Case: 10-16696 09/22/2010 Page: 1 of 35 ID: 7484139 DktEntry: 31

No. 10-16696

In the United States Court of Appeals

for the Ninth Circuit
__________________________________________________________________
__________________________________________________________________
KRISTIN PERRY, et al.,
Plaintiffs-Appellees,

vs.

ARNOLD SCHWARZENEGGER, et al.,

Defendants.
__________________________________________________________________
__________________________________________________________________
Appeal from the United States District Court
for the Northern District of California
Civil Case No. 09-CV-2292 VRW
(Honorable Vaughn R. Walker)
__________________________________________________________________
__________________________________________________________________
BRIEF OF AMICUS CURIAE, THE FAMILY RESEARCH COUNCIL,
IN SUPPORT OF THE INTERVENING DEFENDANTS-APPELLANTS.

Paul Benjamin Linton Christopher M. Gacek

Special Counsel Family Research Council
Thomas More Society 801 G Street, N.W.
921 Keystone Avenue Washington, D.C. 20001
Northbrook, Illinois 60062-3614 (202) 393-2100 (tel)
(847) 291-3848 (tel) (202) 393-2134 (fax)
(847) 412-1594 (fax)

Thomas Brejcha
President & Chief Counsel
Thomas More Society
29 S. La Salle Street Suite 440
Chicago, Illinois 60603
(312) 782-1680 (tel)
(312) 782-1887 (fax)
Attorneys for Amicus Curiae, the Family Research Council
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Corporate Disclosure Statement

Pursuant to Federal Rule of Appellate Procedure 26.1, the undersigned

states that amicus curiae, the Family Research Council, is not a corporation that

issues stock or has a parent corporation that issues stock.

s/Paul Benjamin Linton

Paul Benjamin Linton
Counsel for the Amicus

September 22, 2010

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Table of Contents

Corporate Disclosure Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Interest of the Amicus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT:

I. PROPOSITION 8 DOES NOT INTERFERE WITH THE

FUNDAMENTAL RIGHT TO MARRY PROTECTED BY THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT . . . . . . . . 2

II. PROPOSITION 8 DOES NOT DISCRIMINATE ON THE BASIS OF SEX

IN VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

III. PROPOSITION 8 DOES NOT DISCRIMINATE ON THE BASIS OF

SEXUAL ORIENTATION IN VIOLATION OF THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT . . . 16

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Certificate of Compliance

Certificate of Service

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Table of Authorities

Cases

Andersen v. King County, 138 P.3d 963 (Wash. 2006) . . . . . . . . . . . . . . . . passim

Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971),

appeal dismissed for want of a substantial federal question,
409 U.S. 910 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,15

Baker v. State, 744 A.2d 864 (Vt. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Brown v. Board of Education, 347 U.S. 483 (1954) . . . . . . . . . . . . . . . . . . . . . . . 13

Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006) . . . . 21, 24

Collins v. City of Harker Heights, Texas, 503 U.S. 115 (1992) . . . . . . . . . . . . . . 3

Conaway v. Deane, 932 A.2d 571 (Md. 2007) . . . . . . . . . . . . . . . . . . . . . . 5, 10, 15

Craig v. Boren, 429 U.S. 190 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 13

Dean v. District of Columbia, 653 A.2d 307 (D.C. App. 1995) . . . . . . . . . . 10, 17

District Attorney’s Office for the Third Judicial District v. Osborne,

129 S.Ct. 2308 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7, 8

Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati,

128 F.3d 289 (6th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24

FCC v. Beach Communications, Inc., 508 U.S. 307 (1993) . . . . . . . . . . . . . . . . . 22

Flores v. Morgan Hill Unified School District,

324 F.3d 1130 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

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Force by Force v. Pierce City R-VI School District,

570 F. Supp. 1020 (W.D. Mo. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Frontiero v. Richardson, 411 U.S. 677 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Gill v. Office of Personnel Mgmt.,

699 F. Supp.2d 374 (D. Mass. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Goodridge v. Dep’t of Health, 798 N.E.2d 941 (Mass. 2003) . . . . . . . . . . . passim

Hernandez v. Robles, 805 N.Y.S.2d 354 (N.Y. App. Div. 2005),

aff’d 855 N.E.2d 1 (N.Y. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . 5, 11, 14-15

Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) . . . . . . . . . . . . . . . . . . . 10, 15, 18

High Tech Gays v. Defense Industrial Services Clearance Office,

895 F.2d 563 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Holmes v. California Army National Guard,

124 F.3d 1126 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 24

In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2005) . . . . . . . . . . . . . . . . . . . . 11

In re Kane, 808 N.Y.S.2d 566 (N.Y. App. Div. 2006),

aff’d 855 N.E.2d 1 (N.Y. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

In re Marriage Cases, 49 Cal. Rptr. 3d 675 (Cal. Ct. App. 2006),

rev’d on other grounds, 183 P.3d 384 (Cal. 2008) . . . . . . . . . . . . . . . . . . . 11

In re Marriage Cases, 183 P.3d 384 (Cal. 2008) . . . . . . . . . . . . . . . . . . . . . passim

In re Parentage of L.B., 89 P.3d 271 (Wash. Ct. App. 2004),

aff’d in part, rev’d in part on other grounds,
122 P.3d 161 (Wash. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973) . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Lawrence v. Texas, 539 U.S. 558 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7, 8

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Lewis v. Harris, 875 A.2d 259 (N.J. Super Ct. App. Div. 2005),
aff’d in part and modified in part, 908 A.2d 196 (N.J. 2006) . . . . . . . . . . 15

Lewis v. Harris, 908 A.2d 196 (N.J. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Lofton v. Secretary of Dep’t of Children & Family Services, 358 F.3d 804
(11th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 24

Lofton v. Secretary of Dep’t of Children & Family Services,

377 F.3d 1275 (11th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Louisiana High School Athletic Ass’n v. St. Augustine High School,

396 F.2d 224 (5th Cir. 1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Loving v. Virginia, 388 U.S. 1 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 12, 14, 15

Massachusetts v. United States Dep’t of Health & Human Serv.,

698 F. Supp.2d 234 (D. Mass. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Maynard v. Hill, 125 U.S. 190 (1888) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

McLaughlin v. Florida, 379 U.S. 184 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Meinhold v. United States Dep’t of Defense, 34 F.3d 1469 (9th Cir. 1994) . . . . 19

Meyer v. Nebraska, 262 U.S. 390 (1923) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Mississippi University for Women v. Hogan, 458 U.S. 718 (1982) . . . . . . . . . . . 13

O’Connor v. Board of Education of School District No. 23,

645 F.2d 578 (7th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Personnel Administrator of Massachusetts v. Feeney,

442 U.S. 256 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Planned Parenthood v. Casey, 505 U.S. 833 (1992) . . . . . . . . . . . . . . . . . . . . . . . 8

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Reed v. Reed, 404 U.S. 71 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Reno v. Flores, 507 U.S. 292 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Romer v. Evans, 517 U.S. 620 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 21, 23

Samuels v. New York State Dep’t of Health, 811 N.Y.S.2d 136

(N.Y. App. Div. 2006), aff’d 855 N.E.2d 1 (N.Y. 2006) . . . . . . . 4, 5, 11, 15

Sell v. United States, 539 U.S. 166 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Seymour v. Holcomb, 811 N.Y.S.2d 134 (N.Y. App. Div. 2006),

aff’d 855 N.E.2d 1 (N.Y. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Singer v Hara, 522 P.2d 1187 (Wash. Ct. App. 1974) . . . . . . . . . . . . . . . . . . 10, 15

Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) . . . . . . . . . . . . . . . 6

Smelt v. County of Orange, 374 F. Supp.2d 861 (C.D. Cal. 2005),

aff’d in part, vacated in part and remanded with directions
to dismiss for lack of standing, 447 F.3d 673 (9th Cir. 2006) . . 7, 11, 13, 17

Southern Alameda Spanish Speaking Organization v. City of

Union City, California, 424 F.2d 291 (9th Cir. 1970) . . . . . . . . . . . . . . . . 22

Standhardt v. Superior Court, 77 P.3d 451 (Ariz. Ct. App. 2003) . . . . . . . . 5, 7, 24

Turner v. Safley, 482 U.S. 78 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

United States v. Virginia, 518 U.S. 515 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Village of Arlington Heights v. Metropolitan Housing Development Corp.,

429 U.S. 252 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Vorchheimer v. School District of Philadelphia, 532 F.2d 880 (3d Cir. 1976),
aff’d mem. by an equally divided Court, 430 U.S. 703 (1977) . . . . . . . . . 13

Washington v. Davis, 426 U.S. 229 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

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Washington v. Glucksberg, 521 U.S. 702 (1997) . . . . . . . . . . . . . . . . . . . . 3, 4, 7-8

Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) . . . . . . . . . . . . . . . . . . . . 10

Witt v. Dep’t of the Air Force, 527 F.3d 806 (9th Cir. 2008) . . . . . . . . . . . . 3, 8, 20

Witt v. Dep’t of the Air Force, 548 F.3d 1264 (9th Cir. 2008) . . . . . . . . . . . . . . . . 8

Zablocki v. Redhail, 434 U.S. 374 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Statutes

U.S. CONST. AMEND. XIV, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

1 U.S.C. § 7 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

28 U.S.C. § 1738C (Supp. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CAL. CONST. art. I, § 7.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

HAW. CONST. art. I, § 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

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Interest of the Amicus

The Family Research Council (FRC) was founded in 1983 as an

organization dedicated to the promotion of marriage and family and the sanctity of

human life in national policy. Through books, pamphlets, media appearances,

public events, debates and testimony, FRC’s team of policy experts review data

and analyze Congressional and executive branch proposals that affect the family.

FRC also strives to assure that the unique attributes of the family are recognized

and respected through the decisions of courts and regulatory bodies.

FRC champions marriage and family as the foundation of civilization, the

seedbed of virtue and the wellspring of society. Believing that God is the author

of life, liberty and the family, FRC promotes the Judeo-Christian worldview as the

basis for a just, free and stable society. Consistent with its mission statement,

FRC is committed to strengthening traditional families in America.

FRC publicly supported the successful effort to adopt Proposition 8, as well

as similar amendments in other States. FRC, therefore, has a particular interest in

the outcome of this case. In FRC’s judgment, recognition of same-sex marriages–

either by state legislators or by the courts–would be detrimental to the institution

of marriage, children and society as a whole. And, for the reasons set forth herein,

nothing in the Constitution, properly understood, requires such recognition.

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ARGUMENT

I.

PROPOSITION 8 DOES NOT INTERFERE WITH THE

FUNDAMENTAL RIGHT TO MARRY PROTECTED BY THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.

The district court held that Proposition 8 (Cal. Const. art. I, § 7.5), which

reserves marriage to opposite-sex couples, impermissibly interferes with the

fundamental right to marry protected by the Due Process Clause. Doc. 708 at 112-

19. In arriving at this holding, the district court made the remarkable, indeed,

stunning, statement that the restriction of marriage to opposite-sex couples was

“never part of the historical core of the institution of marriage.” Id. at 115

(emphasis added). That statement is not supported by the single “finding of fact”

on which it is allegedly based, id. at 68-69 (Finding of Fact # 33), which does not

even discuss the opposite-sex nature of marriage (as opposed to certain legal

doctrines associated with marriage). It is precisely because the opposite-sex

nature of marriage is the essence of marriage as it has been understood in our

history, that the district court’s fundamental rights analysis must be rejected.

In determining whether an asserted liberty interest (or right) should be

regarded as fundamental for purposes of substantive due process analysis under

the Due Process Clause of the Fourteenth Amendments (infringement of which

would call for strict scrutiny review), the Supreme Court applies a two-prong test.

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First, there must be a “careful description” of the asserted fundamental liberty

interest. Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (citation and

internal quotation marks omitted).1 Second, the interest, so described, must be

firmly rooted in “the Nation’s history, legal traditions, and practices.” Id. at 710.2

1
Glucksberg was not an anomaly in demanding precision in defining the
nature of the interest (or right) being asserted. See, e.g., Reno v. Flores, 507 U.S.
292, 302 (1993) (describing alleged right as “the . . . right of a child who has no
available parent, close relative, or legal guardian, and for whom the government is
responsible, to be placed in the custody of a willing-and-able private custodian
rather than that of a government-operated or government-selected child-care
institution,” not whether there is a right to ‘freedom from physical restraint,” “a
right to come and go at will” or “the right of a child to be released from all other
custody into the custody of its parents, legal guardians, or even close relatives”);
Collins v. City of Harker Heights, Texas, 503 U.S. 115, 125-26 (1992) (describing
asserted interest as a government employer’s duty “to provide its employees with a
safe working environment”). See also District Attorney’s Office for the Third
Judicial District v. Osborne, 129 S.Ct. 2308, 2322-23 (2009) (convicted felon has
no freestanding “substantive due process right” to obtain the State’s DNA
evidence in order to apply new DNA-testing technology that was not available at
the time of his trial) (relying upon Glucksberg, Reno and Collins).
2
Nothing in Lawrence v. Texas, 539 U.S. 558 (2003), changes the analysis
for evaluating whether a right should be deemed “fundamental” under the liberty
language of the Due Process Clause. First, in striking down the state sodomy
statute, “the Lawrence Court did not apply strict scrutiny,” Witt v. Dep’t of the Air
Force, 527 F.3d 806, 818 n. 6 (9th Cir. 2008), which would have been the
appropriate standard of review if a fundamental right been implicated. Second, the
Court never modified or even mentioned the cases in which it has emphasized the
need to define carefully an asserted liberty interest in determining whether that
interest is “fundamental.” Those cases should not be regarded as having been
overruled sub silentio. See Lofton v. Secretary of Dep’t of Children & Family
Services, 358 F.3d 804, 816 (11th Cir. 2004) (“We are particularly hesitant to infer
a new fundamental liberty interest from an opinion whose language and reasoning
are inconsistent with standard fundamental rights analysis”).

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In Glucksberg, the Court characterized the asserted liberty interest as “a right to

commit suicide which itself includes a right to assistance in doing so,” not whether

there is “a liberty interest in determining the time and manner of one’s death,” “a

right to die,” “a liberty to choose how to die,” “[a] right to choose a humane,

dignified death” or “[a] liberty to shape death.” Id. at 722-23 (citations and

internal quotation marks omitted).

As in other cases asserting fundamental liberty interests, it is necessary to

provide a “careful description” of the fundamental liberty interest at stake. For

purposes of substantive due process analysis, therefore, the issue here is not who

may marry, but what marriage is. The principal defining characteristic of

marriage, as it has been understood in our “history, legal traditions, and practices,”

is the union of a man and a woman.3 Properly framed, therefore, the issue before

this Court is not whether there is a fundamental right to enter into a marriage with

the person of one’s choice, but whether there is a right to enter into a same-sex

marriage. The district court’s belief that “Plaintiffs do not seek recognition of a

new right,” Doc. 708 at 116, is, therefore, mistaken. With the exception of the

3
See Samuels v. New York State Dep’t of Health, 811 N.Y.S.2d 136, 141
(App. Div. 2006), aff’d, 855 N.E.2d 1 (N.Y. 2006): “To remove from ‘marriage’
a definitional component of that institution (i.e., one woman, one man) which long
predates the constitutions of this country and state . . . would, to a certain extent,
extract some of the deep roots that support its elevation to a fundamental right.”
Citation and internal quotation marks omitted.

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decision that Proposition 8 itself overturned, see In re Marriage Cases, 183 P.3d

384, 421 (Cal. 2008), every reviewing court to have considered the issue has

understood that same-sex couples challenging restrictions on same-sex marriage

are, in fact, seeking recognition of a new right.4 But nothing in our “Nation’s

history, legal traditions, and practices” supports recognition of such a right.

The Supreme Court has recognized a substantive due process right to marry.

4
See Lewis v. Harris, 908 A.2d 196, 206 (N.J. 2006) (defining issue as
“whether the right of a person to marry someone of the same sex is so deeply
rooted in the traditions and collective conscience of our people that it must be
deemed fundamental”). In rejecting a state privacy challenge to the state law
reserving marriage to opposite-sex couples, the Hawaii Supreme Court stated that
“the precise question facing this court is whether we will extend the present
boundaries of the fundamental right of marriage to include same-sex couples, or,
put another way, whether we will hold that same-sex couples possess a
fundamental right to marry. In effect, as the applicant couples frankly admit, we
are being asked to recognize a new fundamental right.” Baehr v. Lewin, 852 P.2d
44, 56-57 (Haw. 1993) (second emphasis added). See also Hernandez v. Robles,
805 N.Y.S.2d 354, 359 (App. Div. 2005) (observing that plaintiffs seek “an
alteration in the definition of marriage”), aff’d, 855 N.E.2d 1 (N.Y. 2006);
Standhardt v. Superior Court, 77 P.3d 451, 458 (Ariz. Ct. App. 2003)
(“recognizing a right to marry someone of the same sex would not expand the
established right to marry, but would redefine the legal meaning of ‘marriage.’”);
Samuels, 811 N.Y.S.2d at 141 (“this case is not simply about the right to marry the
person of one’s choice, but represents a significant expansion into new territory
which is, in reality, a redefinition of marriage”) (emphasis added); Conaway v.
Deane, 932 A.2d 571, 617-24 (Md. 2007); Andersen v. King County, 138 P.3d
963, 976-80 (Wash. 2006) (plurality), id. at 993 (J.M. Johnson, J., concurring in
judgment only) (no court possesses the power “to create a new fundamental right
to same-sex ‘marriage’”). See also Goodridge v. Dep’t of Public Health, 798
N.E.2d 941, 965 (Mass. 2003) (acknowledging that “our decision today marks a
significant change in the definition of marriage as it has been inherited from the
common law, and understood by many societies for centuries”).

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See Loving v. Virginia, 388 U.S. 1 (1967), Zablocki v. Redhail, 434 U.S. 374

(1978), and Turner v. Safley, 482 U.S. 78 (1987). But the right recognized in

these decisions all concerned opposite-sex, not same-sex, couples. See Loving,

388 U.S. at 12, Zablocki, 434 U.S. at 384, Turner, 482 U.S. at 94-97. That the

right to marry is limited to opposite-sex couples is clearly implied in a series of

Supreme Court cases relating marriage to procreation and childrearing. See

Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (“Marriage and

procreation are fundamental to the very existence and survival of the race”);

Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (liberty language in Due Process

Clause includes “the right of the individual . . . to marry, establish a home and

bring up children”); Maynard v. Hill, 125 U.S. 190, 211 (1888) (characterizing the

institution of marriage as “the foundation of the family and of society, without

which there would be neither civilization nor progress”).5

The Supreme Court has never stated or even implied that the federal right to

marry extends to same-sex couples. In sharp contrast to the “emerging awareness

5
The district court’s observation that not all opposite-sex couples can or
want to have children, and that no State inquires into the fertility of opposite-sex
couples as a condition of issuing a marriage license, Doc. 708 at 62-63 (Finding of
Fact # 21), 113-14, 115, does not change the biological reality that only opposite-
sex couples are capable of procreating through their sexual activity. Marriage is
the institution designed to channel that activity into stable relationships that
protect the children so procreated. It is simply obtuse not to recognize this.

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that liberty gives substantial protection to adult persons in deciding how to

conduct their private lives in matters pertaining to sex,” Lawrence, 539 U.S. at

572, which, in turn, was based upon an examination of “our laws and traditions in

the past half century, id. at 571, “[t]he history and tradition of the last fifty years

have not shown the definition of marriage to include a union of two people

regardless of their sex.” Smelt v. County of Orange, 374 F. Supp.2d 861, 878

(C.D. Cal. 2005), aff’d in part, vacated in part and remanded with directions to

dismiss for lack of standing, 447 F.3d 673 (9th Cir. 2006). If anything, the fact

that twenty-nine States have amended their constitutions to reserve marriage to

opposite-sex couples strongly suggests that there is no “emerging awareness” that

the right to marry extends to same-sex couples. To paraphrase Osborne, there is

no “long history” of a right to enter into a same-sex marriage and “[t]he mere

novelty of such a claim is reason enough to doubt that ‘substantive due process’

sustains it.” 129 S.Ct. at 2322 (citation and internal quotation marks omitted).

“[S]ame-sex marriages are neither deeply rooted in the legal and social history of

our Nation or state nor are they implicit in the concept of ordered liberty.”

Standhardt, 77 P.3d at 459. For that reason, the district court’s holding that the

right to marry includes the right to enter into a same-sex marriage cannot stand.

In Glucksberg, the Court emphasized that, unless “a challenged state action

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implicate[s] a fundamental right,” there is no need for “complex balancing of

competing interests in every case.” 521 U.S. at 722. All that is necessary is that

the state action bear a “reasonable relationship to a legitimate state interest . . . .”

Id. Apart from the subject-area-specific standards that govern the regulation of

abortion, see Planned Parenthood v. Casey, 505 U.S. 833 (1992), and the forcible

administration of anti-psychotic drugs to mentally ill defendants, see Sell v. United

States, 539 U.S. 166 (2003), there is no “intermediate” standard of review that

applies to substantive due process claims. See Witt v. Dep’t of the Air Force, 548

F.3d 1264, 1272-75 (9th Cir. 2008) (O’Scannlain, J., dissenting from the denial of

rehearing en banc).6 For the reasons set forth in the brief of the appellants,

Proposition 8 is rationally related to multiple, legitimate state interests. The

district court’s holding to the contrary was erroneous and must be reversed.

6
Language in this Court’s opinion in Witt v. Dep’t of the Air Force, 527
F.3d at 813-21, suggests that the Supreme Court’s decision in Lawrence v. Texas,
requires something more than traditional rational basis review (although not strict
scrutiny) of statutes that infringe upon private adult consensual sexual behavior.
But Witt did not address Glucksberg’s holding that, except when fundamental
rights are implicated, due process analysis requires only rational basis review, a
holding that was reaffirmed by the Supreme Court after Witt was decided. See
Osborne, 129 S.Ct. at 2322-23. Moreover, unlike Witt, this case concerns whether
the State must give public recognition (through the institution of marriage) to
homosexual relationships, not whether the sexual conduct underlying such
relationships may be criminalized or otherwise punished. In Lawrence, the Court
emphasized that it was not deciding whether “the government must give formal
recognition to any relationship that homosexuals persons seek to enter,” 539 U.S.
at 578, which is exactly the issue presented here.

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II.

PROPOSITION 8 DOES NOT DISCRIMINATE ON ACCOUNT OF SEX

IN VIOLATION OF THE EQUAL PROTECTION CLAUSE
OF THE FOURTEENTH AMENDMENT.

The district court held that Proposition 8 discriminates on account of sex in

violation of the Equal Protection Clause of the Fourteenth Amendment. Doc. 708

at 121-23. The district court’s entire analysis is contained in four short sentences:

Sexual orientation discrimination can take the form of sex

discrimination. Here, for example, [Kristin] Perry is prohibited from
marrying [Sandra] 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 [a person’s] choice of marital
partner because of her [or his] sex.

Id. at 121.7

The fundamental flaw with the district court’s holding that Proposition 8

discriminates on the basis of sex is that “the marriage laws are facially neutral;

they do not single out men or women as a class for disparate treatment, but rather

prohibit men and women equally from marrying a person of the same sex.” Baker

7
Contrary to the district court’s understanding, an equal protection claim
based on sexual orientation is not “equivalent to a claim of discrimination based
on sex.” Doc. 708 at 123. Classifications based on sex are subject to intermediate
review under the Equal Protection Clause. See Craig v. Boren, 429 U.S. 190
(1976). Classifications based upon sexual orientation have been reviewed under
the rational basis standard. See Romer v. Evans, 517 U.S. 629 (1996). See also In
re Marriage Cases, 183 P.3d 384, 439 (Cal. 2008) (holding that “discrimination
on the basis of sexual orientation cannot appropriately be viewed as a subset of, or
subsumed within, discrimination on the basis of sex”).

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v. State, 744 A.2d 864, 880 n. 13 (Vt. 1999). “[T]here is no discrete class subject

to differential treatment solely on the basis of sex; each sex is equally prohibited

from precisely the same conduct.” Id. Other state courts have also rejected the

claim that “defining marriage as the union of one man and one woman

discriminates on the basis of sex.”8

In the last four years, the California Supreme Court, the Maryland Court of

Appeals, the New York Court of Appeals and the Washington Supreme Court

have added their voices to the chorus of state reviewing court decisions holding

that laws reserving marriage to opposite-sex couples do not discriminate on

account of sex.9 Federal courts reviewing challenges to the Federal Defense of

Marriage Act, 1 U.S.C. § 7 (2005), 28 U.S.C. § 1738C (Supp. 2005), are in accord

with these decisions.10

8
Id. (citing Baker v. Nelson, 191 N.W.2d 185, 186-87 (Minn. 1971), appeal
dismissed for want of a substantial federal question, 409 U.S. 910 (1972), and
Singer v Hara, 522 P.2d 1187, 1191-92 (Wash. Ct. App. 1974)). See also Jones v.
Hallahan, 501 S.W.2d 588, 590 (Ky. 1973) (same); Dean v. District of Columbia,
653 A.2d 307, 363 n. 2 (D.C. App. 1995) (Op. of Steadman, J.) (same).
9
In re Marriage Cases, 183 P.3d 384, 436-40 (Cal. 2008); Conaway v.
Deane, 932 A.2d 571, 585-602 (Md. 2007); Hernandez v. Robles, 855 N.E.2d 1,
10-11 (N.Y. 2006) (plurality); id. at 20 (Graffeo, J., concurring); Andersen v. King
County, 138 P.3d 963, 988 (Wash. 2006) (plurality); id. at 1010 (J.M. Johnson, J.,
concurring in judgment only).
10
Wilson v. Ake, 354 F. Supp. 2d 1298, 1307-08 (M.D. Fla. 2005) (“DOMA
does not discriminate on the basis of sex because it treats women and men

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In sum, thirteen state reviewing courts,11 three federal courts and the District

of Columbia Court of Appeals have all held that statutes reserving marriage to

opposite-sex couples “do[] not subject men to different treatment from women;

each is equally prohibited from the same conduct.” Goodridge v. Dep’t of Public

Health, 798 N.E.2d 941, 991 (Mass. 2003) (Cordy, J., dissenting) (Justice Cordy

was addressing an alternative argument raised by the plaintiffs but not reached by

the majority in their opinion invalidating the marriage statute–whether the statute

equally”); Smelt v. County of Orange, 374 F. Supp. 2d 861, 877 (C.D. Cal. 2005)
(same), 447 F.3d 673 (9th Cir. 2006); In re Kandu, 315 B.R. 123, 143 (Bankr.
W.D. Wash. 2005) (same). The recent pair of decisions by the district court in
Massachusetts striking down § 3 of DOMA, see Massachusetts v. United States
Dep’t of Health & Human Serv., 698 F. Supp.2d 234 (D. Mass. 2010), Gill v.
Office of Personnel Mgmt., 699 F. Supp.2d 347 (D. Mass. 2010), were based on
other grounds.
11
In addition to the eight state court decisions previously cited from
California (In re Marriage Cases), Kentucky (Jones v. Hallahan), Maryland
(Conaway v. Deane), Minnesota (Baker v. Nelson), New York (Hernandez v.
Robles), Vermont (Baker v. State) and Washington (Singer v. Hara, Andersen v.
King County) are the decision of the California Court of Appeal in In re Marriage
Cases, 49 Cal. Rptr. 3d 675, 706 (Cal. Ct. App. 2006), rev’d on other grounds,
183 P.3d 384 (Cal. 2008), and four decisions of the New York Supreme Court,
Appellate Division, later affirmed by the New York Court of Appeals: Hernandez
v. Robles, 805 N.Y.S.2d 354, 370 (N.Y. App. Div. 2005) (Catterson, J.,
concurring) (“there is no discrimination on account of sex” because “both men and
women may marry persons of the opposite sex; neither may marry anyone of the
same sex”); Samuels v. New York State Dep’t of Health, 811 N.Y.S.2d 136, 143
(N.Y. App. Div. 2006) (state marriage law is “facially neutral”); In re Kane, 808
N.Y.S.2d 566 (N.Y. App. Div. 2006) (following Samuels), Seymour v. Holcomb,
811 N.Y.S.2d 134 (N.Y. App. Div. 2006) (same), aff’d 855 N.E.2d 1 (N.Y. 2006).

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violated the state equal rights amendment).12

In its highly abbreviated sex discrimination analysis, the district court

apparently accepted plaintiffs’ argument, based on Loving v. Virginia, 388 U.S. 1

(1967), which struck down state anti-miscegenation statutes, that facial neutrality

(“equal application” in plaintiffs’ parlance) does not immunize a statute (or, in this

case, a state constitutional amendment) from federal constitutional challenge. See

Doc. 202 at 29; Doc. 281 at 19. Therefore, the fact that Proposition 8 affects men

and women equally does not provide an automatic defense against an equal

protection attack. The analogy to Loving is unconvincing at several levels.

First, Loving dealt with race, not sex. The two characteristics are not

fungible for purposes of constitutional analysis. For example, although it is clear

that public high schools and colleges may not field sports teams segregated by

race, see Louisiana High School Athletic Ass’n v. St. Augustine High School, 396

F.2d 224 (5th Cir. 1968), they may field teams segregated by sex (at least where

equal opportunities are afforded to males and females on separate teams) without

12
The only contrary authority from any reviewing court is Baehr v. Lewin,
852 P.2d 44 (Haw. 1993). In Baehr, a two-judge plurality expressed the view that
a law reserving marriage to opposite-sex couples constituted sex discrimination
under the state constitution, subject to a heightened standard of judicial review.
Id. at 59-63. That view did not command a majority of the court, however, and, in
any event, was later superceded by an amendment to the Hawaii Constitution
recognizing the legislature’s power “to reserve marriage to opposite-sex couples.”
HAW. CONST. art I, § 23. The plurality opinion in Baehr is an outlier in the law.

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violating the Equal Protection Clause.13 Indeed, a school district may go so far as

to provide identical sets of single-gender public schools without running afoul of

the Equal Protection Clause. Vorchheimer v. School District of Philadelphia, 532

F.2d 880, 885-88 (3d Cir. 1976), aff’d mem. by an equally divided Court, 430 U.S.

703 (1977). Although, since Brown v. Board of Education, 347 U.S. 483 (1954),

classifications based on race have been subjected to strict scrutiny review without

regard to whether a given classification happens to apply equally to members of

different races, see McLaughlin v. Florida, 379 U.S. 184, 191 (1964) (striking

down laws that criminalized interracial cohabitation), “the laws in which the

Supreme Court has found sex-based classifications have all treated men and

women differently.” Smelt, 374 F. Supp. 2d at 876.14

13
See Force by Force v. Pierce City R-VI School District, 570 F. Supp.
1020, 1026 (W.D. Mo. 1983) (noting that “a number of courts have held that the
establishment of separate male/female teams in a sport is a constitutionally
permissible way of dealing with the problem of potential male athletic
dominance”); O’Connor v. Board of Education of School District No. 23, 645 F.2d
578, 582 (7th Cir. 1981) (in dissolving a preliminary injunction directing a school
board to permit a junior high school girl to try out for the boys’ basketball team,
the Seventh Circuit commented that it was “highly unlikely” that the plaintiff
could demonstrate that the school board’s policy of “separate but equal” sports
programs for boys and girls violated either the Equal Protection Clause or the
equal rights provision of the Illinois Constitution).
14
Citing United States v. Virginia, 518 U.S. 515, 519-20 (1996) (law
prevented women from attending military college); Mississippi University for
Women v. Hogan, 458 U.S. 718, 719 (1982) (law excluded men from attending
nursing school); Craig v. Boren, 429 U.S. 190, 191-92 (1976) (law allowed

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Second, anti-miscegenation statutes were intended to keep persons of

different races separate. Marriage statutes, on the other hand, are intended to

bring persons of the opposite sex together. Statutes that mandated segregation of

the races with respect to marriage cannot be compared in any relevant sense to

statutes that promote integration of the sexes in marriage.

The Loving analogy is inapt on purely logical grounds. The statutes

struck down in Loving . . . prohibited marriages between members of
different races, not between members of the same race. The
equivalent, in the area of sex, of an anti-miscegenation statute would
not be a statute prohibiting same-sex marriages, but one prohibiting
opposite-sex marriages, an absurdity which no State has ever
contemplated. The equivalent, in the area of race, of a statute
prohibiting same-sex marriage, would be a statute that prohibited
marriage between members of the same race. Laws banning
marriages between members of the same race would be
unconstitutional, not because they would segregate the races and
perpetuate the notion that blacks are inferior to whites, . . . but
because there could be no possible rational basis prohibiting members
of the same race from marrying. Laws against same-sex marriage, on
the other hand, are supported by multiple reasons . . . .

Hernandez v. Robles, 805 N.Y.S.2d at 370-71 (Catterson, J., concurring) (citation

and internal quotation marks omitted).

Third, unlike the history of the anti-miscegenation statutes struck down in

women to buy low-alcohol beer at a younger age than men); Frontiero v.

Richardson, 411 U.S. 677, 678-79 (1973) (law imposed a higher burden on female
servicewomen than on male servicemen to establish dependency of their spouses);
Reed v. Reed, 404 U.S. 71, 73 (1971) (law created an automatic preference of men
over women in the administration of estates).

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Loving, which stigmatized blacks as inferior to whites,15 “there is no evidence that

laws reserving marriage to opposite-sex couples were enacted with an intent to

discriminate against either men or women. Accordingly, such laws cannot be

equated in a facile manner with anti-miscegenation laws.” Hernandez, 805

N.Y.S.2d at 370 (Catterson, J., concurring).16 As in Goodridge, which was

decided on other grounds, there is no evidence that Proposition 8 was “motivated

by sexism in general or a desire to disadvantage men or women in particular.” 798

15
The statutes challenged in Loving did not prohibit all interracial
marriages, but only marriages between “white persons” and “nonwhite persons.”
Loving, 388 U.S. at 11 & n. 11. Interracial marriages between “nonwhites” were
not banned. Noting that “Virginia prohibits only interracial marriages involving
white persons,” the Supreme Court determined that “the racial classifications must
stand on their own justification, as measures designed to maintain White
Supremacy.” 388 U.S. at 11 & n. 11. That “justification,” the Court concluded,
was patently inadequate: “We have consistently denied the constitutionality of
measures which restrict the rights of citizens on account of race. There can be no
doubt that restricting the freedom to marry solely because of racial classifications
violates the central meaning of the Equal Protection Clause.” Id. at 11-12.
16
With the exception of the plurality opinion in Baehr, 852 P.2d at 59-63 &
nn. 23-25, and a passing reference in Goodridge, 798 N.E.2d at 958 & n. 16, no
reviewing court has found the equal protection analysis set forth in Loving to be
applicable to laws reserving marriage to opposite-sex couples. See In re Marriage
Cases, 49 Cal. Rptr. 3d at 707-08; Conaway v. Deane, 932 A.2d at 599-604; Baker
v. Nelson, 191 N.W.2d at 187; Lewis v. Harris, 875 A.2d 259, 272 (N.J. Super Ct.
App. Div. 2005), aff’d in part and modified in part, 908 A.2d 196 (N.J. 2006);
Hernandez, 855 N.E.2d at 8, id. at 19-20 (Graffeo, J., concurring); Samuels v. New
York State Dep’t of Health, 811 N.Y.S.2d at 144; Baker v. State, 744 A.2d at 880
n. 13, 887; Andersen, 138 P.3d at 989, id. at 1001 (J.M. Johnson, J., concurring in
judgment only); Singer, 522 P.2d at 1195-96.

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N.E.2d at 992 (Cordy, J., dissenting). Nor has either gender been subjected to

“any harm, burden, disadvantage, or advantage,” id., from the adoption of those

statutes.

Contrary to the understanding of the district court, whose analysis of the sex

discrimination argument has been rejected by every other court (other than the

two-judge plurality opinion of the Hawaii Supreme Court in Baehr), Proposition 8

does not “mandate[] that men and women be treated differently, . . . “ Doc. 708 at

126. Proposition 8 treats men and women equally. And laws that treat men and

women equally, and do not subject them to different restrictions or disabilities,

cannot be said to deny either men or women the equal protection of the law.

Accordingly, Proposition 8 does not discriminate on account of sex.

III.

PROPOSITION 8 DOES NOT DISCRIMINATE ON THE BASIS OF

SEXUAL ORIENTATION IN VIOLATION OF THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT.

The district court held that Proposition 8 also discriminates on account of

sexual orientation in violation of the Equal Protection Clause. Doc. 708 at 121-23.

In its analysis, the court assumed that Proposition 8, by its own terms,

discriminates against homosexuals, and found that only an irrational animus

against homosexuals could possibly explain support for the measure. Id. at 107-11

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(Findings of Fact # 79 and # 80), 134-38. But the court’s assumption was

mistaken. Moreover, there is no evidence, nor could there be any, of the voters’

intent–other than to restore the traditional understanding of marriage.

Proposition 8 does not discriminate on the basis of sexual orientation.

Homosexuals may marry someone of the opposite sex, and heterosexuals may not

marry someone of the same sex. “Parties to ‘a union between a man and a woman’

may or may not be homosexuals. Parties to a same-sex marriage could

theoretically be either homosexuals or heterosexuals.” Baehr v. Lewin, 852 P.2d

44, 51 n. 11 (Haw. 1993) (plurality).17 See also Dean v. District of Columbia, 653

A.2d 307, 363 n. 1 (D.C. App. 1995) (following Baehr) (“just as not all opposite-

sex marriages are between heterosexuals, not all same-sex marriages would

necessarily be between homosexuals”); Goodridge v. Dep’t of Health, 798 N.E.2d

941, 953 n. 11 (Mass. 2003) (same); Smelt v. County of Orange, 374 F.Supp. 2d,

861, 874 (C.D. Cal. 2005) (same) (interpreting the Defense of Marriage Act).18

17
Accordingly, “‘[h]omosexual’ and ‘same-sex’ marriages are not
synonymous; by the same token, a ‘heterosexual’ same-sex marriage is not, in
theory, oxymoronic”). Id. A third judge in Baehr noted that “[t]he effect of the
statute [reserving marriage to opposite-sex couples] is to prohibit same sex
marriages on the part of professed or non-professed heterosexuals, homosexuals,
bisexuals or asexuals”). Id. at 71 (Heen, J., dissenting).
18
Judges in other cases have made the same observation. See, e.g., Baker v.
State, 744 A.2d 864, 890 (Vt. 1999) (Dooley, J., concurring) (“[t]he marriage
statutes do not facially discriminate on the basis of sexual orientation); id. at 905

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In his concurring opinion in Andersen v. King County, 138 P.3d 963 (Wash.

2006), Justice J.M. Johnson noted that the state DOMA “does not distinguish

between persons of heterosexual orientation and homosexual orientation,” id. at

997 (J.M. Johnson, J., concurring in judgment only), and identified a recent case in

which a man and a woman, both identified as “gay,” entered into a valid opposite-

sex marriage. Id. at 991, n. 1, 996, citing In re Parentage of L.B., 89 P.3d 271,

273 (Wash. Ct. App. 2004), aff’d in part, rev’d in part on other grounds, 122 P.3d

161 (Wash. 2005).19 It is apparent, therefore, that the right to enter into an

opposite-sex marriage in California “is not restricted to (self-identified)

heterosexual couples,” id. at 991, n. 1, but extends to all adults without regard to

“their sexual orientation.” Id. at 997. Contrary to the understanding of the

California Supreme Court, see In re Marriage Cases, 183 P.3d 384, 440-41 (Cal.

2008), Proposition 8 does not, on its face, discriminate between heterosexuals and

homosexuals. The classification in the amendment is not between men and

(Johnson, J., concurring in part and dissenting in part) (noting that “sexual
orientation does not appear as a qualification for marriage under the marriage
statutes” and the State “makes no inquiry into the sexual practices or identities of a
couple seeking a license”); Hernandez v. Robles, 855 N.E.2d 1, 20 (N.Y. 2006)
(Graffeo, J., concurring) (same).
19
The district court itself noted that “some gay men and lesbians have
married members of the opposite sex.” Doc. 708 at 82 (Finding of Fact # 51, par.
e, citing Tr. 2043:1-2044:10 (testimony of Gregory Herek)).

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women, or between heterosexuals and homosexuals, but between opposite-sex

couples and same-sex couples.

Admittedly, Proposition 8 has a greater impact on homosexuals than on

heterosexuals. Nevertheless, disparate impact alone is insufficient to invalidate a

classification, even with respect to suspect or quasi-suspect classes such as race

and gender. Under well-established federal equal protection doctrine, a facially

neutral law (or other official act) may not be challenged on the basis that it has a

disparate impact on a particular race or gender unless that impact can be traced

back to a discriminatory purpose or intent. The challenger must show that the law

was enacted (or the act taken) because of, not in spite of, its foreseeable disparate

impact. See Washington v. Davis, 426 U.S. 229, 238-48 (1976) (race); Village of

Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252,

264-71 (1977) (race); Personnel Administrator of Massachusetts v. Feeney, 442

U.S. 256, 271-80 (1979) (sex). Even assuming, for purposes of disparate impact

analysis, that sexual orientation is to be treated in the same manner as race or

gender and subject to heightened scrutiny, which is contrary to controlling Ninth

Circuit authority,20 nothing in the district court’s findings of fact–particularly the

20
See High Tech Gays v. Defense Industrial Services Clearance Office, 895
F.2d 563, 571 (9th Cir. 1990), Meinhold v. United States Dep’t of Defense, 34
F.3d 1469, 1478 (9th Cir. 1994), Philips v. Perry, 106 F.3d 1420, 1424-25 (9th
Cir. 1997), Holmes v. California Army National Guard, 124 F.3d 1126, 1132-33

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two findings the court principally relied upon in its sexual orientation analysis, see

Doc. 708 at 107-11 (Findings of Fact # 79 and # 80), 134-37–even remotely

supports the conclusion that Californians approved Proposition 8 with the intent or

purpose to discriminate against homosexuals, as opposed to their knowledge that,

if adopted, Proposition 8 would have a disparate impact on homosexuals. Nor are

there any facts that could support such a conclusion.

In the case of a state legislature or city council that maintains official copies

of its proceedings–recorded committee hearings, published committee reports

and/or verbatim transcripts of floor debate–it may be possible, at least in some

instances, to determine whether a facially neutral statute or ordinance can be

traced back to a discriminatory intent or purpose (where the existence of such an

intent or purpose would be relevant to the validity of the statute or ordinance). So,

too, in the case of an act taken by an official, it may be possible to discover

whether an improper intent or purpose underlies the official act. But in the case of

a statute or state constitutional amendment placed on the ballot through a citizen

(9th Cir. 1997), Flores v. Morgan Hill Unified School District, 324 F.3d 1130,
1137 (9th Cir. 2003), and Witt v. Dep’t of the Air Force, 527 F.3d 806, 821 (9th
Cir. 2008). Surprisingly, in holding that classifications based on sexual
orientation should be subject to strict scrutiny review, Doc. 708 at 123-24, the
district court cited none of these decisions.

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initiative, and approved by the electorate, no such inquiry is even possible.21

Apart from the language of Proposition 8 itself, which is facially neutral with

respect to a person’s sexual orientation,22 how could the intent or purpose of more

than seven million voters be determined? By exit polls?23 Pre- or post-election

polling? Random sampling of the electorate? Voter interviews? And how, based

on the selective evidence presented by the plaintiffs (from a veritable deluge of

messages inundating the voters during the hard fought campaign over Proposition

8), could any court possibly distinguish between the electorate’s knowledge that

what it was voting on would have a disparate impact on a given class of persons

(homosexuals) and an intent or purpose to cause that impact? The district court

21
This may explain why, in its decision declaring unconstitutional state
statutes reserving marriage to opposite-sex couples, including Proposition 22–the
identically worded statutory predecessor to Proposition 8 passed only eight years
earlier–the California Supreme Court emphasized that it was not suggesting that
“the current marriage provisions were enacted with an invidious intent or
purpose.” In re Marriage Cases, 183 P.3d at 452 n. 73.
22
Which, together with its narrow scope, being limited to marriage,
distinguishes this case from the broad and sweeping language of Colorado’s
Amendment 2, struck down in Romer v. Evans, 517 U.S. 620 (1996) (which is
discussed below). See Citizens for Equal Protection v. Bruning, 455 F.3d 859,
864-69 (8th Cir. 2006) (distinguishing Romer in opinion upholding state
constitutional amendment reserving marriage to opposite-sex couples).
23
The exit polling results introduced into evidence by plaintiffs did not
disclose the voters’ reasons for voting for Proposition 8. Those results did reveal,
however, that an overwhelming majority of African-Americans (70%) and a strong
majority of Latinos voted in favor of the measure.

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never addressed either the propriety or the possibility of making such

determinations and distinctions.

An inquiry into the subjective reasons that lead voters to support a particular

ballot proposition is not only factually impossible, but also legally improper. A

court “may not . . . inquire into the electorate’s possible actual motivations for

adopting a measure via initiative or referendum. Instead, the court must consider

all hypothetical justifications which potentially support the enactment.” Equality

Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 293 n.

4 (6th Cir. 1997) (citations omitted) (emphasis added).24 That is also the law in

this Circuit. See Southern Alameda Spanish Speaking Organization v. City of

Union City, California, 24 F.2d 291, 295 (9th Cir. 1970) (“the question of [voter]

motivation” is not “an appropriate one for judicial inquiry”).25 In the case of

Proposition 8, those justifications, as appellants’ brief establishes, include, inter

24
Thus, the district court erred in stating that “the voters’ determinations
must find at least some support in evidence.” Doc. 708 at 25. Under rational basis
review, they need not. See FCC v. Beach Communications, Inc., 508 U.S. 307,
315 (1993) (“a legislative choice is not subject to courtroom factfinding, and may
be based on rational speculation unsupported by evidence or empirical data”).
25
Indeed, “[i]f the true motive is to be ascertained not through speculation
but through a probing of the private attitude of the voters, the inquiry would entail
an intolerable invasion of the privacy that must protect an exercise of the
franchise.” Id. In light of the foregoing, it is not surprising that the district court
did not cite a single case in which a federal court has relied upon a factual inquiry
into voter motivation to determine the constitutionality of a ballot measure.

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alia, the interests in preserving traditional marriage, channeling procreative sexual

activity into a stable social and cultural environment in which the children so

procreated may be raised and providing the benefits of dual-gender parenting.

None of those justifications betrays an intent or purpose to harm homosexuals.

It is precisely because Proposition 8 is supported by multiple, legitimate

state interests that the subjective motivations of the voters–even if they could be

ascertained and were otherwise admissible–are irrelevant under Romer, the district

court’s primary authority. Doc. 708 at 119, 120, 134, 135. “[P]ublic

discrimination towards persons who are not members of a suspect or quasi-suspect

class is permissible as long as such official discrimination is rationally linked to

the furtherance of some valid public interest.” Equality Foundation, 128 F.3d at

297 n. 8, citing Romer, 517 U.S. at 632.26 This holding is supported by decisions

rejecting equal protection challenges to various forms of alleged discrimination

against homosexuals where, regardless of animus, the discrimination in question

26
See also Lofton v. Secretary of Dep’t of Children & Family Services, 377
F.3d 1275, 1280 (11th Cir. 2004) (Birch, J., specially concurring in the denial of
rehearing en banc) (Romer essentially stands for the proposition “that when all the
proffered rationales for a law are clearly and manifestly implausible, a reviewing
court may infer that animus is the only explicable basis” and “animus alone cannot
constitute a legitimate government interest”) (emphasis in original); Andersen, 138
P.3d at 981 (plurality) (same).

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was rationally related to a legitimate governmental purpose.27 So, too, state courts

have upheld statutes reserving marriage to opposite-sex couples, notwithstanding

claims that such statutes were motivated in part by an anti-homosexual animus,

because they determined that the statutes were reasonably related to legitimate

state interests. Standhardt v. Superior Court, 77 P.3d 451, 464-65 (Ariz. Ct. App.

2003); Andersen, 138 P.3d at 980-85 (plurality).

In light of the foregoing, it is irrelevant whether, as the district court

purported to find, Proposition 8 was motivated by animus against homosexuals.

The fact remains that Proposition 8 is reasonably related to legitimate state

interests. That is sufficient to sustain its constitutionality under the rational basis

standard. The district court’s holding to the contrary should be reversed.

27
See Equality Foundation, 128 F.3d at 300-01 (upholding city charter
amendment that repealed special anti-discrimination protections for homosexuals,
gays, lesbians and bisexuals, and barred the city and its agencies from restoring
such protections); Citizens for Equal Protection, 455 F.3d at 864-69 (upholding
state marriage amendment); Lofton v. Secretary of Dep’t of Children & Family
Services, 358 F.3d 804, 817-26 (11th Cir. 2004) (upholding statute prohibiting
practicing homosexuals from adopting children); Holmes, 124 F.3d at 1132-36
(upholding military’s “Don’t Ask/Don’t Tell” policy).

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CONCLUSION

For the foregoing reasons, amicus curiae, the Family Research Council,

respectfully requests that this Honorable Court reverse the judgment of the district

court.

Respectfully submitted,

s/Paul Benjamin Linton

Paul Benjamin Linton Christopher M. Gacek
Special Counsel Senior Fellow for Regulatory Affairs
Thomas More Society Family Research Council
921 Keystone Avenue 801 G Street, N.W.
Northbrook, Illinois 60062-3614 Washington, D.C. 20001
(847) 291-3848 (tel) (202) 393-2100 (tel)
(847) 412-1594 (fax) (202) 393-2134
[email protected] [email protected]

Thomas Brejcha
President & Chief Counsel
Thomas More Society
29 S. La Salle Street Suite 440
Chicago, Illinois 60603
(312) 782-1680 (tel)
(312) 782-1887 (fax)
[email protected]

Dated September 22, 2010

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Certificate of Compliance with Rule 32(a)

This brief complies with the type-volume limitations of Fed. R. App. P.

32(a)(7)(B) because it contains 6,999 words, excluding the parts of the brief

exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and type style requirements of Fed. R. App. P. 32(a)(6) because this brief

has been prepared in a proportionately spaced typeface using Word Perfect 12.0

word processing software in 14-point Times New Roman font.

s/Paul Benjamin Linton

Paul Benjamin Linton
Counsel for the Amicus

September 22, 2010

 Case: 10-16696 09/22/2010 Page: 35 of 35 ID: 7484139 DktEntry: 31

United States Court of Appeals

for the Ninth Circuit
Case Number 10-16696

Certificate of Service

When All Case Participants are Registered for the Appellate CM/ECF System

I hereby certify that I electronically filed the foregoing brief with the Clerk of the
Court for the United States Court of Appeals for the Ninth Circuit by using the
appellate CM/ECF system on September 22, 2010.

I certify that all participants in the case are registered CM/ECF users and that
service will be accomplished by the Appellate CM/ECF System.

Signature (use “s/” format): s/Paul Benjamin Linton

Paul Benjamin Linton