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Plaintiffs-Appellees, V.: Amici Curiae
Plaintiffs-Appellees, V.: Amici Curiae
No. 10-16696
IN THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
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TABLE OF CONTENTS
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TABLE OF AUTHORITIES
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Cases
Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982)..................................................1
Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32 (1928) ..................................19
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TABLE OF AUTHORITIES
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Statutes
1 U.S.C. § 7 ................................................................................................................6
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TABLE OF AUTHORITIES
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TABLE OF AUTHORITIES
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TABLE OF AUTHORITIES
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the history of equal protection rights under the U.S. Constitution. We urge this
Proposition 8 (hard-wiring the state constitution to limit civil marriage to one man,
one woman) is unconstitutional for the same reasons the Supreme Court
divorced from any factual context from which we could discern a relationship to
sake, something the Equal Protection Clause does not permit. ‘[C]lass legislation
Proposition 8 lacks the rational basis required by Romer for such initiatives. The
Yes on 8 campaign was an open appeal for voters to recast gay people as second-
class citizens, based on animus or sectarian morality (or both). Romer holds that
1
Our reliance on Romer renders irrelevant Appellants’ argument that this appeal is
governed by Baker v. Nelson, 409 U.S. 810 (1972) (dismissing a same-sex
marriage constitutional appeal that did not raise the Romer concerns with animus-
inspired voter initiatives), and Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982)
(similar).
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anti-gay animus cannot constitutionally be the basis for state discrimination. 517
classifications must not be ‘drawn for the purpose of disadvantaging the group
burdened by the law.’” Lawrence v. Texas, 539 U.S. 558, 583 (2003) (O’Connor,
J., concurring in the judgment) (quoting Romer, 517 U.S. at 633). Proposition 8
was sold to the voters as a measure to lower the legal status of gay and lesbian
couples for reasons of morality or animus, and that violates the Equal Protection
Clause.
ARGUMENT
I. Save Our Children: Anti-Gay Initiatives, 1977-2008
Whether it is racism, anti-Semitism, or homophobia, prejudice or animus is
group.2 The prejudiced person tends to sexualize minorities and to view them as
predatory threats; the longstanding stereotype about “homosexuals” is that they are
2
See Elisabeth Young-Bruehl, The Anatomy of Prejudices 32-37, 157-58 (1996);
Stephen Thomsen, Violence, Prejudice, and Sexuality 17-36 (2009).
3
The child molester stereotype is completely false. E.g., Carole Jenny et al., Are
Children at Risk for Sexual Abuse by Homosexuals?, 94 Pediatrics 41 (1994).
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Stereotypes and Attitudes Toward Lesbians and Gays, in Stigma and Sexual
Orientation 62-63 (Gregory M. Herek ed., 1998); accord ER 133 (district court’s
2009). Between 1972 and 2005, seventy-one percent of anti-gay ballot initiatives
The first major anti-gay initiative was Anita Bryant’s 1977 “Save Our
predatory: because they could not “reproduce,” these “vile beastly creatures” must
4
Donald P. Haider-Markel et al., Lose, Win, or Draw: A Reexamination of Direct
Democracy and Minority Rights, 60 Pol. Res. Q. 304 (2007) (Trial Ex. PX0839);
accord Barbara Gamble, Putting Civil Rights to a Popular Vote, 41 Am. J. Pol.
Sci. 245 (1997) (similar success rate for 1959-93).
5
Anita Bryant, The Anita Bryant Story 6 (1977); see also James T. Sears, Rebels,
Rubyfruits, and Rhinestones: Queering Space in the Stonewall South 372 n. 63
(2001); id. at 119-30, 226-45 (describing the Bryant campaign).
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indicated that voters were satisfied with the anti-discrimination ordinance, Save
vote to repeal it in June 1977. The next day, the Florida Legislature barred
lesbians and gay men from adopting children, based upon the same protect-the-
family rationale. Fla. Stat. § 63.042(3). Because this law lacks a rational basis and
was grounded in anti-gay animus, the Florida courts have ruled that it is an
perverts,” 1909 Cal. Stat. 1093-94, and grouped them with child molesters and
were purifying public culture, protecting children, and reaffirming family values.8
6
The 1977 law was upheld against federal constitutional attack, Lofton v. Sec’y,
Dep’t of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004), but a state
appellate court affirmed a trial court order invalidating it under the Florida
Constitution, see In re Adoption of X.R.G. & N.R.G., No. 3D08-3044 (Fla. Dist. Ct.
App. Sept. 22, 2010). Florida is currently not enforcing the law.
7
See 1945 Cal. Stat. 623 § 5500 (amending sexual psychopath law, originally
protecting children, to include sodomy between consenting adults).
8
See William N. Eskridge Jr., Dishonorable Passions: Sodomy Law in America,
1861-2003, at 73 (2008).
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brought to the California voters by Senator John Briggs in 1978, invoked these
traditional prejudices.9
Thus, the Yes on 6 campaign argued that gay teachers would assault
pornographers, and Richard Nixon.10 Senator Briggs also made the recruitment
argument: “They don’t have any children of their own. If they don’t recruit
children or very young people, they’ll all die away. . . . That’s why they want to be
9
See 1978 Cal. Ballot, Prop. 6 (barring persons who advocate or practice
homosexual relations from teaching in public schools), discussed in Nan D.
Hunter, Identity, Speech, and Equality, 79 Va. L. Rev. 1695, 1702-06 (1993).
10
Randy Shilts, The Mayor of Castro Street: The Life and Times of Harvey Milk
239 (1988).
11
Id. at 230.
12
See Dudley Clendinen & Adam Nagourney, Out for Good: The Struggle to
Build a Gay Rights Movement in America (1999).
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promiscuous and predatory, seeking to invade decent straight people’s schools and
churches, take away their jobs, and recruit their children for homosexuality.13 Like
Anita Bryant and John Briggs, the Amendment 2 proponents understood their
campaign as protecting the family,14 but the Romer Court saw the matter otherwise
predicting dire public consequences if lesbians and gay men secure equal rights.
These modernized arguments are often grounded upon unfair stereotypes that gay
Congress enacted the Defense of Marriage Act (“DOMA”), Pub. L. No. 104-199,
110 Stat. 2419 (1996), permanently excluding lesbian and gay couples from
no evidence that excluding gay couples would actually help the institution of
13
The Amendment 2 ballot materials are reprinted in Robert Nagel, Playing
Defense, 6 Wm. & Mary Bill Rts. J. 167, 191-99 (1997).
14
See Stephen Bransford, Gay Politics vs. Colorado and America: The Inside
Story of Amendment 2 (1994).
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sponsor proclaimed that the country needed to reaffirm family values because the
are licking at the very foundation of our society: the family unit.”16
by Senator Pete Knight. His campaign argued that homosexuals are not normal
and that their selfish agenda involves the “trash[ing]” of marriage.17 Knight’s
positive message was this: “We must affirm the importance of Mom and Dad in
our children’s lives,” which he thought could only be achieved by denying formal
15
H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2920.
See Andrew Koppelman, The Gay Rights Question in Contemporary American
Law (2002), for a critical examination of DOMA.
16
142 Cong. Rec. H17,070 (daily ed. July 12, 1996).
17
Television Interview by Leon Worden with W.J. “Pete” Knight, Cal. State
Senator, Santa Clarita, Cal. (Apr. 1, 2004), available at
http://www.scvhistory.com/scvhistory/signal/newsmaker/sg042504.htm (marriage
“is being deliberately trashed” by gay activists seeking same-sex marriage).
18
League of Women Voters, Nonpartisan In-Depth Analysis of Proposition 22
(2000) (statement supporting Proposition 22, by its sponsors), available at
http://ca.lwv.org/lwvc.files/mar00/id/prop22.html.
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inconsistent with evidence from countries (like Denmark) that legally recognized
lesbian and gay partnerships yet saw marriage among straight people make a
where marriage has made a modest comeback since 2003, when gay marriage was
legalized. See infra Part II.C.2. The California Supreme Court rejected defense-
of-marriage arguments in In re Marriage Cases, 183 P.3d 384 (Cal. 2008). Ruling
that lesbian and gay couples had state constitutional equality entitlements to the
invalidated Proposition 22, for it perpetuated the stigma that “gay individuals and
override the result of the Marriage Cases. The campaign was nothing short of a
together” to “fight” for a legal regime where lesbian and gay unions are marked as
inferior, the message they derived from the Bible. Karla Dial, Golden State
Warriors, Focus on the Family: Citizen, Sept. 2008, at 18, 23 (the origins of
19
William N. Eskridge Jr. & Darren R. Spedale, Gay Marriage: For Better or for
Worse? What We’ve Learned from the Evidence 173-75, 190-92 (2006) (Trial Ex.
PX2342) (Denmark, the first modern state to give virtually all marriage rights and
duties to lesbian and gay couples (in 1989), saw its marriage rates go up and
divorce rates go down in the two decades after 1989).
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Proposition 8). The official ballot materials distributed to the voters announced the
Exhibits and other evidence relating to the Yes on 8 campaign in the trial court
record confirm that these were the arguments made by ProtectMarriage.com and
20
ER 1032 (California Voter Information Guide listing arguments in favor of
Proposition 8, signed by its sponsors). The official Yes on 8 campaign materials
repeated these three arguments almost as a mantra. E.g., ER 1035
(ProtectMarriage.com “Questions & Answers About Proposition 8”).
21
E.g., ProtectMarriage.com, “Restoring and Protecting Marriage” (opening with
Genesis 2:24) (Trial Ex. PX0012).
22
SER 609 (Tam Hak Sing, “The Harm to Children from Same-Sex Marriage”
(translation from Chinese)).
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prejudice. “[T]here were limits to the degree of tolerance that Californians would
afford the gay community,” boasted the Yes on 8 publicists, SER 352, and the
protect-our-children theme was the time-tested means for mobilizing people’s anti-
laid out the argument in a ProtectMarriage.com flyer. When public schools teach
health education, the law requires that the instruction “shall teach respect for
marriage.” Letter from Dennis Hollingsworth 2 (Oct. 9, 2008) (Trial Ex. PX0009);
bias”). His letter went on to say, “We should not accept a court decision that
forces public schools to teach our kids that gay marriage is okay. But that is
exactly what will happen if Proposition 8 fails. In fact, it has already happened in
Massachusetts, see Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008), where parents
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statutory right to remove their children from public school “instruction that
conflicts with [their] religious training and beliefs.” Cal. Educ. Code § 51240(a).)
Marriage Cases says what schools must or must not teach, nor would marriage
equality interact with California law to “force” gay marriage upon the children of
unwilling parents. The Education Code does not require participating school
districts to say anything about gay marriage; what it requires is that if schools teach
health education, they must teach respect for “marriage and committed
matter of their discretion, so long as it is neutral. Thus, before the Marriage Cases,
and after Proposition 8, schools could teach that domestic partners ought to be
admired just as much as married couples, or they could say nothing about gay (or
straight) couples and just talk about the virtues of committed relationships. Before
the Marriage Cases and after Proposition 8, a teacher probably could not,
consistent with the anti-discrimination provisions of Cal. Educ. Code § 51500, tell
woman partnership or marriage is not. As a formal matter, the Marriage Cases did
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not change instructional requirements under California law, and there is no rational
argument that Proposition 8 “protected” children from hearing about the virtues of
lesbian marriages, partnerships, and civil unions. Its lack of factual foundation
underscores the true purpose and effect of Proposition 8: to arouse irrational fear
The legal fact that the Marriage Cases did not “force” gay marriage upon
the schoolchildren of unwilling parents did not make a difference in the 2008
election.23 A sufficient number of parents were likely afraid that marriage equality
would lead to brainwashing their children in public schools, and their votes likely
generation after Anita Bryant had pioneered the strategy, Save Our Children once
more prevailed. As the California Supreme Court ruled in Strauss v. Horton, 207
U.S. Constitution?
23
The Yes on 8 publicists believed that a school field trip to see a lesbian wedding
negated any effect the legal technicalities had on public perception of a causal link
between marriage equality and state instruction over parental objections. See SER
354.
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precisely how broadly Romer should be read. At the very least, however, Romer
applies to cases whose facts are close to the Romer facts: (1) novel, ad hoc legal
barriers erected by voter initiatives discriminating against lesbians and gay men (2)
cannot stand if tainted by a bare desire to lower the status of this minority (whether
for reasons of anti-gay animus or religious morality) (3) rather than a rational
Romer snugly.
8? Yes. But the big differences may cut against the validity of Proposition 8. One
difference is that Amendment 2 denied lesbians and gay men a range of legally
enforceable rights and benefits, while Proposition 8 left lesbian and gay couples
with the legal rights and duties associated with marriage but labeled “domestic
partnerships.” Thus, Amendment 2 denied gay people some legal rights, while
simply to deny lesbian and gay couples the symbolic equality associated with full
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(civil) marriage recognition. Certainly, no one would doubt the insult of allowing
obvious here. Carving out a class of citizens from a core civil or political status is
Another difference between Romer and this case is that the record here is
replete with open appeals to sectarian morality, to anti-gay prejudice, and to the
Romer Court inferred animus from the poor fit between the sweep of
Amendment 2 and the “rational” purposes attributed to it; in this case, there is just
as poor a fit—but the record in this appeal is also saturated with direct evidence of
opened with an admonition that “the Constitution ‘neither knows nor tolerates
classes among citizens.’” 517 U.S. at 623. The Court understood that state
the Equal Protection Clause does not allow the state to entrench one “class” of
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citizens as “second-class.” Accord Marriage Cases, 183 P.3d at 402. The Romer
Court found that Amendment 2 did precisely that, because it “withdraws from
homosexuals, but no others, specific legal protection from the injuries caused by
517 U.S. at 627. The “change in legal status” effected by the law was
“[s]weeping.” Id. The Court was uncertain as to precisely which rights to relief
against discrimination gay people retained after Amendment 2, see id. at 630-31,
those persons alone,” id. at 631; that the rights denied to this “unpopular group” by
Amendment 2 were “protections taken for granted by most people either because
they already have them or do not need them,” id.; and that Amendment 2 was
legislation” that was the core concern of the Equal Protection Clause’s framers, see
Plessy, 163 U.S. at 559 (Harlan, J., dissenting); William E. Nelson, The Fourteenth
Mich. L. Rev. 245, 271-93 (1997), and of the Supreme Court in Romer. Some
scholars have opined that such class legislation is a per se violation of the Equal
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Protection Clause. See Brief of Laurence H. Tribe, John Hart Ely, Gerald Gunther,
Respondents, Romer v. Evans, 517 U.S. 620 (1996) (No. 94-1039). Our analysis
particular case, raises the “inevitable inference that the disadvantage imposed is
born of animosity toward the class of persons affected. ‘[I]f the constitutional
conception of ‘equal protection of the laws’ means anything, it must at the very
least mean that a bare . . . desire to harm a politically unpopular group cannot
The argument advanced in this amicus brief does not ask this Court to
determine whether gays are a suspect class or whether the fundamental right to
marry extends beyond heterosexual unions. Rather, this argument appeals to the
guarantee that no one, and no group, will be singled out for unfavorable treatment
which not only provides that “[a] person may not be . . . denied equal protection of
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the laws,” Cal. Const. art. I, § 7(a), but also provides that “[a] citizen or class of
citizens may not be granted privileges or immunities not granted on the same terms
to all citizens,” id. § 7(b). For California’s Constitution, equal treatment is the
fundamental baseline, just as it is for the U.S. Constitution. See Kenneth L. Karst,
The equality baseline means that every socially significant social group in
compelling public interests. Some social groups long stigmatized by prejudice and
African, Asian, and Latino Americans were barred from marrying European
Americans for much of the state’s history, but the California Supreme Court
(Cal. 1948). Lesbian and gay citizens suffered under many legal discriminations
for much of the twentieth century, but the state courts, governors, and legislatures
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chipped away at the exclusions until there was only one left, the exclusion from
marriage. Ruling that lesbians and gay men enjoyed the same “fundamental” right
to marry enjoyed by all other social groups, the Marriage Cases ended that
exclusion. For the first time, lesbian and gay Californians were full and equal
P.3d at 61-63, 78, 98. After Proposition 8, the California Declaration of Rights
effectively has been revised to mean that “[a] person may not be . . . denied equal
protection of the laws,” Cal. Const. art. I, § 7(a), except for gay persons, who can
be denied the fundamental right to marry. “A citizen or class of citizens may not
be granted privileges or immunities not granted on the same terms to all citizens,”
id. § 7(b), except for straight persons, who enjoy the exclusive privilege of civil
marriage. Proposition 8 represented the first time in California history that there
constitutional status of a minority group. We are not aware that the U.S. Supreme
Court has ever seen a case where fundamental constitutional equality rights were
then withdrawn through a popular vote. The closest case is Reitman v. Mulkey,
387 U.S. 369 (1967), where the Court looked behind the formal rules created by a
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provision.” Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38 (1928),
quoted in Romer, 517 U.S. at 633. “[L]aws singling out a certain class of citizens
for disfavored legal status or general hardships are rare.” Romer, 517 U.S. at 633.
Such laws “raise the inevitable inference that the disadvantage imposed is born of
animosity toward the class of persons affected.” Id. at 634. That “inevitable
Reminiscent of Anita Bryant’s Save Our Children crusade, the Yes on 8 crusade
treated lesbians and gay men as godless, selfish predators intent on recruiting
children for homosexuality. Romer bars state electorates from adopting class
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group—and even more so does it bar state electorates from demonizing the
After receiving extensive evidence, the district court found that “[t]he
same-sex marriage may become gay or lesbian.” ER 140. The district court also
found that the campaign “relied on stereotypes to show that same-sex relationships
are inferior to opposite-sex relationships.” ER 143. Those findings of fact are not
only amply supported by the record evidence, but they understate the extent to
which the campaign invited voters to vote based upon fears, prejudice, and
the Asian-American community: “Since most of them lead an indulgent life, many
gay men die because of AIDS and other serious illnesses. They need to recruit
new blood to become homosexuals. Also, the objects of play for many
Even the most sanitized of the Yes on 8 arguments were, in effect, appeals to
the ballot materials: Proposition 8, they contended, is needed in order (1) to restore
24
See Daniel A. Farber & Suzanna Sherry, The Pariah Principle, 13 Const.
Comm. 257 (1996).
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traditional marriage, (2) to rebuke four “activist judges” who ruled for marriage
equality, and (3) to protect children against “forced” instruction that gay marriage
is just as good as straight marriage. To begin with, all three arguments are status-
based and retrogressive: they invite voters to reject the equality baseline and return
equality for gay people, the proponents advanced Proposition 8 with the announced
goal of returning gay people to a legal regime where their “partnerships” are
treated gay people as “second-class citizens.” Marriage Cases, 183 P.3d at 402. If
schools will “force” gay marriage into their vulnerable souls—clinches the
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Proposition 8 was that the state must endorse (and schoolchildren must learn about)
sectarian or prejudiced views that lesbian and gay relationships are not as good as
straight ones.
the state drilled into public consciousness the notion that “homosexuals” are anti-
unlikely to form serious relationships, and predatory rather than nurturing toward
children. These are harmful and inaccurate stereotypes, yet they form the bedrock
institution has always been off-limits to this despised minority, and Proposition 8
re-establishes the norm that lesbians and gay men, even when coupled and raising
children, are not pro-family in the way that even the most dysfunctional straight
couples can be. The third argument directly invokes the idea that gay people seek
Children” from predatory homosexuals working through the public school system.
emphasized during the 2008 campaign and, instead, argues that marriage
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disapproval of this group, like a bare desire to harm the group, is an interest that is
insufficient to satisfy rational basis review under the Equal Protection Clause.
Indeed, we have never held that moral disapproval, without any other asserted state
interest, is a sufficient rationale under the Equal Protection Clause to justify a law
(O’Connor, J., concurring in the judgment); accord id. at 571-74 (opinion for the
Court, making the same point for the Due Process Clause).
Appellants also treat rational basis review as satisfied if the judicial mind
can seize upon any conceivable basis for a discrimination. However rational basis
basis review to strike down such laws under the Equal Protection Clause.” Id. at
580 (O’Connor, J., concurring in the judgment). When a popular initiative targets
a minority group in this way, Romer demands a reasonable fit between an asserted
public interest and the discrimination against the minority. 517 U.S. at 633. Each
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interest in increasing the likelihood that children will be born and raised in stable
family units by the couples who brought them into the world because it provide[s]
special recognition and support to those relationships most likely to further that
interest.” Appellants’ Br. at 16-17; see also id. at 77-78. The implausibility of this
argument, combined with the fact that Appellants have found nothing better to
emphasize, is evidence that some other motivation must have been driving support
for Proposition 8.
At the outset, it is hard to say that that there is any causal connection, much
conduct” into marital relationships, id. at 77, and its discrimination against lesbian
and gay families. See ER 44-45 (district court summarizing the difficulty
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felt encouraged toward responsible family formation because lesbian couples were
excluded from marriage while enjoying all the legal benefits of marriage under the
procreation and child-rearing within the marital relationship, there are many public
policies they could adopt, through the initiative process, including the following:
Limit marriage to couples who are likely to have children (e.g., no older
couples);
All of these policies would directly help children under Appellants’ theory (e.g.,
procreate and rear children within one man, one woman marriages. Why have
Californians not expressed tangible interest in any of these policies, and why have
Appellants themselves not proposed initiatives along these lines? The obvious
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answer is that straight Californians would lose some freedom under any of these
traction are those that single out lesbians and gay men to bear the burden of
available to straight couples. The minority denied rights is thus scapegoated for
would be good for thousands of California children. As the district court found,
eighteen percent of California’s lesbian and gay couples are currently raising
children within their relationships. ER 113. Those children would benefit from
children flourish in lesbian and gay households and would benefit from recognition
too narrow and too broad,” Romer, 517 U.S. at 633, if its purpose were
household.
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institution in decline and that “gay marriage” will deepen the decline. E.g.,
Appellants’ Br. at 98-102. Appellants claim that civil marriage has changed from
lower marriage rates, higher rates of divorce and nonmarital cohabitation, and
more children raised outside of marriage and separated from at least one of their
As before, we doubt that there is any causal link between expanding marital
commitments to include lesbian and gay couples, and the longstanding trend
toward consumer choices by straight couples. The best study was conducted by
Laura Langbein and Mark A. Yost Jr. SER 656. Based upon sophisticated
regression and other analyses to screen out other variables, the authors found no
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more likely that expanding marriage to include more committed couples would
This table and the chart below (plotting the above rates) demonstrate not
only that same-sex marriage in Massachusetts is not correlated with any downward
trend in marriage rates or escalation of divorces, but the marriage rate in that state
25
To control for complex nationwide trends, “comparative rates” were calculated
by dividing the Massachusetts rate by the USA rate (e.g., 2004 MA marriage rate
was 83% of national rate). Centers for Disease Control, Detailed State Tables,
available at http://www.cdc.gov/nchs/mardiv.htm#state_tables; National Vital
Statistics Reports, available at
http://www.cdc.gov/nchs/data/nvsr/nvsr58/nvsr58_25.pdf; U.S. Census Bureau.
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compared with the national rate improved significantly after 2003 and has since
remained constant at that level. And the divorce rate in Massachusetts compared
their goal is vastly under-inclusive. If the policy goal is to save marriage from too
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freedoms they take for granted. The group most explicitly excluded from
marriage, and least responsible for its decline, is the group blamed for marriage’s
gay couples who are eager to make the lifetime commitment that increasing
numbers of straight couples are not. Just like Amendment 2, therefore, Proposition
8 “is at once too narrow and too broad,” Romer, 517 U.S. at 633, and these features
in other jurisdictions with same-sex marriage, thus furthering the State’s interest in
social institution that still serves vital societal interests.” Appellants’ Br. at 18; see
also id. at 93-104. This argument rings false when the only thing at stake is
whether to stigmatize some citizens as inferior. The Supreme Court has never
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against a minority group. E.g., Hunter v. Erickson, 393 U.S. 385, 392 (1969)
(rejecting city’s “go slowly” defense of its referendum requirement for anti-
homosexuality” and urged the Court to allow the state leeway for the issue to be
handled calmly over time. Brief for Petitioners at 47, Romer, 517 U.S. 620 (No.
Under the U.S. Constitution, the baseline is equal treatment—and the burden
discover that marriage equality does in fact have significant costs for the polity,
then there would be a rational basis for a future initiative to revoke marriage
equality.
CONCLUSION
Proposition 8 “classifies homosexuals not to further a proper legislative end
but to make them unequal to everyone else.” Romer, 517 U.S. at 635. This the
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CERTIFICATION OF COMPLIANCE
PURSUANT TO FED. R. APP. 32(a)(7)(C) AND
CIRCUIT RULE 32-1 FOR CASE NUMBER 10-16696
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curiae Professors William N. Eskridge Jr. et al. state that they are aware of no
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CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing 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 October 25, 2010.
I further certify that not all participants in the case are registered CM/ECF users;
service will be accomplished by the appellate CM/ECF system for those who are
so registered and service via First-Class Mail, postage prepaid, to those upon the
below service list.
Thomas Brejcha Stuart J. Roth
THOMAS MORE SOCIETY AMERICAN CENTER FOR LAW
29 S. La Salle Street, Suite 440 AND JUSTICE
Chicago, IL 60603 201 Maryland Avenue, N.E.
Washington, DC 20002
Von G. Keetch Anita L. Staver
KIRTON & McCONKIE, PC LIBERTY COUNSEL
Eagle Gate Tower P.O. Box 540774
60 E. South Temple Orlando, FL 32854
Salt Lake City, UT 84111
Jeffrey Mateer Mathew D. Staver
LIBERTY INSTITUTE LIBERTY COUNSEL
2001 W Plano Parkway, Suite 1600 1055 Maitland Center Commons, 2nd Fl.
Plano, TX 75075 Maitland, FL 32751
Jeffrey Hunter Moon James F. Sweeney
Anthony R. Picarello, Jr. SWEENEY & GREENE LLP
Michael F. Moses 8001 Folsom Boulevard, Suite 101
UNITED STATES CATHOLIC Sacramento, CA 95826
CONFERENCE
3211 Fourth Street, N.E.
Washington, DC 20017
Lincoln C. Oliphant M. Edward Whelan, III
COLUMBUS SCHOOL OF LAW ETHICS AND PUBLIC POLICY
The Catholic University of America CENTER
3600 John McCormack Road, NE 1730 M Street N.W., Suite 910
Washington, DC 20064 Washington, DC 20036
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