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RESPONDENTS' BRIEFCASE NO.
A110449
 
1
 
COURT OF APPEAL OF THE STATE OF CALIFORNIAFIRST APPELLATE DISTRICT, DIVISION THREE
In re MARRIAGE CASESJudicial Council Coordination Proceeding No. 4365Case No. A110652
RANDY THOMASSON and CAMPAIGN FORCALIFORNIA FAMILIES,Plaintiffs/Appellants,vs.GAVIN NEWSOM, in his official capacity as Mayorof the City and County of San Francisco, NANCYALFARO, in her official capacity as San FranciscoCounty Clerk,Defendant/Respondents,Superior Court CaseNo. 428794
RESPONDENTS' BRIEF
The Honorable Richard A. KramerDENNIS J. HERRERA,
State Bar #139669
 City AttorneyTHERESE M. STEWART,
State Bar #104930
Chief Deputy City AttorneyWAYNE K. SNODGRASS,
State Bar
#
148137
 SHERRI SOKELAND KAISER,
State Bar # 197986
 Deputy City AttorneysCity Hall, Room 234One Dr. Carlton B. Goodlett PlaceSan Francisco, California 94102-4682Telephone: (415) 554-4708Facsimile: (415) 554-4747BOBBIE J. WILSON,
State Bar #148317
 AMY MARGOLIN,
State Bar # 168192
HOWARD, RICE, NEMEROVSKI,CANADY, FALK & RABKINA Professional CorporationThree Embarcadero Center, 7
th
FloorSan Francisco, CA 94111-4204Telephone: (415) 434-1600Facsimile: (415) 217-5910Attorneys for Defendants/Respondents GAVIN NEWSOM and NANCY ALFARO
 
 
RESPONDENTS' BRIEFCASE NO.
A110449
 
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INTRODUCTION
1
 
At least appellants say it plainly: they think marriage can rationallybe denied to gay men and lesbians because opposite-sex couples are, in aword,
better 
. As the Proposition 22 Legal Defense and Education Fund("Fund") has put it, the point of banning gay men and lesbians frommarriage is to ensure that “the children inevitably resulting from sexualintercourse between men and women are raised by both of their biologicalparents in one household—the
optimum
setting for childrearing.” (FundOpening Brief [“FOB”] at 20 [emphasis added].) As the CaliforniaCampaign for Families ("CCF") has put it even more bluntly, the point is to“affirm[] a particular kind of relationship as the social
ideal
.” (CCFOpening Brief [“CCFOB”] at 35 [emphasis added].)But if appellants were right, and the State really could reservemarriage only for people who fit appellants' view of a normative “ideal,”then presumably the State could constitutionally choose to issue marriagecertificates
only
to biological parents. Furthermore, if “adults have anobligation to at least try to conduct their sexual lives to give children thisimportant protection” (CCFOB at 51), then for the good of children andsociety, why could the State not also make marriage mandatory for
all
 biological parents? That would certainly “steer procreation into marriage.”(FOB at 20) Of course, it would also bar millions of loving and committedcouples, who are of the same or the opposite sex, from one of the most
1
Because the issues presented on appeal greatly overlap, respondentCity and County of San Francisco (the “City”) treats the opening briefs of appellants Proposition 22 Legal Defense and Education Fund andCampaign for California Families together. In the City’s Respondent’sBrief for these two appeals, only the caption and the record citations differ.
 
 
RESPONDENTS' BRIEFCASE NO.
A110449
 
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precious social institutions we know and force that commitmentunwillingly onto others. Most salient here, it also would eviscerate therights to liberty, equality, and privacy protected and preserved by theCalifornia Constitution.California's constitutional guarantees of freedom from unwarrantedgovernment intrusion in intimate decisions affecting marriage and familymay require some people to live in a more pluralistic society than they findcomfortable. But the Constitution is not meant to make us comfortable, itis meant to make us free. Our Constitution keeps the government fromdictating our intimate associations, whom we will marry, how manychildren we will have and by what means, how we will raise them, andwhat beliefs we will teach them. Assuredly, we will not all make the samechoices. But the freedom to make these highly personal choices in the firstinstance is what separates our government from those societies that have,for example, allowed their citizens to marry only someone with a racialheritage suitable to "propagate the race," or from those that more freelyallow marriage but permit only one child per family. It separates ourgovernment from those that require parents to indoctrinate their children inits chosen ideology. And it separates our government from those thatperform forced sterilizations on people perceived to be “undesirable.”The very same set of core constitutional rights requires the State tostop restricting the basic human right to choose one's own spouse freely, atleast without a compelling state interest based on a legitimate governmentalpurpose. As this brief explains, the bare desire to privilege one class of “ideal” citizens by denying fundamental rights to others just isn't alegitimate purpose. Indeed, in our times, when gay men and lesbians arehaving and rearing children in record numbers, continuing to deny them the
of 00

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