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Cooper & KirkLawyersA Professional Limited Liabilty Company1523 New Hampshire Avenue, N.vWashington, D.C. 20036 (202) 220-9600Fax (202) 220-9601

August 31,2010Honorable Wiliam K. SuterClerkOne First Street, N .E.Supreme Cour of the United StatesWashington, D.C. 20543

Re: Hollngsworth et at., v. Perry et at., No. 09-1238Dear Mr. Suter:

I write to advise the Court of a development bearing on the disposition of the petition fora wrt of certiorari in the case noted above.As is evident from the petition, the brief in opposition, and the reply brief, the paries

agree that Petitioners' attempt to obtain mandamus relief reversing the district cour's orderpermitting broadcast of the trial proceedings outside the courhouse has become moot. Theparies disagree, however, about whether the Cour should vacate the Ninth Circuit's orderdenying the mandamus petition.In the reply brief, filed July 19,2010, Petitioners explained that vacatu was appropriatebecause, among other reasons, a dispute has arisen over the proper disposition of the videorecordings ofthetrial proceedings. Specifically, the district court, contrary to its assurances thatit was video taping the trial solely for its own use "in chambers," sua sponte invited the paries touse the trial video during closing argument and made copies of the trial video available to the

paries. Respondents accepted the district cour's invitation and played portions of the trial videodurng closing argument. After closing argument, Petitioners moved the district cour to orderRespondents to immediately retu to the district court all copies of the trial video in theirpossession. At the time Petitioners fied their reply brief with this Court, the district cour had notyet ruled on Petitioners' motion. Reply 8-10.The district cour has now ruled on that motion. On August 4, 2010, in the course ofissuing final judgment declaring Proposition 8 unconstitutional and permanently enjoining itsenforcement, i the district cour denied Petitioners' motion to order the return of the copies of the

recordings, directed the clerk "to fie the trial recording under seal as par of the record," andi The district cour denied Petitioners' motion to stay the judgment pending appeal, but the courtof appeals subsequently issued the requested stay and placed the appeal on an expeditedcalendar.

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Cooper & KirkLawyers

The Honorable Wiliam K. SuterAugust 31, 2010Page 2 of2

permitted the paries to "retain their copies of the trial recording pursuant to the terms of theprotective order." Doc. 708 pp.4-5 (attached as exhibit).The district cour's ruling on Petitioners' motion only increases the likelihood thatlitigation relating to the appropriate use of the trial video may occur in the future and thereforeconfirms the need to vacate the Ninth Circuit's mandamus ruling in order to prevent that ruling"from spawning any legal consequences" in ongoing or subsequent litigation between the paries.United States v. Munsingwear, Inc., 340 U.S. 36,41 (1950); Reply 10.

Respectfully submitted,~~~/PLCharles J. CooperCounsel of Record for PetitionersEnclosurecc: Counsel of Record

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Case3:09-cv-02292-VRW Document708 Filed08/04/10 Page1 of 138

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234

IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF CALIFORNIA

KRISTIN M PERRY, SANRA B STIER,5 PAUL T KATAMI and JEFFREY JZARRILLO,6789

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Plaintiffs,CITY AN COUNY OF SAN FRACISCO,

Plaintiff - Intervenor,v

ARNOLD SCHWARZENEGGER, in his11 official capacity as Governor ofCalifornia; EDMU G BROWN JR, in12 his official capacity as AttorneyGeneral of California; MARK B13 HORTON, in his official capacityas Director of the California14 Department of Public Health andState Registrar of Vital15 Statistics; LINETTE SCOTT, in herofficial capacity as Deputy16 Director of Health Information &Strategic Planning for the17 California Department of Public

Health; PATRICK 0' CONNELL, in his18 official capacity as Clerk-Recorder of the County of19 Alameda; and DEAN C LOGAN, in hisofficial capacity as Registrar-20 Recorder/County Clerk for theCounty of Los Angeles,

No C 09-2292 VRWPRETRIAL PROCEEDINGS ANTRIAL EVIDENCE

..CREDIBILITY DETERMINATIONS

..FINDINGS OF FACT

..CONCLUSIONS OF LAW

..2122

Defendants, ORDERDENNIS HOLLINGSWORTH, GAIL J23 KNIGHT, MARTIN F GUTIERREZ, HA-SHING WILLIAM TAM, MARK A

24 JANSSON and PROTECTMARRIAGE. COM -YES ON 8, A PROJECT OF CALIFORNIA25 RENEWAL, as official proponentsof Proposition 8,262728

Defendant-Intervenors. /

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Case3:09-cv-02292-VRW Document708 Filed08/04/10 Page6 of 138

1 Defendant-intervenors, the official proponents of2 Proposition 8 under California election law ("proponents"), were3 granted leave in July 2009 to intervene to defend the4 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's7 motion is denied for the reasons stated in a separate order filed8 herewith. Plaintiff-intervenor City and County of San Francisco9 ("CCSF" or "San Francisco") was granted leave to intervene in

10 August 2009. Doc #160 (minute entry).ro' 11 The court denied plaintiffs' motion for a preliminary

judgment on October 14, 2009, Doc- ~-Q~ 5 15 General as a plaintiff; the motion was denied on December 23, 2009,. ..= ~ 2009, Doc~o~ 18 #311; the motion is denied for the reasons addressed in a separate

19 order filed herewith.20 The parties disputed the factual premises underlying21 plaintiffs' claims and the court set the matter for trial. The22 action was tried to the court January 11-27, 2010. The trial23 proceedings were recorded and used by the court in preparing the24 findings of fact and conclusions of law; the clerk is now DIRECTED25 to file the trial recording under seal as part of the record. The26 parties may retain their copies of the trial recording pursuant to27 the terms of the protective order herein, see Doc #672.28 \ \

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Case3:09-cv-02292-VRW Document708 Filed08/04/10 Page 7 of 138

1 Proponents' motion to order the copies' return, Doc #698, is2 accordingly DENIED.34 PLAINTIFFS' CASE AGAINST PROPOSITION 85 The Due Process Clause provides that no "State (shall)6 deprive any person of life, liberty, or property, without due7 process of law." US Const Amend XIV, 1. Plaintiffs contend that8 the freedom to marry the person of one's choice is a fundamental9 right protected by the Due Process Clause and that Proposition 8

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violates this fundamental right because:1. It prevents each plaintiff from marrying the person ofhis or her choice;2. The choice of a marriage partner is sheltered by theFourteenth Amendment from the state's unwarrantedusurpation of that choice; and3. California's provision of a domestic partnership -- astatus giving same-sex couples the rights andresponsibilities of marriage without providing marriage-- does not afford plaintiffs an adequate substitute formarriage and, by disabling plaintiffs from marrying theperson of their choice, invidiously discriminates,

without justification, against plaintiffs and others whoseek to marry a person of the same sex.19 The Equal Protection Clause provides that no state shall20 "deny to any person within its jurisdiction the equal protection o21 the laws." US Const Amend XIV, 1. According to plaintiffs,22 Proposition 8 violates the Equal Protection Clause because it:23242526

Discriminates against gay men and lesbians by denyingthem a right to marry the person of their choice whereasheterosexual men and women may do so freely; and

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2. Disadvantages a suspect class in preventing only gay menand lesbians, not heterosexuals, from marrying.27 Plaintiffs argue that Proposition 8 should be subjected to28 heightened scrutiny under the Equal Protection Clause because gays

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