State Bar #139669

Case3:09-cv-02292-VRW Document53 Filed06/18/09 Page1 of 46
1 DENNIS J. HERRERA, State Bar #139669

City Attorney
2 THERESE M. STEWART, State Bar #104930
Chief Deputy City Attorney
3 DANNY CHOU, State Bar #180240
Chief of Complex and Special Litigation
4 CHRISTINE VAN AKEN, State Bar #241755
MOLLIE M. LEE,* State Bar #251404
5 Deputy City Attorneys
City Hall, Room 234
6 One Dr. Carlton B. Goodlett Place
San Francisco, California 94102-4682
7 Telephone: (415) 554-4708
Facsimile: (415) 554-4699
8
Attorneys for Amicus Curiae
9 CITY AND COUNTY OF SAN FRANCISCO
10
11
UNITED STATES DISTRICT COURT
12
NORTHERN DISTRICT OF CALIFORNIA
13
KRISTIN M. PERRY, SANDRA B. STIER, Case No. 09-CV-2292 VRW
14 PAUL T. KATAMI, and JEFFREY J.
ZARRILLO, BRIEF OF AMICUS CURIAE CITY AND
15 COUNTY OF SAN FRANCISCO IN SUPPORT
Plaintiffs, OF PLAINTIFFS' MOTION FOR A
16 PRELIMINARY INJUNCTION
vs.
17 Hearing Date: July 2, 2009
ARNOLD SCHWARZENEGGER, in his Time: 10:00 a.m.
18 official capacity as Governor of California; Place: Courtroom 6, 17th Fl.,
EDMUND G. BROWN JR., in his official 450 Golden Gate Ave.
19 capacity as Attorney General of California;
MARK B. HORTON, in his official capacity Trial Date: Not set
20 as Director of the California Department of
Public Health and State Registrar of Vital
21 Statistics; LINETTE SCOTT, in her official
capacity as Deputy Director of Health
22 Information & Strategic Planning for the
California Department of Public Health;
23 PATRICK O'CONNELL, in his official
capacity as Clerk-Recorder for the County of
24 Alameda; and DEAN C. LOGAN, in his
official capacity as Registrar-Recorder/County
25 Clerk for the County of Los Angeles,
26 Defendants.
27
* Admission to the Northern District of California pending.
28
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CASE NO. 09-CV-2292 VRW
1 TABLE OF CONTENTS
2 TABLE OF AUTHORITIES ......................................................................................................... iii

INTEREST OF AMICUS CURIAE ..................................................................................................1
3
INTRODUCTION ...........................................................................................................................3
4
STATEMENT OF FACTS ..............................................................................................................5
5 I. THERE IS A LONG HISTORY IN THE WESTERN WORLD OF
6 DISCRIMINATION AND BACKLASH AGAINST LESBIANS AND GAY
MEN .........................................................................................................................5
7 II. THE STRUGGLE FOR MARRIAGE EQUALITY IN CALIFORNIA SHOWS
PROGRESS IN ACHIEVING FORMAL RIGHTS FOLLOWED BY
8
BACKLASH ..........................................................................................................13
9 A. Domestic Partnership .................................................................................13
10 B. In re Marriage Cases .................................................................................14
11 C. Proposition 8 ..............................................................................................15
D. Strauss v. Horton .......................................................................................17
12
ARGUMENT .................................................................................................................................18
13
I. PROPOSITION 8 VIOLATES THE EQUAL PROTECTION GUARANTEE
14 OF THE FEDERAL CONSTITUTION BECAUSE IT STRIPPED AWAY
CONSTITUTIONAL GUARANTEES FOR A SINGLE CLASS OF CITIZENS
15 WITH NO PURPOSE OTHER THAN ANIMUS AND MORAL
DISAPPROVAL ....................................................................................................18
16
A. Under the Rational Basis Test, A Law Violates The Equal Protection
17 Clause When It Does Not Advance A Legitimate Governmental Purpose19
18 B. Proposition 8 Violates Equal Protection Because It Does Not Advance

Any Of The Legitimate Government Purposes Its Proponents Claim .......21
19 1. Eliminating the Right of Same-Sex Couples to Marry Does Not
20 Protect Marriage.............................................................................22
2. Eliminating the Right of Same-Sex Couples to Marry Does Not
21 Protect Children .............................................................................24
22 a. Proposition 8 Does Not Protect Children in Public
Schools ...............................................................................24
23
b. Proposition 8 Does Not Protect Children by Promoting
24 Biological Parenting...........................................................25
25 c. Proposition 8 Does Not Encourage "Responsible

Procreation" .......................................................................27
26 C. Proposition 8 Violates the Equal Protection Clause Because Its True
27 Purposes Are Not Legitimate Governmental Purposes .............................28
1.
Enacting a Traditional Definition of Marriage Is Not a
28 Legitimate State Interest ................................................................29
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2. Expressing Moral Disapproval and Animus Against Lesbians and

1 Gay Men and Their Familial Relationships, an Actual Purpose of
2 Proposition 8, Is Not a Legitimate State Interest ...........................30
D. Proposition 8 Is Also Analogous to Romer's Amendment 2 Because It
3 Selectively Deprives Lesbians and Gay Men, and Them Alone, of
4 Constitutional Rights .................................................................................32
E. The Availability of Domestic Partnership, and the Recentness of the
5 California Supreme Court's Acknowledgment of Same-Sex Couples'
Right to Marry, Do Not Neutralize the Equal Protection Violation ..........33
6
II. IF THERE IS INSUFFICIENT EVIDENCE TO ESTABLISH THAT
7 PROPOSITION 8 VIOLATES EQUAL PROTECTION, THE COURT
SHOULD ENCOURAGE FURTHER FACTUAL DEVELOPMENT TO
8
DETERMINE WHETHER HEIGHTENED SCRUTINY APPLIES....................35
9 CONCLUSION ..............................................................................................................................36
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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1 TABLE OF AUTHORITIES
Federal Cases
2 Allied Stores of Ohio, Inc. v. Bowers
358 U.S. 522 (1959) ...................................................................................................................19
3
4 Baker v. Nelson
409 U.S. 810 (1972) ...................................................................................................................19
5
Bell Atl. Corp. v. Twombly
6 550 U.S. 544 (2007) ...................................................................................................................21
7 Bowen v. Gilliard
483 U.S. 587 (1987) ...................................................................................................................35
8
Bowers v. Hardwick
9
478 U.S. 186 (1986) .............................................................................................................19, 20
10
Boy Scouts of Am. v. Dale
11 530 U.S. 640 (2000) ...................................................................................................................12
12 Brown v. Board of Education

347 U.S. 483 (1954) ...................................................................................................................34
13
Butler v. Apfel
14
144 F.3d 622 (9th Cir. 1998) .....................................................................................................21
15
City of Cleburne v. Cleburne Living Center
16 473 U.S. 432 (1985) .............................................................................2, 4, 19, 20, 21, 22, 32, 35
17 City of Cuyahoga Falls v. Buckeye Cmty. Hope Found.

538 U.S. 188 (2003) ...................................................................................................................21
18
City of New Orleans v. Dukes
19 427 U.S. 297 (1976) ...................................................................................................................28
20
Eisenstadt v. Baird
21 405 U.S. 438 (1972) ...................................................................................................................19
22 Fitzgerald v. Barnstable Sch. Comm.-- U.S. --, 129 S. Ct. 788 (2009) .........................................20
23 Heller v. Doe
509 U.S. 312 (1993) .............................................................................................................19, 20
24
Hunter v. Erickson
25 393 U.S. 385 (1969) ...................................................................................................................33
26
J.E.B. v. Alabama
27 511 U.S. 127 (1994) ...................................................................................................................29
28
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Katzenbach v. Morgan
1 384 U.S. 641 (1966) ...................................................................................................................28
2
Lawrence v. Texas
3 539 U.S. 558 (2003) .................................................................................................10, 20, 24, 29
4 Lazy Y Ranch Ltd. v. Behrens

546 F.3d 580 (9th Cir. 2008) .....................................................................................................21
5
Levy v. Louisiana
6 391 U.S. 68 1968) ................................................................................................................28, 29
7 Lofton v. Sec'y of the Dep't of Children & Fam. Servs.
8 377 F.3d 1275 (11th Cir. 2004) .................................................................................................10
9 Mandel v. Bradley
432 U.S. 173 (1977) ...................................................................................................................19
10
McLaughlin v. Florida
11 379 U.S. 184 (1964) ...................................................................................................................28
12 Patsone v. Pennsylvania
13 232 U.S. 138 (1914) ...................................................................................................................28
14 Pierce v. Society of Sisters

268 U.S. 510 (1925) ...................................................................................................................24
15
Plessy v. Ferguson
16 163 U.S. 537 (1896) ...................................................................................................................34
17 Reed v. Reed
404 U.S. 71 (1971) .....................................................................................................................20
18
19 Reitman v. Mulkey
387 U.S. 369 (1967) ...................................................................................................4, 20, 22, 25
20
Romer v. Evans
21 517 U.S. 620 (1996) .................................................................3, 4, 12, 20, 21, 22, 25, 31, 32, 34
22 San Antonio Indep. Sch. Dist. v. Rodriguez
411 U.S. 1 (U.S. 1973)...............................................................................................................28
23
Schwenk v. Hartford,
24
204 F.3d 1187 (9th Cir. 2000) ...................................................................................................30
25
Strauss v. Horton
26 No. S168047, S168066, S168078, -- Cal. 4th --, 2009
WL 1444594, at *9 (Cal. May 26, 2009) ..........................................................15, 17, 18, 32, 33
27
Tucson Woman's Clinic v. Eden
28 379 F.3d 531 (9th Cir. 2004) .....................................................................................................21
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U.S. Dept. of Agriculture v. Moreno

1 413 U.S. 528 (1973) .............................................................................................................20, 30
2
Washington v. Seattle Sch. Dist. No. 1
3 458 U.S. 457 (1982) ...................................................................................................................33
4 Williams v. Illinois
399 U.S. 235 (1970) .............................................................................................................20, 29
5
Williamson v. Lee Optical Co.
6 348 U.S. 483 (1955) ...................................................................................................................28
7 Zobel v. Williams
8 457 U.S. 55 (1982) .....................................................................................................................20
9 State Cases
Chaffin v. Frye
10 45 Cal. App. 3d 39 (1975) ...........................................................................................................9
11 Gay Law Students Ass'n v. Pacific Tel. & Tel.Co.

24 Cal. 3d 458 (1979) ................................................................................................................10
12
In re Marriage Cases
13
43 Cal. 4th 757 (2008) ...................................................2, 3, 4, 14, 15, 17, 18, 22, 23, 26, 33, 34
14
Lockyer v. City and County of San Francisco
15 33 Cal. 4th 1055 (2004) ...........................................................................................................1, 2
16 Morell v. Dep't of Alcoholic Bev. Control, 204 Cal. App. 2d 504 (1962) .......................................9
17 People v. Walter
7 Cal. 2d 438 (1936) ....................................................................................................................9
18
Sarac v. State Bd. of Educ.
19
249 Cal. App. 2d 58 (1957) .........................................................................................................9
20
State Statutes & Codes
21 Cal. Elec. Code § 342 ....................................................................................................................15
22 Cal. Fam. Code § 297.5 .................................................................................................................13
23 Cal. Fam. Code § 300 ......................................................................................................................1

24 Cal. Fam. Code § 350 ......................................................................................................................1
25 Cal. Fam. Code § 359 ......................................................................................................................1
26 Cal. Fam. Code § 400 ......................................................................................................................1
27
Cal. Fam. Code § 401 ......................................................................................................................1
28
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Cal. Fam. Code § 423 ......................................................................................................................1

1
Cal. Fam. Code § 67 ........................................................................................................................1
2
3 Cal. Fam. Code § 8600 ..................................................................................................................27
4 Cal. Fam. Code § 9000(b) ..............................................................................................................27
5 Cal. Health & Safety Code § 1374.58............................................................................................13
6 Cal. Ins. Code § 3302.....................................................................................................................13

7 Cal. Ins. Code § 3303.....................................................................................................................13
8 Cal. Lab. Code § 233 .....................................................................................................................13
9 Cal. Pen. Code § 286......................................................................................................................10
10
Cal. Stats. 1992, ch. 915 ................................................................................................................10
11
Cal. Stats. 2003, ch. 331 ................................................................................................................27
12
Cal. Stats. 2003, ch. 421 ................................................................................................................13
13
Cal. Welf. & Inst. Code § 16001.9(a)(23) .....................................................................................27
14
Cal. Welf. & Inst. Code § 16013 ...................................................................................................27
15
Family Code § 308.5 ......................................................................................................................18
16
17
Constitutional Provisions
18 Cal. Const. Article 1, Section 1......................................................................................................13
19 Cal. Const. Article 1, Section 7......................................................................................................13
20 Cal. Const. Article I, Section 7.5 .....................................................................................................5
21 U.S. CONST. amend. XIV, § 1 ........................................................................................................19
22 Other References
23 "Miami Anti-Gays Win in Landslide," S.F. Examiner, June 8, 1977, at 1 ....................................10
24 "The Thirty Years War: A Timeline of the Anti-Gay Movement, Southern Poverty Law Center,
Spring 2005, available at http://www.splcenter.org/intel/intelreport/article.jsp?aid=523 ........11
25
"The Wedding Zinger: The Definition of Marriage," a segment of Uncommon Knowledge,
26 produced by the Hoover Institution in conjunction with KTEH-TV,
San Jose. Filmed March 28, 2008 ............................................................................................31
27
28
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"Voting Against Gay Rights," Time (May 22, 1978), available at

1 http://www.time.com/time/magazine/article/0,9171,919647,00.html .......................................11
2
A Mighty Army (Spring 2005) Southern Poverty Law Center Intelligence Report, available at
3 http://www.splcenter.org/intel/intelreport/article.jsp?pid=869..................................................11
4 Allan Berube, Coming Out Under Fire 255 (1990). ........................................................................8
5 American Psychological Association, "For a Better Understanding of Sexual Orientation and

Homosexuality," at 4 (2008) ....................................................................................11, 25, 26, 27
6
Bob Moser, Holy War, Southern Poverty Law Center, "Holy War," Spring 2005, available at
7 http://www.splcenter.org/intel/intelreport/article.jsp?pid=862............................................10, 12
8
Byrne Fone, Homophobia: A History 47–48 (2000) .........................................................5, 7, 9, 12
9
Carroll Smith-Rosenberg, "Discourses of Sexuality & Subjectivity:
10 The New Woman, 1870-1936" ...................................................................................................8
11 Donald P. Haider-Markel et al., "Lose, Win or Draw? A Reexamination of

Direct Democracy & Minority Rights," 60 POL. RES. Q. 304 (2007) .....................................12
12
Dudley Clendinen & Adam Nagourney, Out for Good: The Struggle to
13
Build a Gay Rights Movement in America 209, 303 (1999) ................................................10, 11
14
Erwin J. Haeberle, "Swastika, Pink Triangle, Yellow Star" ............................................................8
15
Everything To Do With Schools, ProtectMarriage.com (2008), available at http:
16 //www.protectmarriage.com/video/view/7 ................................................................................24
17 Everything to do with Schools, ProtectMarriage.com (2008), available at

http://www.protectmarriage.com/video/view/7 .........................................................................15
18
Fred Fejes, Gay Rights & Moral Panic: The Origins of America's
19
Debate on Homosexuality 94-7 (2008) ...............................................................................10, 11
20
GAO, Military Personnel: Financial Costs & Loss of Critical Skills Due to DOD's Homosexual
21 Conduct Policy Cannot Be Completely Estimated 4 (2005) ......................................................12
22 GOD HATES FAGS!!! (YouTube 2008, posted June 16, 2008), available at
http://www.youtube.com/watch?v=dEQuW2v6U2o .................................................................17
23
Gregory M. Herek, Legal Recognition of Same-Sex Relationships in the United States:
24 A Social Science Perspective, 61 Am. Psychol. 607, 611 (2006) .......................................11, 27
25
Gregory M. Herek, Paul Cameron Bio and Fact Sheet,
26 http://psychology.ucdavis.edu/rainbow/html/facts_cameron_sheet.html ............................11, 27
27 Gunther, In Search of Evolving Doctrine on a Changing Court: A Model

for Newer Equal Protection, 86 Harv. L. Rev. 1, 34 (1972) .....................................................20
28
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Herman, The Antigay Agenda (1997) 62. .....................................................................................11

1
Hidden from History: Reclaiming the Gay & Lesbian Past 279
2
(Martin Bauml Duberman et al., eds. 1989) ...............................................................................8
3
J. Gallo et al., "The Consenting Adult Homosexual and the Law: An Empirical Study of
4 Enforcement and Administration in Los Angeles County,
" 13 U.C.L.A. L. REV. 643, 674–75(1966) ..................................................................................9
5
Jean Hardisty, "Constructing Homophobia: Colorado's Right-Wing
6 Attack on Homosexuals," Public Eye Magazine 26 (Mar. 1993) .............................................12
7 John D’Emilio, "Gay Politics and Community in San Francisco Since World War II" ..................8
8
John Demos, A Little Commonwealth: Family Life in Plymouth Colony 78 (1970) .......................7
9
Jonathan Ned Katz, Gay American History: Lesbians & Gay Men in the U.S.A. 22 (1992) ......7, 8
10
Kristin Anderson Moore et al., "Marriage from a Child's Perspective: How Does Family
11 Structure Affect Children, and What Can We Do About It?",
Child Trends Research Brief (June 2002).................................................................................26
12
Lisa Mincieli, et al., "The Relationship Context of Births Outside Marriage: The Rise of
13
Cohabitation," Child Trends Research Brief, at endnote a (May 2007) ..............................26, 27
14
Louis Crompton, Homosexuality & Civilization 17, 19, 57–59 (2003) .......................................5, 6
15
Morton Kondrake, "Anita Bryant is Mad About Gays," The New Republic, at 13–14 (1980)......10
16
Nancy Levit, "A Different Kind of Sameness: Beyond Formal Equality and Antisubordination
17 Strategies in Gay Legal Theory," 61 Ohio St. L.J. 867, 868 (2000)..........................................12
18 National Coalition of Antiviolence Programs, Hate Violence Against Lesbian, Gay, Bisexual and
Transgender People in the United States 3 (2008), available at
19
http://www.ncavp.org/common/document_files/Reports
20 /2008%20HV%20Report%20smaller%20file.pdf .....................................................................12
21 Nicholas Ray, Nat'l Gay & Lesbian Task Force, An Epidemic of Homelessness 1–2 (2006) .......13
22 Questions & Answers About Proposition 8, ProtectMarriage.com, available at

http://protectmarriage.com/files/faq.pdf ....................................................................................24
23
Randy Shilts, The Mayor of Castro Street (1988) .........................................................................10
24
Robb and Robin Wirthlin’s Story, ProtectMarriage.com (2008), available at
25
http://www.protectmarriage.com/video/view/6 ...................................................................15, 30
26
S. Russell & K. Joyner, "Adolescent Sexual Orientation and Suicide Risk:
27 Evidence from a National Study," 91 Am. J. Pub. Health 1276 (2001) ...................................13
28
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Todd Donovan, et al., "Direct Democracy & Gay Rights Initiatives After Romer,"
1 in The Politics of Gay Rights 167 (Craig A. Rimmerman, et al., 2000) ...................................12
2
Video, Whether You Like It Or Not, (September 29, 2008) (available at
3 http://www.protectmarriage.com/video/view/2) ........................................................................33
4 Wetzstein, "Gays Can't 'Marry,' 2 States Say,' Wash. Times, Nov. 5, 1998, at A16......................12
5 Why Proposition 8, ProtectMarriage.com, available at

http://www.protectmarriage.com/about/why ............................................................................24
6
William Benemann, Male-Male Intimacy in Early America xvi, 204 (2006) .................................7
7
William N. Eskridge, Jr., "Hardwick & Historiography," 1999 Univ. Ill. L. Rev. 631, 633.........10
8
9 William Naphy, Born to Be Gay: A History of Homosexuality 48–50 ........................................5, 6
10 William Wright, Harvard's Secret Court: The Savage 1920 Purge

of Campus Homosexuals (2005) .................................................................................................7
11
Yes on Proposition 8 Supporters Share Views - Santa Clarita Ca - Join the Impact,
12 (YouTube 2008, posted October 23, 2008), available at
http://www.youtube.com/watch?v=gtcZnLXhiJo&feature=
13
PlayList&p=3BD5A4096173FD7E&index=6 ..........................................................................16
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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1 INTEREST OF AMICUS CURIAE
2 The City and County of San Francisco ("San Francisco" or "the City") has an immediate and
3 vital interest in the outcome of this case. As a unit of local government with the responsibility to issue
4 civil marriage licenses and to solemnize and record marriages, Cal. Fam. Code §§ 67, 300, 350, 359,
5 400, 401, 423, San Francisco is presently compelled by Proposition 8 to violate the federal
6 constitutional rights of gay and lesbian citizens by denying them the marriage licenses that it daily
7 issues to heterosexual couples – couples whose bonds are no stronger, and their claim to official
8 recognition no greater, than those of lesbian and gay couples. See Lockyer v. City and County of San
9 Francisco, 33 Cal. 4th 1055, 1080–82, 1085–86 (2004) (city and county officials may not decline to
10 enforce statutory restrictions on marriage until appellate court holds them unconstitutional). Because
11 it is required to participate in a discriminatory regime, San Francisco has a direct interest in the
12 vindication that Kristin Perry and her co-plaintiffs seek.1
13 San Francisco has a further interest in this case: During World War II the federal government
14 persecuted, purged, and dishonorably discharged thousands of soldiers and sailors from the military
15 because of their homosexuality. Many were "processed out" in San Francisco and chose to remain
16 here, and as a result San Francisco developed a large and vibrant lesbian and gay community. This
17 community is an immeasurable asset, and many of the City's most talented civic and business leaders
18 have risen from its ranks. From art and music to science and technology, from law and medicine to
19 education, from the private sector to the public and non-profit arenas, our City and State have been
20 enhanced by the contributions of lesbians and gay men who have been welcome citizens of San
21 Francisco.
22 San Francisco's strong public policy interests reflect this reality. In the 1970s, long before
23 other municipalities, San Francisco began to adopt laws and policies to eliminate discrimination
24 against and equalize the status of lesbians and gay men. San Francisco enacted laws prohibiting
25 employment discrimination by the City and its contractors (1972), prohibiting discrimination in
26 housing, employment and public accommodations citywide (1978), establishing an entity to hear and
27
1
28 For convenience, this brief will refer to the four individual plaintiffs as Perry.
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1 mediate complaints of discrimination (1975), establishing a domestic partner registry (1990),
2 providing benefits to domestic partners of city employees (1991-93), and requiring its contractors to
3 provide the same benefits to domestic partners of employees as they provided to spouses of
4 heterosexual married employees (1996). When these laws were challenged, the City vigorously
5 defended them. In 2004, Mayor Gavin Newsom directed San Francisco's County Clerk to begin
6 issuing marriage licenses to same-sex couples on the same terms as they were issued to opposite-sex
7 couples. After the California Supreme Court directed the City to stop issuing such licenses, Lockyer,
8 33 Cal. 4th 1055, 1073, the City filed suit, along with same-sex couples, successfully challenging the
9 State's exclusion of same-sex couples from marriage as a violation of the State Constitution. See In re
10 Marriage Cases, 43 Cal. 4th 757 (2008). All of these actions by San Francisco reflect the fundamental
11 values of San Francisco and its people that lesbian and gay citizens and their families are entitled to be
12 treated as fully equal to all other citizens and families. The animus and moral disapproval expressed
13 by Proposition 8 against our lesbian and gay citizens is incompatible with these fundamental values.
14 Finally, as one of the lead plaintiffs in the historic litigation that culminated in the California
15 Supreme Court's recognition of the right of same-sex couples to marry as a fundamental right
16 guaranteed to them by the California Constitution – a right that was subsequently stripped away by a
17 majority of California voters when Proposition 8 passed – San Francisco has developed extensive
18 knowledge of many of the legal and factual issues that, in its view, this Court must consider to decide
19 this case, including the history of discrimination against gay men and lesbians and the connection
20 between that history and Proposition 8.
21 Thus, San Francisco files this brief to convey its knowledge and experience to the Court, and to
22 convey what we believe to be the unmistakable import of Supreme Court and Ninth Circuit equal
23 protection jurisprudence applied to this case: when a majority of California voters enacts a
24 constitutional amendment that excises a portion of the equal protection, liberty and privacy rights of a
25 single class of citizens, and where the amendment does nothing to advance the rights or interests of
26 other citizens except to satisfy their moral disapproval, animus, or disfavor towards a group, then
27 under Romer v. Evans, 517 U.S. 620 (1996), and City of Cleburne v. Cleburne Living Center, 473 U.S.
28
1 432 (1985), that amendment offends the federal Equal Protection Clause even applying the most
2 deferential test. This Court should enjoin its enforcement.
4 INTRODUCTION
5 Until 2008, California law granted same-sex couples who registered as domestic partners
6 virtually all of the tangible state law rights and obligations that flow to married opposite-sex couples
7 but denied them the title and stature of marriage. In May 2008, the California Supreme Court held that
8 this was a difference of constitutional magnitude. The State's reservation of the "familiar and highly
9 favored" designation of marriage for opposite-sex couples and relegation of same-sex couples to a
10 separate stature with a different and unfamiliar name worked a "real and appreciable harm" on same-
11 couples and their children. Marriage Cases, 43 Cal. 4th at 784, 855. It sent an official message that in
12 the eyes of the State of California same-sex relationships are different from opposite-sex relationships,
13 and different in a way that matters. It echoed and reinforced the message of societal disparagement
14 lesbians and gay men have long endured, invited continued discrimination against them and reinforced
15 the still accepted idea that they are "second-class citizens." Id. at 784–85. The Court held this
16 separate and unequal treatment of lesbians and gay men violated California's constitutional guarantees
17 of privacy, liberty and equality. Id. at 823, 829, 855–56.
18 As that case was litigated, antigay organizations were obtaining the signatures needed to place
19 a constitutional amendment on the ballot that in effect carved an exception out of the equal protection,
20 liberty and privacy clauses of the California Constitution to deny same-sex couples the title
21 "marriage." When this measure passed in November 2008, it enshrined in the state constitution a
22 separate and unequal stature for lesbian and gay relationships.
23 This case thus poses in stark terms the constitutionality of a measure the only conceivable
24 purpose for which was to deny honor and respect to lesbians and gay men and their families. As the
25 state Supreme Court recognized, denying access to the one term that is universally understood as
26 describing a "union unreservedly approved and favored by the community," speaks volumes about
27 those denied access to it. Marriage Cases, 43 Cal. 4th at 845. It tells lesbians and gay men, in no
28 uncertain terms, "the State will tolerate and even recognize your relationships, but it will not honor
1 them." It is precisely because of their relationships – because they form same-sex rather than
2 opposite-sex intimate bonds – that lesbians and gay men have so long been hated and condemned.
3 Thus, the refusal to honor their relationships is in a very real sense a refusal to honor them as people
4 and as citizens.
5 Try as they do, the initiative proponents are unable to explain any legitimate purpose served by
6 this measure, or any purpose at all that does not boil down to distaste or discomfort with lesbian and
7 gay couples and families. To say, for instance, that they oppose the marriage of same-sex couples
8 because they do not want their children to be taught about gay people and gay families at school can
9 only be based on one reason: that they do not like, are uncomfortable with, or fear gay families or gay
10 people – and want their children to adopt the same discomfort or dislike. This is not mere indifference
11 toward gay people but a reflection of the age-old antipathy toward them, for learning that same-sex
12 couples exist can only be objectionable if there is something wrong with having a same-sex
13 relationship – that is, with being gay at all. Inherent in this rationale is a belief that homosexuality and
14 homosexual people are taboo, something to which children should not be exposed. Indeed, by stoking
15 fears about children and schools during their campaign, Proposition 8's proponents evoked dark
16 stereotypes of gay people as sexual perverts who would abuse and indoctrinate children. The children-
17 and-schools rationale is, quite simply, animus – animus cloaked in fear.2
18 Feelings of antipathy or discomfort toward a group of people – no matter how deeply felt or
19 widely held – are not a legitimate purpose for singling that group out for unequal treatment by the law.
20 Romer v. Evans, 517 U.S. 620 (1996); City of Cleburne v. Cleburne Living Center, 473 U.S. 432
21 (1985). While the law may not be capable of eradicating people's prejudices, neither may it embody or
22 encourage them. Reitman v. Mulkey, 387 U.S. 369, 377 (1967). Nor does the fact that such prejudices
23 have already and for a long time been a part of our laws and traditions make them constitutionally
24 acceptable. For, as the California Supreme Court observed in the recent Marriage Cases: "if we have
25 learned anything from the significant evolution in the prevailing societal views and official policies
26 2
As discussed below, the children-and-schools rationale is also a familiar refrain: gay rights
27 opponents have been sounding alarms about children for decades in campaigns related not only to
prevent marriage equality and other recognition of same-sex relationships, but also to roll back
28 antidiscrimination laws and to scapegoat people with HIV and AIDS.
1 toward members of minority races and toward women over the past half-century, it is that even the
2 most familiar and generally accepted of social practices and traditions often mask an unfairness and
3 inequality that frequently is not recognized or appreciated by those not directly harmed by those
4 practices or traditions." 43 Cal. 4th at 853–54.
5 STATEMENT OF FACTS
I. THERE IS A LONG HISTORY IN THE WESTERN WORLD OF DISCRIMINATION
6 AND BACKLASH AGAINST LESBIANS AND GAY MEN
7 Proposition 8, now codified as Article I, Section 7.5, of the California Constitution, is but the
8 latest in a line of ballot measures intended to erase the rights of lesbians and gay men. These ballot
9 measures, in turn, are rooted in a tradition of legal sanctions punishing homosexuality and state-
10 sponsored violence against homosexuals. So that the Court may understand the traditions that inform
11 Proposition 8 and the campaign its sponsors waged to pass it, San Francisco describes here this history
12 of discrimination.
13 Same-sex relationships were not always subject to the scorn and condemnation they have
14 received in 20th- and 21st-century America. In ancient Greece, same-sex love was openly celebrated,
15 such as by the playwright Aristophanes and the poet Sappho. Louis Crompton, Homosexuality &
16 Civilization 17, 19, 57–59 (2003). And it was not only writers who extolled homosexuality; male
17 athletes and warriors in Greek society also celebrated their love of men. Id. at 69; William Naphy,
18 Born to Be Gay: A History of Homosexuality 48–50. While the ancient Romans did not praise same-
19 sex love in the same way the Greeks did, they nonetheless treated homosexual activity as normal and
20 natural and permitted de facto same-sex marriages during the Roman Empire. Byrne Fone,
21 Homophobia: A History 47–48 (2000); Naphy, supra, at 63.
22 Some of the earliest laws criminalizing same-sex relations, with death as the penalty for
23 disobedience, were introduced in the year 533, after Christianity had become dominant in the Roman
24 Empire. Naphy, supra at 82–83. The history of state-sponsored violence against gay men and
25 lesbians thus began in the West during the late Roman Empire and did not end in America until the
26 eighteenth or nineteenth century. The laws enacted by vilifying governments during that span were
27 brutal in the extreme. A law enacted in Spain said that "when a man lusts after another to sin with him
28
1 … shall both of them … be castrated before all the people, and after three days, shall be suspended by
2 the legs until they die, and never be taken down." Crompton, supra, at 200. An Italian city declared
3 that any man engaged in homosexual activity "must be stripped of all his clothes and fastened to a
4 stake in the Street of the Locusts with a nail or rivet driven through his male member, and shall remain
5 there all day and all night under a reliable guard, and the following day be burned outside the city."
6 Id. at 246–47.
7 Not only were such laws enacted, they were also enforced with a vengeance. Extensive
8 records beginning in the second millennium in Europe show executions of homosexuals, including by
9 fire, physical mutilation, decapitation, and drowning. Naphy, supra, at 90–94; Fone, supra, at 194;
10 Crompton, supra, at 292–97. At times, a hysteria similar to Puritan witch hunts would overtake a city
11 or a country. In Florence in the fifteenth century, for instance, a council of prosecutors convicted
12 3,000 people out of 40,000 of homosexual activity. Naphy, supra, at 98. Historians do not know how
13 many gay men and lesbians were killed in these persecutions and purges. It appears that far fewer
14 women were convicted of same-sex sexual activity than men – in part because women of those eras
15 did not lead public lives – but there are records in Europe of lesbians being put to death as well. Id. at
16 141–46; Crompton, supra, 299, 473.3
17 During the Enlightenment, a movement to reform the law to purge it of religious influence
18 came about, and France and other countries repealed their sodomy prohibitions altogether. Crompton,
19 supra, at 510, 524, 528. England, by contrast, intensified its persecution of homosexuals, and public
20 hangings of sodomites in Britain increased fivefold in the late eighteenth and early nineteenth
21 centuries. Naphy, supra, at 200. Across the Atlantic Ocean, religious leaders in what would become
22
3
23 The Western world's vilification of same-sex love was not matched in other parts of the
world. For instance, same-sex relationships were accepted through recorded Chinese history until the
24 latter half of the twentieth century, with the rise of the Communist government. Naphy, supra, at 80,
165–66, 254; Crompton, supra, at 214–15, 243-44. Indeed, a series of Chinese emperors of the Han
25 dynasty were known to have male lovers. Id. at 218. Same-sex relationships were also a regular
feature of Japanese society, notwithstanding the condemnation of Christian missionaries. Id. at 416–
26 17; Naphy, supra, at 169. By the twentieth century, however, as Japan sought to modernize and open
its ports to increasing Western trade, same-sex love became taboo in Japan. Crompton, supra, at 443.
27 In Africa, some records suggest a history of openness to same-sex relationships before colonization.
After colonization, homosexuality became a grounds on which the colonists condemned subjugated
28 Africans. Naphy, supra, at 152–53.
1 the United States followed the English model and conducted similar campaigns to stamp out
2 homosexuality. John Winthrop, the governor of the Massachusetts Bay colony, approved the
3 execution of one sodomy offender, calling him a "monster in human shape." Jonathan Ned Katz, Gay
4 American History: Lesbians & Gay Men in the U.S.A. 22 (1992). After the American Revolution,
5 convictions for same-sex sexual activity continued, particularly in Philadelphia, the only American
6 city large enough to develop a homosexual subculture. William Benemann, Male-Male Intimacy in
7 Early America xvi, 204 (2006). At the same time, however, much of the sparsely populated new
8 country of America allowed gay men and lesbians to hide their natures and live their lives in peace.
9 For instance, men dramatically outnumbered women in early America, and would often form
10 partnerships to farm acreages together, living on and working the same land. Romantic relationships
11 could easily have flourished in such a setting, where there were few other people and little expectation
12 for conventional marriage. Id. at 14; John Demos, A Little Commonwealth: Family Life in Plymouth
13 Colony 78 (1970). But such relationships were almost invariably secret.
14 Indeed, it was not until the late nineteenth century, at a time that the cities of America were
15 growing rapidly, that "the very concept of the homosexual as a distinct category of person developed."
16 Declaration of George Chauncey ¶ 5 (Exh. A to Declaration of Mollie M. Lee ("Lee Decl.").4 Once
17 the concept developed, it was no longer merely that the act of sodomy was condemned but rather that
18 the state and society began to condemn a group of its citizens on the basis of their identity or status.
19 Id. Psychiatrists, for instance, without any scientific basis, deemed gayness and lesbianism to be
20 afflictions that required treatment – including through castration, shock treatment, aversion therapy, or
21 lobotomy. Katz, supra, at 129–207; Fone, supra, at 406.5 The world of education responded
22 similarly. In 1920, Harvard College, upon learning of a gay affair between a student and an older
23 man, convened a secret court of faculty and officials, taking evidence in a windowless room. It
24 ultimately expelled fourteen men for homosexuality or association with homosexuals. William
25 Wright, Harvard's Secret Court: The Savage 1920 Purge of Campus Homosexuals (2005). College
26
4
All subsequent exhibits are to the Declaration of Mollie M. Lee unless otherwise stated.
27 5
The American Psychiatric Association did not withdraw its classification of homosexuality as
28 a mental illness until 1973. Chauncey Decl. ¶ 8.
1 officials wrote to the students' fathers that their expulsions were for something worse than "gambling,
2 or drink, or ordinary sexual intercourse." Id. 154–55. Harvard's appointments office also punished
3 the men, writing to one prospective employer thirty-three years later that "Harvard cannot show any
4 confidence in this individual." Id. at 142. Two of the victims of Harvard's secret court eventually
5 killed themselves. Id. at 136, 201.
6 Lesbians fared badly in the late nineteenth and early twentieth centuries as well, but the
7 question of lesbianism was more complicated because it was bound up with anxieties about the rise of
8 a new class of educated women attempting to break into the professions. In the popular imagination,
9 feminism and lesbianism were seen as "unnatural, related in disturbing and unclear ways to increased
10 female criminality, insanity, and hereditary neurosis." Carroll Smith-Rosenberg, "Discourses of
11 Sexuality & Subjectivity: The New Woman, 1870-1936," in Hidden from History: Reclaiming the Gay
12 & Lesbian Past 279 (Martin Bauml Duberman et al., eds. 1989) [hereinafter Hidden from History].
13 Some women responded to these pressures by passing as men. Katz, supra, at 209–79.
14 With mass mobilization and migration to the cities in World War II and the years following,
15 many gay men and lesbians left isolated rural areas and encountered, for the first time, others with
16 similar sexual identities. Allan Berube, Coming Out Under Fire 255 (1990). But this time of
17 discovery was also a time of repression, as the military and the federal government each conducted
18 purges, discharging or firing gay men and lesbians and requiring their private contractors to do the
19 same. Id.; Chauncey Decl. ¶¶ 19–22.6 At the same time, the armed forces "deposited lesbians and
20 homosexuals, sometimes hundreds at a time, in San Francisco …. Unable or unwilling to return home
21 in disgrace to family or friends, they stayed to carve out a new gay life." John D’Emilio, "Gay Politics
22 and Community in San Francisco Since World War II," in Hidden from History, supra, at 459.
23
24
6
25 During World War II, at a time when American gays were being purged from the military, the
Nazi government of Germany murdered 20,000 gay men in concentration camps. After the Allies
26 defeated Germany and liberated its concentration camps, the new German government sent gay death
camp survivors to prison to serve the remainder of their sentences. The Nazi-era law criminalizing all
27 homosexual activity, known as Paragraph 175, remained in force in East and West Germany until the
1960s. Erwin J. Haeberle, "Swastika, Pink Triangle, Yellow Star," in Hidden from History, supra, at
28 373.
1 While they were able to establish underground or semi-underground communities in places
2 like San Francisco and Los Angeles, gay and lesbian people remained victims of state-sponsored
3 persecution in those cities and throughout California. By 1966, California was one of five states
4 where a person could be sentenced to life in prison for committing sodomy. J. Gallo et al., "The
5 Consenting Adult Homosexual and the Law: An Empirical Study of Enforcement and Administration
6 in Los Angeles County," 13 U.C.L.A. L. REV. 643, 674–75(1966). Cities such as Los Angeles and San
7 Francisco continued to repress gay life by raiding bars and gay bookstores. D'Emilio, supra, at 461–
8 62; Gallo, supra, 692–93, 707–08, 718–19. The view, promoted by the medical establishment, that
9 homosexuality was a perversion and affliction to be treated or punished permeated our State's judicial
10 decisions.7
11 But on June 27, 1969, a galvanizing event took place: the Stonewall Rebellion in New York,
12 when gay men responded to a police raid not with acceptance but with physical resistance. Three
13 nights of rioting followed, and the nation's community of lesbians and gay men became more vocal in
14 demanding equal treatment. Fone, supra, at 407. In California, lesbians and gay men garnered a
15 string of political and legal victories that allowed them to begin to live openly This included the
16 election of gay and lesbian officials like San Francisco's Harvey Milk, the repeal of California's anti-
17 sodomy law, and the interpretation of existing antidiscrimination laws to protect lesbians and gay men,
18 along with the enactment of new antidiscrimination laws. See Randy Shilts, The Mayor of Castro
19 7
For example, the California Supreme Court, considering the mental health of a gay criminal
20 defendant, discussed at length his "homosexual vices and sex perversions,” noting that as a gay person
he suffered from "sexual abnormalities." People v. Walter, 7 Cal. 2d 438, 441, 448 (1936). The Court
21 concluded that given his abnormal state of mind, he may have experienced "the urge of resentment or
revenge, which is a symptom or trait of homosexuality." Id. at 448 (emphasis in original). In 1957,
22 the California Court of Appeal addressed the situation of a male school teacher who had been fired
because he made advances toward a male undercover police officer – not at school or in the presence
23 of students, but on the beach. Sarac v. State Bd. of Educ., 249 Cal. App. 2d 58, 60–61 (1957). The
court held that gay sexual conduct or even a proposition to engage in such conduct no matter where or
24 in what context disqualified a person from teaching in the public schools. Id. at 63–64. In 1962, the
Court of Appeal upheld the Department of Alcoholic Beverage Control's revocation of the liquor
25 license of a bar that had become known as a gathering place for gay men, reasoning that gay men are
"sex perverts" and allowing them to gather and touch one another, even on the hand or knee, was
26 dangerous and against public morals. Morell v. Dep't of Alcoholic Bev. Control, 204 Cal. App. 2d
504, 509–10, 517 (1962). In 1975, the Court of Appeal affirmed a decision denying a woman custody
27 of her children in part because she was a lesbian, lived with her "female companion," and was believed
likely to engage in "immoral conduct" in front of her children. Chaffin v. Frye, 45 Cal. App. 3d 39, 43
28 (1975).
1 Street (1988); Cal. Pen. Code § 286 & annotations; Cal. Stats. 1992, ch. 915; Gay Law Students Ass'n
2 v. Pacific Tel. & Tel.Co., 24 Cal. 3d 458, 488–89 (1979). And in Lawrence v. Texas, 539 U.S. 558
3 (2003), the United States Supreme Court recognized that criminal prosecuting gay men and lesbians
4 for their sexual conduct violates the federal Constitution.8
5 Even as gay men and lesbians were making progress, they were confronted with backlash. In
6 1977, the singer Anita Bryant became the head of an organization called "Save Our Children," which
7 ran a nationally publicized campaign in Dade County, Florida, to repeal an antidiscrimination
8 ordinance enacted by that locality. Fred Fejes, Gay Rights & Moral Panic: The Origins of America's
9 Debate on Homosexuality 94-7 (2008); Lofton v. Sec'y of the Dep't of Children & Fam. Servs., 377
10 F.3d 1275, 1301–02 (11th Cir. 2004) (Barkett, J., dissenting from denial of rehearing en banc). Bryant
11 and her organization tried to link homosexuality with child molestation, calling gay men and lesbians
12 "human garbage" and recruiters of children to the homosexual lifestyle. Lofton, 377 F.3d at 1302;
13 Dudley Clendinen & Adam Nagourney, Out for Good: The Struggle to Build a Gay Rights Movement
14 in America 209, 303 (1999). In fact, its specific strategy was to convince voters that gay people were
15 "trying to recruit our children into homosexuality." Fejes, supra, at 299. Indeed, Bryant suggested
16 that gay people were child molesters and suggested that they had to recruit children because they could
17 not reproduce. Id. at 137; Morton Kondrake, "Anita Bryant is Mad About Gays," The New Republic,
18 at 13–14 (1980); Bob Moser, Holy War, Southern Poverty Law Center, "Holy War," Spring 2005,
19 available at http://www.splcenter.org/intel/intelreport/article.jsp?pid=862.
20 Bryant's fear-mongering won the day, and the Dade County antidiscrimination ordinance was
21 repealed by 70% of the voters. "Miami Anti-Gays Win in Landslide," S.F. Examiner, June 8, 1977, at
22 1. And her campaign set off a wave of successful anti-gay ballot initiative campaigns that imitated her
23 tactics across the country, in states such as Minnesota and Oregon. Fejes, supra, at 174–77. In 1978,
24 Bryant supported another campaign against a gay civil rights ordinance in Wichita, Kansas where the
25
8
26 Lawrence overruled the notorious decision Bowers v. Hardwick, 478 U.S. 186 (1986), which
decided by a 5-4 vote that criminally prosecuting gay people for private, consensual sexual intimacy
27 did not deprive them of their substantive due process rights. One of the Justices in the Bowers
majority, Justice Lewis Powell, confessed after leaving the Court that this was the vote he most
28 regretted. William N. Eskridge, Jr., "Hardwick & Historiography," 1999 Univ. Ill. L. Rev. 631, 633.
1 campaign literature focused on the "danger" of gays as role models for children: "There is a real
2 danger that homosexual teachers … simply by public acknowledgement of their lifestyles, can
3 encourage sexual deviation in children." "Voting Against Gay Rights," Time (May 22, 1978),
4 available at http://www.time.com/time/magazine/article/0,9171,919647,00.html. Anti-gay
5 organizations have continued to employ the threat-to-children message through the present to stoke
6 fears that children who learn that gay people exist will be "indoctrinated" and turn into homosexuals.
7 See, e.g., Fejes, supra, at 137, 183; A Mighty Army (Spring 2005) Southern Poverty Law Center
8 Intelligence Report, available at http://www.splcenter.org/intel/intelreport/article.jsp?pid=869;
9 Herman, The Antigay Agenda (1997) 62.
10 Many but not all of these campaigns succeeded. One exception was Proposition 6 in
11 California, which would have allowed the dismissal of California public school teachers for supporting
12 gay civil rights (regardless of their own sexual orientation), but was defeated at the polls. Fejes, supra,
13 at 183; Clendinen & Nagourney, supra, at 381. The tactics of gay-baiting campaigns were
14 institutionalized with the creation of the Moral Majority, which led a national effort to elect religious
15 right candidates and included a "declaration of war" on homosexuality as part of its early fundraising
16 appeals. "The Thirty Years War: A Timeline of the Anti-Gay Movement, Southern Poverty Law
17 Center, Spring 2005, available at http://www.splcenter.org/intel/intelreport/article.jsp?aid=523. Also
18 institutionalized was a source of dubious research concerning homosexuality through the Institute for
19 Scientific Investigation of Human Study, founded by Paul Cameron, which began in 1980 publishing
20 "scientific" studies about the links between homosexuality and child abuse. Gregory M. Herek, Paul
21 Cameron Bio and Fact Sheet, http://psychology.ucdavis.edu/rainbow/html/facts_cameron_sheet.html
22 (last visited June 15, 2009). Cameron has since been expelled from the American Psychological
23 Association for ethical violations and condemned by other professional groups for misinterpreting and
24 misrepresenting research on homosexuality. Id.
25 By the early 1990s, however, antigay campaigns shifted in tone and emphasis. As more
26 heterosexual people encountered gays and lesbians in their daily lives, groups promoting an agenda to
27 roll back civil rights protections for lesbians and gay men could no longer claim that they were
28 relentless child predators. They began to emphasize instead that they "simply" wanted to end the
1 granting of "special rights" to gays and lesbians. Moser, supra. Colorado Family Values, the
2 proponent organization of Colorado's Amendment 2, ran its campaign for Amendment 2 using the "no
3 special rights" slogan. Jean Hardisty, "Constructing Homophobia: Colorado's Right-Wing Attack on
4 Homosexuals," Public Eye Magazine 26 (Mar. 1993). (Colorado Family Values also campaigned for
5 Amendment 2 on the basis of a link between homosexuality and child molestation, as discussed infra
6 at 29–30. The Supreme Court subsequently struck down Amendment 2 in Romer, 517 U.S. 620.) The
7 "no special rights" approach was also used in a wave of successful anti-gay ballot measures throughout
8 the country, including in Maine, Hawaii, Alaska, Nebraska, Nevada, and other states. Todd Donovan,
9 et al., "Direct Democracy & Gay Rights Initiatives After Romer," in The Politics of Gay Rights 167
10 (Craig A. Rimmerman, et al., 2000); Wetzstein, "Gays Can't 'Marry,' 2 States Say,' Wash. Times, Nov.
11 5, 1998, at A16; Donald P. Haider-Markel et al., "Lose, Win or Draw? A Reexamination of Direct
12 Democracy & Minority Rights," 60 POL. RES. Q. 304 (2007).
13 Moreover, gay men and lesbians still face hate crimes and personal discrimination on a daily
14 basis; indeed, a recently released study found that victims reporting violence on the basis of their
15 sexual orientation has increased by 26% over the last two years. Fone, supra, at 413; Nancy Levit, "A
16 Different Kind of Sameness: Beyond Formal Equality and Antisubordination Strategies in Gay Legal
17 Theory," 61 Ohio St. L.J. 867, 868 (2000); National Coalition of Antiviolence Programs, Hate
18 Violence Against Lesbian, Gay, Bisexual and Transgender People in the United States 3 (2008),
19 available at http://www.ncavp.org/common/document_files/Reports/2008%20HV%20
20 Report%20smaller%20file.pdf. The Boy Scouts of America continues to preclude gay men from
21 becoming scoutmasters on grounds that they are not "morally straight." Boy Scouts of Am. v. Dale,
22 530 U.S. 640, 651 (2000). The U.S. military continues to discharge gay and lesbian service members
23 – nearly 10,000 between 1994 and 2003. GAO, Military Personnel: Financial Costs & Loss of
24 Critical Skills Due to DOD's Homosexual Conduct Policy Cannot Be Completely Estimated 4 (2005).
25 And perhaps most gravely, young people continue to be harassed on the basis of their actual or
26 perceived sexual orientation. It is therefore no surprise that studies show that 30 percent of gay,
27 lesbian or bisexual youth have attempted suicide (a rate two to three times higher than that of
28 heterosexual youth), that gay and lesbian youth are far likelier to suffer from depression and substance
1 abuse, or that 20 to 40% of homeless youth identify as gay, lesbian, bisexual or transgender, having
2 often been kicked out of their homes or forced to flee from violence after coming out. S. Russell & K.
3 Joyner, "Adolescent Sexual Orientation and Suicide Risk: Evidence from a National Study," 91 Am. J.
4 Pub. Health 1276 (2001); Nicholas Ray, Nat'l Gay & Lesbian Task Force, An Epidemic of
5 Homelessness 1–2 (2006).
6 II. THE STRUGGLE FOR MARRIAGE EQUALITY IN CALIFORNIA SHOWS

PROGRESS IN ACHIEVING FORMAL RIGHTS FOLLOWED BY BACKLASH
7
The movement for marriage equality for lesbians and gay men reflects the same patterns of
8
struggle, victory, and subsequent backlash that is apparent in the larger history of discrimination
9
against lesbians and gay men. We turn now to the story of the California marriage equality movement
10
and Proposition 8.
11
A. Domestic Partnership
12
In 2003, the California Legislature adopted AB 205, which expanded state-provided tangible
13
rights to same-sex couples to make them comparable to those of married spouses, and equalized the
14
law relating to matters such as family leave and health care plans. See Cal. Stats. 2003, ch. 421; Cal.
15
Fam. Code § 297.5; Cal. Lab. Code § 233, Cal. Ins. Code §§ 3302, 3303; Cal. Health & Safety Code
16
§ 1374.58. In adopting AB 205, the Legislature recognized the "longstanding social and economic
17
discrimination" lesbians and gay men have faced, and found that despite it many lesbian and gay
18
couples have formed "lasting, committed and caring relationships." Cal. Stats. 2003, ch. 421, § 1(b).
19
It found that same-sex couples "share lives together, participate in their communities together, and
20
many raise children and care for other dependent family members together." Id. It found that
21
"[e]xpanding the rights and creating responsibilities of registered domestic partners would further
22
California's interests in promoting family relationships and protecting family members during life
23
crises." Id. (emphasis added); see also id. § 1(a). It stated its intent to "reduce discrimination on the
24
bases of sex and sexual orientation in a manner consistent with the requirements of the California
25
Constitution" and to "move closer to fulfilling the promises of inalienable rights, liberty, and equality
26
contained in sections 1 and 7 of article 1 of the California Constitution." Id. §§ 1(a) & (b).) Notably,
27
28
1 it did not find that the legislation would eliminate discrimination or fulfill the Constitution's promises
2 of liberty and equality; it understood the domestic partnership scheme fell short of that goal.
3 B. In re Marriage Cases
4 On May 15, 2008, the California Supreme Court decided that California's constitutional
5 guarantees of equal protection, privacy, and due process required that California permit same-sex
6 couples full access to the officially recognized, cherished institution of civil marriage. In re Marriage
7 Cases, 43 Cal. 4th 757. The Court expressly found that California's family laws, which instructed the
8 State to grant recognition to the domestic partnerships of same-sex couples but not to honor them with
9 the "historic and highly respected designation marriage," risked "denying the official family
10 relationship of same-sex couples the equal dignity and respect that is a core element of the
11 constitutional right to marry." Id. at 830–31. Specifically, the Court held that
12 because of the long and celebrated history of the term "marriage" and the
widespread understanding that this term describes a union unreservedly
13 approved and favored by the community, there clearly is a considerable and
undeniable symbolic importance to this designation. Thus, it is apparent that
14 affording access to this designation exclusively to opposite-sex couples, while
providing same-sex couples access to only a novel alternative designation,
15 realistically must be viewed as constituting significantly unequal treatment to
same-sex couples.
16
Id. at 845. The Court also recognized that "retaining the traditional definition of marriage and
17
affording same-sex couples only a separate and differently named family relationship will, as a
18
realistic matter, impose appreciable harm on same-sex couples and their children," because "denying
19
such couples access to the familiar and highly favored designation of marriage is likely to cast doubt
20
on whether the official family relationship of same-sex couples enjoys dignity equal to that of
21
opposite-sex couples." Further, the Court observed that "particularly in view of the widespread
22
disparagement that gay individuals historically have faced, it is all the more probable that excluding
23
same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official
24
view that their committed relationships are of lesser stature than the comparable relationships of
25
opposite-sex couples." Worse, the Court held, reserving the status of marriage for opposite sex
26
couples "may well have the effect of perpetuating a more general premise … that gay individuals and
27
same-sex couples are in some respects 'second-class citizens' who may, under the law, be treated
28
1 differently from, and less favorably than, heterosexual individuals or opposite-sex couples." Id. at
2 784–85. The Court therefore struck down California's statutory language limiting marriage to one
3 man and one woman. Id. at 857.
4 C. Proposition 8
5 As the Marriage Cases were proceeding, the petition to place Proposition 8 on the ballot was
6 drafted and circulated. Strauss v. Horton, No. S168047, S168066, S168078, -- Cal. 4th --, 2009 WL
7 1444594, at *9 (Cal. May 26, 2009). The California Secretary of State did not, however, certify that
8 Proposition 8 had enough valid signatures to qualify to appear on the ballot until after the Supreme
9 Court decided Marriage Cases. See Strauss, 2009 WL 1444594, at *9. It appeared on the ballot in
10 California on November 4, 2008.
11 In the months leading up to the election, Proposition 8's proponents waged a campaign
12 premised on moral disapproval and fear of same-sex relationships and lesbians and gay men. For
13 instance, a central theme of the Yes on 8 Campaign was that Proposition 8 would protect children.
14 While the Official Proponents9 avoided the explicit animus of earlier campaigns for anti-gay
15 initiatives, they used the lessons of these prior campaigns to turn out voters by suggesting that
16 allowing equal rights for gays and lesbians threatens children. Thus, Proponents' campaign videos
17 stated that "some of the most profound consequences are for children," and that voters could "protect
18 children" by voting "Yes on 8." Robb and Robin Wirthlin’s Story, ProtectMarriage.com (2008),
19 available at http://www.protectmarriage.com/video/view/6 (last viewed June 17, 2009) The specific
20 threat articulated by proponents was not Anita Bryant's claim that homosexuals are child molesters,
21 but the more coded concern that "[g]ay marriage will be taught in our schools, unless we vote yes on
22 Proposition 8." Everything to do with Schools, ProtectMarriage.com (2008), available at
23 http://www.protectmarriage.com/video/view/7 (last viewed June 17, 2009). This represents a shift in
24 tone from outright animus to moral disapproval. See, e.g., Exh. C, Rebuttal to Argument Against
25 Proposition 8 ("Your YES vote ensures that parents can teach their children about marriage according
26 9
The official proponents are those who submit a draft of a petition proposing a ballot initiative
27 or referendum to the California Attorney General. See Cal. Elec. Code § 342. In this case,
ProtectMarriage.com – Yes on 8, a Project of California Renewal is the official proponent. See
28 Proposed Intervenors' Motion to Intervene, Doc. 8, at 3:23-5:2.
1 to their own values and beliefs without conflicting messages being forced on young children in public
2 schools that gay marriage is okay.")
3 In official campaign communications, Proponents were careful not to explain the threat to
4 children in terms of animus or even religious disapproval. But supporters of Proposition 8 got the
5 message, and they expressed the message of animus in urging others to support Proposition 8. See,
6 e.g. Exh. D at 11 ("I do NOT want my children exposed to the filthy world of homosexuality. My
7 children learning about natural relationships (heterosexual relationships only of course) is something
8 that they NEED to know. Finding out that two men like to insert things into where the other defecates
9 is not something I want my children to learn. I want them to learn that there is something very wrong
10 with the brains of g.a.y.s and that therapy and medication, just like any other brain disorder, is what is
11 needed, not acceptance."); Exh. E at 3 ("We cannot teach our children about gays and lesbians because
12 there cannot be a mother and a mother or a father and a father. We will be torturing and/or misleading
13 our children."); Exh. F ("homosexuality is not normal" and "we do not accept what they do is normal,
14 nor do we want our school district to teach that it is normal."); Exh. G ("[T]he concern is not that it
15 will make the kids gay, it is that it will teach innocent mind that practicing homosexuality is okay
16 when it isn't. Please can anyone tell me why Sodom and Gomorroh was destroyed for practicing
17 homosexuality, but our nation will not be judged for the very same thing?"); Lee Decl. ¶ 7 (Yes on
18 Proposition 8 Supporters Share Views - Santa Clarita Ca - Join the Impact, (YouTube 2008, posted
19 October 23, 2008), available at http://www.youtube.com/watch?v=gtcZnLXhiJo&feature=
20 PlayList&p=3BD5A4096173FD7E&index=6 (last viewed June 17, 2009) (interviewee stating that if
21 Prop 8 does not pass her children will be "taught that this is a normal thing that's OK, and that's not
22 what we believe. God did not intend people to be with people of the same sex.").); Exh. H at 1
23 (Catholic Bishop Salvatore Cordileone of San Diego stating his support for Proposition 8 because it is
24 an "intrinsic evil" to “destroy[] the integrity of family life"). For some supporters of Proposition 8,
25 disapproval of same-sex relationships extended beyond peaceful statements of moral or religious
26 disapproval and became hate or violence. See, e.g., Exh. I ("A Torrance man has been charged with a
27 felony hate crime assault for allegedly using an anti-gay marriage 'Yes on Prop. 8' lawn sign to attack
28 a gay man wearing a 'No on 8' button … [He] allegedly used the 'Yes on Prop. 8' lawn sign to knock
1 down the victim, who was then punched and choked while [the attacker] allegedly uttered a
2 homosexual slur."); GOD HATES FAGS!!! (YouTube 2008, posted June 16, 2008), available at
3 http://www.youtube.com/watch?v=dEQuW2v6U2o (last viewed June 17, 2009) (woman at rally
4 shouting that homosexuals are "feces-eating brute beasts," "God hates you," "Fags are worthy of
5 death," "God hates fags" and stating that gay people should be put to death because it is "the standard
6 of God;" man at rally calling homosexuals "perverts," who have a "filthy lifestyle" that will "doom"
7 them); Exh. J at 6 ("Homosexual "marriage" is not about rights - it's about making their immorality
8 acceptable. Look back at our country's history and you'll find that in some states homosexuals received
9 the death penalty. This is not "homophobic" but a rational based upon morality.").
10 This was the context of the successful campaign to deprive lesbians and gay men of the right to
11 marriage. We turn finally to the legal effect of Proposition 8 on California's constitutional guarantees.
12 D. Strauss v. Horton
13 On May 26, 2009, the California Supreme Court decided Strauss v. Horton, No. S168047,
14 S168066, S168078, -- Cal 4th --, 2009 WL 1444594 (Cal. May 26, 2009), which determined that
15 Proposition 8 was a valid amendment to California's Constitution.
16 As the California Supreme Court recognized in Strauss, Proposition 8 selectively repealed, for
17 lesbians and gay men but no one else, a portion of the California Constitution's fundamental
18 guarantees of rights. When a slim majority of California voters approved Proposition 8 on November
19 4, 2008, they did not overrule Marriage Cases. They lacked the power to do so; only the California
20 Supreme Court has final authority to interpret language in the state Constitution. Strauss, 2009 WL
21 1444594, at *67. When the plebiscite passed Proposition 8, it did not "declare the state of the law as it
22 existed under the California Constitution at the time of the Marriage Cases, but rather establishe[d] a
23 new substantive state constitutional rule that took effect upon the voters' approval." Id. at *6.
24 As interpreted by the California Supreme Court in Strauss, the measure did not purport to deny
25 same-sex families of the rights, benefits or obligations that State law confers on married couples;
26 according to Strauss, California's domestic partner statute continued to guarantee these rights to same-
27 sex couples who register as domestic partners. Strauss, 2009 WL 1444594, at *19. Indeed,
28
1 Proposition 8 was modeled on California Family Code § 308.5,10 which was struck down by Marriage
2 Cases but had previously been interpreted to deny same-sex couples the title and stature of marriage,
3 but not the legal rights and obligations that flow from it. Strauss, 2009 WL 1444594, at *20. Thus the
4 identical language adopted by the voters in the form of Proposition 8 similarly deprives lesbian and
5 gay couples of the title and stature of marriage, but not the legal incidents that they may receive if they
6 register as domestic partners.
7 But according to California's highest court, the California Constitution before Proposition 8
8 provided privacy, due process, and equal protection guarantees to lesbian and gay couples that entitled
9 them not merely to the legal incidents of marriage but to the title and stature of marriage itself.
10 Marriage Cases, 43 Cal. 4th at 823, 829, 855–56. After Proposition 8, those protections no longer
11 existed, and by approving Proposition 8 the majority reshaped the equality, privacy and due process
12 guarantees of the state Constitution. "[T]his newly adopted provision must be understood as carving
13 out an exception to the preexisting scope of the privacy and due process clauses." Strauss, 2009 WL
14 1444594, at *19 (emphasis added). Thus, when the majority passed Proposition 8, it cut away portions
15 of the rights guaranteed by the equal protection, privacy and due process clauses of the California
16 Constitution – but only for a single class of people, California's lesbian and gay citizens. And as we
17 argue below, they did so for no purpose other than to use the California Constitution to send a message
18 of antipathy to lesbians and gay men.
19 ARGUMENT
I. PROPOSITION 8 VIOLATES THE EQUAL PROTECTION GUARANTEE OF THE
20 FEDERAL CONSTITUTION BECAUSE IT STRIPPED AWAY CONSTITUTIONAL
GUARANTEES FOR A SINGLE CLASS OF CITIZENS WITH NO PURPOSE OTHER
21 THAN ANIMUS AND MORAL DISAPPROVAL
22 Although San Francisco agrees with Perry that Proposition 8 is subject to heightened scrutiny
23 because it discriminates on the bases of sexual orientation and gender, and because it infringes on the
24 fundamental right to marry, the Court need not reach these issues if it determines that Proposition 8
25
26
27 10
Family Code § 308.5 was enacted by Proposition 22, a statutory initiative which stated that
28 "only marriage between a man and a woman is valid or recognized in California."
1 violates the equal protection rights of lesbians and gay men under rational basis review.11 San
2 Francisco respectfully submits that it does.
3 A. Under the Rational Basis Test, A Law Violates The Equal Protection Clause When
It Does Not Advance A Legitimate Governmental Purpose
4
The Equal Protection Clause of the federal Constitution provides that no State may "deny to
5
any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV, § 1. At
6
its core, "[t]he Equal Protection Clause … den[ies States] the power to legislate that different
7
treatment be accorded to persons placed by a statute into different classes on the basis of criteria
8
wholly unrelated to the objective of that statute." Eisenstadt v. Baird, 405 U.S. 438, 447 (1972).
9
Where economic or social legislation is at issue, the judgment of the legislature "is accorded a strong
10
presumption of validity," and the measure is found constitutional "if there is a rational relationship
11
between the disparity of treatment and some legitimate governmental purpose." Heller v. Doe, 509
12
U.S. 312, 319–20 (1993).
13
Proposition 8 therefore cannot survive rational basis review unless this Court can (1) identify a
14
legitimate state purpose for the measure, and (2) find that eliminating a state constitutional right for
15
one group of Californians alone is rationally related to the achievement of that purpose. But this test is
16
not toothless. Although the rational basis test gives latitude to legislators to determine what means
17
appropriately suit their asserted purposes, Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 528
18
(1959), "[t]he State may not rely on a classification whose relationship to an asserted goal is so
19
attenuated as to render the distinction arbitrary or irrational." City of Cleburne v. Cleburne Living
20
Center, 473 U.S. 432, 446 (1985). A "marginal relation to the proffered objective" is not enough.
21
Eisenstadt, 405 U.S. at 448.
22
23
11
24 San Francisco agrees with Perry's analysis that Baker v. Nelson, 409 U.S. 810 (1972), does
not control this case. See Plaintiffs' Motion for a Preliminary Injunction, Doc. 7, at 11 n.6. Moreover,
25 this case presents facts where lesbians and gay men once possessed a state constitutional right to
participate fully in the institution of marriage, but the State removed that right for illegitimate reasons.
26 No such facts were presented in Baker. See Baker v. Nelson, Jurisdictional Statement, No. 71-1027
(Oct. Term 1972) (Exh. C to Proposed Intervenors' Opposition to Plaintiffs' Motion for Preliminary
27 Injunction, Doc. 36). Thus, this case does not present "the precise issues presented and necessarily
decided" by the Supreme Court's dismissal of the Baker appeal. Mandel v. Bradley, 432 U.S. 173, 176
28 (1977) (per curiam).
1 Moreover, the range of permissible purposes is broad but finite. It does not include moral
2 disapproval. Lawrence, 539 U.S. at 577 ("'[T]he fact that the governing majority in a State has
3 traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law
4 prohibiting the practice.'") (quoting Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J.,
5 dissenting); id. at 584 (O'Connor, J., concurring in the judgment) (the State cannot single out one
6 identifiable class of citizens for punishment "with moral disapproval as the only asserted state interest
7 for the law"). It does not include naked favoritism. Zobel v. Williams, 457 U.S. 55, 65 (1982)
8 (justification of favoring one group of residents over another "is constitutionally unacceptable")
9 (internal quotation marks omitted). It does not include tradition for its own sake. Williams v. Illinois,
10 399 U.S. 235, 239 (1970). And it does not include animus. Romer, 517 U.S. 620; City of Cleburne,
11 473 U.S. at 446–47; U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 534 (1973).
12 In applying the rational basis test to determine whether the government's chosen means fit its
13 ends, a court is not required to close its eyes to indications that the actual purpose of a measure is not
14 the one proffered by the government but a different, invidious motivation. "[T]he standard of
15 rationality … must find some footing in the realities of the subject addressed by the legislation."
16 Heller, 509 U.S. at 321. And where courts suspect animus against a singled-out group, they take a
17 closer look at the proffered justification.12 Romer, 517 U.S. at 626-31. "When a law exhibits … a
18 desire to harm a politically unpopular group, we have applied a more searching form of rational basis
19 review to strike down such laws under the Equal Protection Clause." Lawrence, 539 U.S. at 580
20 (O'Connor, J., concurring in the judgment).
21 In order to determine the actual purpose of a statute, the court considers its "immediate
22 objective, its ultimate effect and its historical context and the conditions existing prior to its
23 enactment." Reitman v. Mulkey, 387 U.S. 369, 373 (1967) (internal quotation marks omitted). The
24 more searching form of rational basis review may include looking to actual evidence of the intent
25 12
This closer look has been dubbed "rational basis with bite" by commentators, and the
26 Supreme Court has at least obliquely recognized this term. See Fitzgerald v. Barnstable Sch. Comm.,
-- U.S. --, 129 S. Ct. 788, 797 n.2 (2009) (identifying Reed v. Reed, 404 U.S. 71 (1971), as a rational-
27 basis equal protection case, noting "But see Gunther, In Search of Evolving Doctrine on a Changing
Court: A Model for Newer Equal Protection, 86 Harv. L. Rev. 1, 34 (1972) (Reed exemplified the
28 application of rationality review 'with bite')").
1 underlying the enactment. City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 195
2 (2003) (citing Cleburne as a rational basis case that looked to "decisionmakers' statements as evidence
3 of … intent"); City of Cleburne, 473 U.S. at 448 (assessing whether "the record" revealed any rational
4 basis behind a requirement that group homes for the mentally retarded but not most group homes must
5 obtain a permit); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 590-91 (9th Cir. 2008) (where needed to
6 assess "'the realities of the subject addressed by the legislation,' [plaintiffs may be permitted] to rebut
7 the facts underlying defendants' asserted rationale for a classification, to show that the challenged
8 classification could not reasonably be viewed to further the asserted purpose"); Tucson Woman's
9 Clinic v. Eden, 379 F.3d 531, 546 (9th Cir. 2004) (affirming summary judgment on equal protection
10 grounds where "no evidence has been presented that is sufficient to create an issue of material fact as
11 to whether there is a stigmatizing or animus based purpose to the law").13
12 Ultimately, by applying the rational basis test and "requiring that the classification bear a
13 rational relationship to an independent and legitimate legislative end, [courts] ensure that
14 classifications are not drawn for the purpose of disadvantaging the group burdened by the law."
15 Romer, 517 U.S. at 633 (emphasis added).
16 B. Proposition 8 Violates Equal Protection Because It Does Not Advance Any Of The
Legitimate Government Purposes Its Proponents Claim
17
In ballot materials presented to California voters, proponents of Proposition 8 identified three
18
possible purposes for defining marriage to exclude same-sex couples: (1) protecting marriage,
19
(2) protecting children from being taught that gay marriage is acceptable, (3) and enacting a traditional
20
definition of marriage.14 Exh. C. In pleadings before this Court, Proponents suggest two new
21
purposes, both asserted to relate to the state interest in protecting the welfare of children:
22
23 13
Generally, of course, on rational basis review, the court may ascertain legislative intent from
the enactment itself and there will be no need to take evidence. See, e.g., Butler v. Apfel, 144 F.3d 622
24 (9th Cir. 1998) (affirming motion to dismiss equal protection claim related to government benefits on
the pleadings). But where there is a specific allegation of improper motive or pretext, with sufficient
25 factual content to survive a motion to dismiss, see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556–57,
570 (2007), then the Ninth Circuit has recognized that evidence may be required to resolve any factual
26 dispute concerning purpose. See, e.g., Tucson Woman's Clinic, 359 F.3d at 546.
14
27 Proponents also argued that Proposition 8 "overturns the outrageous decision of four activist
Supreme Court judges …" Exh. C (emphasis in original). Heated rhetoric aside, this is simply an
28 (incorrect) description of the effect of Proposition 8 and not an independent purpose.
1 (4) encouraging children to be raised by their biological parents, and (5) channeling heterosexual
2 sexual activity so that procreation occurs in the context of marriage. Proposed Intervenors' Opposition
3 to Plaintiffs' Motion for Preliminary Injunction ("Int. Opp."), Doc. 36, at 12:2–7.
4 While proponents have struggled mightily to find a purpose that will survive rational basis
5 review, none of purposes they propose satisfy the dual requirement of advancing a legitimate state end
6 and rationally relating to the classification drawn by Proposition 8. Promoting marriage and
7 protecting children are legitimate state ends, and noble goals, but excluding same-sex couples from
8 marriage does nothing to advance these goals. By contrast, preserving a traditional definition of
9 marriage may be a rational reason for excluding same-sex couples from the institution of marriage, but
10 preserving tradition is not a legitimate state end in equal protection jurisprudence, as discussed infra in
11 Argument Section I.C. Ultimately, none of the proposed purposes for Proposition 8 survives "[t]he
12 search for the link between classification and objective [that] gives substance to the Equal Protection
13 Clause." Romer, 517 U.S. at 632.
14 1. Eliminating the Right of Same-Sex Couples to Marry Does Not Protect

Marriage
15
Protecting or promoting marriage is a legitimate state purpose, but classifying couples on the
16
basis of sexual orientation is not rationally related to achieving this goal. Proposition 8 purports to
17
"protect marriage as an essential institution of society," Exh. C (Argument in Favor of Proposition 8),
18
by eliminating the right of same-sex couples to marry. But the "relationship to [this] asserted goal is
19
so attenuated as to render the distinction arbitrary or irrational." City of Cleburne, 473 U.S. at 446.
20
Proposition 8 eliminates the right of same-sex couples to marry but does nothing to protect marriage.
21
An inquiry into the "facts and … circumstances" of Proposition 8's passage, Reitman, 387 U.S.
22
at 378, shows that its immediate objective was to abrogate the holding of the California Supreme
23
Court that same-sex couples had a right to marry under the state constitution. See, e.g., Exh. C
24
(Argument in Favor of Proposition 8). Yet Marriage Cases had not changed marriage but rather made
25
it available to same-sex couples. It did not prohibit or discourage marriage between opposite-sex
26
couples. Nor did it reduce or otherwise alter the general rights, privileges and duties of marriage. Id.
27
at 854 ("permitting same-sex couples access to the designation of marriage will not alter the
28
1 substantive nature of the legal institution of marriage"). As the Court explained, its decision had no
2 affect at all on the marriage rights of opposite-sex couples:
3 [O]ur recognition that the constitutional right to marry applies to same-sex

couples as well as to opposite-sex couples does not diminish any other person's
4 constitutional rights. Opposite-sex couples will continue to enjoy precisely the
same constitutional rights they traditionally have possessed, unimpaired by our
5 recognition that this basic civil right is applicable, as well, to gay individuals
and same-sex couples.
6
Id. at 825.
7
The narrow scope of the holding in Marriage Cases undermines Proponents' arguments that
8
the purpose of Proposition 8 was to protect marriage. The decision did not change the marriage rights
9
of opposite-sex couples at all, and it altered the marriage rights of same-sex couples only by requiring
10
the State to confer on their unions the title of "marriage." And so one must ask what how denying
11
lesbian and gay couples the name "marriage" even as the state-conferred incidents of marriage are
12
made available to them could conceivably protect marriage as an institution or the marriages of
13
opposite-sex couples. The answer is almost self-evident.
14
As the California Supreme Court recognized, the designation "marriage" is "familiar and
15
highly favored," Marriage Cases, 43 Cal. 4th at 704, has a "long and celebrated history," id. at 845,
16
and there is "widespread understanding" that "it describes a union that is universally approved and
17
favored by the community." Id. Proposition 8 denied that highly favored social status to same-sex
18
couples, sending the message that they are less worthy of respect and dignity than opposite-sex
19
relationships. The idea that denying respect and dignity to same-sex relationships "protects marriage"
20
only makes sense if one believes that lesbians and gay men and the same-sex relationships that define
21
them are so base or unworthy that their association with marriage will tarnish and defame the
22
institution. Although couched in terms that sound noble and benign, the "protect marriage" argument
23
is at bottom a reflection of antipathy and moral disapproval. And, as discussed in Section I.C.2, infra,
24
sending the message of moral disapproval of and animus toward a group is not a legitimate state
25
purpose.
26
27
28
2. Eliminating the Right of Same-Sex Couples to Marry Does Not Protect

1 Children
2 Before the voters of California and before this Court, Proponents have presented various
3 arguments in support of the assertion that eliminating the right of same-sex couples to marry would
4 protect children. These arguments are addressed and considered in turn below. As explained below,
5 none of these asserted purposes advances a legitimate state interest in protecting the welfare of
6 children – but taken together, they demonstrate that Proponents learned well the lessons of Anita
7 Bryant and the campaigns that followed her model: demonizing lesbians and gay men as a threat to
8 children is an effective means to pass anti-gay initiatives.
9 a. Proposition 8 Does Not Protect Children in Public Schools
10 A key campaign argument made in support of Proposition 8 was the claim that it "protects our
11 children from being taught in public schools that 'same-sex marriage' is the same as traditional
12 marriage." Exh. C (Argument in Favor of Proposition 8). The proponents of Proposition 8 ran
13 commercials on radio and television claiming that if Proposition 8 did not pass, schools would be
14 forced to "teach homosexuality." See Exh. F to Lee Decl. (Everything To Do With Schools,
15 ProtectMarriage.com (2008), available at http: //www.protectmarriage.com/video/view/7 (last viewed
16 June 17, 2009); Why Proposition 8, ProtectMarriage.com, available at
17 http://www.protectmarriage.com/about/why (last viewed June 17, 2009) ("schools will now be
18 required to teach students that gay marriage is the same as traditional marriage, starting with
19 kindergartners"); Questions & Answers About Proposition 8, ProtectMarriage.com, available at
20 http://protectmarriage.com/files/faq.pdf (last visited June 17, 2009) ("[Proposition 8] protects our
21 children from being taught in public schools that “same-sex marriage” is the same as traditional
22 marriage.").) Yet the fear that same-sex couples' marriages might be discussed in schools does not
23 transform moral disapproval into a legitimate state purpose. While parents have the right to educate
24 their children according to their beliefs, see, e.g., Pierce v. Society of Sisters, 268 U.S. 510 (1925),
25 they may not demand that the state educate children according to their prejudices. Cf. Lawrence, 539
26 U.S. at 571 (answering no to the question "whether the majority may use the power of the state to
27 enforce these views on the whole society through operation of the criminal law").
28
1 Proponents do not explain how it would threaten children's well-being to teach them – in the
2 context of otherwise sanctioned discussions of marriage – that it is "okay" for same-sex couples to
3 marry. To the contrary, evidence proffered on this motion by Proponents themselves suggests that the
4 real threat to children in schools results not from teaching children to value equality, but from
5 children's ignorance concerning people who are different from them:
6 Young people who identify as lesbian, gay, or bisexual may be more likely to
face certain problems, including being bullied and having negative experiences
7 in school. These experiences are associated with negative outcomes, such as
suicidal thoughts, and high-risk activities, such as unprotected sex and alcohol
8 and drug use. On the other hand, many lesbian, gay, and bisexual youths appear
to experience no greater level of health or mental health risks. Where problems
9 occur, they are closely associated with experiences of bias and discrimination in
their environments. Support from important people in the teen's life can provide
10 a very helpful counterpart to bias and discrimination. Support in the family, at
school, and in the broader society helps to reduce risk and encourage healthy
11 development. . . . All young people who come out may experience bias,
discrimination, or even violence in their schools, social groups, work places,
12 and faith communities. Supportive families, friends, and schools are important
buffers against the negative impacts of these experiences.
13
Exh. F to Int. Opp. Ex. (American Psychological Association, "For a Better Understanding of Sexual
14
Orientation and Homosexuality," at 4 (2008)) (emphasis added).
15
Ultimately, the attempt to prohibit any public school from teaching that same-sex couples may
16
marry does not advance a legitimate state purpose in protecting the welfare of children. Instead, it
17
supports the illegitimate purpose of making the State an agent of private discrimination. See Reitman,
18
387 U.S. at 378; Romer, 517 U.S. at 635.
19
b. Proposition 8 Does Not Protect Children by Promoting Biological
20 Parenting
21 Perhaps recognizing the legal infirmities in the "public schools" argument presented to the
22 voters, in briefing before this Court Proponents now offer two new arguments that purport to explain
23 how Proposition 8 protects children. In the first of these arguments, Proponents assert that it is best
24 for children to be raised by two biological parents, and that this provides a rational basis for defining
25 marriage to exclude same-sex couples. This rationale is belied by the fact that marriage is not and had
26 never been limited to those who can or intend to have children of their own; thus, the old, the infirm,
27 the infertile and the imprisoned are all permitted to marry without limitation. Further, Proponents
28 make no effort to explain how limiting marriage to heterosexual couples will encourage those who are
1 able to reproduce to do so more often or discourage those who are unable from having and raising
2 children not biologically connected to both. The biological parenting rationale is just not credible.
3 See Marriage Cases, 43 Cal. 4th at 825–26.
4 But the Court need look no further than the very evidence that Proponents themselves present
5 to understand that this asserted purpose is so attenuated as to render Proposition 8 arbitrary.
6 Proponents cite a 2002 research brief finding that children raised by stepparents have lower levels of
7 well-being than those raised by biological parents. See Int. Opp. at 12. But this 2002 research brief
8 only considers subsets of heterosexual couples (married, remarried, divorced, cohabiting) and does not
9 evaluate the relative well-being of children raised by same-sex couples or even by opposite-sex
10 couples who adopt. See Exh. D to Int. Opp. (Kristin Anderson Moore et al., "Marriage from a Child's
11 Perspective: How Does Family Structure Affect Children, and What Can We Do About It?", Child
12 Trends Research Brief (June 2002).) And in fact, the American Psychological Association brochure
13 that Proponents cite for other purposes actually rebuts Proponents' misguided assertions that children
14 of same-sex couples have lower levels of well-being. See Exh. F to Int. Opp. (American
15 Psychological Association, supra, at 5.) It states,
16 In summary, social science has shown that the concerns often raised about the
children of lesbian and gay parents – concerns that are generally grounded in
17 prejudice against and stereotypes about gay people – are unfounded. Overall,
the research indicates that the children of lesbian and gay parents do not differ
18 markedly from the children of heterosexual parents in their development,
adjustment, or overall well-being.
19
Id. (emphasis added). If the evidence that Proponents cherry-picked to present to this Court so
20
undermines the link between the legitimate purpose they embrace and the means the voters chose to
21
achieve it, this only serves to demonstrate that the purposes Proponents offer are pretextual.
22
Proponents also fail to cite subsequent research sponsored by the same organization that issued
23
the Moore paper Proponents cite. In fact, a 2007 research brief issued by the same organization but
24
not discussed by Proponents addresses these issues and makes explicit that the benefits to children of
25
being raised by married parents extend to adoptive parents. Exh. B (Lisa Mincieli, et al., "The
26
Relationship Context of Births Outside Marriage: The Rise of Cohabitation," Child Trends Research
27
Brief, at endnote a (May 2007)). This more recent research also emphasizes that "children born into
28
1 cohabiting unions face greater risks than children born into marital unions." Id. The overarching
2 finding of this body of research is that children are better off when they are raised by "two married
3 biological or adoptive parents who are in a low-conflict relationship." Id.15 It would be irrational in
4 the extreme to conclude that Proposition 8 advances this purpose by denying the children of same-sex
5 couples the benefit of being raised by married parents – indeed, the Mincieli paper suggests that
6 Proposition 8 harms children of same-sex couples of relegating them to a household of cohabiting
7 parents.
8 When carefully examined, Proponents' emphasis on biological parenting turns out to be
9 nothing more than a variation on the now discredited notion that lesbians and gay men are less suitable
10 parents than their heterosexual counterparts. "Empirical studies comparing children raised by sexual
11 minority parents have not found reliable disparities in mental health or social adjustment." Herek,
12 Legal Recognition of Same-Sex Relationships in the United States: A Social Science Perspective, 61
13 Am. Psychol. 607, 611 (2006). Furthermore, this notion is inconsistent with California law, which
14 treats lesbians and gay men as equally capable foster parents and adoptive parents. Cal. Welf. & Inst.
15 Code §§ 16001.9(a)(23), 16013; Cal. Stats. 2003, ch. 331; Cal. Fam. Code §§ 8600, 9000(b). And in
16 fact, as argued infra in Section I.C.2, Proponents' reliance on discredited ideas about what is necessary
17 to protect children only recalls the fear-mongering of the Anita Bryant campaigns and belies
18 Proponents' proffered purposes.
19 c. Proposition 8 Does Not Encourage "Responsible Procreation"
20 Finally, Proponents argue that an asserted state interest in "responsible procreation" provides a
21 rational basis for defining marriage as the union of a man and a woman. As proponents describe it,
22 responsible procreation requires directing the sexual impulses of heterosexual couples towards
23 marriage so that unplanned children are not born out of wedlock. While this may be a legitimate state
24 interest, it fails to provide a rational basis for Proposition 8. At most, an interest in responsible
25
15
26 This brief states, however, that "rigorous research is as yet unavailable on the proportion of
nonmarital births that occur to same-sex couples or the implications of these family structures for
27 children." Exh. B (Mincieli et al., supra, at endnote a). But see American Psychological Association,
supra, at 5; Gregory M. Herek, Legal Recognition of Same-Sex Relationships in the United States: A
28 Social Science Perspective, 61 Am. Psychol. 607, 611 (2006).
1 procreation is a reason to define marriage to include the union of a man and a woman. It is not a
2 reason to define marriage to exclude the union of a same-sex couple. Put simply, there is no rational
3 relationship between channeling the sexual impulses of heterosexual couples and eliminating the right
4 to marry of same-sex couples.
5 Nor is Proposition 8 a valid exercise of the legislative prerogative, under rational basis review,
6 to "take one step at a time, addressing itself to the phase of the problem which seems most acute to the
7 legislative mind." Katzenbach v. Morgan, 384 U.S. 641, 657 (1966) (quoting Williamson v. Lee
8 Optical Co., 348 U.S. 483, 489 (1955)). Proposition 8 was not enacted as part of a step-by-step
9 program "that only partially ameliorate[s] a perceived evil and defer[s] complete elimination of the
10 evil to future regulations." City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976), or a general
11 "reform that benefits some more than others." San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1,
12 39 (U.S. 1973). Furthermore, if the intent of Proposition 8 was to address unplanned pregnancies, or
13 to otherwise affect the sexual conduct of heterosexual couples, it targets the wrong group. "This is
14 not, therefore, a case where the class defined in the law is that from which 'the evil mainly is to be
15 feared.'" McLaughlin v. Florida, 379 U.S. 184, 194 (1964) (quoting Patsone v. Pennsylvania, 232 U.S.
16 138, 144 (1914)); see also Levy v. Louisiana, 391 U.S. 68, 72 (1968) (justification for a statutory
17 exclusion must relate to some characteristic of the excluded group). Thus, the Legislature's
18 prerogative to act incrementally does not and cannot provide a rational basis for the marriage
19 exclusion.
20 C. Proposition 8 Violates the Equal Protection Clause Because Its True Purposes Are
Not Legitimate Governmental Purposes
21
While Proposition 8 is ill-suited to advance the state purposes that Proponents now claim for it,
22
it is exceedingly well suited to advance its real aim of harming gays and lesbians and expressing moral
23
disapproval of them as a class. This section argues that the only true purpose of Proposition 8 avowed
24
by its proponents, upholding tradition, is not a legitimate purpose at all, and that the other actual
25
purposes of Proposition 8, to express hostility and moral disapproval against lesbians and gay men and
26
their most cherished relationships, are similarly not legitimate as motivators for State action. This
27
section concludes with the obvious constitutional consequence of Proposition 8's actual purposes:
28
1 because none of these purposes is a legitimate aim for government to seek, this Court should grant the
2 preliminary injunction and enjoin enforcement of Proposition 8.
3 1. Enacting a Traditional Definition of Marriage Is Not a Legitimate State

Interest
4
Proponents' ballot argument stated that Proposition 8 "restores the definition of marriage to
5
what the vast majority of California voters already approved and human history has understood
6
marriage to be." Exh. C (Argument in Favor of Proposition 8) (emphasis in original). Proponents now
7
argue that this is the "actual purpose" of Proposition 8. See Int. Opp. at 18. But a tradition of
8
exclusion is inimical to equal protection and preserving that tradition is not a legitimate state purpose.
9
The Supreme Court has held that "neither the antiquity of a practice nor the fact of steadfast legislative
10
and judicial adherence to it through the centuries insulates it from constitutional attack." Williams v.
11
Illinois, 399 U.S. 235, 239 (1970). And tradition is especially ill-suited to justify discrimination
12
challenged under the Equal Protection Clause:
13
That clause is emphatically not an effort to protect traditionally held values
14 against novel or short-term deviations. The clause is not backward looking at
all; it was consciously designed to eliminate practices that existed at the time of
15 ratification and that were expected to endure. The function of the Equal
Protection Clause is to protect disadvantaged groups against the effects of past
16 and present discrimination by political majorities. It is not rooted in common
law or status quo baselines or in Anglo-American conventions. The baseline is
17 instead a principle of equality that operates as a criticism of existing practice.
The clause does not safeguard traditions; it protects against traditions, however
18 long standing and deeply rooted.
19 Lawrence v. Texas, 41 S.W.3d 349, 377 n.12 (Tx. Ct. App. 2001) (Anderson, J., dissenting) (reversed,
20 539 U.S. 558). Thus, the fact that a practice was traditionally accepted does not justify its continuance
21 in the face of an equal protection challenge. See J.E.B. v. Alabama, 511 U.S. 127, 142 n.15 (1994)
22 ("We do not dispute that this Court long has tolerated the discriminatory use of peremptory challenges,
23 but this is not a reason to continue to do so. Many of 'our people's traditions,' … such as de jure
24 segregation and the total exclusion of women from juries, are now unconstitutional even though they
25 once coexisted with the Equal Protection Clause."); see also Levy v. Louisiana, 391 U.S. 68, 71, 72
26 (1968) (using the rational basis test to evaluate a statute that barred illegitimate children from suing for
27 the wrongful death of their mother and holding that the statute violated the Equal Protection Clause
28 "even though it had history and tradition on its side").

2. Expressing Moral Disapproval and Animus Against Lesbians and Gay Men
1 and Their Familial Relationships, an Actual Purpose of Proposition 8, Is
Not a Legitimate State Interest
2
The facts available to this Court on this preliminary injunction motion are ample to
3
demonstrate that moral disapproval and animus are motivating purposes behind Proposition 8.16 The
4
arguments made by Proponents that the failure to pass Proposition 8 would have "profound
5
consequences" for children and would result in messages about gay marriage being "forced on young
6
children in public schools," Video, "Robb and Robin Wirthlin’s Story," (Oct. 20, 2008), available at
7
http://www.protectmarriage.com/video/view/6 (last visited June 11, 2009); Exh. C, Rebuttal to
8
Argument Against Proposition 8 (emphasis added), are directly linked to the Anita Bryant ballot
9
campaigns of the 1970s and 80s, which were fueled by the demonization of lesbians and gay men, and
10
particularly lesbian and gay teachers, as child molesters. Similarly, Proponents' claim that passing
11
Proposition 8 would overturn the acts of "activist judges," Exh. B, bears a close relationship to the "no
12
special rights" theme that anti-gay initiative campaigns adopted in the 1990s after the public could no
13
longer be manipulated through the child-molester bogeyman. As described in the Statement of Facts,
14
supra, the sexual predator and "no special rights" themes were frequently invoked in the context of
15
campaigns to roll back antidiscrimination protections passed by legislatures. In this case, they are
16
transmuted into arguments against marriage equality. Dozens of incidents that occurred during the
17
campaign reflect the animus supporters of Proposition 8 harbored toward lesbians and gay men. See,
18
e.g., supra, at 15–16. Moreover, Proposition 8 Proponents' attorney Andrew Pugno has publicly stated
19
that the purpose of Proposition 22, the predecessor statute that Proposition 8 mirrors in the form of a
20
constitutional amendment, was to express moral disapproval of lesbians and gay men generally, and to
21
22
16
In discussing animus-based enactments, the Supreme Court has stated that "if the
23 constitutional conception of 'equal protection of the laws' means anything, it must at the very least
mean that a bare congressional desire to harm a politically unpopular group cannot constitute a
24 legitimate governmental interest." Moreno, 413 U.S. at 534. But "animus" need not mean outright
hatred. In construing the term "animus" in a statute, the Ninth Circuit has relied on a definition of "[a]
25 mental impulse, actuating feeling, disposition in a particular direction, animating spirit or temper,
usually of a hostile character." Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000).
26
Indeed, the history of discrimination against lesbians and gay men, offered above, illustrates
27 that discriminatory impulses take different and more restrained forms over time. But because even
moral disapproval of an identifiable class of people is a sufficiently hostile feeling to be an
28 impermissible governmental purpose, the Court need not formulate a precise definition of animus here.
1 ensure that "people who have moral objections to the idea of same-sex marriage [are not ] compelled
2 to participate through their government in sanctioning and promoting a kind of lifestyle they don't feel
3 comfortable with."17
4 If the message about lesbians and gay men, and the special rights they are purportedly seeking,
5 is the same no matter what the precise issue on the ballot, then what does that message really convey?
6 The Supreme Court offered an answer based on a similar set of facts in Romer v. Evans, 517 U.S. 620
7 (1996). In Romer, the Court considered Amendment 2, an initiative that amended the Colorado
8 Constitution to prohibit any governmental action that protected lesbians and gay men from
9 discrimination. Id. at 624. The State justified Amendment 2 because it purportedly "[did] no more
10 than deny homosexuals special rights." Id. at 626 (emphasis added). Moreover, the Romer Court was
11 presented with extensive evidence of the same kind of fear-based campaign that has long characterized
12 anti-gay initiatives. Amendment 2's proponent, for instance, asserted that "gay men and lesbians are
13 'morally depraved' persons who undermine 'traditional family values and structures.'" Respondents'
14 Brief, Romer v. Evans, No. 94-1039, 1995 WL 417786, at *7 (quoting record exhibits [Pl.Ex. 11 at
15 32–33, R.6:55; Pl.Ex. 12 at 55, R.6:56]). Proponents' campaign materials also contended that
16 "'[s]exual molestation of children is a large part of many homosexuals' lifestyle-part of the very
17 lifestyle ‘gay-rights' activists want government to give special class, ethnic status!'" Id. (quoting
18 record exhibits [Df.Ex. W at 2; R.15:735]).
19 The Supreme Court disagreed with the State's assertion that Amendment 2 merely withheld
20 "special rights" from lesbians and gay men, instead finding that the initiative worked a far reaching
21 change in the legal status of lesbians and gay men, leaving them (alone among groups of Colorado's
22 citizens) without the ability to resort to the political process to seek protection from discrimination by
23 public or private actors. Id. at 627–31. The Supreme Court also held that the singular nature of
24 Amendment 2 "raise[d] the inevitable inference that the disadvantage imposed is born of animosity
25 toward the class of persons affected." Id. at 634. The Court stated,
26
17
27 Oral statement of Anthony Pugno on the television program "The Wedding Zinger: The
Definition of Marriage," a segment of Uncommon Knowledge, produced by the Hoover Institution in
28 conjunction with KTEH-TV, San Jose. Filmed March 28, 2008 (emphasis added).
The breadth of the amendment is so far removed from [the] particular

1 justifications [offered by the State] that we find it impossible to credit them.
We cannot say that Amendment 2 is directed to any identifiable legitimate
2 purpose or discrete objective. It is a status-based enactment divorced from any
factual context from which we could discern a relationship to legitimate state
3 interests; it is a classification of persons undertaken for its own sake, something
the Equal Protection Clause does not permit. …
4
We must conclude that Amendment 2 classifies homosexuals not to further a
5 proper legislative end but to make them unequal to everyone else. This
Colorado cannot do.
6
Id. at 635 (emphasis added).
7
In the present case, too, Proposition 8 sets lesbians and gay men apart from the institution of
8
marriage "not to further a proper legislative end but to make them unequal to everyone else": to
9
preserve the traditional institution of marriage precisely by excluding them from it. The official ballot
10
materials for Proposition 8, as well as the arguments of its proponents, played on the fears and
11
resentments of heterosexual voters (who are by far the majority of voters in California, of course), and
12
were but a subtler version of the decades-old fear tactics deployed by campaigners who morally
13
disapprove of same-sex relationships. Finally, all of the purposes for the law articulated by the
14
Proponents, in the campaign and in this Court, are lacking even on the most cursory scrutiny. In short,
15
Proposition 8 was "a voter initiative clearly motivated at least in part by group bias." Strauss, 2009
16
WL 1444594, at *68 (Werdegar, J., concurring). Just as "mere negative attitudes," "fear" and
17
"irrational prejudice" on the part of a majority were insufficient to justify the zoning law that targeted
18
a group home for the mentally retarded in Cleburne, the same kinds of considerations at the foundation
19
of Proposition 8 cannot justify its singling out of lesbians and gay men for disfavorable treatment here.
20
Because it advances only impermissible governmental interests, Proposition 8 is unconstitutional, and
21
this Court should enjoin its enforcement.
22
D. Proposition 8 Is Also Analogous to Romer's Amendment 2 Because It Selectively
23 Deprives Lesbians and Gay Men, and Them Alone, of Constitutional Rights
24 The Proponents argue in their opposition to the preliminary injunction that Proposition 8
25 differs from Amendment 2 because it does not work the kind of far-reaching changes to political rights
26 that Amendment 2 enacted. In part, this argument is wrong because Proposition 8 did work a change
27 to political rights: unlike all other groups in California, lesbians and gay men can no longer petition
28 their legislators to modify their marriage rights by statute. Cf. Washington v. Seattle Sch. Dist. No. 1,
1 458 U.S. 457, 470–80 (1982) (finding equal protection violation where local government enacted law
2 that imposed unique political burdens on minorities); Hunter v. Erickson, 393 U.S. 385, 390–93 (1969)
3 (same). Marriage rights have been placed on a higher shelf for lesbians and gay men, who therefore
4 have correspondingly diminished options for using the political process. More importantly,
5 Proponents' argument is based on a misunderstanding of the effect of Proposition 8. It did not overrule
6 Marriage Cases: as noted above, it could not, because the California Supreme Court has the final
7 authority to interpret an existing provision of the California Constitution. What Proposition 8 did
8 instead, however, was equally disturbing: it repealed a portion of the State's constitutional guarantees
9 to equal protection, due process, and privacy to a select class of its citizens. Strauss, 2009 WL
10 1444594, at *19 ("[T]his newly adopted provision must be understood as carving out an exception to
11 the preexisting scope of the privacy and due process clauses.") (emphasis added). For Proponents to
12 argue that the excision of certain state constitutional rights from an identifiable class of people is not a
13 constitutionally fraught event is simply unpersuasive.
14 E. The Availability of Domestic Partnership, and the Recentness of the California

Supreme Court's Acknowledgment of Same-Sex Couples' Right to Marry, Do Not
15 Neutralize the Equal Protection Violation
16 Proponents may also argue that the fact that Proposition 8 deprives lesbians and gay men of
17 equal protection, due process, and privacy rights that all other Californians enjoy does not matter
18 because Proposition 8 had sufficient signatures to appear on the ballot before Marriage Cases was
19 decided, because Proposition 8 was adopted shortly after the California Supreme Court recognized a
20 right to marriage, or because California's domestic partnership laws establish a separate but equal
21 regime for same-sex couples in California. These arguments are easily rebutted.
22 First, the petition to place Proposition 8 on the ballot was drafted and circulated in anticipation
23 of the Supreme Court's decision in the Marriage Cases, 43 Cal.4th 757, and proponents characterized
24 the measure as a necessary response to the California Supreme Court's holding that same-sex couples
25 had the right to marry. See Argument in Favor of Proposition 8 ("It overturns the outrageous decision
26 of four activist Supreme Court judges …") (emphasis in original); see also Video, Whether You Like
27 It Or Not, (September 29, 2008) (available at http://www.protectmarriage.com/video/view/2)
28
1 (campaign ad concerning activist judges). It begs credulity for Proponents now to deny the
2 characterization of Proposition 8 that they used to such great effect during the campaign.
3 Second, the argument that it is constitutionally permissible to eliminate rights in order to
4 restore the status quo was made and rejected in Romer: the State argued that "Amendment 2 simply
5 restores and maintains the status quo ante regarding special protections for homosexuals and
6 bisexuals," Petitioners' Reply Brief, Romer v. Evans, No. 94-1039, 1995 WL 466395 (Aug. 4, 1995),
7 at *8. The Court did not find the denial of these recently enacted "special rights" to be trivial. The
8 argument is even less persuasive here, where Proposition 8 eliminated constitutional rights rather than
9 mere statutory rights. This targeted removal of constitutional rights conflicts with "the history of our
10 constitution, [which] is the story of the extension of constitutional rights and protections to people
11 once ignored or excluded." United States v. Virginia, 518 U.S. 515, 557 (1996).
12 Finally, the Proponents may argue that the availability of domestic partnerships to same-sex
13 couples, and the intact holding of Marriage Cases that same-sex couples have privacy, equal
14 protection, and due process rights to official recognition of their intimate relationships, Marriage
15 Cases, 43 Cal. 4th at 829, neutralize the constitutional sting of Proposition 8. But this argument rests
16 on the false premise that domestic partnership can ever be the equivalent of the venerable institution of
17 marriage. The California Supreme Court recognized that the domestic partnership designation can
18 never provide the dignity and recognition that marriage entails in the Marriage Cases, when it held
19 that reserving the designation "marriage" for opposite-sex couples risked "denying the official family
20 relationship of same-sex couples the equal dignity and respect that is a core element of the
21 constitutional right to marry." Id. at 830–31. Any regime that relegates a class of people to an inferior
22 institution without a legitimate reason, especially where it does so out of prejudice, commits the
23 separate-but-equal fallacy of Plessy v. Ferguson, 163 U.S. 537 (1896), which held that laws enforcing
24 the racial segregation of train cars did not deny equal protection to blacks so long as there is legal
25 equality between the train cars. In Brown v. Board of Education, 347 U.S. 483 (1954), the Supreme
26 Court recognized the Plessy fallacy and held that "officially segregated public facilities" are not equal,
27 in part because the very existence of separate facilities "denot[es] the inferiority" of the minority
28 group. Id. at 494. In sum, Proposition 8 was intended to, and did, eliminate the constitutional rights of
1 a historically disfavored minority. In so doing, it communicated a unmistakable message of inferiority
2 to lesbians and gay men, their families, and society at large.
3 II. IF THERE IS INSUFFICIENT EVIDENCE TO ESTABLISH THAT PROPOSITION 8

VIOLATES EQUAL PROTECTION, THE COURT SHOULD ENCOURAGE
4 FURTHER FACTUAL DEVELOPMENT TO DETERMINE WHETHER
HEIGHTENED SCRUTINY APPLIES
5
If the court determines that Proposition 8 survives rational basis review, and it is not persuaded
6
that Plaintiffs' arguments are sufficient to grant a preliminary injunction, it should deny the injunction
7
on the narrow ground that facts must be developed to determine whether heightened scrutiny applies.
8
In determining whether a government classification is "suspect," and therefore subject to
9
heightened scrutiny for the purposes of equal protection review, courts look at the following factors:
10
(1) a history of purposeful discrimination against the class, (2) whether the class is defined by an
11
immutable trait, and (3) political powerlessness of the class. See Bowen v. Gilliard, 483 U.S. 587,
12
602–603 (1987). Courts also ask whether there is relationship between the trait used to define the
13
class and an individual's ability to contribute to society. See Cleburne, 473 U.S. at 440–41. As
14
Plaintiffs explain, see Motion for PI at 13–15, cases considering these factors in isolation have
15
determined that sexual orientation satisfies each factor. But no federal court has ever had the benefit
16
of a full factual record that would permit it to undertake a considered evaluation of these factors and
17
determine whether historical, scientific, and sociological evidence demonstrates that sexual orientation
18
must be viewed as a suspect classification.
19
Amici respectfully suggest that further factual development would show that historical
20
discrimination against lesbians and gay men is comparable to discrimination against other suspect
21
classes; that the best available scientific evidence establishes that homosexuality is a trait that has
22
existed in every time period and culture over history and that sexual orientation cannot readily be
23
changed, if at all, and attempting to change it causes serious harm; that there is no relationship
24
between sexual orientation and an individual's ability to be a productive member of society; and that
25
despite great advances, gays and lesbians lack the political power to ensure protection of their rights
26
through the normal political process. Further, an opportunity for factual development would allow a
27
28
1 more complete development of a record regarding the antipathy toward lesbians and gay men that is at
2 the foundation of Proposition 8.
3 CONCLUSION
4 For the foregoing reasons, amicus curiae City and County of San Francisco supports Plaintiffs'
5 motion for preliminary injunction and, in the event the Court denies the injunction, encourages the
6 Court to permit further development of a factual record in this case.
7 Dated: June 18, 2009 DENNIS J. HERRERA

City Attorney
8 THERESE M. STEWART
Chief Deputy City Attorney
9
DANNY CHOU
10 Chief of Complex & Special Litigation
CHRISTINE VAN AKEN
11 MOLLIE M. LEE
Deputy City Attorneys
12
13 By: /s/
THERESE M. STEWART
14
Attorneys for Amicus Curiae
15 CITY AND COUNTY OF SAN FRANCISCO
16
17
18
19
20
21
22
23
24
25
26
27
28

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Case3:09-cv-02292-VRW Document53 Filed06/18/09 Page1 of 46

1 DENNIS J. HERRERA, State Bar #139669

2 TABLE OF AUTHORITIES ......................................................................................................... iii

18 B. Proposition 8 Violates Equal Protection Because It Does Not Advance

25 c. Proposition 8 Does Not Encourage "Responsible

2. Expressing Moral Disapproval and Animus Against Lesbians and

12 Brown v. Board of Education

17 City of Cuyahoga Falls v. Buckeye Cmty. Hope Found.

4 Lazy Y Ranch Ltd. v. Behrens

14 Pierce v. Society of Sisters

U.S. Dept. of Agriculture v. Moreno

11 Gay Law Students Ass'n v. Pacific Tel. & Tel.Co.

22 Cal. Fam. Code § 297.5 .................................................................................................................13

23 Cal. Fam. Code § 300 ......................................................................................................................1

Cal. Fam. Code § 423 ......................................................................................................................1

3 Cal. Fam. Code § 8600 ..................................................................................................................27

4 Cal. Fam. Code § 9000(b) ..............................................................................................................27

5 Cal. Health & Safety Code § 1374.58............................................................................................13

6 Cal. Ins. Code § 3302.....................................................................................................................13

"Voting Against Gay Rights," Time (May 22, 1978), available at

4 Allan Berube, Coming Out Under Fire 255 (1990). ........................................................................8

5 American Psychological Association, "For a Better Understanding of Sexual Orientation and

11 Donald P. Haider-Markel et al., "Lose, Win or Draw? A Reexamination of

17 Everything to do with Schools, ProtectMarriage.com (2008), available at

27 Gunther, In Search of Evolving Doctrine on a Changing Court: A Model

Herman, The Antigay Agenda (1997) 62. .....................................................................................11

22 Questions & Answers About Proposition 8, ProtectMarriage.com, available at

5 Why Proposition 8, ProtectMarriage.com, available at

9 William Naphy, Born to Be Gay: A History of Homosexuality 48–50 ........................................5, 6

10 William Wright, Harvard's Secret Court: The Savage 1920 Purge

1 INTEREST OF AMICUS CURIAE

12 vindication that Kristin Perry and her co-plaintiffs seek.1

1 mediate complaints of discrimination (1975), establishing a domestic partner registry (1990),

20 between that history and Proposition 8.

2 deferential test. This Court should enjoin its enforcement.

17 of privacy, liberty and equality. Id. at 823, 829, 855–56.

22 separate and unequal stature for lesbian and gay relationships.

17 and-schools rationale is, quite simply, animus – animus cloaked in fear.2

4 practices or traditions." 43 Cal. 4th at 853–54.

16 141–46; Crompton, supra, 299, 473.3

13 Colony 78 (1970). But such relationships were almost invariably secret.

5 killed themselves. Id. at 136, 201.

10 female criminality, insanity, and hereditary neurosis." Carroll Smith-Rosenberg, "Discourses of

1 While they were able to establish underground or semi-underground communities in places

4 for their sexual conduct violates the federal Constitution.8

7 ran a nationally publicized campaign in Dade County, Florida, to repeal an antidiscrimination

4 available at http://www.time.com/time/magazine/article/0,9171,919647,00.html. Anti-gay

8 Intelligence Report, available at http://www.splcenter.org/intel/intelreport/article.jsp?pid=869;

9 Herman, The Antigay Agenda (1997) 62.

17 Center, Spring 2005, available at http://www.splcenter.org/intel/intelreport/article.jsp?aid=523. Also

21 Cameron Bio and Fact Sheet, http://psychology.ucdavis.edu/rainbow/html/facts_cameron_sheet.html

24 misrepresenting research on homosexuality. Id.

12 Democracy & Minority Rights," 60 POL. RES. Q. 304 (2007).

5 Homelessness 1–2 (2006).

6 II. THE STRUGGLE FOR MARRIAGE EQUALITY IN CALIFORNIA SHOWS

3 man and one woman. Id. at 857.

10 California on November 4, 2008.

19 available at http://www.protectmarriage.com/video/view/6 (last viewed June 17, 2009) The specific

22 Proposition 8." Everything to do with Schools, ProtectMarriage.com (2008), available at

23 http://www.protectmarriage.com/video/view/7 (last viewed June 17, 2009). This represents a shift in

2 schools that gay marriage is okay.")

19 October 23, 2008), available at http://www.youtube.com/watch?v=gtcZnLXhiJo&feature=