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COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT, DIVISION THREE

In re MARRIAGE CASES Case No. A110652


Judicial Council Coordination Proceeding No. 4365

RANDY THOMASSON and CAMPAIGN FOR


CALIFORNIA FAMILIES, Superior Court Case
No. 428794
Plaintiffs/Appellants,
vs.
GAVIN NEWSOM, in his official capacity as Mayor
of the City and County of San Francisco, NANCY
ALFARO, in her official capacity as San Francisco
County Clerk,
Defendant/Respondents,

RESPONDENTS' BRIEF

The Honorable Richard A. Kramer

DENNIS J. HERRERA, State Bar #139669 BOBBIE J. WILSON, State Bar #148317
City Attorney AMY MARGOLIN, State Bar # 168192
THERESE M. STEWART, State Bar #104930 HOWARD, RICE, NEMEROVSKI,
Chief Deputy City Attorney CANADY, FALK & RABKIN
WAYNE K. SNODGRASS, State Bar #148137 A Professional Corporation th
SHERRI SOKELAND KAISER, State Bar # 197986 Three Embarcadero Center, 7 Floor
Deputy City Attorneys San Francisco, CA 94111-4204
City Hall, Room 234 Telephone: (415) 434-1600
One Dr. Carlton B. Goodlett Place Facsimile: (415) 217-5910
San Francisco, California 94102-4682
Telephone: (415) 554-4708
Facsimile: (415) 554-4747

Attorneys for Defendants/Respondents GAVIN NEWSOM and NANCY ALFARO

RESPONDENTS' BRIEF 1
CASE NO. A110449
INTRODUCTION1

At least appellants say it plainly: they think marriage can rationally


be denied to gay men and lesbians because opposite-sex couples are, in a
word, better. As the Proposition 22 Legal Defense and Education Fund
("Fund") has put it, the point of banning gay men and lesbians from
marriage is to ensure that “the children inevitably resulting from sexual
intercourse between men and women are raised by both of their biological
parents in one household—the optimum setting for childrearing.” (Fund
Opening Brief [“FOB”] at 20 [emphasis added].) As the California
Campaign for Families ("CCF") has put it even more bluntly, the point is to
“affirm[] a particular kind of relationship as the social ideal.” (CCF
Opening Brief [“CCFOB”] at 35 [emphasis added].)
But if appellants were right, and the State really could reserve
marriage only for people who fit appellants' view of a normative “ideal,”
then presumably the State could constitutionally choose to issue marriage
certificates only to biological parents. Furthermore, if “adults have an
obligation to at least try to conduct their sexual lives to give children this
important protection” (CCFOB at 51), then for the good of children and
society, why could the State not also make marriage mandatory for all
biological parents? That would certainly “steer procreation into marriage.”
(FOB at 20) Of course, it would also bar millions of loving and committed
couples, who are of the same or the opposite sex, from one of the most

1
Because the issues presented on appeal greatly overlap, respondent
City and County of San Francisco (the “City”) treats the opening briefs of
appellants Proposition 22 Legal Defense and Education Fund and
Campaign for California Families together. In the City’s Respondent’s
Brief for these two appeals, only the caption and the record citations differ.

RESPONDENTS' BRIEF 2
CASE NO. A110449
precious social institutions we know and force that commitment
unwillingly onto others. Most salient here, it also would eviscerate the
rights to liberty, equality, and privacy protected and preserved by the
California Constitution.
California's constitutional guarantees of freedom from unwarranted
government intrusion in intimate decisions affecting marriage and family
may require some people to live in a more pluralistic society than they find
comfortable. But the Constitution is not meant to make us comfortable, it
is meant to make us free. Our Constitution keeps the government from
dictating our intimate associations, whom we will marry, how many
children we will have and by what means, how we will raise them, and
what beliefs we will teach them. Assuredly, we will not all make the same
choices. But the freedom to make these highly personal choices in the first
instance is what separates our government from those societies that have,
for example, allowed their citizens to marry only someone with a racial
heritage s uitable to "propagate the race," or from those that more freely
allow marriage but permit only one child per family. It separates our
government from those that require parents to indoctrinate their children in
its chosen ideology. And it separates our government from those that
perform forced sterilizations on people perceived to be “undesirable.”
The very same set of core constitutional rights requires the State to
stop restricting the basic human right to choose one's own spouse freely, at
least without a compelling state interest based on a legitimate governmental
purpose. As this brief explains, the bare desire to privilege one class of
“ideal” citizens by denying fundamental rights to others just isn't a
legitimate purpose. Indeed, in our times, when gay men and lesbians are
having and rearing children in record numbers, continuing to deny them the
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CASE NO. A110449
right to marry actually “steers” procreation and child rearing away from the
welfare-enhancing institution of marriage. For this reason (though not only
for this reason), appellants’ proposed justification for the marriage ban is
incoherent. It certainly is not rational, much less compelling, as it would
have to be to withstand constitutional scrutiny.
BACKGROUND AND STATEMENT OF THE CASE
A. Appellants File Their Cases In Superior Court To Stop
Same-Sex Couples From Marrying In San Francisco.

On February 12, 2004, the City and County of San Francisco began
issuing marriage licenses to and solemnizing marriages of same-sex
couples. It did so in the belief that Sections 300 and 308.5 of the California
Family Code limit access to marriage on the basis of sex, deny the right to
marry to lesbians and gay men, and cannot be reconciled with the state
constitutional mandates of liberty, equality and privacy, nor with the City’s
primary duty to follow the Constitution. (Appellant's Appendix ["AA"]
12.) Within a day, the Fund and CCF each had filed petitions for writ of
mandate and complaints for injunctive and declaratory relief in the San
Francisco Superior Court. ( Lockyer v. City and County of San Francisco
(2004) 33 Cal.4 th 1055, 1071.)
The Fund’s petition and complaint sought a writ of mandate
compelling the City to comply with Family Code sections 300 and 308.5,
an injunction to the same effect, and "a judicial declaration that any and all
marriages solemnized, for couples other than those constituting only an
unmarried male and an unmarried female, are invalid." (Respondents'
Appendix ["RA"] 7-8.) Though their pleadings differed in immaterial ways
from those of the Fund, the causes of action and relief sought by CCF were
substantially the same. (AA 2-10.)

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CASE NO. A110449
In the days that followed, the Fund and CCF sought and repeatedly
were denied a temporary restraining order and a stay to halt the marriages.
(AA 54-59.) By the end of February, the Superior Court had consolidated
their cases for all purposes (AA 56), granted several same-sex couples and
advocacy groups leave to intervene as defendants (RA 14), and issued an
alternative writ of mandate ordering the City either to cease performing the
marriages or to appear in court on March 29, 2004 and show cause why the
practice should be allowed to continue (AA 58).
B. The California Supreme Court Accepts Original
Jurisdiction In Cases Seeking The Same Relief.

The California Attorney General, meanwhile, (along with several


private persons not relevant here) challenged the City’s authority to permit
marriages of same-sex couples in writ proceedings filed directly in the
California Supreme Court. ( Lockyer, supra, 33 Cal.4 th at 1072.) On March
11, 2004, the high court issued an order to show cause in those proceedings,
stating that while that action was pending before the high court, San
Francisco must enforce and apply the disputed provisions of Family Code.
(Id. at 1073.) The City fully complied with that order and immediately
ceased issuing marriage licenses to, and solemnizing marriages for, same-
sex couples.
C. The City And The Woo Parties File Suit Against The State
In Superior Court Challenging The Constitutionality Of
Prohibiting Gay And Lesbian Couples From Marrying.

In the same March 11 Order, the Supreme Court also stayed all
proceedings in appellants’ Superior Court cases. (Lockyer, supra, at 1073.)
It did so without prejudice to any action filed to challenge the
constitutionality of the marriage statutes. ( Id. at 1073-74) The City filed
such an action against the State of California the same day. ( City and

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CASE NO. A110449
County of San Francisco v. State of California (2004) 128 Cal.App.4 th
1030, 1034.) The next day, several same-sex couples and advocacy groups
filed a similar lawsuit, Woo v. Lockyer. (Id.) Those two actions were
consolidated. (Id. at 1035) Appellants sought to intervene in those cases as
defendants, but their requests were denied. (Id. at 1036.) The Fund
appealed the denial to this Court, and that appeal was denied. ( Id. at 1045.)
The Court found that the Fund's members “do not themselves have a
sufficiently direct and immediate interest to support intervention.” ( Id. at
1038.)
D. The Supreme Court Declares The Previously Solemnized
Marriages Of Same-Sex Couples Void.

In its Lockyer opinion, issued on August 12, 2004, the high court
made its March 11, 2004 order permanent. It held that the City had acted
beyond its authority in licensing marriages of same-sex couples while a
state statute, even if possibly unconstitutional, prohibited that practice. It
issued a peremptory writ of mandate "compelling [the City] to comply with
the requirements and limitations of the current marriage statutes in
performing their ministerial duties under such statutes," and directed the
City to take specified "necessary steps to remedy the continuing effect" of
the City's earlier issuance of marriage licenses to same-sex couples.
(Lockyer, supra, 33 Cal.4 th at 1120, 1113.) It also ordered that "all same-
sex marriages authorized, solemnized, or registered by the city officials
must be considered void and of no legal effect from their inception." (Id. at
1113.)

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CASE NO. A110449
E. All Of The Marriage Cases Are Heard And Decided As
Coordinated Proceedings In San Francisco Superior
Court.

Meanwhile, in June 2004, appellants’ cases (though still stayed) had


been coordinated with four other actions concerning the constitutionality of
California's prohibition against marriage by lesbians and gay men,
including the two affirmative cases against the State brought by the City
and the Woo parties. (RA 39.) The coordinated cases were assigned to San
Francisco Superior Court Judge Richard Kramer. (Id.)
The Superior Court ordered the parties challenging the marriage
statutes to file an opening brief. (RA 89.) The City filed a motion for writ
of mandate supported by extensive evidence, including expert declarations.
(Request for Judicial Notice [“RJN”] Exs. 1-18.)
Shortly after the City and the other parties challenging the marriage
statutes filed their opening briefs, the Superior Court held a case
management conference to determine how to proceed.2 Appellants
indicated that they wished to respond to the City's opening brief and the
evidence the City submitted (transcript of September 8, 2004 hearing at
26:1-3, 8-12) with their own contrary evidence, but the Court crafted a

2
In the wake of Lockyer, appellants had also requested that the trial
court in these consolidated actions discharge its earlier-issued alternative
writs of mandate and allow appellants to file second amended petitions for
writs of mandate and complaints. (AA 131.) The City opposed those
motions, pointing out that Lockyer had mooted these actions by ordering all
of the relief sought in appellants' operative pleadings, and that appellants
could not amend their pleadings to state any live claim against the City.
(AA 166-180.) The trial court denied appellants' motions for leave to
amend their complaints. (RA 115.) However, it also ruled that Lockyer did
not moot these cases, stating that "the existing complaints adequately state a
claim for declaratory relief regarding the constitutionality of the California
marriage laws." (RA 116.)

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CASE NO. A110449
different procedure. It directed appellants to respond solely to the legal
issues raised by the City and to indicate, where appropriate, what factual
issues they would seek to controvert in the event that the Court could not
decide the issues as a matter of law. (Transcript of October 26, 2004
hearing at 33:13-35:22.) In that event, the Court indicated, it would the
parties to prepare and submit the relevant evidence, and hold a further
hearing. ( Id. at 35:7-21.)
On November 4, 2004, appellants responded to the City’s opening
brief by submitting their own motions for summary judgment, seeking a
declaration against the City that the state marriage statutes were
constitutional. (AA 299, 508.) Despite the Court's procedural directions,
appellants submitted evidentiary declarations in support of their motions,
including purported expert declarations. ( Id.) The hearing on all of the
motions, including the summary judgment motions, was scheduled for
December 22, 2004, less than 75 days later. ( Id.) In its opposition brief,
the City objected on the ground that there was insufficient statutory notice
for summary judgment, and that the truncated schedule did not allow it
sufficient time to meet appellants’ evidence, particularly since the Court
had prohibited the parties from taking discovery. (AA 788-789.) The City
suggested that the Court either deny appellants’ summary judgment
motions for this reason, reschedule them for a properly noticed hearing,
which would allow the City time to gather responsive evidence, or convert
them to motions for judgment on the pleadings and reach a decision, if
possible, as a matter of law. (AA 791; transcript of December 22-23, 2004
hearing at 171:6-23.)
At the December 2004 hearing, departing from its prior instructions,
the Superior Court orally ruled that the City had waived its objection to
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CASE NO. A110449
summary judgment by filing a brief on the legal merits. (Transcript of
December 22-23, 2004 hearing at 233:26-234:17.) In light of the Court’s
oral ruling, the City requested leave to file responsive declarations, but the
trial court denied that request, too.3 (Id. at 233:9-26.) However, the Court
invited appellants to have the Court address the issues as a matter of law
without considering appellants’ evidence, and appellants agreed to that
procedure. ( Id. at 228:14-19 [answering affirmatively the Superior Court's
direct question whether they would like the Court to decide their motion as
"a pure question of law with no factual findings"]; see also 126:22-24
["Like the Fund, we [the CCF] maintain that all of the evidence submitted
by the City and by us can be ignored at this point and the case decided as a
matter of law"].)
The Superior Court ultimately ruled in favor of the City on the
merits as a matter of law. (AA 1841.) On April 13, 2005, it issued a
decision striking down the sex restriction in Family Code Sections 300 and
308.5 on the grounds that it unconstitutionally classifies on the basis of sex
and impinges on the fundamental human right to marry a person of one’s
choice without a compelling reason, or even a rational one.4 (AA 1856-57.)
In these cases, it styled its judgment alternatively as a grant of summary
judgment for the City and as a grant of judgment on the pleadings for the
City. (AA 1864-66.) These appeals followed. (AA 1880; RA 377.)

3
In a December 30, 2004 letter to the Court, the City lodged the
declarations it had sought to file. (RA 117-313.)
4
The Superior Court did not reach the City’s alternative arguments
that the marriage laws unconstitutionally discriminate based on sexual
orientation and violate the constitutional right to privacy. (AA 1843.)

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CASE NO. A110449
ARGUMENT
I. THESE APPEALS ARE NOT JUSTICIABLE AND MUST BE
DISMISSED.
A. The Supreme Court's Lockyer Opinion Rendered
Appellants' Claims Moot.

One of the most basic constraints on judicial power is the


justiciability requirement, which limits the courts to deciding actual
controversies between litigants and, conversely, "prevents courts from
issuing purely advisory opinions." (Pacific Legal Foundation v. California
Coastal Commission (1982) 33 Cal.3d 158, 170.) The need for
justiciability "is rooted in the fundamental concept that the proper role of
the judiciary does not extend to the resolution of abstract differences of
legal opinion." ( Id.) As a result of this requirement, "an action not founded
upon an actual controversy between the parties to it, and brought for the
purpose of securing a determination of a point of law . . . will not be
entertained; and the same is true of a suit the sole object of which is to
settle rights of third persons who are not parties." (County of Alameda v.
State Board of Control (1993) 14 Cal.App.4 th 1096, 1103 [ellipses and
emphasis original] [citing Golden Gate Bridge etc. Dist. v. Felt (1931) 214
Cal. 308, 316].)
A central aspect of justiciability is the doctrine of mootness. A case
is moot, and thus not justiciable, "when any ruling by [the] court can have
no practical impact or provide the parties effectual relief." (Woodward
Park Homeowners Assoc. v. Garreks, Inc. (2000) 77 Cal.App.4 th 880, 888;
Simi Corp. v. Garamendi (2003) 109 Cal.App.4 th 1496, 1503.) And a case
can become moot even if it was entirely justiciable when it was filed. "An
action which originally was based upon a justiciable controversy cannot be
maintained on appeal if the questions raised therein have become moot by
RESPONDENTS' BRIEF 10
CASE NO. A110449
subsequent acts or events." (Finnie v. Town of Tiburon (1988) 199
Cal.App.3d 1, 10.)
[T]he appellate court cannot render opinions upon
moot questions or abstract propositions, or declare
principles or rules of law which cannot affect the
matter in issue in the case before it. It necessarily
follows that when, pending an appeal from the
judgment of a lower court, and without any fault of the
defendant, an event occurs which renders it impossible
for this court, if it should decide the case in favor of
plaintiff, to grant him any effectual relief whatever, the
court will not proceed to a formal judgment, but will
dismiss the appeal.

(Id. [emphasis added] [citing Consolidated Vultee Air Corp. v. United


Automobile (1946) 27 Cal.2d 859, 863].)
This Court can no longer grant appellants any effective relief.
Although the CCF and Fund actions each presented a genuine controversy
for which a court could have granted effective relief at the time the actions
were filed in February 2004, that ceased to be the case—and the possibility
of any effective judicial relief vanished entirely—when the California
Supreme Court issued its opinion in Lockyer. The Lockyer opinion and
judgment produced precisely the outcome, and thus granted exactly the
relief, that appellants sought in their operative writ complaints:
First, Lockyer unambiguously made permanent the high court's
March 11, 2004 order requiring the City to cease issuing marriage licenses
to same-sex couples and to comply with state marriage statutes. The City
has fully complied with this command. It already had been denying
marriage licenses to same-sex couples and had been complying with state
marriage statutes since the high court's earlier order to show cause, and it
has continued to do so at all times since then. Second, Lockyer invalidated
each of the same-sex marriages that had occurred, holding that they were

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"void and of no legal effect from their inception." (Id., 33 Cal.4 th at p.
1113.)
As a result of Lockyer, every result appellants had prayed for in their
complaints in these actions has come to pass. Put simply, appellants have
gotten everything they sought, and there is nothing left on which this Court
can rule.
Even if this Court were to issue an order granting appellants all the
relief sought in their operative complaints, therefore, that order would be
entirely redundant and would simply confirm the status quo mandated by
the Supreme Court. Rather than ordering the City to change its conduct, or
having any other practical impact, it would merely command the City to
"stop doing what it has not done and concedes it cannot do" as a result of
the Lockyer decision. (Sheyko v. Saenz (2003) 112 Cal.App.4 th 675, 692.)
Such a result "would validate an advisory opinion on an abstract question,"
but it would not adjudicate any live controversy. (Id.) Rather than
accepting appellants' invitation to issue a purely advisory opinion, this
Court must dismiss these appeals as moot.5

5
Appellants may argue that the Court should retain and decide their
appeals because they address an issue of public interest that is likely to
recur. But because San Francisco is complying with state marriage laws
under the high court's order, it is legally precluded from again issuing
marriage licenses to same-sex couples. Moreover, because this Court
already is considering the constitutionality of California's marriage statutes
in Case No. A110449 and will resolve the issue in that case, the issue will
not likely recur anywhere in California. The Court has no need to entertain
these nonjusticiable appeals to also address that issue here.

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CASE NO. A110449
B. Appellants Cannot Create A Live Controversy By
Reading Any Claim Concerning The Constitutionality Of
The Marriage Statutes Into Their Complaints.

The trial court's conclusion, that "the existing complaints adequately


state a claim for declaratory relief regarding the constitutionality of the
California marriage laws," (RA 116) is incorrect. As next explained, the
plain language of appellants' complaints clearly addresses only the City's
conduct in issuing marriage licenses, not the legality of state marriage laws.
Moreover, appellants have no standing to assert a cause of action against
the City concerning the legality of the state's marriage laws; they are merely
third parties with an abstract interest in the legal issues presented here.
1. Appellants' Complaints Do Not Seek Any Relief
Concerning The Constitutionality Of State
Marriage Laws.

In their operative complaint, filed in February 2004, CCF seeks a


declaratory judgment concerning only the City's then-issuance of marriage
licenses to same-sex couples and the validity of those couples' marriages.
The complaint contains no allegations concerning the constitutionality of
state marriage laws. Nor does it seek any relief—declaratory or
otherwise—as to that issue. (AA 7,9.) The Fund's operative complaint
seeks declaratory relief of the same scope and similarly contains no
allegations or requests for relief concerning the constitutionality of the

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CASE NO. A110449
marriage statutes. (RA 7-8.) 6 Therefore, those operative pleadings simply
do not place the constitutionality of the marriage statutes at issue.7
2. Appellants Lack Standing To Defend The
Constitutionality Of State Marriage Laws.

Even if appellants' operative complaints purported to state causes of


action concerning the legality of the State's marriage statutes, any such
causes of action would be entirely non-justiciable, because appellants
would lack standing to bring them. Standing is "a threshold issue, in that
without it no justiciable controversy exists." (Shapell Industries, Inc. v.
Superior Court (2005) 132 Cal.App.4 th 1101, 1111; Holmes v. California
National Guard (2001) 90 Cal.App.4 th 297, 314-15.)
There are three principal bases for standing in California courts.
(Connerly v. State Personnel Board (2001) 92 Cal.App.4 th 16, 29.) First, as
in the federal system, a litigant has standing to sue if it can show that the
challenged action has caused or will cause it some concrete, particularized
injury. ( Coral Construction v. City and County of San Francisco (2004)

6
Because appellants brought these actions precisely to obtain a court
order ending the City's issuance of marriage licenses, they deliberately
sought not to place the constitutionality of the state's marriage laws at issue.
As counsel for the Fund affirmed to the trial court, "this case ends at
whether there is a present violation of the law, a continuing violation of the
law. Once it's determined that yes, there is, the case at that point in time
ends." (Transcript of February 17, 2004 hearing at 91:15-18.)
7
To be sure, the City initially contended that appellants' complaints
inherently placed at issue the constitutionality of the marriage statutes,
because the City believed that the propriety of its issuance of marriage
licenses to same-sex couples turned on its conclusion that the marriage
statutes are unconstitutional. But the Supreme Court squarely rejected that
contention in Lockyer, ruling that the legality of the marriage statutes was
not before it. (33 Cal.4 th at 1069.) Post-Lockyer, appellants cannot argue
that their complaints necessarily place any constitutional question at issue.

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116 Cal.App.4 th 6, 15.) 8 Second, a litigant who has paid taxes assessed by a
governmental entity has standing to challenge allegedly unlawful
expenditures of public funds by that entity, even without any showing of
particularized injury. (Code Civ. Proc. § 526a.) Third, “citizen suits may
be brought without the necessity of showing a legal or special interest in the
result where the issue is one of public right and the object is to procure the
enforcement of a public duty.” (Connerly, supra, 92 Cal.App.4 th at 29,
citing Green v. Obledo (1981) 29 Cal.3d 126, 144.) None of these
alternative grounds gives appellants standing to bring a claim against the
City concerning the constitutionality of state marriage laws.
First, appellants cannot assert any cause of action against the City
premised on the general, injury-based theory of standing. Appellants are
not injured by the state's marriage statutes or by the City's adherence to
those laws. In fact, the contrary is true: appellants believe that they benefit
from the current marriage statutes, and the central goal of appellants' legal
efforts is to ensure that the City and others continue to follow those statutes.
If that fact were sufficient to give appellants standing, then every lawsuit by
a local government entity challenging state law would become a litigation
free-for-all, open to any private citizen who believed state law should
remain unchanged.
Second, appellants also cannot assert any cause of action against the
City based on taxpayer standing. Such standing is governed by Code of

8
This requirement of concrete, particularized injury is equivalent to
the statutory requirement that a party seeking a writ of mandate be
"beneficially interested" in the performance of the legal duty at issue.
(Code Civ. Proc. §1086; Associated Builders & Contractors, Inc. v. San
Francisco Airports Commission (1999) 21 Cal.4 th 352, 362.)

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CASE NO. A110449
Civil Procedure Section 526a, which authorizes suits to prevent "any illegal
expenditure of, or injury to, the estate, funds, or other property of a . . . city
and county." (Id.) But even if appellants or their members had paid taxes
to San Francisco, appellants cannot allege that San Francisco is illegally
spending public funds with respect to marriage. Any potential misuse of
public funds has already been rectified by Lockyer, and as a result of that
decision, San Francisco is merely obeying state marriage statutes.9
Appellants cannot assert there is anything illegal about the City's adherence
to state law.
Third, appellants cannot satisfy even the relaxed standing criteria
needed to support a citizen suit, because appellants are not seeking to have
laws executed and public duties enforced. (Green v. Obledo (1981) 29
Cal.3d 126, 144.) Because of Lockyer, San Francisco is already executing
state marriage law. No citizen suit is possible here.
3. San Francisco's Lawsuit Against The State Does
Not Give Appellants Standing To Seek Declaratory
Relief Against The City.

San Francisco's pending lawsuit against the State of California


challenging the constitutionality of the marriage statutes does not give
appellants standing to seek declaratory relief against the City over that
issue. This is so for several reasons.

9
While San Francisco is expending public funds in its action against
the State challenging the Constitutionality of the marriage statutes, the
decision to undertake that action is entirely discretionary under San
Francisco's Charter, and for that reason cannot serve as the basis for a
taxpayer action. (San Francisco Charter §6.102(3); Farley v. Cory (1978)
78 Cal.App.3d 583, 590 [“purely discretionary acts of public officials may
not be the subject of a taxpayer’s suit”].)

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First, declaratory relief is not available simply to settle a question
that bears on an existing suit. (E.g., Shane v. Superior Court (1984) 160
Cal.App.3d 1237, 1250 ["It has long been held that the validity of one
lawsuit is not a proper subject for declaratory relief in a second lawsuit"];
General of America Ins. Co. v. Lilly (1968) 158 Cal.App.2d 465, 470 ["The
declaratory relief statute should not be used for anticipating and
determining an issue which can be determined in the main action"]; Marden
v. Bailard (1954) 124 Cal.App.2d 458, 466 ["'declaratory relief is
unavailable for the determination of issues involved in an already pending
action'"].)
Moreover, if appellants had any legitimate interest in the City's
pending action against the State, the appropriate way for appellants to
protect that interest would be to intervene in that case, not to attempt to
perpetuate these separate and moot proceedings. And, tellingly, appellants
did attempt to intervene in that action, but the trial court denied their
intervention motion, and this Court affirmed that denial in the Fund's
subsequent appeal. (City and County of San Francisco v. State of
California, supra, 128 Cal.App.4 th at 1045.) As this Court held, the Fund
lacks any meaningful interest in the City's challenge to the constitutionality
of state marriage statutes: the Fund could identify "no direct or immediate
effect that a judgment in the consolidated cases may have on it or its
individual members," and "[a]lthough the Fund actively supports the
Family Code statutes in question, its interest in upholding these laws is not
sufficient to support intervention where there is no allegation the Fund or
its members may suffer tangible harm from an adverse judgment." ( Id. at
1033.) The fact that appellants lacked a sufficient interest to support their
intervention in the City's constitutional challenge simply underscores
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CASE NO. A110449
appellants' lack of standing to bring any claim against the City in these
cases.
Additionally, treating appellants' purported claims against the City
as justiciable would set a disturbing and highly disruptive precedent.
Appellants are completely unharmed by the City's conduct with respect to
marriage; they simply disagree with the legal theories that the City is
advancing in its lawsuit against the State. If outside parties such as
appellants could state a justiciable claim against the City here, then private
citizens who disagreed with legal positions taken by any public entity in
any lawsuit would be free to insert themselves into that lawsuit at will,
simply to increase the likelihood that their views would carry the day.
Lawsuits involving public entities would become chaotic free-for-alls, and
settled rules of civil procedure would be jettisoned in favor of the
unrestrained advocacy of the town square. Rather than create such a result,
this Court should dismiss these appeals as moot and permit appellants to
file briefs as amicus curiae—a role that, as the Supreme Court has
recognized, would allow them to "meaningfully participate" in these
proceedings and have their arguments "heard and fully considered."
(Lockyer, supra, 33 Cal.4 th at 1116.)
II. APPELLANTS’ CONSTITUTIONAL ARGUMENTS
IMPROPERLY RELY ON EVIDENCE THAT THE TRIAL
COURT REFUSED TO CONSIDER.

Even if these cases were justiciable, they are procedurally flawed.


Appellants' arguments rely on a great deal of evidence that they attempted
to introduce below in support of their respective summary judgment
motions. For two separate reasons, however, that is improper.

RESPONDENTS' BRIEF 18
CASE NO. A110449
A. At Appellants’ Urging, The Trial Court Refused To
Consider Their Evidence And Appellants Have Not
Challenged That Ruling On Appeal.

First, in citing to a great deal of evidence that accompanied their


summary judgment motions, appellants ignore the fact that the Superior
Court expressly declined to consider it. (Transcript of December 22-23,
2004 hearing at 234:9-16 ["I am not being asked to make factual findings
. . . and I won't be making any factual findings . . . because there are no
factual findings to be made"].) Even if the court’s ruling were erroneous,
any error was invited. Appellants repeatedly assured the Superior Court
that it could rule on their summary judgment motions without regard to
their evidence. (Id. at 228:14-19 [answering affirmatively the Superior
Court's direct question whether they would like the Court to decide their
motion as "a pure question of law with no factual findings"]; see also
126:22-24 ["Like the Fund, we [the CCF] maintain that all of the evidence
submitted by the City and by us can be ignored at this point and the case
decided as a matter of law"].) Appellants have not challenged that ruling
here and therefore have waive d it. In considering their arguments, the only
pertinent question is whether the trial court properly entered judgment on
the pleadings against the Fund and CCF, which is a question addressed in
Section III, infra.
B. Appellants' Motions for Summary Judgment Were
Properly Denied Because They Lacked Adequate Notice.

Even if the Fund and CCSF had not waived and invited any error in
the rejection of their evidence, their evidence could not be considered for
the further reason that the trial court’s denial of their summary judgment
motion must be affirmed on the alternate ground that the motions were
improperly noticed.

RESPONDENTS' BRIEF 19
CASE NO. A110449
Under California Code of Civil Procedure § 437c, notice of a motion
for summary judgment "shall be served on all other parties to the action at
least 75 days before the time appointed for hearing." (Code Civ. Proc.
§ 437c(a).) The Court may not shorten the notice period without the
consent of all parties, even when, as the Superior Court did in this case, it
exercises its broad powers to manage complex cases. (Hernandez v.
Superior Court (2003) 112 Cal.App.4 th 285, 299; see also Urshan v.
Musicians' Credit Union (2004) 120 Cal.App.4th 758, 765.) The full 75-
day notice period is important because it ensures that parties can develop
and submit all relevant evidence to the Court before it rules. (Legis.
Counsel's Dig., Sen. Bill No. 688 (2001-2002 Reg. Sess.) [extending notice
requirement from 30 to 75 days "to assure that all evidence is before a court
before ruling on the motion" and "to ensure fairness to the parties"].)
Appellants completely ignored this requirement. They served their
papers on November 4, 2004 for a hearing scheduled on December 22,
2004, less than 75 days later. The City objected, refusing to forego the
notice to which it was statutorily entitled. As it explained,
Plaintiffs have submitted a number of lengthy
declarations containing scores of assertions. While the
City would certainly submit in this case the evidence it
has already submitted in its coordinated case against
the State, the City also needs at least the 75-day notice
period to test plaintiffs' evidence and develop specific
rebuttal evidence.

(AA 789; see also AA 789-91 [setting forth specific evidence the City
would seek to submit in opposition to plaintiffs’ summary judgment
motions]; AA 789 fn. 2 [indicating City’s anticipated need for a Rule
437(h) continuance even after the full notice period].)
Despite the City’s clear and timely objection, the Court ruled in
reliance on Carlton v. Quint (2000) 77 Cal.App.4 th 690 that the City had
RESPONDENTS' BRIEF 20
CASE NO. A110449
waived its objection to summary judgment by proceeding on t he legal
merits. (Transcript of December 22-23, 2004 hearing at 233:26-234:17.)
This was error. The portion of Carlton upon which the lower court relied
was dicta, and in any event it has been expressly rejected. (Urshan v.
Musicians’ Credit Union, supra, 120 Cal.App.4 th at 768 [rejecting Carlton
and explaining, “waiver of the right to the statutorily mandated minimum
notice period should not be inferred from silence” but “should only be
based on the affirmative assent of the affected parties. Because such
consent was lacking in this case, the judgment must be reversed”]; see also
McMahon v. Superior Court (2003) 106 Cal.App.4 th 112, 117-118 [“[I]n
light of the express statutory language, trial courts do not have authority to
shorten the minimum notice period for summary judgment hearings”].)
Because appellants did not comply with the mandatory 75-day notice
requirement in CCP section 437c(a), and because the trial court did not
have the power to excuse their noncompliance, their motions for summary
judgment should have been denied on this ground.10 To the extent the
Superior Court considered the motions without resort to evidence (that is,
as motions for judgment on the pleadings), the next Section explains why
they also fail on their merits.

10
If this Court cannot resolve this case without evidence, it should
remand to the Superior Court with directions to consider all of the
evidence: that of the appellants, as well as the declarations the City has
submitted in the coordinated case against the State and the declarations it
lodged on December 30, 2004.

RESPONDENTS' BRIEF 21
CASE NO. A110449
III. THE TRIAL COURT'S GRANT OF JUDGMENT IN F AVOR
OF THE CITY WAS CORRECT AND SHOULD BE
AFFIRMED.

The trial court's grant of judgment on the pleadings in favor of the


City is correct on its merits and should be affirmed. 11 This Court reviews
the judgment de novo, considering only the pleadings and matters subject to
judicial notice. (Harris v. Grimes (2002) 104 Cal.App.4 th 180k, 185.) It
may sustain the judgment on any available basis and is not limited to the
trial court's stated rationales. ( Id.)
A. This Court Has A Constitutional Duty To Safeguard The
Constitutional Rights Of California's Gay And Lesbian
Citizens.

At the threshold, appellants urge that this entire controversy is


misplaced because the courts do "not have authority to redefine 'marriage'."
(FOB at 16-19.) According to the Fund, "[b]ecause the Legislature and the
People have unambiguously adopted the common law definition of
marriage in the Constitution and the laws, the Legislature and the People
must redefine marriage if it is to be changed to include same-sex couples."
(FOB at 18 [emphasis in original].) Precisely the same point was made by
the Supreme Court of Appeals of Virginia—before it was reversed by the
United States Supreme Court—concerning that state’s anti-miscegenation
laws. (See Loving v. Virginia (1966) 206 Va. 924, 929 [“A decision by this
court reversing the Naim case [upholding anti-miscegenation laws] . . .
would be judicial legislation in the rawest sense of that term. Such

11
The Court could not properly grant summary judgment in favor of
the City because the City had not made such a motion. (See Schubert v.
Reynolds (2002) 95 Cal.App.4 th 100, 108; Certain Underwriters at Lloyd's
of London v. Superior Court (1997) 56 Cal.App.4 th 952, 958.) But the City
did move for, and the Court did properly grant, judgment on the pleadings.
(AA 1865-66.)

RESPONDENTS' BRIEF 22
CASE NO. A110449
arguments are properly addressable to the legislature, which enacted the
law in the first place, and not to this court, whose prescribed role in the
separated powers of government is to adjudicate, and not to legislate.”],
overruled by Loving v. Virginia (1967) 388 U.S. 1.)
Appellants' view is not just wrong, it is dangerous. Under the
separation of powers doctrine, this Court may not—indeed, must not—
defer to the majority to determine the constitutional rights of a minority.
The legislative branch already has spoken. At issue now is a minority
group’s contention that the legislature has discriminated against it
unconstitutionally. The separation of powers doctrine establishes a system
of checks and balances to protect our form of government from
overreaching and democratic excesses. (Bixby v. Pierno (1971) 4 Cal.3d
130, 141.) "Of such protections, probably the most fundamental lies in the
power of the courts to test legislative and executive acts by the light of
constitutional mandate and in particular to preserve constitutional rights,
whether of individual or minority, from obliteration by the majority." ( Id.
[citations omitted].)
Thus, even though the Legislature exercises "full control of the
subject of marriage," the laws it enacts are still subject to the Constitution.
(Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055,
1074 [citing Beeler v. Beeler (1954) 124 Cal.App.2d 679, 682].) Further,
"under California law, the determination whether a statute is
unconstitutional and need not be obeyed is an exercise of judicial power."
(Id. at 1093; Cal. Radioactive Materials Management Forum v. Dept. of
Health Services (1993) 15 Cal.App.4th 841, disapproved on another ground
in Carmel Valley Fire Protection Dist. v. State (2001) 25 Cal.4th 287 ["a

RESPONDENTS' BRIEF 23
CASE NO. A110449
challenge to the constitutionality of an act is inherently a judicial rather
than political question"].)
The power of constitutional review resides with the courts for good
reason. "Because of its independence and long tenure, the judiciary
probably can exert a more enduring and equitable influence in safeguarding
fundamental constitutional rights than the other two branches of
government, which remain subject to the will of a contemporaneous and
fluid majority." (Bixby, supra, 4 Cal.3d at p. 141.) "The same constitution
that lays down the fundamental law of our state . . . created the courts, and
provided that they should stand as the guardians of the people, and lay their
restraining hands upon the legislature in all cases where it has plainly
violated the provisions of the people's charter of rights." (Johnson v.
Goodyear Mining Co. (1899) 127 Cal. 4, 7.)
Courts have full authority to adjudicate constitutional questions.
That is all the trial court did, and it is what it was required to do.

B. The Unconstitutionality Of Excluding Same-Sex Couples


From Marriage Under The California Constitution Is An
Issue Of First Impression That Is Controlled By The
Unique Contours Of California Law.

CCF accuses the Superior Court of "turning a blind eye to


precedent" (CCFOB 1) as if there were binding precedent on the issues on
appeal, and both CCF and the Fund portray the case law on marriage from
other jurisdictions as overwhelmingly one-sided. There is no binding
precedent on the issues presented here, however, because they are matters
of first impression in California. 12

12
In Lockyer, the California Supreme Court expressly declined to
rule—and expressed no view—on the substantive constitutional issues now
presented. (33 Cal. 4 th at 1069.) Until the Superior Court decided the
(continued on next page)
RESPONDENTS' BRIEF 24
CASE NO. A110449
To appreciate the significance of this question of first impression
and the important role that California courts have played in shaping
constitutional jurisprudence on questions affecting fundamental rights, one
need only recall the California Supreme Court's decision in Perez v. Sharp
(1948) 32 Cal.2d 711. Long before any other court in the nation did so, our
State's highest court held that California’s prohibition on interracial
marriage violated equal protection (there, under the Federal Constitution).
It did so at a time when thirty states still had and enforced anti-
miscegenation laws and, despite frequent challenges, no other court had
held them invalid. (See id. at 742, 746-47 [disn. opn. of Shenk, J.] ["such
laws have been in effect in this country since before our national
independence and in this state since our first legislative session," and "have
never been declared unconstitutional by any court in the land although
frequently they have been under attack"].) Indeed, six states even had, "by
constitutional enactments prohibited their legislatures from passing any law
legalizing marriage between white persons and Negroes or mulattoes," and
"[s]everal states refuse[d] to recognize such marriages even if performed
where valid." ( Id. at 747.) Brown v. Board of Education (1952) 347 U.S.
483 and its progeny had yet to be decided, and segregation was widely
accepted as constitutional in our country. (See Perez, supra, 32 Cal. 2d at
717.) Yet, the California Supreme Court held that the state's anti-
miscegenation laws were unjustified by anything but longevity and
prejudice and invalidated them without hesitation. ( Id. at 727, 731-32; see

(footnote continued from previous page)


Coordinated Actions, no California court at any level had addressed or
decided these issues.

RESPONDENTS' BRIEF 25
CASE NO. A110449
also id. at 732 [conc. opn. of Carter, J.] ["the statutes here involved . . . are
the product of ignorance, prejudice and intolerance"].)
Here, as in Perez, nothwithstanding the length of time the
government has excluded lesbian and gay couples from marriage and the
failure of many other courts to redress that inequity in other jurisdictions, it
was the Superior Court's duty, and it is this Court's duty, to consider the
relevant constitutional principles with the utmost care and solicitude for
protection of Californians' constitutional rights, regardless of whether other
state or federal courts have done the same.
Indeed, there is all the more reason to do so in this case because,
unlike Perez, it arises under the California Constitution, which is a
document of independent force and has been interpreted as such by the
California Supreme Court and Courts of Appeal on many an occasion, often
in a manner that provides a broader interpretation and protection of
constitutional rights than the United States Supreme Court or other state
courts. (See, e.g., Sections III.C.1-4, and cases cited therein.) 13
13
Indeed, the federal District Court for the Central District of
California recognized this in Smelt v. County of Orange (C.D. Cal. 2005)
374 F. Supp. 2d 861, and on this ground it abstained from deciding the
constitutionality of this state's marriage laws under the California
Constitution:
The California constitution differs significantly from
the federal Constitution on the issues involved in this
case. . . . "[I]n many contexts, the scope and
application of the state constitutional right of privacy
is broader and more protective of privacy than the
federal constitutional right of privacy as interpreted by
the federal courts." . . . The equal protection and due
process clauses of the state and federal constitutions
are worded similarly. However, California courts have
construed the state clauses more broadly than federal
courts have construed the federal clauses.
(Id. at 869-70 & nn. 12-13 [citations omitted].)

RESPONDENTS' BRIEF 26
CASE NO. A110449
Moreover, the issues raised here are unique because, unlike in most
or all other states, California's public policies—articulated both in
legislation and case law—protect gay and lesbian couples and families, and
recognize the fact that they contribute to the community and need support
in precisely the same ways that heterosexual couples and families do. (See
Fam. Code § 297 [Note]; Koebke v. Bernardo Heights Country Club (2005)
36 Cal.4 th 824, 847; Bouley v. Long Beach Memorial Medical Center
(2005) 127 Cal.App.4 th 601, 611-12; Elisa B. v. Superior Court (2005) 37
Cal.4 th 108, 119, 123; K.M. v. E.G. (2005) 37 Cal.4 th 130, 143; Kristine H.
v. Lisa R. (2005) 37 Cal.4 th 156, 166; Sharon S. v. Superior Court (2003) 31
Cal.4 th 417, 442.); see also Appendix A.) The California Constitution must
be intepreted not only in light of current conditions but also against the
backdrop of relevant laws and public policies that touch on matters central
to those at issue. ( Brown v. Merlo (1973) 8 Cal.3d 855, 866 n.6.)
Finally, the law from other jurisdictions is not nearly as one-sided as
appellants portray it. In fact, many courts around the country and the world
have recognized that gay and lesbian couples can no more be denied the
fundamental right to marry than interracial couples, at least not consistently
with constitutional principles of liberty and equality. In the last eight years,
courts in Massachusetts, Hawaii, New York, Alaska, and the State of
Washington—like the Superior Court in this case—have all held that
denying gay men and lesbians the right to marry someone of the same sex
violates constitutional norms. (See Goodridge v. Dep't of Public Health
(2003) 440 Mass. 309; In re Opinions of the Justices to the Senate (2004)
802 N.E.2d 565, 570; Baehr v. Lewin (1993) 74 Haw. 645; superceded by
constitutional amendment; Baehr v. Miike (Haw.Cir.Ct. 1996) 1996 WL
694235; People v. Greenleaf (N.Y.J.Ct. 2004) 780 N.Y.S.2d 899, 903-04;
RESPONDENTS' BRIEF 27
CASE NO. A110449
People v. West (June 10, 2004) 780 N.Y.S. 2d 723, 724; Hernandez v.
Robles (2005) 794 N.Y.S.2d 57914; Brause v. Bureau of Vital Statistics, No.
3AN-95-6562 CI, 1998 WL 88743, at *6 (Alaska Super. Ct. Feb. 27, 1998),
superseded by constitutional amendment; Andersen v. King County (Wash.
Super. Ct., Aug. 4, 2004) No. 04-2-04964-SEA, 2004 WL 1738447 [non
pub. opn.].); Castle v. State (Wash. Super. Sept. 7, 2004) 2004 WL
1985215. In addition, courts in Vermont and Oregon have held that denial
of all the rights and benefits of marriage to same-sex couples is
unconstitutional. (Baker v. State (1999) 170 Vt. 194 [common benefits
clause of Vermont Constitution violated by denying same-sex couples all
rights and benefits of marriage]; Li v. State, No. 0403-03057, 2004 WL
1258167, at *5-6 (Or.Cir.Ct. Apr. 20, 2004) [similar], rev'd on other
grounds, (2005) 338 Ore. 376 [en banc].) See also Snetsinger v. Montana
University System (Mont. 2004) 104 P.3d 445 [university's provision of
disparate treatment of spouses and partners of heterosexual employees and
domestic partners of lesbian and gay employees violated equal protection].
While some of these state court decisions have yet to be resolved by
the states' highest courts, and other decisions have —at least for now—been
reversed by virtue of constitutional amendments in those states, at least one
federal court has held that a state's adoption of such an initiative
amendment depriving gay and lesbian couples of all the rights and benefits
of marriage violates the Federal Constitution. (Citizens for Equal
Protection, Inc. v. Bruning (D. Neb. 2005) 368 F. Supp. 2d 980.)

14
The trial court decision in this case was reversed by the
intermediate appellate court (see 2005 N.Y. App. Div. LEXIS 13892 (N.Y.
App. Div. 1st Dep't Dec. 8, 2005)), but the issue will almost certainly soon
be resolved by New York's highest constitutional court.

RESPONDENTS' BRIEF 28
CASE NO. A110449
In addition to decisions in this country, courts and legislatures in
many other countries—Belgium, the Netherlands, Canada, South Africa
and Spain—have similarly concluded that denying marriage to lesbians and
gay men and their families deprives them of the equality and justice
guaranteed by those countries' constitutions and charters. (See In the
Matter of Section 53 of the Supreme Court Act (2004) 3 S.C.R. 69815;
Halpern v. Canada, (2002) O.J. No. 2714, (2002) 215 D.L.R. (4th ) 223
(Ont. S.C.), aff'd, (2003) 225 D.L. R. (4th ) 529, (2003) 65. O.R. (3d) 161
(C.A.) (Ontario Court of Appeal); Hendricks v. Quebec (2002) J.Q. No.
3816; EGALE Canada Inc. v. Canada (2003) B.C.J. No. 994, 2003 BCCA
251 (British Columbia Court of Appeal); Fourie v. Minister of Home
Affairs (Nov. 30, 2004) (Supreme Court of Appeal of South Africa, Case
No. 232/2003), aff'd, (Dec. 1 ,2005) Constitutional Court of South Africa,
CCT 60/04.)
Indeed, while the issue has yet to be decided by the United States
Supreme Court in a reasoned decision, there is federal case law the
reasoning of which compels this result. ( Lawrence v. Texas (2003) 539
U.S. 538; see also Romer v. Evans (1996) 516 U.S. 620.) Of course, this
Court need not conclude that any other court, including the U.S. Supreme
Court, would reach a certain outcome. What it must do is consider

15
As the Canadian high court noted (id. at 725), after the provincial
courts of Ontario, British Columbia and Quebec struck down the marriage
ban in the further cited decisions, the ban was struck down by the
provincial courts in the other Canadian provinces (citing cases from the
Yukon, Manitoba, Nova Scotia and Saskatchewan).

RESPONDENTS' BRIEF 29
CASE NO. A110449
California's constitutional jurisprudence and the persuasive force or lack of
it in the decisions from other jurisdictions.16

C. The Trial Court Was Correct To Subject The Marriage


Ban To Strict Scrutiny.

Laws that restrict the exercise of fundamental rights or impose legal


disabilities on the basis of inherently suspect classifications—that is,
classifications that generally bear no relation to ability to perform in society
yet have been the subject of lasting social disfavor, such as race, sex or
religion—are constitutionally suspect. Faced with such laws, the courts
play a critical role in ensuring that any such restriction is necessary and
narrowly tailored to serve a compelling government interest. (City of
Cleburne v. Cleburne Living Center (1985) 473 U.S. 432, 440; Connerly v.
State Personnel Bd. (2001) 92 Cal.App.4 th 16, 33.) In such cases, the
courts have a paramount duty to protect individual rights from undue
legislative encroachment and to "smoke out" illegitimate uses of suspect
classifications. (City of Richmond v. J.A. Croson Co. (1989) 488 U.S. 469,
493.)
The Superior Court applied strict scrutiny to the prohibition against
marriage by lesbians and gay men for two reasons: first, because it rests
upon a sex-based classification, and second, because the marriage ban
restricts the exercise of gay men and lesbians’ basic human right to marry a

16
We commend to the Court all of the above -referenced decisions,
particularly those of the Massachusetts Supreme Court in Goodridge and
Opinions of the Justices, the Washington Superior Court in Anderson v.
King County, the New York trial courts in People v. Greenleaf and
Hernandez v. Robles, and the cases in the Canadian and South African high
and intermediate courts in the cases from those countries.

RESPONDENTS' BRIEF 30
CASE NO. A110449
person of their choice. (AA 1856-61.) The Superior Court was correct on
both counts. In addition, the record below demonstrates that the marriage
ban intrudes on the constitutional right to privacy and discriminates on the
basis of sexual orientation. These two additional constitutional infirmities
provide alternative bases for affirming the decision to apply strict scrutiny.
1. The Marriage Statutes’ Sex-Based Classifications
Trigger Strict Scrutiny Under The California
Equal Protection Clause.

California's Equal Protection Clause provides independent


protections and broader rights than the federal Constitution. (Department
of Metal Hygiene v. Kirchner (1965) 62 Cal.2d 586, 588; People v. Leung
(1992) 5 Cal.App.4th 482, 494.) As the California Supreme Court
explained in Serrano v. Priest (1976) 18 Cal.3d 728, "our state equal
protection provisions … are possessed of an independent vitality which, in
a given case, may demand an analysis different from that which would
obtain if only the federal standard were applicable." ( Id. at 764 [internal
quotation marks omitted]; see also Gay Law Students Assn. v. Pacific
Telephone & Telegraph Co. (1979) 24 Cal.3d 458, 469 [“[W]e do not
consider ourselves bound by [federal] decisions in interpreting the reach of
the safeguards of our state equal protection clause"].)
The greater breadth and protectiveness of California’s Equal
Protection Clause applies here. Unlike federal law, which accords only
intermediate scrutiny to sex discrimination (see Craig v. Boren (1976) 429
U.S. 190, 197), California’s equal protection guarantee requires the highest
level of scrutiny for gender classifications, which must reflect the narrowest
and least restrictive means for accomplishing a compelling state purpose.
(Arp v. Workers Compensation Appeals Bd. (1977) 19 Cal.3d 395, 400;
Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 17-18; Connerly, supra, 92
RESPONDENTS' BRIEF 31
CASE NO. A110449
Cal.App.4th at 33.) Moreover, a statute need not “confer a preference
before strict scrutiny applies”; all that is required is a facial classification
based on sex. (Connerly, supra, 92 Cal.App.4 th at 43-44.)
To specify who may marry, California’s marriage statutes do not
employ sex-neutral classifications, such as “person,” “applicant” or
“spouse.” Instead, they use the gendered terms “man” and “woman.”
(Fam. Code §§ 300, 308.5.) These terms are undeniably sex-based
classifications. (Holguin v. Flores (2004) 122 Cal.App.4 th 428, 439
[holding that the California marriage statutes classify and discriminate on
the basis of sex]; see also Goodridge v. Dept. of Public Health (2003) 440
Mass. 309, 345-46 [conc. opn. of Greaney, J.,] [“That the classification is
sex based is self-evident”].) Because the marriage statutes explicitly and
facially rely on sex to prescribe who may marry whom, strict scrutiny
applies.
Appellants ignore controlling California law when they argue that
the clear sex-based classifications in the statutes do not merit strict judicial
scrutiny. According to appellants, unless a sex-based classification also has
a disparate impact on one sex or the other, the judiciary need test the
classification only for a rational basis. (FOB 37-38; CCFOB 18.) No
California case establishes such a rule.17 The Fund relies solely on Koire v.

17
Appellants’ cases discussing the federal Constitution and the law
of other states that do not apply strict scrutiny to sex-based classifications
have no precedential or even persuasive value because they were decided
under a different constitutional standard. In contrast, the Supreme Court of
Hawaii, a state that, like California, applies strict scrutiny to gender
discrimination, concluded (as did the trial court here) that its marriage
statutes were subject to strict scrutiny because they classified on the basis
of sex. (Baehr v. Lewin, supra, 74 Haw. at 572, 580.)

RESPONDENTS' BRIEF 32
CASE NO. A110449
Metro Car Wash (1985) 40 Cal.3d 24, but that decision stands only for the
proposition that preferential treatment on the basis of sex is subject to strict
scrutiny; it does nothing to advance appellants’ argument that sex-based
classifications are not. The same is true of Sail’er Inn, Inc. v. Kirby (1971)
5 Cal.3d 1, 18, upon which CCF seeks to rely. (CCFOB 18.) Another of
CCF’s cases involves laws, unlike those challenged here, that were gender-
neutral on their face. (See Hardy v. Stumpf (1978) 21 Cal.3d 1 [city
requirement that police applicants be able to scale a six-foot wall] cited at
CCFOB 18.) In that situation, strict scrutiny applies only upon a showing
of sex-based disparate treatment.18 But the marriage ban “on its face,
employs a suspect classification,” and thus triggers strict scrutiny.
(Connerly, supra, 92 Cal.App.4 th at 43-44.)

18
Of CCF’s two remaining cases involving gender-based equal
protection challenges, one did not consider what level of constitutional
scrutiny was appropriate (Michelle W. v. Ronald W. (1985) 39 Cal.3d 354,
364-65), and the other is ambiguous on the question yet still irrelevant
(Miller v. California Commn. On The Status Of Women (1984) 151
Cal.App.3d 693, 699). The court in Miller upheld a statute creating a
statewide commission to develop information and advocate measures to
foster the social and economic equality of women. The Court of Appeal
did not clearly adopt or reject strict scrutiny, but instead concluded only
that “the use of gender-framed measures, supported by public resources, to
remedy gender bias serves the interests of equality protected by our
constitution.” (Id. at 699.)
The result in Miller, however, is consistent with the application of
strict scrutiny for facial gender classifications. (See Connerly, supra, 92
Cal.App.4th at 46 ["[G]overnmental entities may use . . . gender-neutral
methods of fostering equal opportunity and . . . , in some instances, even
. . . gender-specific remedies may be employed. … Assuming that strict
scrutiny is required, a monitoring program designed to collect and report
accurate and up-to-date information is justified by the compelling
governmental need for such information"].)

RESPONDENTS' BRIEF 33
CASE NO. A110449
Indeed, if appellants were right and strict scrutiny applied only when
a facial classification also had a disparate impact, then a statute permitting
marriage only between "two people of the same race" would not trigger
strict scrutiny either, because it would treat all races equally. That is
wrong, of course: a statute that classifies everyone by means of the same
suspect criterion still classifies on the basis of that criterion, and the
classification is still suspect. (See Loving, supra, 388 U.S. at 9; see also
Powers v. Ohio (1991) 499 U.S. 400, 410 [“[T]he suggestion that racial
classifications may survive when visited upon all persons . . . has no place
in our modern equal protection jurisprudence. It is axiomatic that racial
classifications do not become legitimate on the assumption that all persons
suffer them in equal degree”]; McLaughlin v. Florida (1964) 379 U.S. 184,
191.)
But even if strict scrutiny applied only when a statute treats men and
women differently, the marriage ban does so. Equal protection rights
belong to individuals, not classes. (Perez, supra, 32 Cal.2d at 716; Loving,
supra, 388 U.S. at 8-9.) 19 Under the anti-miscegenation laws, individuals
were treated differently based on their race: a white person could marry a
white person, but a black person could not. Just so here: though a man
19
Appellants’ attempts to distinguish Perez and Loving do not go to
this point. Rather, appellants insist that the antimiscegenation cases are
distinguishable because racial classifications are somehow different than
classifications based on sex. (CCFOB 10; FOB 39-42.) Under the
California Constitution, that is not so. (Connerly, supra, 92 Cal.App.4 th at
32-33.) Appellants also argue that the anti-miscegenation cases are
distinguishable because they are rooted in White supremacy. (CCFOB 10;
FOB 39-42.) While true, that is a distinction without a difference in a case
where appellants ground their arguments on their normative belief that
heterosexual families are “optimal” or “ideal,” and gay and lesbian families
are not. (See Section III.D.2, infra.)

RESPONDENTS' BRIEF 34
CASE NO. A110449
may marry a woman, a woman may not. The better-reasoned decisions in
this area recognize this as a form of sex-based discrimination. (See Brause
v. Bureau of Vital Statistics, supra, 1998 WL 88743 at *6; Baker v. State of
Vermont, supra, 744 A.2d at 906 [conc. & dis. opn. of Johnson, J.]; Baehr
v. Lewin, supra, 74 Haw. at 572, 580.)
Moreover, to the extent that the sex-based classifications in the
marriage statutes indeed rest, as the Fund argues, on the “natural
complementarity” of men and women (FOB 36),20 the Equal Protection
Clause no longer tolerates such sex-role stereotyping as a basis for
lawmaking. “[C]ourts must look closely at classifications based on [sex]
lest outdated social stereotypes result in invidious laws or practices.”
(Sail’er Inn, supra, 5 Cal.3d at 18.) Where the State controls access to a
right or an institution, it may not “exclude qualified individuals based on
‘fixed notions concerning the roles and abilities of males and females.’”
(United States v. Virginia (1996) 518 U.S. 515, 541 [quoting Mississippi
Univ. for Women v. Hogan (1982) 458 U.S. 718, 725]; see also id. at 550
[“[G]eneralizations about ‘the way women are,’ estimates of what is
appropriate for most women, no longer justify denying opportunity to

20
Elsewhere in its brief, the Fund takes this argument to its extreme,
arguing that because same-sex couples do not engage in “natural
procreation,” they are not similarly situated to heterosexual couples and
therefore are not qualified to raise an equal protection challenge to the
marriage ban. (FOB 29-32.) This is silly. Nothing in the marriage laws
concerns sexual or reproductive mechanics. As relevant to an equal
protection challenge, both types of couples are similarly situated because
each engages in committed, long-term relationships, and each may or may
not bear and raise children within the context of their relationships. (See
Fam. Code § 297 [Note].)

RESPONDENTS' BRIEF 35
CASE NO. A110449
women whose talent and capacity place them outside the average
description”].)
By limiting marriage to a man and a woman, the State legitimates
and endorses the Fund’s stereotypical beliefs that the sexes not only can,
but must "complement" each other. (See Baker v. Vermont, supra, 744
A.2d at 906 [“the sex-based classification contained in the marriage laws
is . . . a vestige of sex-role stereotyping that applies to both men and
women . . . .”] [conc. & dis. opn. of Johnson, J.].) This outdated
understanding of gender—that men or women can access only a portion of
the human experience and must be completed by the opposite gender—
vastly discounts the great range of human potential in every individual.
Likewise, “negative social and legal attitudes toward homosexuality can
best be understood as preserving traditional concepts of masculinity and
femininity as well as upholding the political, market and family structures
premised on gender differentiation.” (Law, S., Homosexuality and the
Social Meaning of Gender (1988) Wisc. L. Rev. 187, 188, 209.) By
restricting marriage to the union of a man and woman, the State places its
imprimatur on gendered standards for intimate behavior, family support,
homemaking and raising children.
The legislative history of Section 300 also shows that the overt sex
restriction in the marriage statutes is based upon sex-role stereotypes.
Marriage, posited the bill's sponsor, does and should exist solely to ensure
financial support for dependent mothers and children. (See RJN Ex. 2 at
Exs. D-F thereto [benefits of marriage "provide special protections for a
financially dependent mother"; State should not provide this "windfall" to
homosexuals].) For this reason, too, the classification warrants a close look
by the judiciary. Only by subjecting the sex-based classification to strict
RESPONDENTS' BRIEF 36
CASE NO. A110449
scrutiny can this Court be certain whether using a citizen’s sex to determine
her legal rights is constitutionally legitimate or the product of invidious
discrimination.

2. Strict Scrutiny Is Also Required Because The


Marriage Ban Restricts The Exercise Of Lesbians'
And Gay Men's Fundamental Constitutional Right
To Marry A Person Of Their Choice.

The trial court also correctly applied strict scrutiny under the Equal
Protection Clause because the marriage ban “implicate[s] the basic human
right to marry a person of one's choice." (AA 1861.) 21
Under the California Equal Protection Clause, no classification-
based restrictions on a fundamental right are constitutional unless they have
a compelling justification and are narrowly tailored. ( Darces v. Woods
(1984) 35 Cal.3d 871, 885.) “A fundamental right means a fundamental
constitutional right." (People v. Health Laboratories of North America,
Inc. (2001) 87 Cal.App.4 th 442, 448.)
As the Superior Court correctly recognized, the right to marry the
person of one's choice is a fundamental constitutional right. The California
Supreme Court definitively settled this question nearly 60 years ago:
"[T]he essence of the right to marry is freedom to join in marriage with the

21
The City argued in the trial court that, because the marriage ban
impinges on the fundamental liberty right to choose one's own spouse, the
Due Process Clause required strict scrutiny. The trial court agreed that a
fundamental right was implicated, but analyzed the question under the
Equal Protection Clause, which likewise requires strict scrutiny when a
classification impinges a fundamental constitutional right. (AA 1856.) The
question is substantively the same under either equal protection or due
process jurisprudence. (Compare People v. Health Laboratories of North
America, Inc. (2001) 87 Cal.App.4 th 442, 448 [equal protection] with
Punsly v. Ho (2001) 87 Cal.App.4 th 1099, 1107 [due process].)

RESPONDENTS' BRIEF 37
CASE NO. A110449
person of one's choice ". (Perez, supra, 32 Cal.2d at 717 [emphasis
added].) 22 As the Court put it, the right to choose one’s own spouse is "as
fundamental as the right to send one's child to a particular school or the
right to have offspring.” ( Id. at 715.) Imagine, for example, a statute that
said one spouse could be no more than five years older than the other, or
that only high-school graduates could marry, or that Californians may not
marry persons born in other states or countries. The exact same
fundamental right is at stake when a statute says a man cannot marry
another man, nor a woman another woman.
Since Perez, numerous California decisions have confirmed that
marriage is a fundamental right. (See Conservatorship of Valerie N. (1985)
40 Cal.3d 143, 161; People v. Belous (1969) 71 Cal.2d 954, 963;
McCourtney v. Cory (1981) 123 Cal.App.3d 431, 438; Boren v. Dep't of
Employment Dev. (1976) 59 Cal.App.3d 250, 259.) The right to marry also
has long been regarded a fundamental constitutional right under federal
law. (See, e.g., Washington v. Glucksberg (1997) 521 U.S. 702, 720;
Zablocki v. Redhail (1978) 434 U.S. 374, 383, 387; Cleveland Bd. of
Education v. LaFleur (1974) 414 U.S. 632, 639; Loving, supra, 388 U.S. at
12; Skinner v. Oklahoma (1942) 316 U.S. 535, 541; Meyer v. Nebraska
(1923) 262 U.S. 390, 399.)
This freedom, to choose one's spouse, is deeply important both to
those people who wish to marry and to society. It “has long been
recognized as one of the vital personal rights essential to the orderly pursuit
of happiness by free men." ( Loving, supra, 388 U.S. at 12.) "[M]arriage is

22
Tellingly, according to its table of authorities, CCF nowhere even
cites, much less discusses Perez v. Sharp in its opening brief.

RESPONDENTS' BRIEF 38
CASE NO. A110449
at once the most socially productive and individually fulfilling relationship
that one can enjoy in the course of a lifetime." (Elden v. Sheldon (1988) 46
Cal.3d 267, 274-275.) It "is a social institution of the highest importance,"
and "the decision whether and whom to marry is among life's momentous
acts of self-definition." ( Goodridge, supra, 440 Mass. at 322.) “Civil
marriage anchors an ordered society” in myriad ways, but “is at once a
deeply personal commitment to another human being and a highly public
celebration of the ideals of mutuality, companionship, intimacy, fidelity,
and family.” ( Id.)
The right to choose one's own spouse is of constitutional dimension
because the liberty interest at stake is so fundamental. "[C]hoices to enter
into and maintain certain intimate human relationships must be secured
against undue intrusion by the State because of the role of such
relationships in safeguarding the individual freedom that is central to our
constitutional scheme." (Roberts v. U.S. Jaycees (1984) 468 U.S. 609, 617-
618.) "Protecting these relationships from unwarranted state interference
therefore safeguards the ability independently to define one's identity that is
central to any concept of liberty." ( Id. at 619.) This respect for personal
liberty extends to everyone, including lesbians and gay men. (See
Lawrence, supra, 539 U.S. at 573-574.)
Appellants argue that lesbians and gay men cannot claim the
constitutional right to marry the person of their choice. In appellants’ view,
the liberty right asserted here is not the right to marriage, which they
purport to “define” as a timeless man-woman institution, 23 but instead only

23
Appellants derive a sex-based “essence” of marriage from the fact
that male-female marriage is in the Bible, the dictionary, the common law
and the case law, whereas same-sex marriage is not. (FOB 5-7.) But
(continued on next page)
RESPONDENTS' BRIEF 39
CASE NO. A110449
to “same-sex marriage.” (FOB 8; CCFOB 8-9.) They assert that the
Constitution protects the former, but not the latter. (FOB 8-16; CCFOB 9-
14.)
The trial court correctly rejected this crabbed approached to defining
fundamental interests. (AA 1860.) At the threshold, as many courts have
recognized, casting marriage as heterosexual by definition just begs the
question. (See Goodridge, supra, 440 Mass. at 348 [conc. opn. of Greaney,
J.]; Castle v. State (Wash. Sup. Ct., Sep. 7, 2004) 2004 WL 1985215, at
*4; Brause v. Bureau of Vital Statistics, supra, 1998 WL 88743 at *2;
Halpern v. Toronto (Ont.Ct.App. 2003) 36 R.F.L. 5th 127.) Circular
semantics cannot take the place of serious judicial inquiry.
The proper focus is not whether gay men and lesbians have a
fundamental right to marry, but whether all people do. For example,
Eisenstadt v. Baird (1972) 405 U.S. 438, held that the liberty right to use
birth control, first announced in the context of a marital relationship in
Griswold v. Connecticut (1965) 381 U.S. 479, was not limited to married
persons: "If the right of privacy means anything, it is the right of the
individual, married or single, to be free from unwarranted governmental

(footnote continued from previous page)


appellants’ conception of the deep meaning of marriage cannot prevail over
the basic legal fact that civil marriage in California is entirely a creature of
statutory law. As a legal matter, it is what the government says it is,
nothing more and nothing less. Precisely because the sex restriction
(whatever its cultural meaning may have been or may be now) is also a
legal incident of marriage—that is, a restriction codified and enforced by
the State—it is subject to constitutional review. Should it be invalidated,
the sole consequence will be to remove it as a legal requirement. The
various religious and cultural meanings of marriage lie beyond the purview
of this Court.

RESPONDENTS' BRIEF 40
CASE NO. A110449
intrusion” in this arena. ( Eisenstadt, supra, 405 U.S. at 453 [emphasis
added].)
In Lawrence, supra, the Supreme Court struck down a statute
criminalizing sodomy between persons of the same sex, and overturned
Bowers v. Hardwick (1986) 478 U.S. 186, which had upheld a statute
criminalizing sodomy against constitutional challenge by a gay man. The
Court criticized Bowers (among other reasons) for defining the personal
dignity interest at stake far too narrowly. Bowers had asked "whether the
Federal Constitution confers a fundamental right upon homosexuals to
engage in sodomy." ( Id. at 190.) "That statement," concluded Lawrence,
"discloses the Court's own failure to appreciate the extent of liberty at
stake." (539 U.S. at 567.)
To say that the issue in Bowers was simply the right to
engage in certain sexual conduct demeans the claim
the individual put forward, just as it would demean a
married couple were it to be said marriage is simply
about the right to have sexual intercourse. ( Id.)

Bowers thus should not have considered "homosexual” liberty, but rather
human liberty. As the Court explained, “our laws and traditions afford
constitutional protection” to matters that “involve the most intimate
personal choices a person may make in a lifetime, choices central to
personal dignity and autonomy.” ( Id. at 574 [emphasis added].) They
include “personal decisions relating to marriage, procreation, contraception,
family relationships, child rearing and education.” (Id.) Concluded the
Court: “Persons in a homosexual relationship may seek autonomy for these
purposes just as heterosexual persons do.” (Id. [emphasis added].)
So too here. The issue is not whether lesbians and gay men have a
fundamental right to marry, but whether all people do. Neither Perez nor
Loving asked whether there was a deeply rooted tradition of "interracial
RESPONDENTS' BRIEF 41
CASE NO. A110449
marriage." The liberty interest at stake, rather, was exactly what the Court
said it was: the “freedom to join in marriage with the person of one's
choice." (Perez, supra, 32 Cal.2d at 717.) As the Court explained, "the
right to marry is the right of individuals, not of . . . groups." ( Id. at 716.)
When some citizens enjoy a right that others do not, it defies logic to
determine whether that right is fundamental by asking whether the very
class of people to whom it is denied has a long history of exercising it.
Fundamental constitutional rights would mean precious little if they
belonged only to those who already enjoy them. 24
Nor do the cases on which appellants rely, Washington v.
Glucksberg (1997) 521 U.S. 702 and Dawn D. v. Superior Court (1998) 17
Cal.4 th 932, require limiting the liberty interest at stake to “same-sex
marriage” (CCFOB 8; FOB 8), rather than the shared right to choose one’s
own spouse long ago elucidated for all citizens in Perez. Instead,
Glucksberg and Dawn D. rightly urge caution in identifying new
fundamental rights. (Washington v. Glucksberg, supra, at 720 [“We must
therefore ‘exercise the utmost care when we are asked to break new ground
in this field,’ [citation] lest the liberty protected by the Due Process Clause
be subtly transformed into the policy preferences of members of this
Court”].) This caution, which counsels a “concrete and particularized”
description of the newly asserted liberty interest (Dawn D., supra, at 940),
does not translate into the renunciation of the already established concrete

24
This, of course, is not to say that recognizing the right to choose
one’s spouse as a fundamental right enjoyed by all people means the state
can never burden that right. We can all think of obvious examples that
doubtless would pass strict scrutiny if challenged—age or consanguinity
limits, for example.

RESPONDENTS' BRIEF 42
CASE NO. A110449
and particularized right to choose one’s own spouse free from unwarranted
state interference.25 Our country's and our state's highest courts have
already recognized that right, and nothing in Glucksberg or Dawn D.
purports to take it away.
Moreover, Glucksberg and Dawn D. are of limited value in
answering the question now before the Court because they interpret only
the federal constitution. Once again, the California Constitution offers
broader protections and employs a different methodology in determining
whether a right is fundamental. Under the state constitution, courts look
first to state law and "the full panoply of rights Californians have come to
expect as their due." (Serrano v. Priest, supra, 18 Cal.3d 728, 764
[determining the right to an education as fundamental under the California
Constitution, even though this right does not exist under the U.S.
Constitution].) Rather than resist identifying fundamental rights, state
courts have a “duty” to develop and preserve fundamental constitutional
rights, whether or not those rights have been recognized under federal law
or have been made explicit in the state constitution, when such rights are
“within the intention and spirit of our local constitutional language and . . .
necessary for the kind of civilized life and ordered liberty which is at the
core of our constitutional heritage." ( Id. at 765, fn. 43.) Here, however, no

25
As the Court in Dawn D. explained while considering the same
passage from Glucksberg, “We are sympathetic to the democratic
motivation underlying the cautious attitude of the authority just quoted.
Nonetheless, if the judiciary is to fulfill its role in our tripartite system of
government as the final arbiter of constitutional issues, it cannot hope to
escape the tension between legislative policy determinations and the
challenges raised by those who would seek exceptions thereto.” ( Dawn D.,
supra, 17 Cal.4 th at 939.)

RESPONDENTS' BRIEF 43
CASE NO. A110449
new right need be recognized; the issue is whether it is constitutional for
the State to continue to preclude one class of citizens from exercising a
well-established fundamental right.
Appellants’ approach—setting aside marriage as reserved by
definition to opposite-sex couples and examining only “same-sex
marriage”—offends, and indeed subverts, these state constitutional
principles. Californians have come to rely on a commitment to non-
discrimination on the basis of sexual orientation as among "the full panoply
of rights Californians have come to expect as their due." It is abhorrent to
this strong commitment to legal equality to analyze the constitutional right
to choose one’s own spouse in terms that predetermine the outcome by
intentionally excluding gay men and lesbians. Either we all have basic
human rights, or none of us do. No single principle could be more
“necessary for the kind of civilized life and ordered liberty which is at the
core of our constitutional heritage” than this one.
As the trial court correctly found, gay men and lesbians partake
equally of the fundamental human right to choose a spouse free from
unwarranted government intrusion, announced more than half a century ago
in Perez. The marriage ban is subject to strict scrutiny.
3. The Marriage Ban Also Triggers Strict Scrutiny
Because It Interferes With The Privacy Right To
Choose One's Spouse Free From Government
Intrusion.

Strict scrutiny of the marriage ban is also required because it


intrudes on the state constitutional privacy right to choose a spouse free
from unjustified state regulation. The trial court did not reach this ground,
but it provides one of two alternative bases for affirming the lower court’s
ruling.

RESPONDENTS' BRIEF 44
CASE NO. A110449
As is the case in regard to freedom from sex discrimination (see
Section III.C.1, supra) and protection of fundamental rights (see Section
III.C.2, supra), Californians also enjoy broader privacy rights than federal
law provides. The California Constitution contains a Privacy Clause that
has no federal equivalent. (Cal. Const. Art. I, § 1). The right of privacy “is
the right to be left alone.” (RJN Ex. 2 at Ex. G thereto [ballot materials].)
Among other matters, it protects “our families, our thoughts, our emotions,
our expressions, our personalities, . . . and our freedom to associate with
the people we choose." (Id.)
Under the Privacy Clause, the right to choose a spouse is "virtually
synonymous with the right to intimate association." (Ortiz v. Los Angeles
Police Relief Ass'n, Inc. (2002) 98 Cal.App.4th 1288, 1303.) This privacy
right requires strict judicial scrutiny of governmental interference in the
intensely personal decision of whom to marry. (Id. at 1300-1307.)
Because it is now beyond dispute that there is a constitutionally protected
right to intimate association with persons of the same sex (Lawrence,
supra, 539 U.S. 558), the California Privacy Clause protects the right to
choose a person of the same sex as a spouse without undue government
interference.
As this case “involves an obvious invasion of an interest
fundamental to personal autonomy,” that is, “the freedom to pursue
consensual family relationships,” the State must demonstrate a “compelling
interest” for the marriage ban. ( Am. Academy of Pediatrics, supra, 16
Cal.4 th at 340 [internal quotation omitted].) In other words, strict scrutiny
applies.

RESPONDENTS' BRIEF 45
CASE NO. A110449
Ignoring Ortiz entirely, appellants argue that the Privacy Clause
enshrines only the privacy already protected by the federal constitution and
the common law as of 1972. (FOB 46; CCFOB 15-16.) This is wrong.
[I]t plainly would defeat the voters' fundamental
purpose in establishing a constitutional right of privacy
if a defendant could defeat a constitutional claim
simply by maintaining that statutory provisions or past
practices that are inconsistent with the constitutionally
protected right eliminate any 'reasonable expectation
of privacy' with regard to the constitutionally protected
right. (Am. Academy of Pediatrics, supra, 16 Cal.4 th at
338-339.)

The California Supreme Court has already rejected appellants’ argument


and so, too, should this Court. Following Ortiz and Lawrence, the marriage
ban must be subjected to strict scrutiny to ensure that its substantial
intrusion on constitutionally protected privacy rights is justified.
4. The Marriage Ban Also Deserves Strict Scrutiny
Because It Intentionally Discriminates On The
Basis Of Sexual Orientation.

Finally, this Court should also subject the marriage ban to strict
judicial scrutiny because it intentionally discriminates on the basis of sexual
orientation in violation of the California Equal Protection Clause.
Although Section 300 does not contain the words "sexual
orientation," appellants are wrong that it does not discriminate on the basis
of sexual orientation. (FOB 42; CCFOB 20-21.) Under the California
Constitution, equal protection is offended not only by intentional (de jure)
discrimination, but also by de facto discrimination. ( Crawford v. Board of
Education (1976) 17 Cal.3d 280, 286.) Federal law is more stringent, but
even there, a facially benign classification is suspect if it has a disparate
impact on a protected group and there is evidence of a discriminatory
legislative intent. (Personnel Administrator of Mass. v. Feeney (1979) 442
U.S. 256, 272.)
RESPONDENTS' BRIEF 46
CASE NO. A110449
Under either test, the statutory refusal to permit two people of the
same sex to marry discriminates on the basis of sexual orientation. It is
patently obvious that this refusal has a de facto disparate, and indeed
virtually exclusive, impact on gays and lesbians. Who but a gay or bisexual
man (or woman) is likely to marry another man (or woman)? Moreover,
the legislative history of Section 300 and Section 308.5 shows that this
discrimination was intentional: the central purpose behind limiting
marriage to one man and woman was to prohibit lesbians and gay men from
getting married. (See generally RJN Ex. 2, Exs. D-F thereto [legislative
history of 1977 amendment to Family Code § 4100, later recodified as §
300]; RJN Ex. 2 at Ex. B thereto [ballot pamphlet materials for Proposition
22, later codified as § 308.5].)
The Fund argues that, since it believes that marriage has been a man-
woman institution “from time immemorial,” the marriage laws would have
to “reflect a conspiracy that has existed since the beginning of time” for the
Court to find intentional discrimination on the basis of sexual orientation.
(FOB 44.) This is nonsense. Even if the marriage laws’ exclusion of same-
sex couples was not intentionally discriminatory at the outset, that would
not cleanse the laws of intentional sexual orientation discrimination for all
time. (See Nashville, Chattanooga & St. Louis Ry. v. Walters (1935) 294
U.S. 405, 415 ["[a] statute valid when enacted may become invalid by
change in the conditions to which it is applied"]; Gaylon v. Municipal
Court (1964) 229 Cal.App.2d 667, 671-72 [because public morality
changes, a once valid statute may become invalid]; Santa Monica Beach,
Ltd. v. Super. Ct. (1999) 19 Cal.4 th 952, 973 [change in conditions may
justify invalidation of a once valid law, and when fundamental
constitutional rights are at stake, a “greater degree of judicial scrutiny of
RESPONDENTS' BRIEF 47
CASE NO. A110449
legislative factfinding is appropriate”].) To the contrary, in 1977 and again
in 2000, the Legislature and the voters intentionally denied gay men and
lesbians the right to marry by writing explicit sex restrictions into the
marriage laws for that express purpose. (See RJN Ex. 2 at Exs. A-E
thereto.) However innocent the marriage laws may once have been, the sex
restrictions in California’s current statutes now reflect intentional sexual
orientation discrimination. 26
Applying California’s equal protection law, classifications based on
sexual orientation must be considered suspect.27 Race, sex, and religion are

26
CCF makes the outlandish argument that “since sexual orientation
cannot even be defined, the laws cannot improperly classify based on
sexual orientation.” (CCFOB 21-23.) But in the very next section of its
brief, it discusses a number of state and federal cases that have overcome
this obstacle, identifying and analyzing sexual orientation classifications.
(CCFOB 23-25.)
27
The proper treatment of sexual orientation classifications remains
a question of first impression in California, but the proposition appears so
self-evident that at least one court has assumed that sexual orientation is a
suspect classification that triggers strict scrutiny under California’s Equal
Protection Clause. (Children's Hospital and Medical Center v. Bonta
(2002) 97 Cal.App.4th 740, 769.)
Federal law is also unsettled. Romer v. Evans (1996) 517 U.S. 620
did not decide the question because it did not need to; the law there was so
arbitrary that it did not even pass rational basis review. Neither did
Lawrence; that case rested on substantive due process grounds. ( See 539
U.S. at 564.)
Although the Ninth Circuit's decision in High Tech Gays v. Defense
Industrial Security Clearance Office (9th Cir. 1990) 895 F.2d 563 held that
sexual orientation is not a suspect classification, it relied solely on the
Supreme Court's now discredited analysis in Bowers v. Hardwick (1986)
478 U.S. 186 (see High Tech Gays, supra, 895 F.2d at 571), which
Lawrence overruled. Even the Ninth Circuit is no longer bound by the
decision. (See Miller v. Gammie (9th Cir. 2003) (en banc) 335 F.3d 889,
899.) Under pre-Bowers decisions by the Ninth Circuit, homosexuals are
recognized as entitled to heightened protection under the Fourteenth
(continued on next page)
RESPONDENTS' BRIEF 48
CASE NO. A110449
all considered suspect classifications because they are so rarely relevant to a
legitimate government interest. (Owens v. City of Signal Hill (1984) 154
Cal.App.3d 123, 128; Sail'er Inn, supra, 5 Cal.3d at 17.) Sexual orientation
is no different. The criteria for treatment as a suspect classification are the
following:
(1) the classification is "an immutable trait, a status
into which the class members are locked by the
accident of birth";
(2) the trait "frequently bears no relation to ability to
perform or contribute to society"; and
(3) the trait bears a "stigma of inferiority and second
class citizenship," in other words, a history of "severe
legal and social disabilities." (Sail'er Inn, supra, 5
Cal.3d at 18-19.)

As explained below, sexual orientation meets every one.


First, sexual orientation is as inherent in and fundamental to one's
identity as is race, sex or religion. (See Koebke v. Bernardo Heights
Country Club (2005) 36 Cal.4 th 824, 842-843.) In that sense, it is just as
“immutable” as sex (which can be changed through extraordinary
measures, as some might argue also is true of sexual orientation) or religion
(which can easily be changed, though forced change occurs only at
tremendous personal cost). Sexual orientation and sexual identity "are so
fundamental to one's identity that a person should not be required to
abandon them." (Hernandez-Monteil v. I.N.S. (9th Cir. 2000) 225 F.3d

(footnote continued from previous page)


Amendment. (Hatheway v. Sect. of Army (9th Cir. 1981) 641 F.2d 1376,
1382; Beller v. Middlendorf (9th Cir. 1980) 632 F.2d 788, 808-810.) Judge
Henderson came to the same conclusion in a careful, thorough analysis in
High Tech Gays. (See id. (N.D.Cal. 1987) 668 F.Supp. 1361, 1369-70,
rev'd (9th Cir. 1990) 895 F.2d 563.) See also Hernandez-Monteil v. I.N.S.
(9th Cir. 2000) 225 F.3d 1084, 1093 and Karouni v. Gonzales (9th Cir. 2005)
399 F.3d 1163, 1173, discussed in main text.

RESPONDENTS' BRIEF 49
CASE NO. A110449
1084, 1093; accord Karouni v. Gonzales (9th Cir. 2005) 399 F.3d 1163,
1173.) "The kinds of intimate relationships a person forms. . . implicate
deeply held personal beliefs and core values." ( Koebke, supra, 36 Cal.4 th at
843.) Indeed, imagine a world where men could marry only men, and
women only women; surely few heterosexual people could imagine trying
to change their sexual identity in order to hew to the norm. Because sexual
orientation is "an innate characteristic" and "such an integral part of human
freedom" ( Karouni, supra, 399 F.3d at 1173 [internal citations omitted]), it
satisfies the first factor.
Second, sexual orientation bears no relation to one's ability to
contribute to society. Thus, workplace discrimination against gay men and
lesbians has long been recognized as irrational because it constitutes
"arbitrary discrimination on grounds unrelated to a worker's qualifications."
(Gay Law Students Assn. v. Pacific Telephone & Telegraph Co. (1979) 24
Cal.3d 458, 474-475.)
Finally, the Legislature has found that gays and lesbians have been
subject to a long history of social discrimination. (See Fam. Code 297,
Note). The United States Supreme Court, the California Supreme Court,
and lower courts have concluded the same thing. (See Lawrence, supra,
539 U.S. at 571; Gay Law Students Assn., supra, 24 Cal.3d at 488 [struggle
for gay rights bears "a close analogy to the continuing struggle for civil
rights waged by blacks, women, and other minorities"]; Smith v. Fair
Employment and Housing Commission (1996) 12 Cal.4th 1143, 1210 fn.7
[conc. & dis. opn. of Kennard, J.] ["homosexual couples have been subject
to a . . . continuing . . . history of discrimination"]); see also People v.
Garcia (2000) 77 Cal.App.4 th 1269, 1276 [homosexuals "share a history of
persecution comparable to that of Blacks and women"]; Snetsinger v. Mont.
RESPONDENTS' BRIEF 50
CASE NO. A110449
Univ. System (Mont. 2004) 104 P.3d 445, 455 ["It is overwhelmingly clear
that gays and lesbians have been historically subject to unequal treatment
and invidious discrimination"].)
Thus, it "is fair to say that discrimination against homosexuals is
'likely . . . to reflect deep-seated prejudice rather than . . . rationality.'"
(Rowland v. Mad River Local Sch. Dist. (1985) 470 U.S. 1009, 1014
[Brennan, J., dissenting from denial of certiorari] [quoting Plyler v. Doe
(1982) 457 U.S. 202, 216].) This is the sine qua non of a suspect
classification.
D. The Trial Court Correctly Ruled That The Marriage Ban
Does Not Survive Any Level Of Constitutional Scrutiny.

The Superior Court concluded that the marriage ban failed both strict
scrutiny and rational basis review. Again, it was correct on both counts.
1. Appellants Concede That The Marriage Ban Fails
Strict Scrutiny.

Neither appellant even argues that the marriage ban can survive
strict scrutiny. Thus, if the Court agrees that strict scrutiny is warranted for
any or all of the reasons set forth above, that ends the matter and judgment
for the City should be affirmed.
2. The Marriage Ban Lacks Even A Rational
Connection To Any Reasonably Conceivable,
Legitimate State Interest.

Appellants contend that the need to exclude gays and lesbians is


born of the State's interest in "steering procreation into marriage" to ensure
that children are raised, as often as possible, by their two biological parents
in one household. (FOB 20; CCFOB 34-41.) This is, appellants believe,
"the optimum setting for childrearing." (FOB 20; CCFOB 44-51.)
Certainly it is an excellent setting for innumerable children, and the
City does not challenge a single aspect of the social and legal support for
RESPONDENTS' BRIEF 51
CASE NO. A110449
this proven and valuable form that many families take. Opposite-sex
marriage is not under any sort of constitutional attack. Rather, the question
here is why it is constitutionally permissible for California to prohibit
marriage by same-sex couples. This appellants cannot explain. Their
procreation/childrearing rationale fails as a legitimate or realistically
conceivable reason for banning gay men and lesbians from marriage, and in
any event, it lacks any logical connection whatsoever to laws prohibiting
same-sex couples from marrying.
Under California law, the rational basis test is not "toothless." The
"statutory classifications [must] bear some substantial relationship to an
actual, not 'constructive,' legislative purpose." (Brown v. Merlo (1973) 8
Cal.3d 855, 865 fn.7 [emphasis added]; see also id. ["Although by straining
our imagination we could possibly derive a theoretically 'conceivable,' but
totally unrealistic, state purpose that might support this classification
scheme, we do not believe our constitutional adjudicatory function should
be governed by such a highly fictional approach to statutory purpose"];
accord Warden v. State Bar of California (1999) 21 Cal.4 th 628, 648
[statutory classification must be rationally related to "realistically
conceivable legislative purposes" and cannot be justified by "invent[ing]
fictitious purposes that could not have been within the contemplation of the
Legislature"] [citing Fein v. Permanente Medical Group (1985) 38 Cal.2d
137 and Cooper v. Bray (1978) 21 Cal.3d 841].)
Moreover, challenged legislation and the legislative purposes
proffered to support it must be viewed through the lens of “other
legislative, administrative and judicial directives which govern the legal
rights of similarly situated persons.” (Brown v. Merlo, supra, 8 Cal.3d at
862.) This inquiry must take current conditions into account: "the present
RESPONDENTS' BRIEF 52
CASE NO. A110449
constitutionality of the . . . statute's classification scheme must be evaluated
in light of the contemporary treatment accorded similarly situated
individuals." (Id. at 866 fn.6 [emphasis added]; see also id. at 868-869
[“[A] classification which once was rational because of a given set of
circumstances may lose its rationality if the relevant factual premise is
totally altered”].)
The "responsible procreation and optimal childrearing" rationale
rests on the assertions that only heterosexual couples will procreate and that
children are best born to and raised by their married, opposite-sex,
biological parents. Neither of these premises can be squared with the
marriage laws, current factual conditions, or current legislative policies.
a. "Responsible Procreation" Is Neither A
Realistically Conceivable Nor Legitimate
Legislative Purpose To Support The
Marriage Ban.

If procreation really were an essential or even important purpose for


marriage, one would expect marriage to be limited to people who are at
least conceivably capable of procreating. Yet marriage in this state has
never been limited in any other way that suggests that its major or primary
purpose is in fact procreation. To the contrary, a ninety-year-old
heterosexual may legally marry, a heterosexual stricken with a fatal illness
and on his or her deathbed may legally marry, and a heterosexual man who
is sterile or a heterosexual woman who has had a hysterectomy can marry.
Indeed, a heterosexual prisoner who is imprisoned for life without parole
may not constitutionally be denied the right to marry, despite his inability
to consummate the marriage or procreate. (See Turner v. Safley (1987) 482
U.S. 78.) Not surprisingly, many married heterosexual couples in
California are not currently raising children and a substantial percentage

RESPONDENTS' BRIEF 53
CASE NO. A110449
will never do so. Yet no one questions why such couples are permitted to
enjoy all of the state-provided, employer-provided and societal benefits that
flow from marriage.
The absence of any requirements or limitations whatsoever that
could reasonably be construed as reflecting an intent to limit marriage to
couples likely to procreate—or stated otherwise, the extraordinary
overinclusiveness of the privileged class that is permitted to marry (all
heterosexuals over a certain age)—deeply undercuts plaintiffs' argument
that marriage is designed primarily to encourage and support procreation
and childrearing. Even Supreme Court Justice Scalia observed in his
dissent in Lawrence v. Texas, supra, 539 U.S. at 605 that "encouragement
of procreation" is an insufficient rational basis for the ban on marriage by
same-sex couples, "since the sterile and the elderly are allowed to marry."
(See also Goodridge v. Dept. of Pub. Health (2003) 440 Mass. 309, 331-32
["Our laws of civil marriage do not privilege procreative heterosexual
intercourse between married people above every other form of adult
intimacy and every other means of creating a family. General Laws c. 207
contains no requirement that the applicants for a marriage license attest to
their ability or intention to conceive children by coitus. Fertility is not a
condition of marriage, nor is it grounds for divorce"].) Thus, the marriage
laws themselves contradict "procreation" as the reason for excluding gay
men and lesbians from marriage.
The procreation rationale also runs aground on the indisputable fact
that not only heterosexuals, but many lesbians and gay men bear, adopt and
raise children within the context of their relationships. This an undeniable

RESPONDENTS' BRIEF 54
CASE NO. A110449
fact of today's society,28 which appellants do not dispute, and it is a fact that
has been brought to the attention of, and expressly confirmed by, the
Legislature. Thus, in adopting AB 205, the Legislature specifically found
and declared that:
[D]espite longstanding social and economic
discrimination, many lesbian, gay, and bisexual
Californians have formed lasting, committed, and
caring relationships with persons of the same sex.
These couples share lives together, participate in their
communities together, and many raise children and
care for other dependent family members together.

(Fam. Code. § 297, Note [emphasis added].)


The rational basis test requires a proffered rationale to be tested
against the statutory treatment of similarly situated individuals, current
factual conditions, and California public policy. ( Brown v. Merlo, supra, at
865-869.) Doing so unmasks the "responsible procreation" rationale as
unlikely ever to have been a realistically conceivable explanation for
excluding gay men and lesbians from marriage. And even if it was once
realistically conceivable, in light of current social conditions and public
policy, it is no longer legitimate.

28
It may well be that at the time Family Code Section 300 was
amended to exclude gay and lesbian couples from marrying in the 1970s,
relatively few gay and lesbian couples were conceiving, adopting and
raising children, giving rise to an impression that they were uninterested in
doing so and/or were unlikely to do so. Whatever one may believe about
the state of gay families in American society in the 1970s, when Anita
Bryant and Phyllis Schlafly were on the rampage and discrimination against
gay men and lesbians was at its peak, since then many gay people have
come out of the closet, have been enabled by antidiscrimination laws and
policies to hold jobs, pursue careers and participate in their communities
with less fear of discrimination, and thus are in a position that was once
virtually impossible for such persons to achieve —the position of being able
to create and maintain stable family lives.

RESPONDENTS' BRIEF 55
CASE NO. A110449
b. "Optimal Childrearing" Is Likewise Neither
A Realistically Conceivable Nor Legitimate
Legislative Purpose For The Ban.

The "optimal childrearing" rationale is even less persuasive, because


along with sharing the same defects as the procreation rationale, it also rests
on invidious discrimination.
Like the ability to procreate with one's spouse, California also has
not made "optimal" (or even minimal) childrearing capabilities a
prerequisite for marriage. The State does not require any demonstration by
heterosexual couples that they will be good or even decent parents, much
less perfect or "ideal" ones. Deadbeat parents, who have never supported
their children financially and who are delinquent on or have altogether
failed to pay child support obligations, can marry; indeed, they have a
constitutionally protected right to do so. (See Zablocki v. Redhail (1978)
434 U.S. 374.) Likewise, convicted felons are permitted to marry, as long
as they marry someone of the opposite sex; they, too, are constitutionally
entitled. (See Turner v. Safley (1987) 482 U.S. 78. Neglectful, abusive or
violent parents, and persons who have been stripped of their parental rights
can all marry—as long as they marry an opposite-sex partner. Child
molesters, even child murderers can marry, and the State does not blink an
eye. Gi ven this state of affairs, it simply is not realistically conceivable that
the State excludes lesbians and gay men from marriage because of its
concern for "optimal childrearing."
Nor can the "optimal childrearing" rationale be reconciled with the
current state of California law and public policy. As the California
Supreme Court recently announced in a trio of cases applying statutory
family law principles to lesbian families and finding parental status despite,
in some instances, the absence of a biological relationship and legal

RESPONDENTS' BRIEF 56
CASE NO. A110449
adoption: "We perceive no reason why both parents of a child cannot be
women." ( Elisa B. v. Superior Court (2005) 37 Cal.4 th 108, 119; see also
Kristine H. v. Lisa R. (2005) 37 Cal.4 th 156; K.M. v. E.G. (2005) 37 Cal.4 th
130.) Indeed, it is well accepted in California that parental intentions and a
day-to-day caregiving relationship, not simply a biological tie, is what
establishes true parentage. ( Elijah V. v. Armando P. (2005) 127
Cal.App.4 th 576 [rejecting biological father's claim to parental rights]; id. at
588 ["Simply stated, 'parental rights do not spring full-blown from the
biological connections between parent and child. They require
relationships more enduring'"] [quoting Lehr v. Robertson (1983) 463 U.S.
248, 260].)
California also long ago abandoned its policy of discouraging and/or
denying adoption to gay couples. State law permits, even encourages, gay
couples to have, adopt and raise children. (See Fam. Code § 9000(b), (f);
Sharon S. v. Superior Court (2003) 31Cal.4 th 417, 432 [interpreting
adoption statute to permit stepparent adoption by same-sex partner of
biological parent]); id. at 433 ["California's adoption statutes have always
permitted adoption without regard to the marital status of prospective
adoptive parents"]; see also statutes and policies cited at id. fns. 3, 8.)
Similarly, AB 205 specifically recognizes and supports gay families
who conceive and bear children, and provides parental rights and
responsibilities for the same-sex domestic partner of the parent who
conceives or bears such a child. (Fam. Code § 297.5(d) ;Fam. Code 297,
Note §§ 1(b), 15.] In enacting AB 205, the Legislature specifically found
that gay and lesbian couples with (and without) children enjoy "family
relationships" that the Legislature has an "interest[] in promoting," and that

RESPONDENTS' BRIEF 57
CASE NO. A110449
expanding the benefits available to gay and lesbian couples furthers that
interest. (Fam. Code. § 297, Note § 1(b).)
Thus, neither current California law nor our state’s public policy
tolerates the legal subordination of gay and lesbian families on the
purported basis that children suffer outside of the heterosexual family
"ideal." In its brief in support of its appeal of the Superior Court's ruling in
the consolidated marriage cases, even the State of California expressly
disavows this proposed state purpose for the marriage ban. (See
Appellant's Opening Brief, Appeal No. A110451, at 35 fn. 22 ["It has been
suggested by certain advocates that same-sex couples would place children
at risk. Once again, this assertion is inconsistent with California's
determination to extend to registered domestic partners the 'same rights,
protections, and benefits' as spouses"].)
There is yet a further reason why the heterosexual parenting "ideal"
cannot qualify as a legitimate state interest. Given appellants' position that
there is no generally applicable, generally accepted research comparing
children raised by a same-sex parents with children raised by their own
biological parents (FOB at 31; CCFOB at 46-48), their suggestion that
heterosexual families are better settings for raising children is necessarily
premised either on outdated stereotypes about men's and women's
respective roles in childrearing or on fear that children raised by
homosexual couples will more likely grow up to be homosexual (which is
presumed to be an inferior and deleterious condition). Either way, it is
inherently and invidiously discriminatory. Neither sex role stereotypes nor
degrading beliefs about homosexuality can constitute a legitimate state
purpose.
c. In Any Event, Excluding Lesbian And Gay
Families From Marriage Does Not Rationally
RESPONDENTS' BRIEF 58
CASE NO. A110449
Further The Supposed Purposes Of
Responsible Procreation And Optimal
Childrearing.

Even if the Court were to consider the promotion of "responsible


procreation" and "optimal [heterosexual] childrearing" to be realistically
conceivable and legitimate state purposes in support of the marriage ban,
appellants would nonetheless have failed to demonstrate that these alleged
goals are rationally advanced by excluding gay and lesbian couples and
families from marriage.
For all of the discussion of procreation and child-rearing in
appellants’ papers, there is one very glaring omission: they never explain
why excluding same-sex couples from marriage is rationally related to
steering procreation into marriage. There is no reason to believe that,
unless same-sex couples are denied the right to marry, heterosexual couples
will reject the myriad benefits of marriage, particularly where children are
involved. Nor will denying marriage to gay and lesbian couples cause their
children to be born to married, heterosexual parents instead.
Moreover, if the purpose of marriage laws truly is to ensure that as
many babies as possible are born into stable, legally protected and benefited
two-parent families, this rationale cuts directly against the marriage ban.
Gay and lesbian couples are having babies in ever greater numbers, and
those babies fall within the ambit of plaintiffs’ proposed rationale every bit
as much as babies born to heterosexual couples. Denying their parents the
right to marry steers procreation away from, not into, marriage. Indeed,
whether or not it is true that “the vast majority of opposite-sex couples will
procreate absent deliberate efforts to avoid doing so” (FOB 21), it is
indisputably true that all gay and lesbian couples in California who are

RESPONDENTS' BRIEF 59
CASE NO. A110449
having children together are presently, by necessity, doing so out of
wedlock.
This is the deepest irony. Appellants display great concern for the
welfare of children, but at the end of the day, their concern does nothing to
enhance the security of children whose parents already can marry. To the
contrary, their supposed rationale for the marriage ban hopes to ensure only
that the children of gay and lesbian parents, like the parents themselves,
remain consigned to their current status as legal and social outsiders. As
the court in Goodridge observed, surely "[i]t cannot be rational under our
laws, and indeed it is not permitted, to penalize children by depriving them
of State benefits because the State disapproves of their parents' sexual
orientation." (440 Mass. at 336.)

CONCLUSION

The judgment should be affirmed.

Dated: December 16, 2005 Respectfully submitted,

DENNIS J. HERRERA AMY E. MARGOLIN


City Attorney HOWARD RICE NEMEROVSKI
THERESE M. STEWART CANADY FALK & RABKIN
Chief Deputy City Attorney A Professional Corporation
WAYNE K. SNODGRASS
SHERRI SOKELAND KAISER
Deputy City Attorneys

By:
SHERRI SOKELAND KAISER
Attorneys for Defendants/Respondents
GAVIN NEWSOM and NANCY ALFARO

RESPONDENTS' BRIEF 60
CASE NO. A110449
APPENDIX A:

STATUTES PROHIBITING DISCRIMINATION ON THE BASIS OF


SEXUAL ORIENTATION

• Civil Code § 51.7 (freedom from violence);


• Code of Civil Procedure §204 (jury service exemptions); id. § 231.5
(peremptory juror challenges);
• Education Code § 200 (equal rights and responsibilities in state
educational institutions); id. § 233(a)(2) (school curriculums); id. § 32228
(public school resources to combat bias); id. § 35294.21(b)(6) (school
staffing); id. § 44253.2(e)(5) (cultural diversity); id. § 44253.3 (teacher
credentialing); id. § 51930 (goals of health education); id. § 51933 (sexual
health education materials); id. § 67380 (statistics on hate violence
complied by publicly funded higher education institutions); id. § 87100
(equal employment opportunity in community college system);
• Family Code §§ 297, 297.5, 298, 298.5, 299, 299.2, 299.3, 299.5,
299.6 (domestic partnerships); id. § 9000(b), (f) (adoption); see also Cal.
Code Regs., tit. 22 §§ 88030, 89002, 89317 (adoptions and foster families);
• Government Code §§ 12920, 12921 (non-discrimination in
employment and housing); id. §12940 (employment discrimination); id. §
12944 (licensing discrimination); id. § 12955 (housing discrimination); id.
§ 18500 (goals for civil service system); id. §§ 50262-50265 (establishing
and defining mission of local human relations commissions);
• Health & Safety Code § 1365.5 (health care service plans); id. §§
1529.2 , 1563 (foster family and community care licensing personnel
training); id. §1586.7 (adult day care facilities);
• Insurance Code § 10140 (life and disability insurance); id. §
12693.28 (administration of Healthy Families Program);

RESPONDENTS' BRIEF 61
CASE NO. A110449
• Labor Code § 4600.6(g) (workers compensation insurance);
• Penal Code §422, 422.5, 422.6, 422.7, 422.75, 422.80, 422.85,
422.865, 3053.4 (hate crimes and penalties); id. § 628.1 (hate crimes
reporting by public education institutions); id. §666.7 (sentence
enhancement for felony damage to institutional property); id. §13519.4
(law enforcement training on cultural diversity);
• Public Contract Code § 61.8 (state contracting);
• Welfare & Institutions Code § 16001.9(1)(22) (rights of foster
children); id. § 16003 (training for relatives or extended family members of
caregivers of foster care children); id. §16013 (access to services and
programs by persons providing services and care to foster children).

RESPONDENTS' BRIEF 62
CASE NO. A110449
CERTIFICATE OF COMPLIANCE

I hereby certify that this brief has been prepared using


proportionately double-spaced 13 point Times New Roman typeface.
According to the "Word Count" feature in my Microsoft Word for
Windows software, this brief contains # of words counted words up to and
including the signature lines that follow t he brief's conclusion.
I declare under penalty of perjury that this Certificate of Compliance
is true and correct and that this declaration was executed on Date of
Execution.

DENNIS J. HERRERA
City Attorney
THERESE M. STEWART
Chief Deputy City Attorney
SHERRI SOKELAND KAISER
Deputy City Attorney

By:
SHERRI SOKELAND KAISER
Deputy City Attorney

Attorneys for Defendants/Respondents


GAVIN NEWSOM and NANCY
ALFARO

RESPONDENTS' BRIEF 63
CASE NO. A110449