No.

12-144 IN THE

Supreme Court of the United States
DENNIS HOLLINGSWORTH, et al., Petitioners, v. KRISTIN M. PERRY, et al., Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF A PPEALS FOR THE NINTH CIRCUIT BRIEF OF AMICI CURIAE THE NATIONAL ORGANIZATION FOR WOMEN FOUNDATION AND THE FEMINIST MAJORITY FOUNDATION IN SUPPORT OF RESPONDENTS

MICHAEL RIPS STEPTOE & JOHNSON LLP 1114 Avenue of the Americas New York, NY 10036 (212) 506-3900 mrips@steptoe.com

REBECCA EDELSON Counsel of Record STEPTOE & JOHNSON LLP 2121 Avenue of the Stars Suite 2800 Los Angeles, CA 90067 (310) 734-3200 redelson@steptoe.com

Counsel for Amici Curiae the National Organization for Women Foundation and the Feminist Majority Foundation
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i TABLE OF CONTENTS Page TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . .1 The National Organization for Women Foundation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 The Feminist Majority Foundation . . . . . . . . . . . . . . .1 Their Interests In These Proceedings. . . . . . . . . . . . .2 Proposition 8 Jeopardizes Fundamental Constitutional Rights For Women. . . . . . . . . . . . .2 Proposition 8 Will Also Have A Disparate Impact On Women. . . . . . . . . . . . . . . . . . . . . . . . . .6 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . .7 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8 I. PROPOSITION 8 V IOL ATES THE ESTABLISHMENT CLAUSE OF THE UNITED STATES CONSTITUTION . . . . . . . .8 A. Proposition 8 Violates the Purpose Prong of the Lemon Test . . . . . . . . . . . . . . . . . . . . . .9 B. Proposition 8 Violates the Effects Prong of the Lemon Test . . . . . . . . . . . . . . .15

ii Table of Contents Page II. P R O P O S I T I O N 8 S I M I L A R L Y V IOL AT E S T H E CA LI FOR N I A CONSTITUTION . . . . . . . . . . . . . . . . . . . . . . . . .28 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32

iii TABLE OF CITED AUTHORITIES Page CASES American Academy of Pediatrics v. Lungren, 16 Cal. 4th 307 (1997) . . . . . . . . . . . . . . . . . . . . . . . . .4, 6 Bd. of Educ. v. Allen, 392 U.S. 236 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 Church of Lkumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 Cnty. of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573 (1989) . . . . . . . . . . . . . . . . . . . . . .16, 18, 27 Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . 16-17 Committee to Defend Reproductive Rights v. Myers, 29 Cal. 3d 252 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 Edwards v. Aguillard, 482 U.S. 578 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

iv Cited Authorities Page Eisenstadt v. Baird, 405 U.S. 438 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 Everson v. Bd. of Educ., 330 U.S. 1 (1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 Feminist Women’s Health Center, Inc. v. Philibosian, 157 Cal. App. 3d 1076 (1984). . . . . . . . . . . .28, 29, 30, 31 Flamer v. City of White Plains, N.Y., 841 F.Supp. 1365 (S.D.N.Y. 1993) . . . . . . . . . . . . . . . .14 Fox v. City of Los Angeles, 22 Cal. 3d 792 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . .28 Frontiero v. Richardson, 411 U.S. 677 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 Griswold v. Connecticut, 381 U.S. 479 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . .3, 4 Hardy v. Stumpf, 37 Cal. App. 3d 958 (1974) . . . . . . . . . . . . . . . . . . . . . . .5 Harris v. McRae, 448 U.S. 297 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 Lamb’s Chapel v. Ctr. Moriches Sch. Dist., 508 U.S. 384 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

v Cited Authorities Page Larson v. Valente, 456 U.S. 228 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 Lemon v. Kurtzman, 403 U.S. 602 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . .8, 15 Lynch v. Donnelly, 465 U.S. 668 (1984) . . . . . . . . . . . . . . . . . . . . . . . . .16, 18 McCreary Cnty v. ACLU of Kentucky, 545 U.S. 844 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 17 McDaniel v. Paty, 435 US. 618 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 McGowan v. Maryland, 366 U.S. 420 (1961) . . . . . . . . . . . . . . . . . . . . . . . . .14, 27 Perry v. Brown, 671 F.3 1052 (9th Cir. 2012) . . . . . . . . . . . . . . . . . . . . .19 Planned Parenthood v. Danforth, 428 U.S. 52 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-5 Roe v. Wade, 410 U.S. 113 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . .4, 6

vi Cited Authorities Page Sail’er Inn, Inc. v. Kirby, 5 Cal. 3d 1 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 Santa Fe Indep. Sch. Dist. v. Dore, 530 U.S. 290 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 U.S. v. Virginia, 518 U.S. 515 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . .3, 5 Van Orden v. Perry, 545 U.S. 677 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 Vinson v. Superior Court, 43 Cal. 3d 833 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 Wallace v. Jaffree, 472 U.S. 38 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 17 Walz v. Tax Comm’n, 397 U.S. 664 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8 AMENDMENTS, STATUTES AND RULES U.S. Const., Equal Protection Clause. . . . . . . . . . . . . . .13 U.S. Const., Establishment Clause . . . . . . . . . . . . passim Sup. Ct. R. 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 Sup. Ct. R. 37.2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

vii Cited Authorities Page Cal. Const., Art. I, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . .4, 6 Cal. Const., Art. I, § 4 . . . . . . . . . . . . . . . . . . . .8, 28, 29, 31 Cal. Const., Art. I, § 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 Cal. Const., Art. I, § 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 Cal. Const., Art. XVI, § 5 . . . . . . . . . . . . . . . . .8, 28, 29, 31 Cal. Const., Art. XX, § 18. . . . . . . . . . . . . . . . . . . . . . . . . .5 OTHER AUTHORITIES A Storm is Gathering, National Organization for Marriage, http://www.nationformarriage.org/ site/c.omL2KeN0LzH/b.5075687/apps/s/content. asp?ct=4828731 (last visited February 27, 2013) . . .23 Amelia A. Miller, Note, Letting Go of a National Religion: Why the State Should Relinquish All Control Over Marriage, 38 Loy. L.A. L. Rev. 2185 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27 Carpenter, et al., Gay and Lesbian Partnership: Evidence from California, in Demography (August 2008) Vol. 45-No. 3 . . . . . . . . . . . . . . . . . . . . . .7 CNN, California General Exit Poll 6 (2008) . . . . . . . . .13

viii Cited Authorities Page Dan Morain, Jessica Garrison, Prop 8 Supporters Shrewdly Warned of Implications for Schools, Churches, and Children , Analysts Say, L.A. Times Nov. 6, 2008 . . . . . . . . . . . . . . . . . . . . . . . .24 Dav id Va n Biema , Th e Chur ch an d Gay Marriage: Are Mormons Misunderstood, Time Magazine, June 22, 2009 . . . . . . . . . . . . . . . . . . . . . . .12 E d w a r d S c h i a p p a , D e f i n i n g Ma r r i a g e in California: An Analysis of Public and Technical Argument, 48 Argumentation and Advocacy 213 (Spring 2012) . . . . . . . . . . . . 10, 12, 25-26 Frank Schubert & Jeff Flint, Case Study, Passing Prop 8, in Campaigns & Elections, 2009. . . . . . . . . .22 Frederick Mark Gedicks, Atmospheric Harms in Constitutional Law, 69 Maryland Law Review 149 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24 Gary J. Simson, Religion By Any Other Name: Prohibitions on Same-Sex Marriage and the Limits of the Establishment Clause, 23 Colum. J. Gender & L. 132 (2012) . . . . . . . . . . . . . 17 Gates, et al., Mar r iage, Registration and Dissolution by Same-Sex Couples in the U.S., the University of California at Los Angeles School of Law Williams Institute’s Report (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-7

ix Cited Authorities Page Geoffrey Stone, Same-Sex Marriage and the Establishment Clause, 54 Vill. L. Rev. 617 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13, 20, 27 Helene Slessarev-Jamir, Religious Conservatives’ Success in Constructing Gay Marriage as a Threat to Religious Liberties, American Pol it ic a l S c ienc e A s s o c i at ion Me et i ng (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 20 Hendrik Hertzberg, Eight is Enough, The New Yorker, Sept. 1, 2008 . . . . . . . . . . . . . . . . . .11, 12, 24, 25 Jeff Flint, Frank Schubert, Passing Prop 8: Smart Timing and Messaging Convinced California Voters to Support Traditional Marriage, Politics Magazine, Feb. 1, 2009 . . . . . . . .11 Jesse McKinley, Kirk Johnson, Mormons Tipped Scale in Ban on Gay Marriage, N.Y. Times, Nov. 15, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11, 12 Justin T. Wilson, Preservationism, or the Elephant in the Room: How Opponents of Same-Sex Mar r iage Deceive Us into Establishing Religion, 14 Duke J. Gender L. & Pol’y 561 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24 K a i m ipono Wenger, Th e Church’s Use of Secular Arguments, 42 Dialogue: A Journal of Mormon Thought 105 (Winter 2009) . . . . . . . . . . .25

x Cited Authorities Page Larry Cata Backer, Religion as the Language of D i s c o u r s e of Sa m e Se x Ma r r i a ge, 30 Cap. U. L. Rev. 221 (2002). . . . . . . . . . . . . . . . . . . .27 Mark DiCamillo, Why Prop. 8 Confounded PreElection Pollsters, San Francisco Chronicle, SF Gate, November 10, 2008 . . . . . . . . . . . . . . . . . . . .22 Mat ier, Ph i l, a nd A nd rew Ross, Pro p. 8 Adman Wins, ‘Whether You Like It or Not’, San Francisco Chronicle, April 6, 2009 . . . . . . . . . . .22 Me l i s s a Mu r r ay, Ma r r i a g e Ri gh t s a n d Parental Rights: Parents, the State, and Proposition 8, 5 Stan. J.C.R. & C.L. 357 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18, 21, 22 Patricia A. Cain, Contextualizing Varnum v. Brien: A “Moment” in History, 13 J. Gender Race & Just. 27 (2009) . . . . . . . . . . . . . . . . . . . . . . . . .13 prot ectma r r iage.com (“ P rot ect Ma r r iage -- Yes on 8 -- Home Page,” 2008) . . . . . . . . . . . . . . . . .23 Sutherland Statutory Construction § 48.19 (5th ed. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9 The Parker Family, Protect Marriage, https:// w w w.youtube.com/watch?v=puI4pf RB0w0 (last visited February 27, 2013). . . . . . . . . . . . . . 22, 23

xi Cited Authorities Page William N. Eskridge and Darren R. Spedale, Gay Marriage: For Better or for Worse: What We’ve Learned from the Evidence, New York: Oxford University Press, 2006. . . . . . . . .13

1 INTEREST OF AMICI CURIAE1 The National Organization for Women Foundation The National Organization for Women Foundation (“NOW Foundation”) is a 501(c)(3) organization devoted to furthering women’s rights through education and litigation. Since its founding in 1986, NOW Foundation’s goal has been to bring about equality for all women. NOW Foundation works to eliminate discrimination and harassment in the workplace, schools, the justice system, and all other sectors of society; secure abortion, birth control and reproductive rights for all women; end all forms of violence against women; eradicate racism, sexism and homophobia; and promote equality and justice in our society. The Feminist Majority Foundation The Feminist Majority Foundation (“FMF”), founded in 1987, is the largest feminist research and action organization dedicated to women’s equality, empowerment, and non-violence. FMF’s programs
1

Pursuant to Supreme Court Rule 37.6, amici curiae state that no counsel for any party authored this brief in whole or in part and no entity or person, aside from amici curiae and their counsel, made any monetary contribution intended to fund the preparation and submission of this brief. Pursuant to Supreme Court Rule 37.2(a), counsel of record for all parties have consented to amici curiae’s filing of this brief. This submission is timely made under Rule 37 as within seven days of the filing of Respondents’ brief.

2 focus on advancing the legal, social and political equality of women with men. To carry out these aims, FMF engages in research and public policy development, public education programs, grassroots organizing projects, and leadership training and development programs, and has filed numerous briefs amicus curiae in the United States Supreme Court, the federal circuit courts, and California appellate courts to advance the opportunities for women and girls. Their Interests In These Proceedings The determination of Proposition 8’s validity will have a direct and profound impact on the fundamental rights of equal protection, privacy and separation of religion from government, which rights are paramount to the interests of women as explained below. For this reason, the Amici Curiae have a substantial interest in the present matter given their missions to promote equality, justice, and reproductive health in our society. Proposition 8 Jeopardizes Fundamental Constitutional Rights For Women. The struggle for privacy and equal protection under the laws for women is not ancient history. Most of the important decisions of our courts affirming or establishing these basic rights for women are of relatively recent vintage. They vindicate a spectrum of liberties and freedoms that had been denied to women, often by a popular majority. To name just a few:

3 As the United States Supreme Court acknowledged 40 years ago in Frontiero v. Richardson, 411 U.S. 677, 684 (1973), “our Nation has had a long and unfortunate history of sex discrimination.” For over a hundred years of that history, women did not have the right to vote and for over half a century after they gained that constitutional right in 1920, the prevailing view was still that “government, both federal and state, could withhold from women opportunities accorded men so long as any ‘basis in reason’ could be conceived for the discrimination.” United States v. Virginia, 518 U.S. 515, 531-533 (1996). Similarly, although California achieved statehood in 1850, women were not full citizens entitled to life, safety, liberty, happiness, privacy and the equal protection of the laws until 1972 and 1974, respectively. For more than two-thirds of our shared history, female Californians were without these protections and guarantees under California law, and women routinely were excluded from jobs for which they were well-qualified. To recall a famous example: although she graduated third in her class at Stanford Law School, no law firm in California was willing to hire new lawyer and future Supreme Court Justice, Sandra Day O’Connor, because of her gender. The constitutional right of sexual privacy, both within and without the marital relationship, is a fundamental liberty arising from the United States Constitution and California Constitution. Griswold v. Connecticut, 381 U.S. 479, 485 (1965) (recognizing that marital relationship lies “within the zone of privacy created by several

4 fundamental constitutional guarantees”); Eisenstadt v. Baird, 405 U.S. 438, 453-54 (1972) (constitutional right to privacy found in Griswold extends to sexual lives of the unmarried); Vinson v. Superior Court, 43 Cal. 3d 833, 841 (1987) (California accords privacy the constitutional status of an inalienable right, on a par with defending life and possessing property). • The right to decide whether or not to bear a child is a fundamental constitutional right pursuant to the privacy guaranties of the United States Constitution and the California Constitution, Article I, Section 1. Roe v. Wade, 410 U.S. 113, 153154 (1973) (constitutional right of privacy is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy); Planned Parenthood v. Danforth, 428 U.S. 52, 69-70, 74 (1976) (state cannot condition right to abortion in first twelve weeks of pregnancy upon consent of spouse, nor, in the case of unmarried minors, upon parental consent); Committee to Defend Reprod. Rights v. Myers, 29 Cal. 3d 252, 262 (1981) (statutory provisions limiting Medi-Cal funding for abortions undermine the right of privacy guaranteed under the California Constitution); American Acad. of Pediatrics v. Lungren, 16 Cal. 4th 307 (1997) (state statute that required a pregnant minor to secure either parental consent or judicial authorization before she could obtain an abortion violated the right of privacy and was therefore invalid). • The right of equal protection under the law affords women the right not to be discriminated against in employment. Price Waterhouse v.

5 Hopkins, 490 U.S. 228, 265 (1989) (“This Court's decisions under the Equal Protection Clause have long recognized that whatever the final outcome of [an employment] decisional process, the inclusion of race or sex as a consideration within it harms both society and the individual.”); United States v. Virginia, 518 U.S. 515, 534 (1996) (men-only admissions policy violated the Equal Protection Clause); Hardy v. Stumpf, 37 Cal. App. 3d 958, 961 (1974) (citing, among other authority, Cal. Const., Art. I, §§ 11, 21 and Cal. Const., Art. XX, §18); see also Sail’er Inn, Inc. v. Kirby, 5 Cal. 3d 1 (1971). Women (as well as many other historically discriminated against groups) cannot afford to have critical fundamental rights for which they have fought so hard and so long to be at risk by an initiative process run amok. If permitted to stand, Proposition 8 would be a dangerous precedent that may lead to a downward spiraling slope leaving no fundamental right– including but not limited to equal protection–safe from the whims of the voting majority. Resolution of this matter can serve as a bulwark to preserve fundamental rights against the onslaught of pressure from public opinion, such as the lobby of the religious right. The right of privacy is of particular concern to Amici Curiae. Real threats to this fundamental right already exist, including threats to a woman’s right to choose to have an abortion. Thus, for example, even though the California Constitution and the United

6 States Constitution guarantee women an inalienable right to privacy,2 religious lobbies have attempted to circumscribe this right by using the initiative process to make it more difficult for women to access abortion services. The votes on these measures are consistently close enough to raise concern that the fundamental rights upon which women depend may be in jeopardy. For these reasons, it is important to Amici Curiae that the Court affirm here its role as protector of our Constitutional rights by holding that Proposition 8’s abrogation of the right to marry to same-sex couples is invalid. Proposition 8 Will Also Have A Disparate Impact On Women. Amici Curiae also have an interest in Proposition 8’s invalidation because, if validated and enforced, Proposition 8 will disproportionately impact women. Statistically, “approximately two-thirds of legally recognized same-sex couples are female.” Gates, et al., Marriage, Registration and Dissolution by Same-Sex Couples in the U.S., the University of California at Los Angeles School of Law Williams
2

See California Constitution, Article I, Section 1; American Academy of Pediatrics v. Lungren, 16 Cal. 4th 307, 369 (1997) (Kennard, J., concurring) (“It is inherent in the right to make the abortion decision that the right may be exercised without public scrutiny and in defiance of the contrary opinion of the sovereign or other third parties.”) (internal quotation and citation omitted). See, e.g., Roe v. Wade, 410 U.S. at 152-53.

7 Institute's Report (2008), p. 8. This pattern is consistent throughout the states that allow for some type of formal recognition of same-sex marriage. “[F]or example, as of April 5, 2006, female couples accounted for 64% of marriages of same-sex couples performed in Massachusetts. Similarly, female couples account for two-thirds of Vermont Civil Unions.” Carpenter, et al., Gay and Lesbian Partnership: Evidence from California, in Demography (August 2008) Vol. 45-No. 3, p. 583 (internal citations omitted). The same holds true in California, where 65% of legally registered same-sex couples are comprised of women. Gates, supra at 6, fig. 3. The above statistics reflect that any action taken by the State of California to invalidate, dissolve, or otherwise void same-sex marriages will necessarily have a disproportionate effect on women. Accordingly, Amici Curiae submit this brief in support of Respondents. SUMMARY OF ARGUMENT On November 4, 2008, Californians voted to deny the right of same-sex couples to marry. Amici Curiae agree with Respondents that Proposition 8 violates due process and equal protection under the law. Amici Curiae attempt to refrain from unnecessary repetition of the arguments made by Respondents. Instead, Amici Curiae offer an additional observation as to why Proposition 8 is invalid. Not only does Proposition 8 have no

8 legitimate purpose, as determined by the Ninth Circuit Court of Appeals, but it has an affirmatively illegitimate purpose under both California and federal law–taking a side in a religious debate. Proposition 8 violates the Establishment Clause. Specifically, Proposition 8 fails the purpose and effects tests of Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971). Proposition 8 is also inconsistent with Article I, Section 4 and Article XVI, Section 5 of the California Constitution. ARGUMENT I. PROPOSITION 8 VIOLATES THE ESTABLISHMENT CLAUSE OF THE UNITED STATES CONSTITUTION Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971), adopted a three prong test for determining whether a statute violates the Establishment Clause: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion.’” 403 U.S. at 612–13 (quoting Walz v. Tax Comm'n, 397 U.S. 664, 674 (1970)). Each of these is required for a statute to be valid under the Establishment Clause.

9

A.

PROPOSITION 8 VIOLATES THE PURPOSE PRONG OF THE LEMON TEST.

When legislation is enacted by referendum, the statute’s purpose is ascertained from the positions advanced by the statute’s sponsors and advocates. Sutherland Statutory Construction § 48.19 (5th ed. 1992) (“Explanations and informative materials on a proposed bill are often made available to the public before initiative petitions or referendum elections on the bill. This material is considered relevant legislative history for purposes of construction of a measure after its enactment. The rules of statutory interpretation apply to initiatives.”). Moreover, because the Establishment Clause does not allow religious organizations to control the operation of government covertly, the intent behind neutral justifications for a statute must be examined for an underlying religious purpose. A fortiori, “the secular purpose required has to be genuine, not a sham, and not merely secondary to a religious objective.” McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 864 (2005) An analysis of the intent of the sponsors and advocates behind Proposition 8, as set forth below, demonstrates that the predominant purpose behind Proposition 8 was religious. The campaign in support of Proposition 8 was organized and financed by ProtectMarriage.com, a coalition of religious and conservative groups, formed

10 to enact and support bans on gay marriage.3 The religious groups affiliated with PortectMarriage.com included the Church of Jesus Christ of Latter Saints’ First Presidency Council, the Roman Catholic Church, What is Prop 8, Rick Warren and the Saddleback Church American Family Association, and Focus on the Family.4 In addition to these, and of particular influence within this group, was the National Organization for Marriage, “the lobbying arm of the conservative Christian pro-family movement.” Helene Slessarev-Jamir, Religious Conservatives’ Success in Constructing Gay Marriage as a Threat to Religious Liberties, American Political Science Association Meeting (2012). Maggie Gallagher, the former President of National Organization for Marriage, was especially active on behalf of Proposition 8.5

3

Prof. Edward Schiappa, Defining Marriage in California: An Analysis of Public and Technical Argument, 48 Argumentation and Advocacy 213, 219 (Spring 2012) (“Though many organizations and individuals contributed to the Yes-on-8 public argument, the most significant voice on behalf of the proposition came from the ProtectMarriage campaign, officially a project of a group known as California Renewal. Through their colorful “Yes on 8” website (protectmarriage.com), Californians were able to read about the proposition, receive answers to frequently asked questions, order yard signs and tshirts, and download material to distribute at church and other social functions. ProtectMarriage also provided sample letters for individuals who wanted to write their local newspaper editorial boards.”). 4 Id. 5 Edward Schiappa, Defining Marriage in California: An Analysis of Public and Technical Argument, 48 Argumentation and Advocacy 213, 219 (Spring 2012) (“Maggie Gallagher

11 From the beginning of the campaign for Proposition 8—when Mormons provided between 80 and 90 percent of the volunteers6—to its conclusion, the influence of religious organizations was pervasive. Frank Schubert and Jeff Flint, who designed and organized the Yes on 8 media campaign for ProtectMarriage.com, explained the significance of religious groups to the success of Proposition 8: “Members of the Mormon faith played an important part of the Yes on 8 coalition, but they were only a part of our winning coalition. We had support of virtually the entire faith community in California.” Jeff Flint, Frank Schubert, Passing Prop 8: Smart Timing and Messaging Convinced California Voters to Support Traditional Marriage, Politics Magazine, Feb. 1, 2009.

represents the most prominent public figure to endorse the proposition. As president of the National Organization on Marriage, she traveled the state lecturing on the harms and potential societal downfalls that come from same-sex marriage.”). 6 Helene Slessarev-Jamir, Religious Conservatives’ Success in constructing Gay Marriage as a Threat to Religious Liberties, American Political Science Association Meeting, 2012 (“Mormons played a particularly active role in California’s Yes on 8 campaign, donating upwards of $40 million and providing between 80–90 percent of the early volunteers in the grassroots outreach effort.”). Hendrik Hertzberg, Eight is Enough, The New Yorker, Sept. 1, 2008 (“Almost all the early canvassers for the cause [Proposition 8] were Mormons.”). Jesse McKinley, Kirk Johnson, Mormons Tipped Scale in Ban on Gay Marriage, N.Y. Times, Nov. 15, 2008 (Jeff Flint, an organizer of the Proposition 8 campaign with Frank Schubert, “estimated that Mormons made up 80 percent to 90 percent of the early volunteers who walked door-to-door in elections precincts.”).

12 In addition to providing grass roots advocates, religious organizations were responsible for the predominant financial support for the campaign on behalf of Proposition 8. Over half of the $40 million spent on the campaign in support of Proposition 8 was directly tied to religious organizations and their members, with twenty million dollars alone coming from members or organs of the Church of Jesus of Christ of Latter-day Saints. Hendrik Hertzberg, Eight is Enough, The New Yorker, Sept. 1, 2008.7 Critical money from Mormons also came in the last two weeks of the campaign. Jesse McKinley, Kirk Johnson, Mormons Tipped Scale in Ban on Gay Marriage, N.Y. Times, Nov. 15, 2008. The involvement of religious groups in the Proposition 8 campaign explains why religious themes and references dominated the campaign for Proposition 8. See Edward Schiappa, Defining Marriage in California: An Analysis of Public and Technical Argument, 48 Argumentation and Advocacy 213, 219 (Spring 2012) (identifying the principal characteristic of the debate over Proposition 8 as “the frequent invocation of religious beliefs not only to oppose same sex-marriage but to condemn homosexuality as well”).

7

David Van Biema, The Church and Gay Marriage: Are Mormons Misunderstood, Time Magazine, June 22, 2009 (“The passage of Prop 8 was the church's latest display of its power: individual Mormons contributed half of the proposition's $40 million war chest despite constituting only 2% of California's population. LDS spokesman Michael Otterson says, ‘This is a moment of emergence.’”).

13 That the purpose behind Proposition 8 was religious is also evidenced in the demography of those who voted for Proposition 8. “Those identifying themselves as evangelicals...supported Proposition 8 by a margin of 81% to 19%, and those who claim to attend church weekly supported Proposition 8 by a vote of 84% to 16%. Non-Christians, on the other hand, opposed Proposition 8 by a margin of 85% to 15%, and those who do not attend church regularly opposed Proposition 8 by a vote of 83% to 17%.” Geoffrey Stone, Same-Sex Marriage and the Establishment Clause, 54 Vill. L. Rev. 617, 621 n.16 (2009) (citing CNN, California General Exit Poll 6 (2008)). This is consistent with studies indicating a high correlation between religious beliefs and opposition to same-sex marriage. Patricia A. Cain, Contextualizing Varnum v. Brien: A “Moment” in History, 13 J. Gender Race & Just. 27, 47–48 (2009).8 Though Petitioner’s offer justifications for Proposition 8 (Pet. Br. at 31-61), these are of no relevance to the purpose prong of the Establishment Clause unless they appeared in the public debate leading up to the referendum. Unlike the rational basis test of the Equal Protection clause, the purpose prong of the Establishment Clause (as well the effects and entanglement prongs) requires an
8

See also William N. Eskridge and Darren R. Spedale, Gay Marriage: For Better or for Worse: What We’ve Learned from the Evidence, New York: Oxford University Press, 2006, at 80 (“Generally speaking, the stronger the religion-based opposition to same sex marriage, the more likely a country was to do nothing or to adopt a marriage lite institution rather than same sex marriage or registered partnerships.”).

14 examination of the reasons which were actually advanced during the debate over the challenged statute. Applying the sort of detailed analysis which this requires9 demonstrates that the principal reason behind the adoption of Proposition 8 was the concern that if the measure were defeated, the religious practices of individuals and organizations would be substantially restricted and the ability of parents to control the religious education of their children jeopardized. The foregoing evidence–drawn from the coordinated media campaign in support of Proposition 8–demonstrates that religious purposes were the overwhelming objective behind Proposition 8. Moreover, this evidence refutes any suggestion that these religious purposes merely coincided with a valid secular agenda.10 Such a suggestion is also defeated by the fact that here, after an extensive examination by the lower courts of the justifications offered in support of Proposition 8, the lower courts
See, e.g., Flamer v. City of White Plains, N.Y., 841 F.Supp. 1365, 1367-71 (S.D.N.Y. 1993) (Sotomayor, J.). 10 By way of contrast, compare Edwards v. Aguillard, 482 U.S. 578 (1987) (holding that the Louisiana Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction Act, serving no identifiable secular purpose, had as its purpose the promotion of a particular religious belief and is thus unconstitutional), with Harris v. McRae, 448 U.S. 297 (1980) (“that…the Hyde Amendment may coincide with the religious tenets of the Roman Catholic Church does not, without more, contravene the Establishment Clause”) (emphasis added) and McGowan v. Maryland, 366 U.S. 420 (1961). While Amici do not believe Harris was correctly decided, certainly we have here the “more” demanded by the Court in Harris.
9

15 concluded that there was no legitimate secular purpose supporting the statute. When a statute serves no identifiable secular purpose, that alone requires the conclusion that the statute violates the Establishment Clause. Wallace v. Jaffree, 472 U.S. 38, 56 (1985). This Court must also reject the idea that in holding Proposition 8 unconstitutional, the Court would be interfering with the right of religious organizations to participate in the public debate over same-sex marriage. (But cf. McDaniel v. Paty, 435 U.S. 618, 641 (1978) and Church of Lkumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)). Religious groups are free to continue to engage in discourse over issues of public importance; they are not, however, entitled to have the State’s imprimatur on the endorsement of their religious beliefs. B. PROPOSITION 8 VIOLATES THE EFFECTS PRONG OF THE LEMON TEST.

A statute is unconstitutional if it has the primary effect of advancing or inhibiting religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). See also Bd. of Educ. v. Allen, 392 U.S. 236, 242 (1968) (“the Establishment Clause bars a State from passing ‘laws which aid one religion, aid all religions, or prefer one religion over another’”, quoting Everson v. Bd. of Educ., 330 U.S. 1, 15–16 (1947)). This is true even if the statute has a secular purpose.

16 In Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O’Connor, J., concurring) and subsequent cases,11 the purpose and effects prongs of Lemon have been rearticulated as an “endorsement” or “neutrality” test–under which, the Establishment Clause is violated if a “reasonable observer” is likely to perceive the relevant statute as conveying a message that the state or federal government is endorsing religion. 465 U.S. at 691–92 (1984) (“What is crucial is that a government practice not have the effect of communicating a message of government endorsement or disapproval of religion.”). Again, it matters not whether the statute has a secular purpose if the effect of its enactment is to impart the perception that the state is taking sides in what is perceived to be a religious dispute. Id. at 690 (holding that a statute is unconstitutional if “irrespective of the government’s actual purpose, the practice under review in fact conveys a message of endorsement or disapproval”). The effects test does not require that the endorsement of religion be the only or even primary effect of the statute. It is sufficient if the endorsement is a “substantial” part of the message of the enactment. See Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 783-84
11

Santa Fe Indep. Sch. Dist. v. Dore, 530 U.S. 290, 301–10 (2000); Lamb's Chapel v. Ctr. Moriches Sch. Dist., 508 U.S. 384 (1993); Allegheny Cnty. v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573 (1989). See also Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 772–83; 783–96 (1995) (Souter, J; O’Connor, J. concurring); 817–18 (Ginsburg, J., dissenting).

17 n.39 (1973). Further, the Establishment Clause prohibits endorsement of “a particular religious practice” as well as religions generally. Wallace v. Jaffree, 472 U.S. 38, 69 (1985) (O’Connor, J., concurring). For purposes of the endorsement test, the reasonable observer (1) is “presumed to be familiar with the history of the government's actions and competent to learn what history has to show,” (2) is “familiar with implementation of government action,” (3) inquires as to “‘the historical context of the statute... and the specific sequence of events leading to [its] passage,’” and (4) is “‘deemed aware of the history and context of the community and forum in which the religious display appears.’” McCreary Cnty v. ACLU of Ky., 545 U.S. 844, 866 (2005) (internal citations omitted). See also Wallace v. Jaffree, 472 U.S. at 76 (O’Connor, J., concurring) (“The relevant issue is whether an objective observer, acquainted with the text, legislative history, and implementation of the statute, would perceive it as a state endorsement of [religion].”). In the case of a referendum, the reasonable observer is more likely to conclude that the law was motivated by a religious purpose owing to the fact that members of the public, as opposed to legislators, are less likely to be aware of constitutional limitations. Gary J. Simson, Religion By Any Other Name: Prohibitions on SameSex Marriage and the Limits of the Establishment Clause, 23 Colum. J. Gender & L. 132, 147–48 (2012).

18 Where the government has inserted itself into “the center of a serious sectarian dispute,” the government’s action is clearly an endorsement of religion and consequently unconstitutional under the Establishment Clause. Van Orden v. Perry, 545 U.S. 677, 718-19 (2005) (citing Larson v. Valente, 456 U.S. 228, 244 (1982)); Cnty. of Allegheny v. ACLU, 492 U.S. 573, 593–94 (1989) (“The Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief or from ‘making adherence to a religion relevant in any way to a person's standing in the political community.’”) (quoting Lynch, 465 U.S. at 687 (O’Connor, J., concurring). It is the perception that the state prefers certain kinds of believers over others, or believers over unbelievers, that constitutes the constitutional violation, regardless of whether the government action actually has such effect. The circumstances surrounding the enactment of Proposition 8 compel the conclusion that the statute violates the effects prong of Lemon. The reason for this is that the campaign behind Proposition 8 advanced, as its primary argument, the claim that the failure to adopt Proposition 8 would substantially constrict the freedom of individuals and 12 At organizations to practice their religious beliefs.
12

Melissa Murray, Marriage Rights and Parental Rights: Parents, the State, and Proposition 8, 5 Stan. J.C.R. & C.L. 357, 359 (2009) (“[T]he campaign reframed the same-sex marriage debate in California from a question of equal rights for samesex couples to one of state infringement on the individual rights of the rest of the polity. In short, the Yes on 8 campaign coopted its opponent’s right rhetoric. It did not dispute that

19 the same time, it was pointed out that other than the label of “marriage,” California extended all benefits to gay couples that were enjoyed by married couples. Consequently, the enactment of Proposition 8 was framed in the public discourse as a choice between either (1) protecting religious liberties but denying gays the symbol of marriage or (2) allowing same-sex marriages (with no benefit to gays other than the symbol of marriage) but in doing so greatly restricting individuals and organizations in their religious practices and in their control over the religious education of children.13 The fact that the dominant theme of the campaign in support of Proposition 8 was the adverse impact it would have on the religious practices of

same-sex marriage implicated rights, but it made clear that the rights at stake were not the civil rights of gays and lesbians. Instead, the campaign argued that state recognition of same-sex marriage implicated the rights of the rest of the state’s populace. Accordingly, the campaign emphasized that state recognition of same-sex marriage would imperil the exercise of religious and personal beliefs, and importantly, would allow the state to introduce children to the concept of gay marriage in school, thereby challenging parental authority over children in the home. Recognizing and understanding this rhetorical shift provides a more nuanced explanation for Proposition 8’s victory in California.”). 13 In fact, as the Ninth Circuit correctly observed, Proposition 8 was not needed to protect religious freedom. See Perry v. Brown, 671 F.3d 1052, 1091 (9th Cir., 2012). But, that does not change the fact that endorsement of a religious point of view was a substantial part of the message of the enactment of Proposition 8.

20 Californians is well-documented.14 It is also well documented that this theme was widely considered the reason for the campaign’s success.15 In the months before the vote on Proposition 8, the Yes on 8 campaign released a video—“Whether
Slessarev-Jamir, Religious Conservatives’ Success in constructing Gay Marriage as a Threat to Religious Liberties, American Political Science Association Meeting, 2012 (observing that “the defense of heterosexual couples’ religious liberties has become the principal trope in the campaigns against the right to same sex marriage, thereby legitimizing the defense of traditional marriage by claiming that it is the embodiment of an ideal that many Americans perceive as sacrosanct”) ; G. Stone, 54 Vill. L. Rev. at 621 (noting that advocates of Prop 8 advanced the argument that a vote against Prop 8 “would limit the availability of religious exemptions from anti-discrimination laws that protect homosexuals— specifically, that same-sex marriage will interfere with Christians’ ability to (1) publicly speak out against homosexuality and (2) act on those beliefs in a functionallydiscriminatory way”). 15 See Helene Slessarev-Jamir, Religious Conservatives’ Success in Constructing Gay Marriage as a Threat to Religious Liberties, American Political Science Association Meeting (2012) (attributing the success of the Proposition 8 campaign to “the specter of possible infringements against the religious liberties of those families, individuals and institutions that oppose gay marriage were state governments to grant legal status to gay marriage. ...[T]his would be played out in several contexts: religious institutions would be in danger of losing their tax exempt status or being sued if they refused to perform same sex marriages or to allow the use of their properties for that purpose. Religiously affiliated adoption agencies would be sanctioned if they refused to allow same sex couples to adopt and religious parents would be harmed when public schools taught that same sex marriages were as legitimate as heterosexual marriages”.).
14Helene

21 You Like It or Not”—which opens with San Francisco Mayor Gavin Newsom declaring, with respect to same-sex marriage, “This door's wide open now. It's going to happen, whether you like it or not.” This was followed by the appearance of Professor Richard Peterson of Pepperdine University School of Law, who warned of the changes that would be effected if Proposition 8 were adopted, including churches losing their tax exempt status, people being sued for their religious beliefs, and children being taught an interpretation of marriage which conflicts with the religious beliefs of their parents. Melissa Murray, Marriage Rights and Parental Rights: Parents, the State, and Proposition 8, 5 Stan. J.C.R. & C.L. 357, 371 (2009). The message of “Whether You Like It or Not” was that a rejection of Proposition 8 would threaten the rights of “individual citizens who wish to practice their personal and religious beliefs and instill them in their children.” Id. The advertisement campaign: was decisive to the

But Whether You Like It or Not did more than simply shift the terms of the debate by refraining the rights rhetoric. By all accounts, Whether You Like It or Not was crucial in swaying voters and turning the tide of the campaign. According to Schubert and Flint, the architects of the campaign, after “more than a week” of “blanketing the state” with the ad, the campaign “went from being significantly

22 behind, to taking the lead in two published polls.” Melissa Murray, Marriage Rights and Parental Rights: Parents, the State, and Proposition 8, 5 Stan. J.C.R. & C.L. 357, 372 (2009) (quoting Frank Schubert & Jeff Flint, Case Study, Passing Prop 8, in Campaigns & Elections, 2009, at 44). The director of the non-partisan Field Poll, Mark DiCamillo, also pointed to the Yes on 8 television advertisements as determinative in the success of Proposition 8: “Double-digit leads held by the ‘no’ side in the pretelevision advertising stages of the campaign declined precipitously as the TV ad campaigns hit in mid-to-late-September.” Mark DiCamillo, Why Prop. 8 Confounded Pre-Election Pollsters, San Francisco Chronicle, SF Gate, Nov. 10, 2008.16 Two other prominent advertisements from the Yes on 8 campaign delivered the same message. “The Parker Family,” a seven minute documentary, was used by Yes on 8 to tell the story of the Parkers, a mother and father who, when they realized that their five year old son was being taught about gays and lesbians, confronted his teacher.17 The teacher, however, refused to acknowledge the Parkers’ right
16 Matier, Phil, and Andrew Ross, Prop. 8 Adman Wins, ‘Whether You Like It or Not’, San Francisco Chronicle, April 6, 2009, at B-1 (pointing out the effectiveness of the Yes on 8 commercial in which San Francisco Mayor Newsom stated that same-sex marriage is “going to happen, whether you like it or not”). 17 The Parker Family, Protect Marriage, https://www.youtube.com/watch?v=puI4pfRB0w0 (last visited February 27, 2013).

23 to educate their child on an issue that was central to the Parkers’ “Judeo-Christian beliefs.” In response, the Parkers rebuked the teacher: “[Y]ou wish to affirm homosexuality to our son. You are presenting that which is sin, as though it is not, to our son. Id. And we cannot allow that.” Mr. Parker also informs the teacher that he considers it his “sacred duty” to guide his child on the issue of marriage. Id. The second video, “A Storm is Gathering,” warns of the consequences of legalizing gay marriage, including testimonials from a California physician, “who must choose been my faith and my job,” and a member of “a New Jersey church group,” who was “punished by the government, because we can’t support same-sex marriage.’” A Storm is Gathering, National Organization for Marriage, http://www.nationformarriage.org/site/c.omL2KeN0L zH/b.5075687/apps/s/content.asp?ct=4828731 (last visited February 27, 2013). The video ends with the appearance of a representative from a Christian organization. Id. The message of the dangers to religious freedom that would result from a rejection of Prop 8 was also featured in the website for the Yes on 8 campaign. The site warned that if Proposition 8 were defeated, individuals and religious organizations would be forced to comply with state laws respecting same sex marriage “regardless of deeply held religious beliefs.” protectmarriage.com (“Protect Marriage -- Yes on 8 -Home Page,” 2008).

24 The argument that in the absence of Proposition 8 religious liberty would be restricted was supported with the following specific claims. First, religious organizations would lose their tax exempt status if they failed to recognize gay marriage.18 Second, churches would be forced to perform gay marriages, regardless of whether the church was opposed to such marriage.19 Third, parents would lose the ability to control their children’s education on matters of religious importance to the parents.20 And, finally, adoption agencies operated by religious

See Hendrik Hertzberg, Eight is Enough, The New Yorker, Sept. 1, 2008 (reporting that television ads in support of Proposition 8 “implied that gay marriage would threaten churches’ tax exemptions[.]”). 19 See Frederick Mark Gedicks, Atmospheric Harms in Constitutional Law, 69 Maryland Law Review 149, 152 (2009) (noting that supporters of Proposition 8 offered the argument that in its absence, religions that oppose same-sex marriage on theological grounds would have been required to solemnize same-sex marriages in their sanctuaries, temples, and other places of worship”); Justin T. Wilson, Preservationism, or the Elephant in the Room: How Opponents of Same-Sex Marriage Deceive Us into Establishing Religion, 14 Duke J. Gender L. & Pol’y 561, 656-59 (2007). 20 Dan Morain, Jessica Garrison, Prop 8 Supporters Shrewdly Warned of Implications for Schools, Churches, and Children, Analysts Say, L.A. Times Nov. 6, 2008, at 1 (reporting that [Proposition 8 supporters] “were able to focus the debate on their assertion that without the ban, public school children would be indoctrinated into accepting gay marriage against their parents’ wishes, churches would be sanctioned for not performing same-sex weddings, and the institution of marriage would be irreparably harmed.”). See supra n. 12.
18

25 institutions would be forced to place children with gay couples.21 At the same time that the message of the threat to religious liberties was being conveyed in the Yes on 8 media campaign, the identical fear was broadcast by religious leaders who opposed same-sex marriage. See, e.g., Kaimipono Wenger, The Church’s Use of Secular Arguments, 42 Dialogue: A Journal of Mormon Thought 105, 109–10 (Winter 2009) (“‘[T]he ‘Divine Institution of Marriage’ press release included legal claims relating to adoption agencies, tax exemptions, and school curricula.”). In a broadcast to members of the Mormon Church in California, Elder David A. Bednar, an educator, stated, “[T]here could be sanctions against the teaching of our doctrine.” Id. So, too, Pastor Phil Magnan, the president of the Bible Family Advocates, a California based Christian ministry, warned that “[i]t is eternally reprehensible that the pro same sex marriage movement is working to codify their perversion of the marital union; which has an even broader agenda. This agenda will end up being forced into the religious institutions around us, as well as force children to accept immorality in every venue of education....It is a cruel and unloving thing to use the institution of marriage to cause our little ones to stumble into this fallen way of life and lawlessness.” Edward Schiappa, Defining Marriage in California: An Analysis of Public and Technical
21

Hendrik Hertzberg, Eight is Enough, The New Yorker, Sept. 1, 2008 (commenting that television ads in support of Proposition 8 “implied that gay marriage would…force churchaffiliated adoption agencies to place children with gay couples”).

26 Argument, 48 Argumentation and Advocacy 213, 220 (Spring 2012). Since the public debate over Proposition 8 was framed as a choice between religious freedom and same-sex marriage, the “objective observer” of the endorsement test would conclude that the enactment of Proposition 8 constituted government intervention in a sectarian controversy. Put differently, the enactment of Proposition 8—to the objective observer—was a choice by the California electorate to refuse gays the right to marry in exchange for preserving the rights of individuals and organizations to practice their faith without state interference. In addition to the perception that Proposition 8 was a form of government intervention in a sectarian dispute, Proposition 8 has the effect of furthering the practices of those religions which are doctrinally opposed to same-sex marriage while forcing those whose religious beliefs favor same-sex marriages to conform to practices which are objectionable.

27 Commentators have concluded that such coercion22 also violates the Establishment Clause.23

22 See Cnty of Allegheny v. ACLU, 492 U.S. 573, 659 (1989) (Kennedy, J., concurring and dissenting) (quoting Lynch v. Connelly, 465 U.S. at 678) (“Our cases disclose two limiting principles: government may not coerce anyone to support or participate in any religion or its exercise; and it may not, in the guise of avoiding hostility or callous indifference, give direct benefits to religion in such a degree that it in fact ‘establishes a [state] religion or religious faith, or tends to do so.’”). 23 Geoffrey Stone, Same-Sex Marriage and the Establishment Clause, 54 Vill. L. Rev. 617, 618, 619 (2009) (prohibiting gay marriage by statute “conscript[s] the authority of the state to compel individuals to conform their behavior to the dictates of a particular religious belief, whether or not the individuals share that belief” and thereby uses “‘the State’s coercive power to aid religion.’”) (quoting McGowan v. Maryland, 366 U.S. 420, 45253 (1961); Amelia A. Miller, Note, Letting Go of a National Religion: Why the State Should Relinquish All Control Over Marriage, 38 Loy. L.A. L. Rev. 2185, 2211 (2005) (“[A] law banning gay marriage achieves two ends. First, such a law favors, or ‘advances,’ those religions that do not condone samesex unions by siding with that particular viewpoint. At the same time, religions that would gladly solemnize a same-sex marriage but for the law are ‘inhibited.’”); Larry Cata Backer, Religion as the Language of Discourse of Same Sex Marriage, 30 Cap. U. L. Rev. 221, 262 (2002) (arguing that because “[d]isagreements over the nature of marriage, like abortion and the ingestion of pork, involve fundamental religious disagreements,…[s]tate interference in this context ought to be restrained as it has been with respect to the regulation of animal slaughter.”).

28 II. PROPOSITION 8 SIMILARLY VIOLATES THE CALIFORNIA CONSTITUTION Under Article I, Section 4 of the California Constitution: Free exercise and enjoyment of religion without discrimination or preference are guaranteed. . . . The Legislature shall make no law respecting an establishment of religion. Courts have interpreted this provision as prohibiting the government from embracing one religious view over another. Feminist Women’s Health Ctr., Inc. v. Philibosian 157 Cal. App. 3d 1076, 1092 (1984). See also Fox v. City of Los Angeles (1978) 22 Cal. 3d 792, 796 (1978) (observing that this provision of the California Constitution is broader than the federal guarantee). California’s mandate of separation of church and state is not limited to Article I, Section 4. Instead, related rights are guaranteed by Article XVI, Section 5 of the California Constitution. That section states in relevant part: Neither the Legislature, nor any county, city and county, township, school district, or other municipal corporation, shall ever make an appropriation, or pay from any public

29 fund whatever, or grant anything to or in aid of any religious sect, church, creed, or sectarian purpose, or help to support or sustain any school, college, university, hospital, or other institution controlled by any religious creed, church, or sectarian denomination whatever; nor shall any grant or donation of personal property or real estate ever be made by the state, or any city, city and county, town, or other municipal corporation for any religious creed, church, or sectarian purpose whatever . . . . Courts have interpreted this provision as prohibiting any governmental involvement, whatever its form, which has an improper effect of promoting a religious point of view. Feminist Women’s Health Ctr., supra, 157 Cal. App. 3d at 1092-93. This provision “was intended to insure the separation of church and state and to guarantee that the power, authority and financial resources of the government shall never be devoted to the advancement or support of religious or sectarian purposes.” 157 Cal. App. 3d at 1093 (citation and quotation marks omitted). “The prohibited aid under this section includes aid ‘in the intangible form of [the State’s] prestige and power.’” Id. at 1093 (citation and quotation marks omitted). These two provisions of the California Constitution–Article I, Section 4 and Article XVI, Section 5–are fundamental to our governmental plan or structure for California’s government to be

30 separate from religion. See, e.g., Feminist Women’s Health Ctr., 157 Cal. App. 3d at 1092 (“[T]he Attorney General’s office has said: ‘It would be difficult to imagine a more sweeping statement of the principle of governmental impartiality in the field of religion.’”) (citation omitted). In Feminist Women’s Health Center, supra, the Court of Appeal considered whether the district attorney’s proposed release of aborted fetuses to antiabortion organizations planning a religious burial for the fetuses violated these provisions of the California Constitution. 157 Cal. App. 3d at 1086. The Court of Appeal concluded that the proposed release of the fetuses violated these guarantees of the California Constitution notwithstanding the absence of any activity by the Legislature. 157 Cal. App. 3d at 1088. In determining that the district attorney’s proposed action was unconstitutional, the Court reasoned that “[it] would, in effect, sponsor and approve [a particular religious] view [e.g., that the aborted fetuses are persons].” Id. “It is clear from the record that [intervener] Catholic League is a religious organization which regards a fetus as a human being and abortion as murder. While this specific belief may well cross sectarian lines, it is a belief not universally held. Consequently, any state action showing a preference for this belief . . . must be invalidated unless it is justified by a compelling governmental interest with which ‘it is closely fitted to further [that] interest.’” Id. at 1088-89 (citation and internal quotation marks omitted). The Court

31 then concluded that “there is no compelling state interest to dispose of the fetuses in a private cemetery. The fact that [it] would dispose of the fetuses at no cost to the county is not sufficient compelling interest to justify the appearance of state sanction of a particular religious belief.” Id. at 1089. The Court of Appeal held that the proposed action by the district attorney violated Article I, Section 4 and Article XVI, Section 5 of the California Constitution. Id. at 1092-93. Proposition 8 runs afoul of these same provisions of the California Constitution. If permitted, Proposition 8 would, in effect, promote and validate a particular religious view–i.e., that only a man and a woman may marry. See supra. As the Ninth Circuit Court of Appeals determined below, there is no governmental interest (let alone a compelling one) here to justify defining marriage as between only a man and a woman. Accordingly, Proposition 8–which embraces the religious view point that marriage should be limited to opposite-sex couples–is invalid under California law as well as under federal law. Certainly, religions have a constitutionally protected right to express their view that marriage should between only a man and a woman and to refrain from sanctioning samesex marriage within their religions. Nevertheless, such religions do not have the right to have the State’s imprimatur on that belief.

32 CONCLUSION Because the purpose and effect of Proposition 8—as viewed from the specific circumstances under which the statute was enacted by the voters of California—violates the Establishment Clause of the United States Constitution as well as the Constitution of the State of California, this Court must affirm the decision of the Ninth Circuit Court of Appeals.

Respectfully submitted on behalf of amici, Michael Rips Steptoe & Johnson LLP 1114 Avenue of the Americas New York, NY 10036 (212) 506-3900 mrips@steptoe.com Rebecca Edelson Counsel of Record Steptoe & Johnson LLP 2121 Avenue of the Stars, Suite 2800 Los Angeles, CA 90067 (310) 734-3200 redelson@steptoe.com

Counsel for Amici Curiae the National Organization for Women Foundation and the Feminist Majority Foundation Dated: February 28, 2013

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