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Case Nos. 12-17668, 12-16995, and 12-16998 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BEVERLY SEVCIK, et al., Plaintiffs-Appellants, v. BRIAN SANDOVAL, et al., Defendants-Appellees, and COALITION FOR THE PROTECTION OF MARRIAGE, Intervenor-DefendantAppellee. On Appeal from the United States District Court for the District of Nevada Case No. 2:12-CV-00578-RCJ-PAL, The Hon. Robert C. Jones, District Judge. NATASHA N. JACKSON, et al., Plaintiffs-Appellants, v. NEIL S. ABERCROMBIE, Governor, State of Hawai’i, Defendant-Appellant, LORETTA J. FUDDY, Director, Department of Health, State of Hawai’i, Defendant-Appellee, and HAWAII FAMILY FORUM, Intervenor-Defendant-Appellee. On Appeal from the United States District Court for the District of Hawaii Case No. 1:11-cv-00734-ACK-KSC, The Hon. Alan C. Kay, Sr., District Judge. BRIEF OF AMICI CURIAE IN SUPPORT OF APPELLANTS ON BEHALF OF NATIONAL AND WESTERN STATES WOMEN’S RIGHTS ORGANIZATIONS ____________________________________ IRELL & MANELLA LLP BRUCE A. WESSEL MOEZ M. KABA C. MITCHELL HENDY BRIAN EGGLESTON 1800 Avenue of the Stars, Suite 900 Los Angeles, California 90067-4276 Telephone: (310) 277-1010 Facsimile: (310) 203-7199 mkaba@irell.com Counsel for Amici Curiae

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CORPORATE DISCLOSURE STATEMENT None of the amici has a parent corporation and no corporation owns 10% or more of any of amici’s stock.

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TABLE OF CONTENTS Page CORPORATE DISCLOSURE STATEMENT ....................................................... i  INTEREST OF AMICI CURIAE ............................................................................ 1  A.  B.  C.  D.  E.  F.  California Women's Law Center ........................................................ 1  Feminist Majority Foundation............................................................ 1  Legal Momentum ............................................................................... 1  Legal Voice ........................................................................................ 2  National Organization for Women Foundation ................................. 3  Interests of Amici Curiae .................................................................... 3 

INTRODUCTION AND SUMMARY OF ARGUMENT ..................................... 5  ARGUMENT .......................................................................................................... 8  Nevada’s And Hawaii’s Marriage Restriction Laws Are Unconstitutional As They Discriminate On The Basis Of Sex And Fail To Withstand The Required Heightened Scrutiny. ............................................................. 8  A.  The Marriage Restriction Laws Are Subject To Heightened Judicial Scrutiny Because They Discriminate On The Basis Of Sex. ................................................................................................ 8  Nevada’s And Hawaii’s Marriage Restriction Laws Perpetuate Sex Stereotypes Regarding The Role Of Women. ......... 16  The Marriage Restriction Laws Cannot Withstand Heightened Scrutiny. ........................................................................ 22  Baker v. Nelson Does Not Excuse Sex-Based Discrimination. ....... 24 

B.  C.  D. 

CONCLUSION ..................................................................................................... 25  CERTIFICATE OF COMPLIANCE .................................................................... 26  CERTIFICATE OF SERVICE ............................................................................. 27 

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TABLE OF AUTHORITIES Page(s) Cases  Anderson v. Martin, 375 U.S. 399 (1964)................................................................................ 14 Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) ........................................................................ 11 Baehr v. Miike, Civ. No. 91-1394-05 (Haw. Cir. Ct. Sept. 5, 1996) ......................... 18, 19 Baker v. Nelson, 409 U.S. 810 (1972).......................................................................... 24, 25 Baker v. State, 744 A.2d 864 (Vt. 1999) ......................................................................... 10 Brause v. Bureau of Vital Statistics, 3AN-95-6562 CI, 1998 WL 88743 (Alaska Super. Ct. Feb. 27, 1998) ....................................................................................................... 12 Caban v. Mohammed, 441 U.S. 380 (1979)................................................................................ 17 Craig v. Boren, 429 U.S. 190 (1976)............................................................................ 8, 23 Frontiero v. Richardson, 411 U.S. 677 (1973)................................................................................ 21 Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) ................................................................ 9 Golinski v. U.S. Office of Personnel Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012) ...................................................... 9 Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003) ........................................................... 10, 11

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Page(s) Griego v. Oliver, No. D 202-CV-2013-2757, 2013 WL 4716361 (N.M. Dist. Ct. Aug. 26, 2013) ................................................................................................. 10 Hibbs v. Dep’t of Human Res., 273 F.3d 844 (9th Cir. 2001) ........................................................ 8, 21, 22 Hollingsworth v. Perry, 133 S. Ct. 2652 (2013).................................................................. 5, 13, 22 In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011) ................................................... 10 In re Levenson, 560 F.3d 1145 (9th Cir. Judicial Council 2009) ................................. 9, 12 J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994)............................................................................ 8, 15 Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (D. Haw. 2012).......................................... 7, 14, 24 Johnson v. California, 543 U.S. 499 (2005)................................................................................ 14 Kirchberg v. Feenstra, 450 U.S. 455 (1981)................................................................................ 22 Li v. State, No. 0403-03057, 2004 WL 1258167 (Or. Cir. Ct. April 20, 2004) ....... 12 Loving v. Virginia, 388 U.S. 1 (1967)............................................................................. passim McLaughlin v. Florida, 379 U.S. 184 (1964)................................................................................ 14 Metro Broad., Inc. v. FCC, 497 U.S. 547 (1990)................................................................................ 15

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Page(s) Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982).................................................................... 13, 21, 24 Monterey Mech. Co. v. Wilson, 125 F.3d 702 (9th Cir. 1997) .................................................................... 8 Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) .......................................................... 13, 22 Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) .......................................... 9, 17, 23 Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012) ............................................ 7, 20, 24 Shaw v. Reno, 509 U.S. 630 (1993).......................................................................... 13, 14 Shelley v. Kraemer 334 U.S. 1 (1948).................................................................................... 14 United States v. Virginia, 518 U.S. 515 (1996)................................................................ 8, 12, 21, 24 Statutes  Haw. Rev. Stat. §572-1 ..................................................................................... 11 Other Authorities  Andrew Koppelman, Defending the Sex Discrimination Argument for Lesbian and Gay Rights, 49 U.C.L.A. L. Rev. 519 (2001) ............................................................. 21

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INTEREST OF AMICI CURIAE A. California Women’s Law Center

Amicus California Women’s Law Center (“CWLC”), founded in 1989, is dedicated to addressing the comprehensive and unique legal needs of women and girls. CWLC represents women who are committed to ensuring that life opportunities for women and girls are free from unjust social, economic, legal and political constraints. CWLC’s priorities on behalf of its members are gender discrimination, women’s health, reproductive justice and violence against women. CWLC and its members are firmly committed to eradicating invidious discrimination in all forms. CWLC recognizes that women have historically been the target of invidious discrimination and unequal treatment under the law. B. Feminist Majority Foundation

Amicus Feminist Majority Foundation (“FMF”) was founded in 1987 as an organization rooted in the belief that feminists—including women, men, girls, and boys—are the majority. FMF is the largest feminist research and action organization dedicated to women’s equality, empowerment, and non-violence. FMF supports lesbian, gay, bisexual and transgender rights and is dedicated to advancing the legal, social, and political equality of women and men. C. Legal Momentum

Amicus Legal Momentum is the oldest legal defense and education fund dedicated to advancing the rights of all women and girls. For more than 40 years,
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Legal Momentum has made historic contributions through litigation and public policy advocacy to advance economic and personal security for women. Legal Momentum’s work extends across a wide range of areas related to discrimination, gender equality, and gender bias. Legal Momentum continues to champion the rights of women and girls by working to eradicate harmful stereotypes and policies shaped by bias. D. Legal Voice

Amicus Legal Voice, founded in 1978 as the Northwest Women’s Law Center, is a regional nonprofit public interest organization based in Seattle that works to advance the legal rights of women in the five Northwest states (Washington, Oregon, Idaho, Montana, and Alaska) through litigation, legislation, education, and the provision of legal information and referral services. Since its founding, Legal Voice has worked to eliminate all forms of sex discrimination, including gender stereotyping. To that end, Legal Voice has a long history of advocacy on behalf of lesbians, gay men, bisexuals, and transgender individuals. Legal Voice has participated as counsel and as amicus curiae in cases throughout the Northwest and the country and is currently involved in numerous legislative and litigation efforts. Legal Voice served on the governing board of Washington United for Marriage, a broad coalition that worked to secure civil marriage for same-sex couples in Washington State.

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E.

National Organization for Women Foundation

Amicus National Organization for Women Foundation (“NOW Foundation”) is a 501(c)(3) organization devoted to furthering women’s rights through education and litigation. For decades, NOW Foundation has advocated for equal rights and full protection of the law for LGBT persons. Established in 1966, NOW Foundation is affiliated with the National Organization for Women (NOW), the largest feminist activist organization in the U.S., including hundreds of chapters in every state and the District of Columbia, with hundreds of thousands of members and contributing supporters. NOW is a leading organization in the effort to recognize in law same-sex couples’ equal marriage rights. F. Interests of Amici Curiae

Amici submit this brief1 to urge the Court to apply heightened scrutiny to Nevada’s and Hawaii’s marriage restrictions on the grounds that they discriminate on the basis of sex and impermissibly perpetuate sex stereotypes. Amici are dedicated to ending sex discrimination and achieving full equality for women and girls. Each amicus has extensive knowledge concerning issues and the history of discrimination based on sex and sex stereotypes. The amici have a particular interest in protecting women and men, including lesbian women and gay men,

All parties have consented to the filing of this amicus brief. No party, party’s counsel, or any person other than amici and their counsel authored any part of this brief or contributed money intended to fund this brief. -3-

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from sex discrimination and gender-based stereotypes. For these reasons, amici have a strong interest in the present case and in ensuring that laws that discriminate on the basis of sex are subjected to heightened scrutiny. The laws at issue here cannot satisfy heightened scrutiny and thus must be struck down as they violate the equal protection guarantee of the U.S. Constitution.

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INTRODUCTION AND SUMMARY OF ARGUMENT Appellants are the targets of state-ordered discrimination. They suffer this discrimination because of their sex. Although in its previous review of California’s marriage ban this Court did not have occasion to hold that state marriage bans are subject to heightened scrutiny because they discriminate on the basis of sex, the law in this area has continued to develop. More recently, Justice Kennedy questioned whether California’s marriage ban “can be treated as a gender-based classification,” revealing that it was “a difficult question that [he’s] been trying to wrestle with.” Transcript of Oral Argument at 13, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (No. 12-144). Amici submit that the answer to Justice Kennedy’s question is yes: Marriage bans are gender-based classifications that must be subject to heightened scrutiny. Amici further submit that Nevada’s and Hawaii’s marriage bans are unconstitutional. It is undisputed that Ms. Sevcik is denied the right to be married in Nevada because she is a female who wishes to marry her female partner. It is undisputed that if Ms. Sevcik were male, her marriage would be recognized. It is also undisputed that Mr. Bradley is denied the right to marry in Hawaii because he is a male who wishes to marry his male partner. But for Mr. Bradley’s gender, he would enjoy the unencumbered right to marry his partner. Thus, at core, Nevada and Hawaii strip Appellants of their rights because of their sex. Their dignity is

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diminished because of their sex. Their liberty is restricted because of their sex. Their freedom to enter into intimate associations is restricted because of their sex. They are subject to greater financial burdens because of their sex. That Appellants are also discriminated against because of their sexual orientation in no way diminishes the sex discrimination they suffer. Such sex-based discrimination, while once endorsed by the laws of the United States, is no longer permitted. The laws at issue are also based upon and impermissibly perpetuate gender stereotypes. These laws were passed and continue to be defended on the basis of “traditional” roles for women and men in the household, and the “traditional” composition of a household. Thus, proponents of discriminatory marriage laws argue that the freedom to marry must be denied to same-sex couples because they do not fit into this traditional family structure. Such gender stereotyping is patently unconstitutional and is not supported by the important governmental interests necessary to sustain the laws at issue here. Defenders of discriminatory marriage laws have argued that they pass constitutional muster because the laws “equally apply” to women and to men—that is, the laws “equally” prohibit women and men from marrying a same-sex partner. But the laws clearly serve to disadvantage certain women because they are women who wish to marry other women, and disadvantage certain men because they are men who wish to marry other men. That a law may generally impact both genders

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does not diminish or excuse the constitutional harm suffered by any one individual who is denied equal protection under the law because of her gender. To be sure, if Nevada or Hawaii passed a law barring women from working in certain state government jobs that the state deemed “traditionally male” and, in the same statute, barred men from working in other jobs—constituting the same percentage of the state workforce—that the state deemed “traditionally female,” this Court would recognize such a statute as a classification based on sex that is subject to heightened scrutiny when challenged under the Equal Protection Clause. If a female applicant to one of the prohibited jobs brought suit to overturn the statute, no court would reject her request on the grounds that the statute excludes men from an equal number of state jobs. But here, in the arena of marriage, this is exactly what the proponents of Hawaii’s and Nevada’s marriage restriction laws advocate.2 Under the marriage restriction laws, two women are unable to be legally married only because they are women; were one of the two a man, the marriage would be recognized. This is sex discrimination. It does not matter that the statutes impose parallel disadvantages on members of both sexes; the actual

The laws of Nevada and Hawaii that restrict certain women and certain men from marrying are collectively referred to herein as the “marriage restriction laws” or the “marriage bans.” See, e.g., Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1070 (D. Haw. 2012); Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1003 (D. Nev. 2012). -7-

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disadvantage suffered by a particular individual is suffered on the basis of that individual’s sex.3 Such discriminatory laws cannot stand under our Constitution. ARGUMENT NEVADA’S AND HAWAII’S MARRIAGE RESTRICTION LAWS ARE UNCONSTITUTIONAL AS THEY DISCRIMINATE ON THE BASIS OF SEX AND FAIL TO WITHSTAND THE REQUIRED HEIGHTENED SCRUTINY. A. The Marriage Restriction Laws Are Subject To Heightened Judicial Scrutiny Because They Discriminate On The Basis Of Sex.

It is well established that sex-based classifications require the application of heightened judicial scrutiny under the Equal Protection Clause. United States v. Virginia, 518 U.S. 515, 534 (1996) (the Equal Protection Clause prohibits discrimination based on sex in the absence of an “exceedingly persuasive justification”); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 152 (1994) (“In over 20 cases beginning in 1971 . . . we have subjected government classifications based on sex to heightened scrutiny.”); Hibbs v. Dep’t of Human Res., 273 F.3d 844, 855 (9th Cir. 2001) (“State-sponsored gender discrimination is subject to ‘intermediate scrutiny’ under the Equal Protection Clause.”); Monterey Mech. Co. v. Wilson, 125 F.3d 702, 712 (9th Cir. 1997) (“Classifications based on sex must be justified by an ‘exceedingly persuasive justification,’ serve ‘important Cf. Craig v. Boren, 429 U.S. 190 (1976) (holding that a state statute that imposed limits on sale of certain alcohol to males under 21 and females under 18 was unconstitutional sex discrimination). -83

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governmental objectives’ and the means must be ‘substantially related to the achievement of those objectives.’”); see also Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011) (“discriminating against someone on the basis of his or her gender non-conformity constitutes sex-based discrimination under the Equal Protection clause” and applying heightened scrutiny). An increasing number of federal and state courts and judges have recognized that discrimination against gay and lesbian people constitutes sex discrimination.4 See In re Levenson, 560 F.3d 1145, 1147, 1149 (9th Cir. Judicial Council 2009) (Reinhardt, J.) (finding that Section 3 of the Defense of Marriage Act (“DOMA”) constituted a “sex-based” distinction and that the claim was “likely” subject to “some form of heightened constitutional scrutiny”); Golinski v. U.S. Office of Personnel Mgmt., 824 F. Supp. 2d 968, 982 n.4 (N.D. Cal. 2012) (“Ms. Golinski is prohibited from marrying Ms. Cunninghis, a woman, because Ms. Golinski is a woman. If Ms. Golinski were a man, DOMA would not serve to withhold benefits from her. Thus, DOMA operates to restrict Ms. Golinski’s access to federal benefits because of her sex.”); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 996

To hold that Appellants are not victims of sex discrimination would create a gaping exception to the court’s sex-discrimination jurisprudence. In the future, such a holding would allow statutes that discriminate against women to avoid the intermediate scrutiny applied to sex discrimination so long as the statute also discriminates in some way against men, or so long as the statute can also be cloaked in sexual-orientation discrimination. -9-

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(N.D. Cal. 2010) (“[F]or example, Perry is prohibited from marrying Stier, a woman, because Perry is a woman. If Perry were a man, Proposition 8 would not prohibit the marriage. Thus, Proposition 8 operates to restrict Perry’s choice of marital partner because of her sex” and is subject to heightened scrutiny); In re Balas, 449 B.R. 567, 577-78 (Bankr. C.D. Cal. 2011) (opinion of twenty bankruptcy judges) (“DOMA is gender-biased because it is explicitly designed to deprive the Debtors of the benefits of other important federal law solely on the basis that these debtors are two people married to each other who happen to be men. . . . Spouses should be treated equally, whether of the opposite-sex variety or the same-sex variety, under heightened scrutiny . . . .”); Griego v. Oliver, No. D 202-CV-2013-2757, 2013 WL 4716361, at *2 (N.M. Dist. Ct. Aug. 26, 2013) (“Implying conditions of sexual orientation on one’s right to enter civil contracts such as marriage is a violation of [New Mexico Constitution] Article II, Section 18’s mandate that ‘equality of rights shall not be denied on account of the sex of any person.’”); Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 971-72 (Mass. 2003) (Greaney, J., concurring) (noting Massachusetts marriage statutes “create a statutory classification based on the sex of the two people who wish to marry,” and the fact that “the classification is sex based is self-evident”); Baker v. State, 744 A.2d 864, 905-07 (Vt. 1999) (Johnson, J., concurring in part and dissenting in part) (reasoning that Vermont’s marriage laws imposed a sex-based classification that

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should be reviewed under heightened judicial scrutiny); Baehr v. Lewin, 852 P.2d 44, 66-67 (Haw. 1993) (finding distinction between different-sex couples and same-sex couples to be a sex-based classification subject to heightened scrutiny). On their face, the marriage restriction laws discriminate on the basis of sex. Indeed, Section 21 of the Nevada State Constitution provides that “[o]nly a marriage between a male and female person shall be recognized and given effect in this state….” The marriage restriction statute in Hawaii states that “[i]n order to make valid the marriage contract, [it] shall be only between a man and a woman . . . .” Haw. Rev. Stat. §572-1. These restrictions thus make the right to get married in Nevada and Hawaii dependent upon the sex of the partners in the marriage: If Alan wishes to marry Jane, he may do so and get the full panoply of rights, privileges and obligations the state grants to married couples; but if Allison seeks to marry Jane, Nevada’s and Hawaii’s laws forbid recognition of her marriage. The only basis for preventing the latter marriage is that Jane’s partner is a woman rather than a man. See Goodridge, 798 N.E.2d at 971 (Greaney, J., concurring) (“Stated in particular terms, Hillary Goodridge cannot marry Julie Goodridge because she (Hillary) is a woman. Likewise, Gary Chalmers cannot marry Richard Linnell because he (Gary) is a man. Only their gender prevents Hillary and Gary from marrying their chosen partners under the present law.”).

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Consequently, the marriage restriction laws at issue in these appeals discriminate against Ms. Sevcik (for example) and other women on the basis of their sex because they deny recognition of their marriages whereas those marriages would be recognized if Ms. Sevcik were a man marrying the same individual. And the marriage restriction laws discriminate against Mr. Bradley on the basis of his sex because they deny recognition of a marriage to another person (a man) that would be recognized if only he were a woman. See Virginia, 518 U.S. at 532-33 (the Equal Protection Clause prohibits “differential treatment or denial of opportunity” based on a person’s sex); cf. Loving v. Virginia, 388 U.S. 1, 9 (1967) (holding that Virginia’s anti-miscegenation law constituted unlawful racial discrimination even though it applied with equal force to blacks and whites). By any measure, this is a sex-based classification. See, e.g., In re Levenson, 560 F.3d at 1147 (“[T]he denial of benefits at issue here was sex-based and can be understood as . . . sex discrimination.”); Brause v. Bureau of Vital Statistics, 3AN95-6562 CI, 1998 WL 88743 (Alaska Super. Ct. Feb. 27, 1998) (prohibition on marriage for same-sex couples is a sex-based classification); Li v. State, No. 040303057, 2004 WL 1258167 (Or. Cir. Ct. April 20, 2004) (finding that the Oregon marriage statute “impermissibly classif[ied] on the basis of gender” where “[a] woman is denied the benefits [of marriage] because her domestic partner is a

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woman; had her domestic partner been a man, then benefits would be available to them”). Accordingly, heightened judicial scrutiny applies.5 The justifications accepted by the courts below for Nevada’s and Hawaii’s sex-based classifications bear striking resemblance to the race-based justifications long ago rejected by the United States Supreme Court in Loving v. Virginia. In Loving, Virginia argued that its anti-miscegenation statute treated the races equally because it burdened both blacks and whites. 388 U.S. at 8. That is, where there is equal burdening of both races, as in Loving (or both sexes, as at issue here), the Commonwealth contended there could be no cognizable discrimination. Id. The Supreme Court disagreed, recognizing that regulating the right to marry on “distinctions drawn according to race” denied both the white husband and the

The fact that similar marriage restriction laws have been previously shown to have been motivated by animus towards gays and lesbians—rather than men and women—is immaterial to the level of constitutional scrutiny to be applied here. See Perry v. Brown, 671 F.3d 1052, 1093 (9th Cir. 2012) (concluding Proposition 8 was “‘born of animosity toward,’ or . . . mere disapproval of,” same-sex couples), vacated on other grounds, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013). The laws facially discriminate on the basis of gender and are therefore subject to heightened scrutiny. See Miss. Univ. for Women v. Hogan, 458 U.S. 718, 723 (1982) (“Because the challenged policy expressly discriminates among applicants on the basis of gender, it is subject to [heightened] scrutiny under the Equal Protection Clause of the Fourteenth Amendment.”); cf. Shaw v. Reno, 509 U.S. 630, 642 (1993) (“No inquiry into legislative purpose is necessary when the racial classification appears on the face of the statute. . . . Express racial classifications are immediately suspect . . . .”). - 13 -

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black wife the equality guaranteed to them by the Fourteenth Amendment.6 Id. at 8-12. Thus, although the anti-miscegenation statute at issue in Loving applied equally to both races, it was subjected to exacting constitutional scrutiny, and ruled unconstitutional, because it denied individuals the right to marry the spouse of their choice purely on the basis of race. Compare Id. at 11-12 (“In the case at bar . . . we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race.”) with Jackson, 884 F. Supp. 2d at 1098 (“Section 572-1 does not treat males and females differently as a class. It is

The Loving decision was neither the first nor the last time the Court discredited the “equal application” notion. See, e.g., Shelley v. Kraemer, 334 U.S. 1, 22 (1948) (rejecting the argument that, because state courts stood ready to enforce covenants barring ownership of property by white persons, state enforcement of restrictive covenants limiting land ownership to whites was not denial of equal protection, noting, “[e]qual protection of the laws is not achieved through indiscriminate imposition of inequalities”); McLaughlin v. Florida, 379 U.S. 184 (1964) (striking down a law prohibiting cohabitation among unmarried interracial couples, specifically disapproving of the theory that a discriminatory law can be saved merely because it “applie[s] equally to those to whom it [is] applicable”); Anderson v. Martin, 375 U.S. 399, 404 (1964) (invalidating provision that identified candidates for office by race, rejecting argument that the “Act is nondiscriminatory because the labeling provision applies equally to Negro and white”); Shaw v. Reno, 509 U.S. 630, 650 (1993) (“racial classifications receive close scrutiny even when they may be said to burden or benefit the races equally”); Johnson v. California, 543 U.S. 499, 505-06 (2005) (reaffirming that “equal application” does not justify classification based on suspect class). - 14 -

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gender-neutral on its face; it prohibits men and women equally from marrying a member of the same-sex.”). Just as the Supreme Court rejected the equal application argument in Loving, this Court should not excuse the marriage restriction laws’ sex-based classifications on the purported grounds that they apply equally to men and women. In J.E.B. v. Alabama, the Supreme Court struck down sex-based peremptory challenges made in jury voir dire, notwithstanding the fact that sexbased peremptory challenges could be applied equally against men and women. 511 U.S. 127, 146 (1994). The dissent in J.E.B. advanced an argument very similar to the “equal application” argument proffered by the proponents of the Nevada and Hawaii marriage restriction laws, namely that “since all groups [in this context, women and men] are subject to the peremptory challenge (and will be made the object of it, depending on the nature of the particular case) it is hard to see how any group is denied equal protection.” Id. at 159 (Scalia, J., dissenting). That argument did not carry the day in J.E.B., and should not be revived here. As Justice Kennedy noted in his concurring opinion, “‘[a]t the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial [or] sexual…class.’” Id. at 152-53 (quoting Metro Broad., Inc. v. FCC, 497 U.S. 547, 602 (1990) (O’Connor, J., dissenting)). To accept the “equal

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application” argument here would be to do exactly what the guarantee of equal protection commands not be done—i.e. condone sex-based discrimination against individuals under the flawed rationale that, in the aggregate, “all groups” are treated similarly. In sum, that Nevada’s and Hawaii’s discriminatory marriage restriction laws apply to both sexes does not cure the constitutional deficiencies of those laws. Like Loving, and the many federal cases that comprise its progeny, this is a case about individuals—in this case, individuals who are denied recognition of their marriage to the spouse of their choice, solely because of that individual’s sex. This is the sine qua non of sex-based discrimination, and accordingly the restrictions must be subject to a heightened level of judicial scrutiny. The laws fail under heightened scrutiny. See infra Part C. B. Nevada’s and Hawaii’s Marriage Restriction Laws Perpetuate Sex Stereotypes Regarding the Role of Women.

Defendant-Respondents will likely attempt to distinguish Loving and the many other cases refusing to use the “equal application” theory to justify racial classifications by asserting that the discrimination in those cases was based on disapproval of racial mixing and was therefore invidious, while here it is not. This purported distinction cannot withstand scrutiny. Just as an effort to forestall racial mixing was a key factor in the laws at issue in those cases, gender stereotyping is a key factor in Nevada’s and Hawaii’s marriage restriction laws.

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The gender stereotypes guiding laws restricting marriage to different-sex couples were explored in the litigation surrounding California’s unconstitutional Proposition 8. In that case, the district court in Perry explained that “the evidence shows that the tradition of gender restrictions arose when spouses were legally required to adhere to specific gender roles.” Perry, 704 F. Supp. 2d at 998. These traditional roles evolved, however, such that “California has eliminated all legally mandated gender roles except the requirement that a marriage consist of one man and one woman.” Id. The court concluded that “Proposition 8 . . . enshrines in the California Constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life.” Id. As with California’s Proposition 8, the marriage restriction laws at issue here were impermissibly enacted with specific gender-stereotyped objectives, based on stereotypes that only the “traditional family”—with a homemaker/caretaker mother and the breadwinner father—is a socially acceptable or moral form of family life. Without in any way diminishing the virtues of such families, Amici submit that restricting marriage so as to support the “traditional family” as the only acceptable option in society rests on gender stereotypes and diminishes the equality and dignity of women and men who are denied the right to marry. See Caban v. Mohammed, 441 U.S. 380, 388-89 (1979) (rejecting “any

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universal difference between maternal and paternal relations at every phase of a child’s development”). These motivations have been revealed in previous arguments in defense of Hawaii’s and Nevada’s discriminatory laws:  In prior litigation, the State of Hawaii claimed that Hawaii law’s sexbased discrimination was justified to promote “optimal child development because it combines the child with opposite sexed parents,” and that a child “is most likely to reach optimal development if raised by its natural parents.” Defendant State of Hawaii’s Pre-Trial Memorandum at 18, Baehr v. Miike, Civ. No. 91-1394-05 (Haw. Cir. Ct. Sept. 5, 1996).  The State also argued that “[f]or optimal development, children require a family with positive adult male and female gender role models,” and that “[c]ertain parenting seems to be role specific and certain parenting seems to be gender specific. . . . Fathers encourage and support their babies [sic] exploration of the environment [and] stimulate and encourage their children’s curiosity in the solution of intellectual and physical challenges, showing a trend to avoid oversolicitous responses to their children’s behaviors.” Defendant State of Hawaii’s Proposed Findings of Fact and Conclusions of Law

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at 9-10, Baehr v. Miike, Civ. No. 91-1394-05 (Haw. Cir. Ct. Oct. 14, 1996).  Supporters of the Hawaii marriage restriction claimed that children must have traditional male and female role models because “every boy learns how to treat girls and women in general, and his future wife in particular, by watching the way his father treats his mother,” and that “every girl learns how to relate to boys and men in general, and her future husband in particular, by watching how her mother relates to her father.” Brief of Amicus Curiae The Church of Jesus Christ of Latter-Day Saints at 5-6, Baehr v. Miike, Civ. No. 91-139405 (Haw. Cir. Ct. Oct. 11, 1996).  Supporters of the Hawaii marriage restriction also argued that “men and women parent differently” and “these differences combine to promote optimal growth in children.” National Association for Research and Therapy of Homosexuality, Inc.’s Brief of Amicus Curiae at 2, Baehr v. Miike, No. 20371 (Haw. Mar. 24, 1997).  Supporters of Nevada’s marriage restriction claimed that the law protects “the often vulnerable mother” who needs the strength of a father for support and stability. Motion for Summary Judgment filed by Intervenor Defendant Coalition for the Protection of Marriage at

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19, Sevcik v. Sandoval, No. 12-CV-00578, Dkt. #72 (D. Nev. Sept. 10, 2012).  Supporters of Nevada’s marriage restriction also claimed that the law was necessary because, in their words, “man-woman marriage” is necessary to “prepare a male for the role, status and identity of husband, transform him into a husband, and sustain him over time in his performance of that role. The same is true for a female relative to wife.” Id. at 24-25. Nevada’s and Hawaii’s marriage restrictions are historically rooted in gender-based stereotypes, pursuant to which men were expected to marry women, and women were expected to marry men. This regime was set up because of supposed complementary characteristics, with men held up to strong, “masculine” ideals and in need of the “civilizing” influences of women, and with women held to soft, “feminine” ideals and in need of the “protection” of men. See generally Declaration of Nancy F. Cott at ¶¶ 35-46, Sevcik v. Sandoval, No. 12-CV-00578, Dkt. #86-2, (D. Nev. Sept. 10, 2012) (explaining historical evolution of gender roles in marriage). These marriage restriction laws manifest a worldview that privileges the union of “masculine” men with “feminine” women, based on a view that women (and their children) purportedly need the support and protection of men. Advocates of these laws presume that two women are unable to form an

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optimal familial relationship because they lack the indispensable masculine and paternal force of a husband. It is precisely these stereotypical expectations, and the outmoded stratification of the genders they enforce, that the Equal Protection Clause prohibits.7 See Miss. Univ. for Women, 458 U.S. at 725, 729 (explaining that “[c]are must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions” and holding that a policy “excluding males from admission to the School of Nursing tends to perpetuate the stereotyped view of nursing as an exclusively woman’s job”). Just as “the harm to blacks counts against the miscegenation laws, then for the same reasons, the harm to women should count against antigay laws.” Andrew Koppelman, Defending the Sex

In a line of cases spanning from Frontiero v. Richardson, 411 U.S. 677, 685 (1973) (finding equal protection violation in rebuttable presumption of dependency of female military spouses which was based on “gross, stereotyped distinctions between the sexes”), to Virginia, 518 U.S. at 533 (finding equal protection violation in state military academy that excluded women because it “rel[ied] on overbroad generalizations about the different talents, capacities, or preferences of males and females”), the Supreme Court has made clear that classifications based on traditional gender stereotypes violate the federal Constitution’s Equal Protection Clause. Classifications drawn on the basis of notions of what men and women are like—what Justice Ginsburg has called “supposed inherent differences”—have long been rejected as sex discrimination. Virginia, 518 U.S. at 533; see also Hibbs, 273 F.3d at 865 (“State actors controlling gates of opportunity…may not exclude qualified individuals based on fixed notions concerning the roles and abilities of males and females.” (internal quotation marks and citation omitted)). - 21 -

7

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Discrimination Argument for Lesbian and Gay Rights, 49 U.C.L.A. L. Rev. 519, 529 (2001). C. The Marriage Restriction Laws Cannot Withstand Heightened Scrutiny.

“State-sponsored gender discrimination is subject to ‘intermediate scrutiny’ under the Equal Protection Clause. Such discrimination is thus unconstitutional unless it is substantially related to the achievement of an important governmental interest.” Hibbs, 273 F.3d at 855. “[T]he burden remains on the party seeking to uphold a statute that expressly discriminates on the basis of sex to advance an exceedingly persuasive justification for the challenged classification.” Kirchberg v. Feenstra, 450 U.S. 455, 461 (1981); see also Hibbs, 273 F.3d at 855 (“This allocation of the burden of proof has the effect of creating a rebuttable presumption of unconstitutionality for state-sponsored gender discrimination.”). The Nevada and Hawaii marriage restriction laws cannot survive intermediate scrutiny, and their proponents have not even sought to establish otherwise.8 Here, the only conceivable governmental interest identified in support of Nevada’s and Hawaii’s gender discrimination is founded upon the sex stereotypes discussed above. That is, these marriage restriction laws discriminate against
8

For reasons explained in other briefs and previously explained by this Court, the laws would not survive even rational basis review. See, e.g., Perry v. Brown, 671 F.3d 1052, 1086 (9th Cir. 2012), vacated on other grounds, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013). - 22 -

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women (marrying women) because those women are depriving their home of the perceived force and benefit of a male breadwinner. The Supreme Court has already rejected such justifications for sex discrimination. Craig, 429 U.S. at 19899 (“[I]ncreasingly outdated misconceptions concerning the role of females in the home rather than in the ‘marketplace and world of ideas’ were rejected as loosefitting characterizations incapable of supporting state statutory schemes that were premised upon their accuracy.”). Nor are the laws supported by any “important governmental interest.” Apart from reliance on outdated gender stereotypes, why should a male be able to marry Ms. Sevcik’s partner when Ms. Sevcik cannot? And why should a woman be able to marry Mr. Bradley’s partner when Mr. Bradley cannot? Appellees cannot offer a public health or safety rationale for these marriage restriction laws not based on generalized sex stereotypes. Appellees cannot point to any facts that demonstrate that Appellants’ sex alone merits differential treatment. The fact is there is no cognizable justification, let alone one that is exceedingly persuasive, for this discriminatory treatment. See Perry, 704 F. Supp. 2d at 998 (rejecting arguments that Proposition 8 advanced state interests in “tradition,” the “foregone notion that men and women fulfill different roles in civil life,” and “opposite-sex parenting”); cf. Craig, 429 U.S. at 199 (“In light of the weak congruence between gender and the characteristic or trait that gender purported to represent, it was necessary that

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the legislatures choose either to realign their substantive laws in a gender-neutral fashion, or to adopt procedures for identifying those instances where the sexcentered generalization actually comported with fact.”). Without an “important government interest” or a “persuasive justification,” these marriage restriction laws must fail. D. Baker v. Nelson Does Not Excuse Sex-Based Discrimination.

In upholding the discriminatory laws, the lower court decisions wrongly relied on Baker v. Nelson, 409 U.S. 810 (1972). See Sevcik, 911 F. Supp. 2d at 1002-03; Jackson, 884 F. Supp. 2d at 1086-88. Baker pre-dates decades of Supreme Court case law teaching that laws utilizing sex-based classifications are given exacting scrutiny. Since Baker, the Supreme Court has instructed courts reviewing such laws to “determine whether the proffered justification is ‘exceedingly persuasive,’” such that the classification “‘serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.’” Virginia, 518 U.S. at 533 (quoting Miss. Univ. for Women, 458 U.S. at 724 (other internal quotation marks omitted)). The application of heightened scrutiny is context-specific, and dependent on the actual motivation and tailoring of the challenged policy before the court. As the Supreme Court had not yet determined that sex-based classifications should be tested under this standard when Baker was summarily

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affirmed, the now well-established jurisprudence in this area establishes that Baker is not relevant to sex discrimination claims. CONCLUSION For the reasons stated herein, amici respectfully submit that the laws of Nevada and Hawaii that deny certain men and certain women the freedom to marry must be deemed unconstitutional, as they impermissibly discriminate on the basis of sex, and do so only to perpetuate gender stereotypes. The judgments below should be reversed. DATED: October 25, 2013 Respectfully submitted, /s/ Moez M. Kaba IRELL & MANELLA LLP BRUCE A. WESSEL MOEZ M. KABA C. MITCHELL HENDY BRIAN EGGLESTON 1800 Avenue of the Stars, Suite 900 Los Angeles, California 90067-4276 Telephone: (310) 277-1010 Facsimile: (310) 203-7199 mkaba@irell.com

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CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Rule 29(d) of the Federal Rules of Appellate Procedure because it is 5,718 words, excluding the parts of the brief exempted by Rule 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Rule 32(a)(5) of the Federal Rules of Appellate Procedure and the type-style requirements of Rule 32(a)(6) of the Federal Rules of Appellate Procedure because this brief has been prepared in a proportionally spaced typeface using Microsoft Office Word 2010, in 14-point Times New Roman font.

/s/ Moez M. Kaba

Dated: October 25, 2013

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CERTIFICATE OF SERVICE I hereby certify that on October 25, 2013, I electronically filed the foregoing with the Clerk of the Court for the U.S. Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.

/s/ Moez M. Kaba Moez M. Kaba

Dated: October 25, 2013

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