A

JANSSON and PROTECTMARRIAGE.COM –

YES ON 8, A PROJECT OF

CALIOFORNIA RENEWAL, as official

proponents of Proposition 8,

Defendant-Intervenors. /

No C 09-2292 VRW

QUESTION FOR CLOSING

ARGUMENTS

Case 3:09-cv-02292-JW Document 677 Filed 06/08/10 Page 1 of 11
United States District Court

For the Northern District of California

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The court provides the following questions to the parties

in advance of closing arguments. What follows is by no means an

exhaustive list of questions, but is intended simply to assist the

parties in focusing their closing arguments.

If the parties wish, they may answer any question in

writing on or before June 15, 2010 at 12 PM PDT. Alternatively,

the parties should be prepared to address the questions during

closing arguments. While the court has directed certain questions

to certain parties, any party can if it wishes choose to answer any

question.

To Plaintiffs:

1. Assume the evidence shows Proposition 8 is not in fact

rationally related to a legitimate state interest. Assume

further the evidence shows voters genuinely but without

evidence believed Proposition 8 was rationally related to a

legitimate interest. Do the voters’ honest beliefs in the

absence of supporting evidence have any bearing on the

constitutionality of Proposition 8? See Hernandez v Robles,

855 NE2d 1, 7-8 (2006) (“In the absence of conclusive

scientific evidence, the Legislature could rationally proceed

on the common-sense premise that children will do best with a

mother and a father in the home.”). 

2. What evidence supports a finding that maintaining marriage as

an opposite-sex relationship does not afford a rational basis

for Proposition 8?

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United States District Court

For the Northern District of California

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3. Until very recently, same-sex relationships did not enjoy

legal protection anywhere in the United States. How does this

fact square with plaintiffs’ claim that marriage between

persons of the same sex enjoys the status of a fundamental

right entitled to constitutional protection?

4. What is the import of evidence showing that marriage has

historically been limited to a man and a woman? What evidence

shows that that limitation no longer enjoys constitutional

recognition?

5. What does the evidence show regarding the intent of the

voters? If the evidence shows that Proposition 8 on its face

and through its consequences distinguishes on the basis of

sexual orientation and sex, of what import is voter intent?

6. What empirical data, if any, supports a finding that legal

recognition of same-sex marriage reduces discrimination

against gays and lesbians?

7. What evidence supports a finding that recognition of same-sex

marriage would afford a permanent – as opposed to a transitory

– benefit to the City and County of San Francisco? To

California cities and counties generally? 

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United States District Court

For the Northern District of California

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8. What is the relevance, if any, of data showing that state and

local governments would benefit economically if same-sex

couples were permitted to marry? Does that relevance depend

on the magnitude of the economic benefit?

9. What are the consequences of a permanent injunction against

enforcement of Proposition 8? What remedies do plaintiffs

propose?

10. Even if enforcement of Proposition 8 were enjoined,

plaintiffs’ marriages would not be recognized under federal

law. Can the court find Proposition 8 to be unconstitutional

without also considering the constitutionality of the federal

Defense of Marriage Act? 

11. What evidence supports a finding that the choice of a person

of the same sex as a marriage partner partakes of

traditionally revered liberties of intimate association and

individual autonomy?

12. If the evidence of the involvement of the LDS and Roman

Catholic churches and evangelical ministers supports a finding

that Proposition 8 was an attempt to enforce private morality,

what is the import of that finding? 

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United States District Court

For the Northern District of California

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To Proponents:

1. Assuming a higher level of scrutiny applies to either

plaintiffs’ due process or equal protection claim, what

evidence in the record shows that Proposition 8 is

substantially related to an important government interest? 

Narrowly tailored to a compelling government interest?

2. Aside from the testimony of Mr Blankenhorn, what evidence in

the record supports a finding that same-sex marriage has or

could have negative social consequences? What does the

evidence show the magnitude of these consequences to be?

3. The court has reserved ruling on plaintiffs’ motion to exclude

Mr Blankenhorn’s testimony. If the motion is granted, is

there any other evidence to support a finding that Proposition

8 advances a legitimate governmental interest?

4. Why should the court assume that the deinstitutionalization of

marriage is a negative consequence?

5. What evidence in the record shows that same-sex marriage is a

drastic or far-reaching change to the institution of marriage?

6. What evidence in the record shows that same-sex couples are

differently situated from opposite-sex couples where at least

one partner is infertile?

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United States District Court

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7. Assume the evidence shows that children do best when raised by

their married, biological mother and father. Assume further

the court concludes it is in the state’s interest to encourage

children to be raised by their married biological mother and

father where possible. What evidence if any shows that

Proposition 8 furthers this state interest?

8. Do California’s laws permitting same-sex couples to raise and

adopt children undermine any conclusion that encouraging

children to be raised by a married mother and father is a

legitimate state interest?

9. How does the Supreme Court’s holding in Michael H v Gerald D,

491 US 110 (1989) square with an emphasis on the importance of

a biological connection between parents and their children?

10. Assume the evidence shows that sexual orientation is socially

constructed. Assume further the evidence shows Proposition 8

assumes the existence of sexual orientation as a stable

category. What bearing if any do these facts have on the

constitutionality of Proposition 8?

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United States District Court

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11. Why is legislating based on moral disapproval of homosexuality

not tantamount to discrimination? See Doc #605 at 11 (“But

sincerely held moral or religious views that require

acceptance and love of gay people, while disapproving certain

aspects of their conduct, are not tantamount to

discrimination.”). What evidence in the record shows that a

belief based in morality cannot also be discriminatory? If

that moral point of view is not held and is disputed by a

small but significant minority of the community, should not an

effort to enact that moral point of view into a state

constitution be deemed a violation of equal protection?

12. What harm do proponents face if an injunction against the

enforcement of Proposition 8 is issued?

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United States District Court

For the Northern District of California

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To Plaintiffs and Proponents:

1. What party bears the burden of proof on plaintiffs’ claims? 

Under what standard of review is the evidence considered?

2. Does the existence of a debate inform whether the existence of

a rational basis supporting Proposition 8 is “debatable” or

“arguable” under the Equal Protection Clause? See Minnesota v

Clover Leaf Creamery Co, 449 US 456, 469 (1981); FCC v Beach

Communications, Inc, 508 US 305, 320 (1993).

3. What does the evidence show the difference to be between gays

and lesbians, on the one hand, and heterosexuals on the other? 

Is that difference one which the government “may legitimately

take into account” when making legislative classifications? 

See City of Cleburne v Cleburne Living Center, 473 US 432, 446

(1985).

4. What does the evidence show the definition (or definitions) of

marriage to be? How does Professor Cott’s proposed definition

of marriage fit within Mr Blankenhorn’s testimony that

competing definitions of marriage are either focused on

children or focused on spousal affection? See Cott, Tr 201:9-

14 and 222:13-17; Blankenhorn, Tr 2742:9-18 and 2755:25-

2756:1.

5. What does it mean to have a “choice” in one’s sexual

orientation? See e g Tr 2032:17-22; PX 928 at 37.

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United States District Court

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6. In order to be rooted in “our Nation's history, legal

traditions, and practices,” see Washington v Glucksberg, 521

US 702, 710 (1997), is it sufficient that a practice has

existed historically, or need there be an articulable purpose

underlying the practice?

7. If spouses are obligated to one another for mutual support and

support of dependents, and if legal spousal obligations have

no basis in the gender of the spouse, what purpose does a law 

requiring that a marital partnership consist of one man and

one woman serve?

8. The California Family Code requires that registered domestic

partners be treated as spouses. Cal Fam Code § 297.5. 

Businesses that extend benefits to married spouses in

California must extend equal benefits to registered domestic

partners. See Koebke v Bernardo Heights Country Club, 36 Cal

4th 824, 846 (2005) (“We interpret [Cal Fam Code § 297.5(f)]

to mean that there shall be no discrimination in the treatment

of registered domestic partners and spouses.”). If, under

California law, registered domestic partners are to be treated

just like married spouses, what purpose is served by

differentiating – in name only – between same-sex and

opposite-sex unions?

9. What evidence, if any, shows whether infertility has ever been

a legal basis for annulment or divorce?

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10. How should the failure of the Briggs Initiative (Proposition 6

in 1978) or the LaRouche Initiative (Proposition 64 in 1986)

be viewed in determining whether gays and lesbians are

politically powerless?

11. What are the constitutional consequences if the evidence shows

that sexual orientation is immutable for men but not for

women? Must gay men and lesbians be treated identically under

the Equal Protection Clause?

12. How many opposite-sex couples have registered as domestic

partners under California law? Are domestic partnerships

between opposite-sex partners or same-sex partners recognized

in other jurisdictions? If appropriate, the parties may rely

on documents subject to judicial notice to answer this

question. 

13. Do domestic partnerships create legal extended family

relationships or in-laws?

14. What does the evidence show regarding the difficulty or ease

with which the State of California regulates the current system

of opposite-sex and same-sex marriage and opposite-sex and

same-sex domestic partnerships?

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15. If the court finds Proposition 8 to be unconstitutional, what

remedy would “yield to the constitutional expression of the

people of California’s will”? See Doc #605 at 18.

IT IS SO ORDERED.

 

VAUGHN R WALKER

United States District Chief Judge

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