afer - plaintiffs brief in opposition - prop 8 challenge

7/31/2019 AFER - Plaintiffs Brief in Opposition - Prop 8 Challenge

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No. 12-144

IN THE

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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

BOIES,SCHILLER &FLEXNER LLP333 Main Street

Armonk, N.Y. 10504

(914) 749-8200

THEODORE J.BOUTROUS,JR.

CHRISTOPHER D.DUSSEAULT

THEANE EVANGELIS KAPUR

ENRIQUEA.MONAGAS

JOSHUAS.LIPSHUTZ

GIBSON,DUNN &CRUTCHER LLP

333 South Grand Avenue

Los Angeles, CA 90071(213) 229-7804

THEODORE B.OLSON

Counsel of RecordMATTHEW D.MCGILL

AMIR C.TAYRANI


1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8500

[email protected]

JEREMYM.GOLDMAN

BOIES,SCHILLER &FLEXNER LLP

1999 Harrison Street, Suite 900

Oakland,CA 94612(510)874-1000

Counsel for RespondentsKristin M. Perry, Sandra B. Stier,

Paul T. Katami, and Jeffrey J. Zarrillo


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QUESTION PRESENTEDWhether it violates the Due Process and Equal

Protection Clauses of the Fourteenth Amendment fora State to use the ballot-initiative process to extin-guish the state constitutional right of gay men andlesbians to marry a person of the same sex.


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TABLE OF CONTENTSPage

QUESTION PRESENTED ........................................... iTABLE OF AUTHORITIES ...................................... iiiOPINIONS BELOW .................................................... 1JURISDICTION .......................................................... 1STATEMENT .............................................................. 1REASONS FOR DENYING THE PETITION .......... 11

I. THE DECISION BELOW IS A CORRECTAPPLICATION OF THIS COURTSDECISION INROMER V.EVANS ....................... 12

II. THE NINTH CIRCUITS DECISION DOESNOT CONFLICT WITHANYDECISION OFTHIS COURT ORANYCOURT OFAPPEALS ...... 20

III.ALTERNATIVE GROUNDS REQUIRE THESAME OUTCOME REACHED BY THECOURT OFAPPEALS ....................................... 26

A. Proponents Lacked Standing To

Appeal The District CourtsDecision .................................................. 26B. Denying Gay Men And Lesbians

The Fundamental Right To MarryViolates Equal Protection ...................... 27

C. Denying Gay Men And LesbiansThe Fundamental Right To Marry

Violates Due Process .............................. 31CONCLUSION .......................................................... 35


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TABLE OF AUTHORITIES

Page(s)

CASESAnderson 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, 23Baker 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. Intl,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


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ivCrawford 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


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vMassachusetts v. U.S. Dept 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


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viTurner v. Safley,

482 U.S. 78 (1987) .................................... 23, 31, 32

U.S. Dept of Agric. v. Moreno,413 U.S. 528 (1973) .............................................. 15

U.S. Dept 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. UnitedStates 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

STATUTES28 U.S.C. 1254 .......................................................... 1

Cal. Fam. Code 297 .................................................. 5

Cal. Fam. Code 308.5 ............................................... 3

RULESFed. R. Civ. P. 52 ....................................................... 20

Sup. Ct. R. 10 ............................................................... 3


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viiOTHER AUTHORITIESDavid Blankenhorn,

How My View on Gay MarriageChanged, N.Y. Times, June 22, 2012 .................. 19


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BRIEF IN OPPOSITION

Kristin M. Perry, Sandra B. Stier, Paul T. Kata-mi, and Jeffrey J. Zarrillo (Plaintiffs) respectfullysubmit this brief in opposition to the petition for awrit of certiorari filed by Dennis Hollingsworth et al.,private individuals designated the official propo-nents of Proposition 8 (Proponents). Pet. 8.

OPINIONS BELOW

The court of appeals opinion is reported at 671F.3d 1052 (Pet. App. 1a). The court of appeals orderdenying rehearing and rehearing en banc is reportedat 681 F.3d 1065 (Pet. App. 441a). The districtcourts findings of fact and conclusions of law are re-ported at 704 F. Supp. 2d 921 (Pet. App. 137a). Thecourt of appeals order certifying a question to theCalifornia Supreme Court is reported at 628 F.3d1191 (Pet. App. 413a). The California SupremeCourts answer is reported at 265 P.3d 1002 (Pet.

App. 318a).

JURISDICTION

The court of appeals filed its opinion on February7, 2012. It denied Proponents timely petition for re-hearing 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 Californias governingcharter a permanent proscription that only marriag-es between a man and a woman would be valid andrecognized in the State and thereby abolished theright to marry that gay men and lesbians in Califor-nia had previously enjoyed. Applying this Courtsprecedents, the court of appeals isolated the particu-


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lar challenged governmental actionProposition 8swithdrawal of the right to marry from gays and les-biansand examined the various justifications ad-

vanced by Proponents. The court concluded thatnone of those proffered justifications was rationallyadvanced by the California electorates act to perma-nently withdraw the right to marry from gay menand lesbians. Instead, Proposition 8 served only toproclaim to Californian gay men and lesbians,through the public law, [the] majoritys disapprovalof them and their relationships. Pet. App. 92a. The

court of appeals accordingly held that Proposition 8violated the Equal Protection Clause of the Four-teenth Amendment.

Proponents now seek review before this Court,disputing the merits of the Ninth Circuits equal pro-tection analysis. That issue, of course, is undeniablyimportantnot least to the Plaintiffs in this actionbut also to the tens of thousands of Californian same-sex couples who continue to suffer the daily humilia-tion of having the State designate their relationshipsand their families as second-rate. Indeed, it fairly

could be maintained that the question whether theStates may discriminate against gay men and lesbi-ans in the provision of marriage licenses is the defin-ing civil rights issue of our time.

In some respects, this case is an attractive vehi-cle for approachingif not definitively resolvingthat issue. This case comes to this Court on a fully-developed factual recordindeed, the most compre-hensive record ever developed in a case challenging arestriction on the right to marry. Moreover, quite

fortuitously, the case comes to the Court contempo-raneously with challenges to the federal Defense ofMarriage Act (DOMA) that will place squarely be-


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fore the Court the question of which standard ofequal protection scrutiny properly applies to lawstargeting gay men and lesbians. This coincidence ofcircumstances could enable the Court to benefit fromthe extensive records developed in both this case andthe DOMA cases as it analyzes the various justifica-tions tendered in support of laws discriminatingagainst gay men and lesbians with respect to theirrelationships.

Yet, this Courts traditional standards for the ex-ercise of certiorari jurisdiction lead inexorably to the

conclusion that this Courts review is not warranted.See Sup. Ct. R. 10. The decision below scrupulouslyapplied this Courts established precedent in Romerv. Evans, 517 U.S. 620 (1996), which invalidated aColorado ballot initiative that deprived gay men andlesbians of legal protections they previously had en-

joyed, to a California ballot initiative that deprivedgay men and lesbians of a legal right they previouslyhad enjoyed. That holding, which necessarily isbound up with the particular state action effectuatedby Proposition 8 and the legal backdrop of substan-

tive rights otherwise accorded to gay men and lesbi-ans under California law, does notindeed, couldnotconflict with any decision of this Court or anydecision of a court of appeals or state court of last re-sort. Moreover, substantial doubts as to Proponents

Article III standing to appealboth to the Ninth Cir-cuit and now this Courtcall into question whetherthis Court could reach Proponents question present-ed 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 val-id or recognized in California. Cal. Fam. Code


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308.5. In May 2008, the California Supreme Courtstruck down Proposition 22, holding that it violatedthe due process and equal protection guarantees ofthe California Constitution, and ordered the State toissue marriage licenses without regard to the sex ofthe prospective spouses. In re Marriage Cases, 183P.3d 384 (Cal. 2008).

After the California Supreme Courts decision inthe Marriage Cases, Proposition 8s proponents fi-nanced and orchestrated a $40 million campaign toamend the California Constitution to abolish the

fundamental right of gay men and lesbians to marrythat was recognized by the state supreme court. Themeasure was placed on the ballot for the November2008 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 val-id or recognized in California.

The Official Voter Information Guide informedvoters that Proposition 8 would [c]hange[ ] the Cali-fornia Constitution to eliminate the right of same-sexcouples to marry in California. Pet. App. 26a. The

Voter Guides Argument in Favor of Proposition8an official statement of the Yes on 8 campaignurged voters to support the measure because [w]eshould not accept a court decision that may result inpublic schools teaching our own kids that gay mar-riage is okay. Pet. App. 81a, 147a. The Argumentasserted that while gays have the right to their pri-

vate lives, they do not have the right to redefine mar-riage for everyone else, and told Californians that

voting YES protects our children. Pet. App. 147a.

Proposition 8 passed by a narrow margin, andwent into effect on November 5, 2008, the day afterthe election. See Strauss v. Horton, 207 P.3d 48, 68


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(Cal. 2009). During the period between the Califor-nia Supreme Courts decision in the Marriage Caseson May 15, 2008, and the effective date of Proposi-tion 8, more than 18,000 same-sex couples were mar-ried in California. Pet. App. 142a. On May 26, 2009,the California Supreme Court upheld Proposition 8against a state constitutional challenge, but heldthat the new amendment to the California Constitu-tion did not invalidate the marriages of same-sexcouples that had been performed before its enact-ment. 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-sexcouples seeking government recognition of their rela-tionships to so-called domestic partnerships. Un-der California law, domestic partners are grantednearly all the substantive rights and obligations of amarried couple, but are denied the venerated label ofmarriage and all of the respect, recognition andpublic 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 whowish to marry. As a direct result of Proposition 8,Plaintiffs were denied the right to marry solely be-cause their prospective spouses are of the same sex.

On May 22, 2009, Plaintiffs filed suit to securethe right to marry. They challenged the constitu-tionality of Proposition 8 under the Due Process andEqual Protection Clauses of the Fourteenth Amend-

ment, and named as defendants Californias Gover-nor, Attorney General, and other officials involved inthe enforcement of Proposition 8. In response, the


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Attorney General admitted that Proposition 8 is un-constitutional, and the remaining government de-fendants denied that Plaintiffs were entitled to reliefbut otherwise declined to defend Proposition 8. Pro-ponents moved to intervene in the case to defendProposition 8, and the district court granted theirmotion.

The district court conducted a twelve-day benchtrial, during which the parties were given a full op-portunity to present evidence in support of their po-sitions. Pet. App. 152a. At trial, the parties called

19 witnesses17 of them by Plaintiffsand playedthe video depositions of other witnesses as well. Pet.

App. 153a. The court admitted into evidence morethan 700 exhibits and took judicial notice of morethan 200 other exhibits.1

On August 4, 2010after hearing more than sixhours of closing arguments and considering hun-dreds of pages of proposed findings of fact and con-clusions of law submitted by the partiesthe districtcourt found in favor of Plaintiffs. The court declaredProposition 8 unconstitutional under the Equal Pro-tection and Due Process Clauses of the Fourteenth

Amendment, and permanently enjoined its enforce-ment. Pet. App. 316a-317a.

The district court concluded that Proposition 8violates the Equal Protection Clause because it cre-

1 The district courts decision to resolve disputed factual is-sues through the trial process was consistent with a long line ofconstitutional cases. See, e.g., United States v. Virginia, 518U.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); CleburneLiving Ctr. v. City of Cleburne, 726 F.2d 191, 192 nn.1-2 (5thCir. 1984).


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ates an irrational classification on the basis of sexualorientation. Pet. App. 286a. As an initial matter,the district court found that the evidence presentedat trial shows that gays and lesbians are the type ofminority strict scrutiny was designed to protect.Pet. App. 300a (citingMass. Bd. of Ret. v. Murgia,427 U.S. 307, 313 (1976) (per curiam)). Based on thetrial record, the district court concluded that [a]llclassifications based on sexual orientation appearsuspect, as the evidence shows that California wouldrarely, if ever, have a reason to categorize individu-

als based on their sexual orientation. Pet. App.301a.

The court found it unnecessary, however, toevaluate Proposition 8 under strict scrutiny becausethe measure failed even rational basis review. Pet.

App. 301a. In reaching that conclusion, the districtcourt carefully evaluated each of Proponents prof-fered justifications for Proposition 8. Ultimately, thedistrict court concluded that, despite ample oppor-tunity and a full trial, Proponents have failed toidentify any rational basis Proposition 8 could con-

ceivably advance. Pet. App. 312a. And, [i]n the ab-sence of a rational basis, the court continued, whatremains of proponents case is an inference, amplysupported by evidence in the record, that Proposition8 was premised on the belief that same-sex couplessimply are not as good as opposite-sex couples. Pet.

App. 312a-313a.

The district court also held that Proposition 8 vi-olates the Due Process Clause because it unconsti-tutionally burdens the exercise of the fundamental

right to marry and cannot withstand rational basisreviewlet alone the strict scrutiny required whena measure infringes on a fundamental right. Pet.


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App. 286a, 295a. The district court found that theright to marry is fundamental for both heterosexualsand for gay men and lesbians, and that unions be-tween individuals of the same sex encompass thehistorical purpose and form of marriage. Pet. App.291a. Accordingly, Plaintiffs were not seek[ing]recognition of a new right, but access to the funda-mental right to marry constitutionally guaranteed toall persons. Id.

Having found that Proponents evidentiarypresentation was dwarfed by that of plaintiffs and

that Proponents failed to build a credible factualrecord to support their claim that Proposition 8served a legitimate government interest, Pet. App.153a, the district court concluded that Plaintiffs wereentitled to a permanent injunction against the en-forcement of Proposition 8. Pet. App. 317a.

3. Proponents appealed the district courts deci-sion to the Ninth Circuit after the State defendantselected not to do so, and obtained a stay of the judg-ment from the Ninth Circuit pending resolution of anexpedited appeal. As a preliminary matter, the courtasked the parties to address Proponents standing toseek review of the district courts order in light ofAr-izonans for Official English v. Arizona, 520 U.S. 43(1997). Pet. App. 420a. After oral argument, thecourt concluded that Proponents claim to standingdepends on [their] particularized interests created bystate law or their authority under state law to defendthe constitutionality of the initiative. Pet. App.420a. Thus, on January 4, 2011, the Ninth Circuitcertified to the California Supreme Court the ques-

tion whether, under California law, the official pro-ponents of an initiative measure possess either aparticularized interest in the initiatives validity or


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the authority to assert the States interest in the ini-tiatives validity. Pet. App. 416a.

In response to the Ninth Circuits certified ques-tion, the California Supreme Court concluded that,[i]n a postelection challenge to a voter-approved ini-tiative, the official proponents of the initiative areauthorized under California law to appear and assertthe states interest in the initiatives validity and toappeal a judgment invalidating the measure whenthe public officials who ordinarily defend the meas-ure or appeal such a judgment decline to do so. Pet.

App. 326a-327a. In so ruling, the court declined todecide whether the official proponents of an initia-tive measure possess a particularized interest in theinitiatives validity once the measure has been ap-proved by the voters. Pet. App. 351a.

4. On February 7, 2012, the Ninth Circuit af-firmed the district courts decision. On the jurisdic-tional issue, the court ruled that Proponents hadstanding to appeal. According to the court, [a]ll thatmatters, for federal standing purposes, is that thePeople have an interest in the validity of Proposition8 and that, under California law, Proponents are au-thorized to represent the Peoples interest. That isthe case here. Pet. App. 40a.

Addressing the merits, the Ninth Circuit did notdecide whether heightened scrutiny applies to laws,like Proposition 8, that target gay and lesbian indi-

viduals for disfavored treatment. Pet. App. 57a n.13(citingRomer, 517 U.S. at 631-32). Nor did the courtdecide whether same-sex couples have a fundamen-tal right to marry under the Due Process Clause. See

Pet. App. 60a. Instead the court focused on the un-precedented and unusual nature of Proposition8an initiative it concluded has no practical effect


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except to strip gay men and lesbians of a right thatCalifornias Constitution had previously guaranteed.Pet. App. 59a-60a; see also Pet. App. 53a-54a (BeforeProposition 8, California guaranteed gays and lesbi-ans both the incidents and the status and dignity ofmarriage. Proposition 8 left the incidents but tookaway the status and dignity.). The court of appealsthen applied rational basis review to that particularand peculiar state action, framing its inquiry aswhether the People of California ha[d] legitimatereasons for enacting a constitutional amendment

that serves only to take away from same-sex couplesthe status and dignity state law previously accordedtheir relationships. Pet. App. 54a.

As the Ninth Circuit explained, because Propo-sition 8 is remarkably similar to the Colorado con-stitutional amendment struck down by this Court in

Romer, 517 U.S. 620, Romer governs our analysisandcompels that we affirm the judgment of the dis-trict court. Pet. App. 57a-60a; see also Pet. App. 56a(This is not the first time the voters of a state haveenacted an initiative constitutional amendment that

reduces the rights of gays and lesbians under statelaw.).

Integral to its analysis was an examination ofthe various rationales advanced by Proponents andtheir amici in support of Proposition 8. Pet. App.69a-85a. After assumingarguendo the legitimacy ofthe governmental interests supposedly advanced byProposition 8, the court of appeals determined thatProponents had failed to explain how rescinding ac-cess to the designation of marriage is rationally re-

lated to any of those interests. Pet. App. 74a. AsinRomer,the court therefore concluded that [Prop-osition 8] was enacted with only the constitutionally


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illegitimate basis of animus toward the class it af-fects, Pet. App. 62a (quotingRomer, 517 U.S. at632), and held Proposition 8 to be unconstitutionalon this ground. Pet. App. 94a.

5. The Ninth Circuit denied Proponents requestfor rehearing or rehearing en banc on June 5, 2012,over the dissent of Judge OScannlain, joined only byJudges Bybee and Bea. Pet. App. 441a-446a. Thecourt ordered that its stay remain in place until finaldisposition of the case by this Court. Pet. App. 444a.

REASONS FOR DENYING THE PETITION

The petition should be denied because the courtof appeals decision striking down Proposition 8 doesnot satisfy any of this Courts traditional standardsfor the exercise of certiorari jurisdiction. The NinthCircuits opinion reflects a careful and straightfor-ward application ofRomer v. Evans, 517 U.S. 620(1996), which held that the Constitution does not al-low for laws of this sort that single out gay menand lesbians for discriminatory treatment. Id. at633. Reviewing an extensive trial record and reach-

ing the same conclusion as the district court, theNinth Circuit found that Proposition 8 serves nopurpose, and has no effect, other than to lessen thestatus and human dignity of gays and lesbians inCalifornia, and to officially reclassify their relation-ships and families as inferior to those of opposite-sexcouples. Pet. App. 17a. That decision does not con-flict with any decision of this Court or any othercourt of appeals. Indeed, it is the only outcome con-sistent with the Equal Protection Clause and thisCourts precedents.

In addition, this case is, at best, a problematicvehicle for review of Proponents claims because theirclaim of Article III standing to appeal is predicated


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on a novel legal theory: that a ballot initiative pro-ponent who has suffered no injury personal to him-self nevertheless may seek to vindicate the Statesinterests in the validity of the initiative. Further,even if this Court were to find that Proponents havestanding, any decision rejecting the Ninth Circuitsinvalidation of Proposition 8 under rational basis re-

view would require this Court to consider several al-ternative grounds for affirmance. As Plaintiffs ar-gued below, Proposition 8 should be subject toheightened scrutiny under the Equal Protection

Clause because it imposes a special disability on adisfavored minority group based on two suspect clas-sificationssexual orientation and sex. Proponentsdo not even attempt to defend Proposition 8 underheightened scrutiny, as that discriminatory measureis obviously not tailored to serve any important orcompelling state interest. Moreover, Proposition 8,which prevents hundreds of thousands of gay andlesbian Californians from exercising their fundamen-tal right to marry the person of their choice, cannotpossibly be squared with the protections afforded to

all Americans by the Due Process Clause.I. THE DECISION BELOW IS A CORRECT

APPLICATION OF THIS COURTS DECISION INROMER V.EVANS.

Far from conflicting with any of this Courts caselaw, the court of appeals decision reflects a correctand straightforward application of settled SupremeCourt precedent. It has been more than a centurysince Justice Harlan proclaimed that the Constitu-tion neither knows nor tolerates classes among citi-zens. Plessy v. Ferguson, 163 U.S. 537, 559 (1896)(Harlan, J., dissenting). Indeed, [n]o duty restsmore imperatively upon the courts than the enforce-ment of those constitutional provisions intended to


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secure that equality of rights which is the foundationof free government. Gulf, Colo. & Santa Fe Ry. Co.v. Ellis, 165 U.S. 150, 160 (1897). The Equal Protec-tion Clause safeguards equality by secur[ing] everyperson within the States jurisdiction against inten-tional and arbitrary discrimination. Village of Wil-lowbrook v. Olech, 528 U.S. 562, 564 (2000) (per cu-riam).

Proposition 8 is antithetical to the principles ofequality on which this Nation . . . prides itself.

Plyler v. Doe, 457 U.S. 202, 219 (1982). It creates a

permanent underclass of hundreds of thousands ofgay and lesbian Californians, id., who are denied theright to marry available to all other Californianssimply because a majority of voters deems gay andlesbian relationships inferior, morally reprehensible,religiously unacceptable, threatening to children, orsimply not okay. In the words of Plaintiffs expertwitness Ilan Meyer, it is quite clear that the youngchildren do not aspire to be domestic partners. But,certainly, the word marriage is something thatmany people aspire to. Trial Tr. 827:14-20. With

the full authority of the State behind it, Proposition 8sends a clear and powerful message to gay men andlesbians: Your relationships are not recognized onthe same footing or entitled to the same dignity orrespect as those of heterosexuals, they are notokay, and they are threatening to children.

A. Proponents claim that the root of the NinthCircuits error is its assertion that Romer turned onthe timing of Colorados Amendment 2 rather thanits substance. Pet. 18. ButRomers plain language

belies Proponents argument, demonstrating that therelative timing of the Colorado amendment was animportant factor in understanding its substance and


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effect: Just like Proposition 8, Colorado Amendment2 repealed provisions that previously advanced non-discriminatory treatment of gay men and lesbians,placing a special disability on those groups and rais-ing the specter that it was motivated by an improperpurpose.

InRomer, this Court explained that [t]he impe-tus for the amendment and the contentious cam-paign that preceded its adoption came in large partfrom ordinances that had been passed in variousColorado municipalities . . . which banned discrimi-

nation. 517 U.S. at 623-24. Amendment 2 repealsthese ordinances to the extent they prohibit discrim-ination on the basis of sexual orientation. Id. at 624(emphasis added); see also id. at 626 (The immedi-ate objective of Amendment 2 is, at a minimum, torepeal existing statutes . . . that barred discrimina-tion based on sexual orientation.) (quotingEvans v.

Romer, 854 P.2d 1270, 1284 (Colo. 1993) (en banc)).As the Court emphasized, [t]he amendment with-draws from homosexuals, but no others, specific legalprotection and imposes a special disability upon

those persons alone. Id. at 627, 631 (emphasis add-ed); see also Reitman v. Mulkey, 387 U.S. 369, 381(1967) (invalidating a voter-enacted California con-stitutional provision that extinguished state-law pro-tections that minorities had previously possessedagainst housing discrimination).

Because laws of th[is] kind uniquely reduce thestatus of a minority group by taking away legalrights and privileges previously accorded, the Courtclosely examined the various rationale[s] the State

offer[ed] to justify the constitutional amendment,which included other citizens freedom of associa-tion, the liberties of landlords or employers who


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have personal or religious objections to homosexuali-ty, and the States interest in conserving resourcesto fight discrimination against other groups.

Romer, 517 U.S. at 634-35. After finding that theamendment was far removed from these particular

justifications, such that it was impossible to creditthem, the Court was left with the inevitable infer-ence that the disadvantage imposed is born of ani-mosity toward the class of persons affected. Id. (cit-ingU.S. Dept 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 aproper legislative end but to make them unequal toeveryone else.).

In this case, the Ninth Circuit performed thesame analysis, and because Proposition 8 made gaymen and lesbians unequal to everyone else with re-spect to the availability of civil marriage, reached thesame conclusion. The fact that Proposition 8 re-scind[s]access [of same-sex couples] to the designa-tion of marriage, Pet. App. 74a, the court reasoned,suggests it was motivated by animus against gay

men and lesbians rather than some legitimate gov-ernmental aim. See Pet. App. 55a (The action ofchanging something suggests a more deliberate pur-pose than does the inaction of leaving it as it is.).

The court of appeals then examined the fit be-tween Proposition 8 and the purported state inter-ests that Proponents and their amici claim it serves:responsible procreation and childrearing, encour-ag[ing] heterosexual couples to enter into matrimo-ny, bolster[ing] the stability of families headed by

one man and one woman, proceed[ing] with cautionwhen considering changes to the definition of mar-riage, protecting religious liberty, and pro-


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tect[ing] our children from being taught in publicschools that same-sex marriage is the same as tradi-tional marriage. Pet. App. 70a, 78a, 81a, 82a (in-ternal quotation marks omitted). After carefullyconsidering the parties arguments, the trial courtsfactual findings, the California Supreme Courtsfindings and interpretation of Proposition 8, and thecampaign literature distributed to voters, Pet. App.69a-85a, 89a-92a, the Ninth Circuit concluded thereis no conceivably plausible relationship betweenProposition 8 and the rationales proffered in its de-

fense by Proponents. Pet. App. 75a; see also Pet.App. 78a ([T]he People of California could not rea-sonably have conceived such an argument to betrue.) (internal quotation marks omitted); Pet. App.78a (Proponents argument lacks any such footing inreality). The court was therefore left with the sameinevitable inference . . . of animosity that doomedthe amendment in Romer. Pet. App. 86a (quoting

Romer, 517 U.S. at 634).

In short, the Ninth Circuit found that eliminat-ing the ability of gay and lesbian couples to have

their relationships designated as marriagesandrelegating them to separate and unequal domesticpartnershipsachieves nothing except the marginal-ization of gay and lesbian individuals and their rela-tionships, and therefore cannot withstand constitu-tional scrutiny. That holding is fully consistent withthis Courts jurisprudence, which has long held thatmarginalizing a group of citizens for its own sake vio-lates the Fourteenth Amendment.

B. Proponents nevertheless argue that two of the

governmental interests described above warrantspecific mention in explaining why, in their opinion,this Court should grant review. Pet. 25.


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First, Proponents contend that the Ninth Circuitoverlooked the origins of marriage and that the in-stitution of marriage owe[s] its very existence to so-cietys vital interest in responsible procreation andchildbearing. Pet. 28; see also Pet. at 37-38([S]upport for the traditional definition of marriageis rooted precisely in . . . maintain[ing] the inherentlink between the institution and its traditional pro-creative purposes.). As the Ninth Circuit held, how-ever, Proponents have never explained the relevanceof this history to Proposition 8. It may very well be

that the creation of marriage and the governmentsdecision to extend[ ] a variety of benefits to marriedcouples are rationally related to the governmentinterest in steering procreation into marriage. Pet.28 (quotingCitizens for Equal Prot. v. Bruning, 455F.3d 859, 867 (8th Cir. 2006)). But depriving gaymen and lesbians of the uniquely cherished status ofmarriage, Pet. App. 52a, obviously does not affectthe likelihood that heterosexuals will procreate re-sponsibly or raise their children in Proponents pre-ferred family structure. It only ensures that gay and

lesbian couples will be denied the worth and digni-ty afforded opposite-sex couples and that their chil-dren will be raised by parents who cannot marry.Pet. App. 88a; see also Pet. App. 237a (Approximate-ly eighteen percent of same-sex couples in Californiaare raising children.).

In addition, Proponents argument fails even onits own terms because the line Proposition 8 drawsbears no relationship whatsoever to Proponentsstated objective of channeling procreative activity in-to marriage. There are many classes of heterosexual

persons who cannot procreate unintentionally, in-cluding the old, the infertile, and the incarcerated.

And there are still other classes of heterosexual per-


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sons who might have the capacity to procreate, butwho have no desire to do so. All of these classes ofheterosexual persons are as unlikely to engage in[ir]responsible procreation and childbearing as asame-sex couple, yet Proposition 8 leaves these clas-ses of heterosexual persons free to marry. Proposi-tion 8 targets gay men and lesbians for exclusion andthem alone. See Pet. App. 76a (Proposition 8 in noway alters the state laws that govern childrearingand procreation. It makes no change with respect tothe laws regarding family structure. As before Prop-

osition 8, those laws apply in the same way to same-sex couples in domestic partnerships and to marriedcouples. Only the designation of marriage is with-drawn and only from one group of individuals.).

Second, Proponents assert that it is not irra-tional for Californians to proceed cautiously on thissensitive and controversial social issue. Pet. 36.But that is not what happened here; California vot-ers did not cautiously opt to observe and assess thestatus quo to determine how to proceed. Pet. 36. Ra-ther, they upended the status quo by enshrining a

blanket prohibition on same-sex marriage in theStates charter, preventing the legislature from au-thorizing same-sex unions. See Pet. App. 79a([T]here could be no rational connection between theasserted purpose of proceeding with caution and theenactment of an absolute ban, unlimited in time, onsame-sex marriage in the state constitution.). Pro-ponents supposedly noteworthy justifications forProposition 8 thus provide no justification whatsoev-er.

3. Proponents conclude by asserting that thereis no truth to the panel majoritys charge that Propo-sition 8 is nothing more than an effort to dishonor a


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disfavored group and to proclaim the lesser worth ofgays and lesbians as a class. Pet. 37 (emphasisadded). But the time and place for uncovering thetruth is at trial, and the trial court found other-wise. The trial record, for example, included testi-mony from Dr. George Chauncey, Professor of Histo-ry at Yale University, who explained that the publicmessages disseminated by the Yes on 8 campaignevoked fears of gay people as child molesters and re-cruiters of children (Pet. App. 279a-284a), and fromHak-Shing William Tam, an official proponent of

Proposition 8 called by Plaintiffs as an adverse wit-ness, who testified that the campaign messages weredesigned to convince people that legalizing same-sexmarriage would lead children to become gay andfantasize marrying someone of the same sex, a life-style associated with disease. Pet. App. 165a,281a-284a. According to Dr. Tam, there is a gayagenda that includes legalizing prostitution and sexwith children, and permitting gays and lesbians tomarry in California would cause states one-by-oneto fall into Satans hands. Pet. App. 165a, 281a-

284a.Even Proponents own expert witnessthe only

witness who purported to provide any rational basisfor Proposition 8, and on whose testimony Propo-nents continue to rely, see Pet. 36recently conclud-ed that the time has come for [him] to accept gaymarriage and emphasize the good that it can do.David Blankenhorn,How My View on Gay MarriageChanged, N.Y. Times, June 22, 2012. This decisionwas driven by Mr. Blankenhorns acknowledgementthat to [his] deep regret, much of the opposition to

gay marriage seems to stem, at least in part, from anunderlying anti-gay animus. Id.; see also Trial Tr.2608:16-18 (testimony of Proponents expert witness


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Kenneth Miller, expressing his view that at leastsome people voted for Proposition 8 on the basis ofanti-gay stereotypes and prejudice). Indeed, evenbefore his recent change of heart, Mr. Blankenhorntestified at trial that the elimination of Proposition 8would make us all more American by affirmingthat the principle of equal human dignity must ap-ply to gay and lesbian persons. Pet. App. 196a.There is accordingly no reason for this Court to dis-turb the trial courts considered factual finding thatanimus was, indeed, the driving force behind Propo-

sition 8, or the Ninth Circuits decision affirmingthat determination. See Anderson v. City of Besse-mer City, 470 U.S. 564, 573-75 (1985); Fed. R. Civ. P.52(a).2

II. THE NINTH CIRCUITS DECISION DOES NOTCONFLICT WITH ANY DECISION OF THISCOURT ORANYCOURT OFAPPEALS.

A. Proponents contend that [t]he Ninth Circuitsdecision cannot be squared with Crawford v. Boardof Education, 458 U.S. 527 (1982). Pet. 15. ButCrawford itself demonstrates that Proponents arewrong. In fact, Crawford supports the Ninth Cir-cuits approach in this case.

2 Proponents point to Californias generous domestic part-nership laws, Pet. 34, which they say represent some of theNations most sweeping and progressive protections of gays andlesbians, Pet. 6, as proof that Californias gay-friendly voterscould not have acted with animus in enacting Proposition 8.But there is no Mostly Equal Protection Clause or SeparateBut Equal Protection Clause in the U.S. Constitution, and mi-

norities need not be satisfied with mere graciousness from themajority. See United States v. Virginia, 518 U.S. 515, 554(1996).


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In Crawford, this Court affirmed the constitu-tionality ofan amendment to the California Consti-tution instructing state courts to stop ordering thebusing of studentswhich they had previously re-quired as a means of desegregating schoolsunlessthe Fourteenth Amendment of the U.S. Constitutionrequired it. 458 U.S. at 529. Unlike Proposition 8,the amendment at issue in Crawford did not reduceor eliminate the substantive rights of any particulargroup. This Court was crystal clear on that point:

[T]he Proposition simply removes one

means of achieving the state-created rightto desegregated education. School dis-tricts retain the obligation to alleviatesegregation regardless of cause. And thestate courts still may order desegregationmeasures other than pupil school assign-ment or pupil transportation.

Id. at 544 (emphasis added). Further, the amend-ment at issue in Crawford could not have violatedthe U.S. Constitution because, by its own terms, itrequired state courts to take whatever actions wereconstitutionally required. See id. at 535 (It wouldbe paradoxical to conclude that by adopting theEqual Protection Clause of the Fourteenth Amend-ment, the voters of the State thereby had violatedit.).

Proponents repeatedly point to Crawfords lan-guage reject[ing] the contention that once a Statechooses to do more than the Fourteenth Amendmentrequires, it may never recede. Pet. 4 (quoting 458U.S. at 535); Pet.15 (same). But they ignore the im-

portant corollary to that rule: Crawford, even beforeRomer, recognized that if the purpose of repealinglegislation is to disadvantage a . . . minority, the re-


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peal is unconstitutional for this reason. 458 U.S. at539 n.21. Crawford, just likeRomer and the decisionbelow, therefore examined the purposes allegedlyserved by the amendmentfor example, the educa-tional benefits of neighborhood schoolingby look-ing at the state courts findings and the relevantcampaign literature. Id. at 543-44. Unlike Romerand this case, however, there was ample evidence inCrawford to demonstrate that Proposition I was notmotivated by a discriminatory purpose. Id. at 545.The decision belowbased on a different record con-

cerning a different ballot proposition purportedlyjustified by different interestsdoes not even impli-cate, much less contradict, Crawfords case-specificconclusion.

B. Proponents also claim the decision below con-flicts withBaker v. Nelson, 409 U.S. 810 (1972). SeePet. 23-24. The Ninth Circuit panel majority anddissent, however, both agreed that Baker does notcontrol: As Judge N.R. Smith explained in his dis-sent, the constitutionality of withdrawing fromsame-sex couples the right of access to the designa-

tion of marriage does not seem to be among the spe-cific challenges raised inBaker. Pet. App. 103a; seealso Pet. App. 60a n.14.

The Ninth Circuit panels unanimous conclusionthat it was not bound by Baker is unquestionablycorrect. InBaker, this Court dismissed for want of asubstantial federal question, 409 U.S. at 810, an ap-peal from a Minnesota Supreme Court decision re-

jecting federal due process and equal protection chal-lenges to the States refusal to issue a marriage li-

cense to a same-sex couple, Baker v. Nelson, 191N.W.2d 185 (Minn. 1971). This Courts summarydismissals are binding on lower courts only on the


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precise issues presented and necessarily decided bythe Court, Mandel v. Bradley, 432 U.S. 173, 176(1977) (per curiam) (emphasis added), and only tothe extent that they have not been undermined bysubsequent doctrinal developments in the Courts

jurisprudence, Hicks v. Miranda, 422 U.S. 332, 344(1975) (internal quotation marks omitted); see alsoTurner v. Safley, 482 U.S. 78, 96 (1987).

The Courts summary disposition of the equalprotection question in Baker does not meet either ofthese requirements. As an initial matter,Baker pre-

sented an equal protection challenge based solely onsex discrimination and therefore cannot conceivablyforeclose Plaintiffs claim that Proposition 8 discrim-inates against gay and lesbian individuals on the ba-sis of their sexual orientation. See JurisdictionalStatement at 16, Baker, 409 U.S. 810 (No. 71-1027)(The discrimination in this case is one of gender.).In any event,Bakers summary treatment of the sex-based equal protection challenge to Minnesotas mar-riage law cannot survive later doctrinal develop-ments 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); Fron-tiero v. Richardson, 411 U.S. 677, 688 (1973) (plurali-ty). And, to the extent Bakers equal protection rul-ing ever applied to classifications involving sexualorientation, that ruling has been undermined bysubsequent doctrinal developments, including

Romer.

Moreover, the Courts summary dismissal inBaker addressed an equal protection challenge to a

marriage framework that is far different from theone that Plaintiffs are challenging here, and there-fore cannot be controlling on any component of Plain-


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tiffs claims. WhereasBaker concerned the constitu-tionality of an outright refusal by a State to affordany recognition to same-sex relationships, Plaintiffssuit challenges California voters use of the ballot in-itiative process to withdraw from unmarried gay andlesbian individuals their preexisting state constitu-tional right to marry and relegate them to the inher-ently unequal institution of domestic partnership.Whatever the constitutional flaws in Minnesotasblanket denial of recognition to same-sex relation-ships, Proposition 8 is uniquely irrational and dis-

criminatory: California voters used the initiativeprocess to single out unmarried gay and lesbian in-dividuals for a special disability (Romer, 517 U.S.at 631) by extinguishing their state constitutionalright to marry, while at the same time preservingthe 18,000 existing marriages of gay and lesbiancouples (but not allowing those individuals to remar-ry if divorced or widowed) and affording unmarriedgay and lesbian individuals the right to enter intodomestic partnerships that carry virtually all thesame rights and obligationsbut not the highly ven-

erated labelassociated with opposite-sex marriages(and existing same-sex marriages).3

C. Proponents also incorrectly claim that thecourt of appeals decision conflicts with the EighthCircuits decision inBruning, 455 F.3d 859. See Pet.

3 Nor does the Ninth Circuits decision conflict withJohnsonv. Robison, 415 U.S. 361 (1974). See Pet. 30-31. That Congresshad a rational basis for declining to extend scarce veteransbenefits to conscientious objectors who refused to serve theircountry on active duty in the Armed Forces, 415 U.S. at 374,

does not remotely establish that California had a rational basisfor dispossessing members of a discrete minority group of theirright to marry.


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24. The amendment to the Nebraska Constitution atissue in Bruning not only declared that same-sexcouples could not be designated as married, but,unlike Proposition 8, also prevented the State fromrecognizing civil unions, domestic partnerships, orany other same-sex relationship. See 455 F.3d at863. Unlike Proposition 8, it also refused to grantNebraskan same-sex couples the full basket ofrights and benefits [afforded] to married heterosexu-al couples. Id. at 867.

These important differences do not mean that

Proposition 8 would be constitutional if only it hadgone further, Pet. App. 76a, but they do alter therational basis analysis because they create an entire-ly distinct means-end fit between Nebraskas lawand its purported purposes. Compare Bruning,455F.3d at 868 (The package of government benefitsand restrictions that accompany the institution offormal marriage serve a variety of . . . purposes. Thelegislature . . . may rationally choose not to expandin wholesale fashion the groups entitled to thosebenefits.), with Pet. App. 59a-60a (A law that has

no practical effect except to strip one group of theright to use a state-authorized and socially meaning-ful designation is all the more unprecedented andunusual than a law that imposes broader changes,and raises an even stronger inference that the disad-

vantage imposed is born of animosity toward theclass of persons affected.) (internal quotation marksomitted). Thus, there is no conflict between the deci-sion below and the conclusions reached by the EighthCircuit under different circumstances inBruning.


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III. ALTERNATIVE GROUNDS REQUIRE THE SAMEOUTCOME REACHED BY THE COURT OF

APPEALS.

This Court should also deny the petition becauseit requires the Court first to resolve an unsettledthreshold question of Article III standing. Then, if itreached the merits and rejected the Ninth Circuitsreasoning, the Court still would be confronted withseveral alternative grounds for affirmance uponwhich the district court relied.

A. Proponents Lacked Standing To

Appeal The District Courts Decision.

If this Court granted review, it would be requiredto decide whether Proponents had standing to appeala decision that has no direct effect on them. The Cal-ifornia Supreme Courts ruling that Proponents mayrepresent the States interests on appeal does notand cannotalter Proponents inability to meet theirreducible constitutional minimum requirementsof standing established by Article III of the UnitedStates Constitution. Lujan v. Defenders of Wildlife,

504 U.S. 555, 560 (1992). To satisfy Article III, aparty must establish, among other things, that it hassuffered an injury that is personal, particularized,concrete, and otherwise judicially cognizable.

Raines v. Byrd, 521 U.S. 811, 820 (1997); see alsoLujan, 504 U.S. at 560. In other words, theArt[icle] III judicial power exists only to redress orotherwise to protect against injury to the complain-ing party. Vt. Agency of Natural Res. v. United

States ex rel. Stevens, 529 U.S. 765, 771 (2000) (quot-ingWarth v. Seldin, 422 U.S. 490, 499 (1975)) (em-

phasis inStevens).Proponents would not suffer any personalized in-

jury as a result of the invalidation of Proposition 8


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and thus are unable to satisfy the requirements ofArticle III, even if, under state law, they have theright to represent the States interests in Proposition8. See Arizonans for Official English v. Arizona, 520U.S. 43, 64 (1997); U.S. Dept of Labor v. Triplett, 494U.S. 715, 720 (1990). Because the California Su-preme Courts decision cannot override Article III,this Court would have to decide, as a threshold mat-ter, whether the Ninth Circuit should have dismissedthe appeal for lack of jurisdiction. See Phillips Petro-leum Co. v. Shutts, 472 U.S. 797, 804 (1985) (Stand-

ing to sue in any Article III court is . . . a federalquestion which does not depend on the partys priorstanding in state court.).

B. Denying Gay Men And Lesbians TheFundamental Right To Marry

Violates Equal Protection.

Were this Court to find that Proponents hadstanding to appeal but disagree with the Ninth Cir-cuits rational basis analysis, it would then be re-quired to address whether some form of heightenedscrutiny should apply under the Equal ProtectionClause.

1. Strict and intermediate equal protection scru-tiny apply to classifications based on factors so sel-dom relevant to the achievement of any legitimatestate interest that laws grounded in such considera-tions are deemed to reflect prejudice and antipathy.City of Cleburne v. Cleburne Living Ctr., Inc., 473U.S. 432, 440 (1985). This Court has consistentlyapplied heightened scrutiny where a group has expe-rienced a history of purposeful unequal treatment or

been subjected to unique disabilities on the basis ofstereotyped characteristics not truly indicative oftheir abilities. Mass. Bd. of Ret. v. Murgia, 427 U.S.


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307, 313 (1976) (per curiam) (internal quotationmarks omitted); see also United States v. Virginia,518 U.S. 515, 531-32 (1996) (noting long and unfor-tunate history of sex discrimination) (internal quo-tation marks omitted).

In this case, the district court found that the ev-idence presented at trial shows that gays and lesbi-ans are the type of minority strict scrutiny was de-signed to protect. Pet. App. 300a. That finding fol-lows inexorably from this Courts equal protection

jurisprudence, the extensive trial record, and Propo-

nents repeated concessions that gay men and lesbi-ans have faced a history of discrimination based on atrait that has no bearing on their ability to contrib-ute to society. As Plaintiffs expert Gary Segura ex-plained, [t]here is no group in American society whohas been targeted by ballot initiatives more thangays and lesbians, and [t]hey have essentially losta hundred percent of the contests over same-sexmarriage. Trial Tr. 1552:6-12. Indeed, the undis-

puted fact that gay men and lesbians have been sub-jected to a history of discrimination based on a trait

that bears no relationship to their ability to contrib-ute to society is sufficient, in and of itself, to renderclassifications based on sexual orientation suspect(or, at the very least, quasi-suspect) and to give riseto heightened scrutiny.4

4 Among other things, the district courts findings of fact ex-amine the painful history of discrimination faced by gay menand lesbians, their lack of political power (including the fre-quent successful targeting of them through ballot initiatives),their ability to contribute equally to society, and the immutabil-

ity of sexual orientation. See Pet. App. 228a-234a, 264a-279a.Because it applied rational basis review, the court of appealsdid not have occasion to address these findings. It thus would


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Proponents do not even attempt to argue thatProposition 8 would survive heightened scrutiny ifsexual orientation were declared to be a suspect clas-sification, as it plainly would not.

2. Heightened scrutiny is also warranted becauseProposition 8 discriminates on the basis of sex.Proposition 8 prohibits a man from marrying a per-son whom a woman would be free to marry, and vice-

versa. As the district court explained: Perry is pro-hibited from marrying Stier, a woman, because Perryis a woman. If Perry were a man, Proposition 8

would not prohibit the marriage. Thus, Proposition 8operates to restrict Perrys choice of marital partnerbecause of her sex. Pet. App. 297a-298a.

The fact that Proposition 8s discriminatory re-strictions apply with equal force to both sexes doesnot cure its constitutional deficiencies. As this Courtheld in Loving v. Virginia, the mere fact that Vir-ginias anti-miscegenation law had equal application[to both the white and African-American member ofthe couple] d[id] not immunize the statute from the

very heavy burden of justification which the Four-teenth Amendment has traditionally required ofstate statutes drawn according to race. 388 U.S. 1,9 (1967). [E]qual application is thus a plainly in-sufficient basis for defending discriminatory re-strictions on the right to marry.

The district court also found that the sex-basedrestriction 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 levelof deference to be accorded to the district courts factual find-ings on these topics.


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founded stereotypes about the roles that men andwomen should play in society and in the family. Asthe district court explained, [T]he evidence showsthat the tradition of gender restrictions arose whenspouses were legally required to adhere to specificgender roles. Pet. App. 303a. Today, Californiahas eliminated all legally-mandated gender roles ex-cept the requirement that a marriage consist of oneman and one woman. Pet. App. 303a.

Classifications based on sex are unconstitutionalunless the State proves that they are substantially

related to an important governmental objective[ ].Virginia, 518 U.S. at 533 (internal quotation marksomitted). As discussed above, Proponents make noserious attempt to satisfy such heightened scrutiny.Proposition 8 is therefore unconstitutional for theadditional, independent reason that it impermissiblydiscriminates on the basis of sex.

3. Even if this Court were to determine thatstrict and immediate scrutiny are inapplicable toProposition 8, it would nevertheless need to deter-mine whether a form of heightened rational basis re-

view applies. Indeed, the First Circuit recently ap-plied such a standard in assessing the constitutional-ity of DOMA, explaining the need for intensifiedscrutiny of purported justifications where minoritiesare subject to discrepant treatment. Massachusettsv. U.S. Dept of Health & Human Servs., 682 F.3d 1,10 (1st Cir. 2012) (citingMoreno, City of Cleburne,andRomer),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 courttherefore conducted a more careful assessment ofthe justifications [for the law] than the light scrutiny


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offered by conventional rational basis review, id. at11, ruling that the rationales offered do not provideadequate support for section 3 of DOMA. Id. at 15.Proposition 8 would likewise fail the version of ra-tional basis review applied by the First Circuit.

C. Denying Gay Men And Lesbians TheFundamental Right To Marry

Violates Due Process.

If this Court granted review and rejected theNinth Circuits holding, it would also be confrontedwith the question whether gay men and lesbians are

entitled to the fundamental right to marry that theCourt long ago recognized to be inherent in the DueProcess Clause. The freedom of personal choice inmatters of marriage is a well-established fundamen-tal right. Cleveland Bd. of Educ. v. LaFleur, 414U.S. 632, 639 (1974). In more than a dozen casesover the last century, this Court has reaffirmed thatthe right to marry is one of the liberties protected bythe Due Process Clause, id.; essential to the orderlypursuit of happiness by free men, Loving, 388 U.S.at 12; and sheltered by the Fourteenth Amendmentagainst the States unwarranted usurpation, disre-gard, 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. Intl, 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);Boddiev. Connecticut, 401 U.S. 371, 376, 383 (1971); Griswold v. Con-

necticut, 381 U.S. 479, 486 (1965); Skinner v. Oklahoma ex rel.Williamson, 316 U.S. 535, 541 (1942); Meyer v. Nebraska, 262U.S. 390, 399 (1923);Maynard v. Hill, 125 U.S. 190, 205 (1888).


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In fact, this Court has characterized the right tomarry as one of the most fundamental rightsif notthe most fundamental rightof an individual. Lov-ing, 388 U.S. at 12. The Court has defined marriageas 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 (Lawrencev. Texas, 539 U.S. 558, 574 (2003)), and association(M.L.B., 519 U.S. at 116). Marriage is a coming to-gether for better or for worse, hopefully enduring,and intimate to the degree of being sacred. Gris-

wold, 381 U.S. at 486 (emphasis added). The rightis of fundamental importance for all individuals.Zablocki, 434 U.S. at 384 (emphasis added). Indeed,[w]hen slaves were emancipated, they flocked to getmarried because they believed that the ability tomarry legally, to replace the informal unions inwhich they had formed families and had children . . .with legal, valid marriage . . . would presumably pro-tect their vows to each other. Trial Tr. 202:22-203:9(testimony of Plaintiffs witness Nancy Cott, an ex-pert 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 thepartner of ones choicenot on the partner chosen.

See generally Loving, 388 U.S. 1; Turner, 482 U.S.78. Thus, just as striking down Virginias prohibi-tion on marriage between persons of different racesdid not require this Court to recognize a new consti-tutional right to interracial marriage in Loving, in-

validating Proposition 8 would not require recogni-tion of a new right to same-sex marriage. Instead, it

would vindicate the longstanding right ofall personsto exercise freedom of personal choice in decidingwhether and whom to marry. SeeLawrence, 539


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U.S. at 566, 574 (invalidating Texass criminal pro-hibition on same-sex intimate conduct because it vio-lated the right to personal sexual autonomy guaran-teed by the Due Process Clause, not because it vio-lated a fundamental right of homosexuals to en-gage in sodomy) (internal quotation marks omitted).

Because Proposition 8 burdens that fundamentalright, it is unconstitutional unless Proponents candemonstrate that it is narrowly drawn to further acompelling state interest[ ], Carey v. Population

Servs. Intl, 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 ap-peals is correct and reflects a straightforward appli-cation of this Courts decision inRomer. Because theNinth Circuits decision necessarily is bound up withthe particular circumstances presented by Proposi-tion 8, that decision does not conflict with any deci-sion of this Court or any other court of appeals.While there are circumstances that might make re-

view of this obviously important issue attractive atthis timeparticularly the possibility of resolvingthis case in conjunction with the challenges to

6 This due process argument is not affected by this Courtssummary affirmance in Baker because subsequent doctrinaldevelopments have deprivedBakers due process holding of anyprecedential force. This Courts decision in Lawrence, a caselargely ignored by Proponents, confirmed that the Due ProcessClause afford[s] . . . protection to personal decisions relating tomarriage, procreation, contraception, family relationships,

[and] child rearing and that [p]ersons in a homosexual rela-tionship may seek autonomyfor these purposes, just as hetero-sexual persons do. 539 U.S. at 574 (emphasis added).


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DOMAthose considerations must be weighedagainst the substantial and irreparable harm the pe-riod of additional review would impose on Plaintiffsand those situated similarly to them. Each dayPlaintiffs rights to marry are denied is a day thatcan never be returned to thema wrong that cannever be remedied. SeeDombrowski v. Pfister, 380U.S. 479, 486 (1965) (substantial loss or impair-ment of a constitutional right is an irreparable in-

jury). The Ninth Circuits decision to vindicatethose rights in accordance with this Courts prece-

dents does not warrant this Courts review.


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CONCLUSION

For the foregoing reasons, the petition for a writof certiorari should be denied.

Respectfully submitted.

DAVID BOIES


333 Main Street

Armonk, N.Y. 10504

(914) 749-8200

THEODORE J.BOUTROUS,JR.

CHRISTOPHER D.DUSSEAULTTHEANE EVANGELIS KAPUR

ENRIQUEA.MONAGAS

JOSHUAS.LIPSHUTZ


333 South Grand Avenue

Los Angeles, CA 90071

(213) 229-7804

THEODORE B.OLSON

Counsel of Record

MATTHEW D.MCGILL

AMIR C.TAYRANI


1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) [email protected]

JEREMYM.GOLDMAN


1999 Harrison Street, Suite 900

Oakland,CA 94612

(510)874-1000

Counsel for Respondents Kristin M. Perry, Sandra B. Stier,

Paul T. Katami, and Jeffrey J. Zarrillo

August 24, 2012

afer - plaintiffs brief in opposition - prop 8 challenge

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