COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT, DIVISION THREE In re MARRIAGE CASES Judicial Council Coordination

Proceeding No. 4365 RANDY THOMASSON and CAMPAIGN FOR CALIFORNIA FAMILIES, 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, Case No. A110652

Superior Court Case No. 428794

RESPONDENTS' BRIEF

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

Attorneys for Defendants/Respondents GAVIN NEWSOM and NANCY ALFARO

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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
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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.
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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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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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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, samesex 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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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 samesex 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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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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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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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.)

In a December 30, 2004 letter to the Court, the City lodged the declarations it had sought to file. (RA 117-313.) 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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I.

ARGUMENT 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
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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

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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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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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)

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.) 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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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.

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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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.

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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.
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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 75day 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
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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.

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.
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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 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.)
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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

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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 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)
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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 antimiscegenation 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 antimiscegenation 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.
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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 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].)
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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;
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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.) 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.
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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

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).
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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 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.
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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
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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.

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.)
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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 genderneutral 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.)

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"].)
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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 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.)
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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

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].)
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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
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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 classificationbased 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 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].)
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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 Tellingly, according to its table of authorities, CCF nowhere even cites, much less discusses Perez v. Sharp in its opening brief.
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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, 617618.) "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 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)
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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 914.) 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.
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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
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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.
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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

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.)
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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 nondiscrimination 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.
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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.

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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.)
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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 manwoman 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 samesex 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
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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 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.) 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)
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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.
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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.
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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
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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
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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
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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

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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.

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.
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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
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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

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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.
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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

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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 DENNIS J. HERRERA City Attorney THERESE M. STEWART Chief Deputy City Attorney WAYNE K. SNODGRASS SHERRI SOKELAND KAISER Deputy City Attorneys

Respectfully submitted, AMY E. MARGOLIN HOWARD RICE NEMEROVSKI CANADY FALK & RABKIN A Professional Corporation

By: SHERRI SOKELAND KAISER Attorneys for Defendants/Respondents GAVIN NEWSOM and NANCY ALFARO
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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);
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• 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).

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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

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