Prop 8 Trial: Questions from Judge Walker to Plaintiff and Defendants

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IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF CALIFORNIA KRISTIN M PERRY, SANDRA B STIER,PAUL T KATAMI and JEFFREY JZARRILLO,Plaintiffs,CITY AND COUNTY OF SAN FRANCISCO,Plaintiff-Intervenor,v ARNOLD SCHWARZENEGGER, in hisofficial capacity as governor ofCalifornia; EDMUND G BROWN JR, inhis official capacity as attorneygeneral of California; MARK BHORTON, in his official capacityas director of the CaliforniaDepartment of Public Health andstate registrar of vitalstatistics; LINETTE SCOTT, in herofficial capacity as deputydirector of health information &strategic planning for theCalifornia Department of PublicHealth; PATRICK O’CONNELL, in hisofficial capacity as clerk-recorder of the County of Alameda; and DEAN C LOGAN, in hisofficial capacity as registrar-recorder/county clerk for theCounty of Los Angeles,Defendants,DENNIS HOLLINGSWORTH, GAIL JKNIGHT, MARTIN F GUTIERREZ,HAKSHING WILLIAM TAM, MARK A JANSSON and PROTECTMARRIAGE.COM –YES ON 8, A PROJECT OFCALIOFORNIA RENEWAL, as official proponents of Proposition 8,Defendant-Intervenors./ NoC 09-2292 VRWQUESTION FOR CLOSING ARGUMENTS

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2The court provides the following questions to the partiesin advance of closing arguments. What follows is by no means anexhaustive list of questions, but is intended simply to assist the parties in focusing their closing arguments.If the parties wish, they may answer any question inwriting on or before June 15, 2010 at 12 PM PDT. Alternatively,the parties should be prepared to address the questions duringclosing arguments. While the court has directed certain questionsto certain parties, any party can if it wishes choose to answer anyquestion.To Plaintiffs:1.Assume the evidence shows Proposition 8 is not in factrationally related to a legitimate state interest. Assumefurther the evidence shows voters genuinely but withoutevidence believed Proposition 8 was rationally related to alegitimate interest. Do the voters’ honest beliefs in theabsence of supporting evidence have any bearing on theconstitutionality of Proposition 8? See Hernandez v Robles,855 NE2d 1, 7-8 (2006) (“In the absence of conclusivescientific evidence, the Legislature could rationally proceedon the common-sense premise that children will do best with a mother and a father in the home.”).2.What evidence supports a finding that maintaining marriage asan opposite-sex relationship does not afford a rational basisfor Proposition 8?

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33.Until very recently, same-sex relationships did not enjoylegal protection anywhere in the United States. How does thisfact square with plaintiffs’ claim that marriage between persons of the same sex enjoys the status of a fundamentalright entitled to constitutional protection?4.What is the import of evidence showing that marriage hashistorically been limited to a man and a woman? What evidenceshows that that limitation no longer enjoys constitutionalrecognition?5.What does the evidence show regarding the intent of thevoters? If the evidence shows that Proposition 8 on its faceand through its consequences distinguishes on the basis ofsexual orientation and sex, of what import is voter intent?6.What empirical data, if any, supports a finding that legalrecognition of same-sex marriage reduces discriminationagainst gays and lesbians?7.What evidence supports a finding that recognition of same-sex marriage would afford a permanent – as opposed to a transitory– benefit to the City and County of San Francisco? ToCalifornia cities and counties generally?

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