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NO. 10-16696 ORAL ARGUMENT SCHEDULED FOR DECEMBER 6, 2010 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT KRISTIN PERRY, et al., Plaintiffs-Appellees, v. ARNOLD SCHWARZENEGGER, et al. Defendants, and DENNIS HOLLINGSWORTH, et al., Defendant-Intervenors-Appellants. Appeal from United States District Court for the Northern District of California Civil Case No. 09-CV-2292 VRW (Honorable Vaughn R. Walker) DEFENDANT-INTERVENORS-APPELLANTS’ REPLY BRIEF Andrew P. Pugno LAW OFFICES OF ANDREW P. PUGNO 101 Parkshore Drive, Suite 100 Folsom, California 95630 (916) 608-3065; (916) 608-3066 Fax Brian W. Raum James A. Campbell ALLIANCE DEFENSE FUND 15100 North 90th Street Scottsdale, Arizona 85260 (480) 444-0020; (480) 444-0028 Fax Charles J. Cooper David H. Thompson Howard C. Nielson, Jr. Peter A. Patterson COOPER AND KIRK, PLLC 1523 New Hampshire Ave., N.W. Washington, D.C. 20036 (202) 220-9600; (202) 220-9601 Fax

Attorneys for Defendant-Intervenors-Appellants Hollingsworth, Knight, Gutierrez, Jansson, and ProtectMarriage.com

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TABLE OF CONTENTS Page INTRODUCTION .....................................................................................................1 ARGUMENT .............................................................................................................5 I. II. PROPONENTS HAVE STANDING. ........................................................................5 THE DISTRICT COURT LACKED JURISDICTION TO GRANT INJUNCTIVE RELIEF TO PERSONS NOT BEFORE THE COURT.................................................9 BINDING PRECEDENT FORECLOSES PLAINTIFFS’ CLAIMS. ..............................15 THIS COURT OWES NO DEFERENCE TO THE DISTRICT COURT’S RULING........20 THE TRADITIONAL DEFINITION OF MARRIAGE DOES NOT VIOLATE PLAINTIFFS’ FUNDAMENTAL RIGHT TO MARRY..............................................26 PROPOSITION 8 IS SUBJECT TO RATIONAL BASIS SCRUTINY UNDER THE EQUAL PROTECTION CLAUSE...................................................................35 A. Binding precedent establishes that gays and lesbians do not constitute a suspect or quasi-suspect class. .........................................35 Homosexuality is a complex and amorphous phenomenon, distinguishing gays and lesbians from other classes the Supreme Court has recognized as suspect or quasi-suspect...............................38 Plaintiffs misapprehend the requirements for heightened protection under the Equal Protection Clause. .....................................................40 Gays and lesbians do not meet the requirements for suspect or quasi-suspect classification. ................................................................42 History of Discrimination....................................................................42 Immutability.........................................................................................43 Political Power....................................................................................44 i 

III. IV. V. VI.

B.

C.

D.

 

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E.

Proposition 8 does not discriminate on the basis of sex. ................... 49

VII. PROPOSITION 8 ADVANCES VITAL STATE INTERESTS, AND THUS PLAINLY SATISFIES RATIONAL BASIS REVIEW. .............................................................50 A. B. C. Rational basis review is not limited to economic legislation. .............52 Proposition 8 is closely related to California’s vital interest in responsible procreation and childrearing. ...........................................52
 

Proposition 8 advances California’s interest in proceeding with caution when considering a fundamental change to a vital social institution.............................................................................................67 Proposition 8’s rationality is not undermined by its alleged effects on gays and lesbians and their children...............................................70

D.

VIII. NOTHING IN CALIFORNIA LAW NOR THE CIRCUMSTANCES SURROUNDING ITS ENACTMENT RENDERS PROPOSITION 8 UNCONSTITUTIONAL....................75 A. The circumstances that led to Proposition 8’s enactment do not distinguish it from the laws of other states that protect the traditional definition of marriage. .......................................................75 Proposition 8 is not irrational in light of other California laws. .........80 The campaign to pass Proposition 8 does not undermine its constitutionality. ..................................................................................85

B. C.

CONCLUSION........................................................................................................92

 

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TABLE OF AUTHORITIES Cases Page Adams v. Howerton, 486 F. Supp. 2d 1119 (1980), aff’d on other grounds, 673 F.2d 1036 (9th Cir. 1982) ............................................................................59 Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982)..........................................15, 19 Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995)......................................40 Agostini v. Felton, 521 U.S. 203 (1997) ..................................................................16 Arizonans for Official English v. Arizona, 520 U.S. 43 (1997).............................6, 9 Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977) ............9 Arthur v. Toledo, 782 F.2d 565 (6th Cir. 1986).......................................................86 Baker v. Baker, 13 Cal. 87 (1859) .............................................................................2 Baker v. Nelson, 409 U.S. 810 (1972) ...............................................................15, 73 Baker v. State, 744 A.2d 864 (Vt. 1999)..................................................................49 Board of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356 (2001)......................................................................3, 52, 55, 74, 89 Boddie v. Connecticut, 401 U.S. 371 (1971) ...........................................................32 Bowers v. Hardwick, 478 U.S. 186 (1986) ..............................................................36 Bresgal v. Brock, 843 F.2d 1163 (9th Cir. 1988) ....................................................11 Brown v. Board of Educ., 347 U.S. 483 (1954).................................................22, 82 Brown v. Trustees of Boston Univ., 891 F.2d 337 (1st Cir. 1989)...........................12 Carpenters Pension Trust v. Kronschnabel, 632 F.2d 745 (9th Cir. 1980) ............15 Christian Legal Soc’y v. Martinez, 130 S. Ct. 2971 (2010) ....................................37 Christian Science Reading Room Jointly Maintained v. San Francisco, 784 F.2d 1010 (9th Cir. 1986) ............................................................................42 Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006) .............36, 53, 54 City and County of San Francisco v. Proposition 22 Legal Defense and Educ. Fund, 128 Cal. App. 4th 1030 (2005)...................................................................7 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)......39, 45, 52, 54, 56 City of Richmond v. J. A. Croson Co., 488 U.S. 469 (1989) ...................................46 Cleveland Bd. of Educ. v. La Fleur, 414 U.S. 632 (1974).......................................31
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Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949).................................10 Cook v. Gates, 528 F.3d 42 (1st Cir. 2008) .............................................................36 Coyote Publ’g, Inc. v. Miller, 598 F.3d 592 (9th Cir. 2010) .............................78, 84 Crawford v. Board of Educ., 458 U.S. 527 (1982) ......................................76, 79, 86 District of Columbia v. Heller, 128 S. Ct. 2783 (2008)...........................................28 Doe v. Gallinot, 657 F.2d 1017 (9th Cir. 1981) ......................................................12 Don’t Bankrupt Washington Comm. v. Continental Ill. Nat’l Bank of Chicago, 460 U.S. 1077 (1983)..............................................................6 Dunagin v. City of Oxford, 718 F.2d 738 (5th Cir. 1983) .................................21, 24 Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486 (9th Cir. 1996)..........12 Eisenstadt v. Baird, 405 U.S. 438 (1972) ................................................................32 Equality Found. of Greater Cincinnati v. Cincinnati, 128 F.3d 289 (6th Cir. 1997)...............................................................................................38, 86 Equality Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 54 F.3d 261 (6th Cir. 1995), vacated on other grounds, 518 U.S. 1001 (1996) ....................24 Everhart v. Bowen, 853 F.2d 1532 (10th Cir. 1988), rev’d on other grounds sub nom, Sullivan v. Everhart, 494 U.S. 83 (1990)......12 FCC v. Beach Commc’ns, Inc., 508 U.S. 307 (1993)..................................51, 52, 84 Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130 (9th Cir. 2003) ..............38 Frontiero v. Richardson, 411 U.S. 677 (1973)............................................18, 41, 48 Griswold v. Connecticut, 381 U.S. 479 (1965)........................................................32 Grutter v. Bollinger, 539 U.S. 306 (2003)...............................................................22 Grutter v. Bollinger, 137 F. Supp. 2d 821 (E.D. Mich. 2001) ................................22 Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001)..................................................17 Heller v. Doe, 509 U.S. 312 (1993) .......................................... 25, 51, 52, 53, 56, 57 Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000) .....................................38 Hicks v. Miranda, 422 U.S. 332 (1975)...................................................................16 High Tech Gays v. Defense Indus. Serv. Clearing Office, 895 F.2d 563 (9th Cir. 1990) ........................................ 35, 37, 38, 40, 42, Passim Holloway v. Arthur Andersen & Co., 566 F.2d 659 (9th Cir. 1977) .......................39
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Horne v. Flores, 129 S. Ct. 2579 (2009) .................................................................14 Hunter v. Erickson, 393 U.S. 385 (1969) ................................................................86 Hunter v. Regents of the Univ. of Cal., 190 F.3d 1061 (9th Cir. 1999).....................................................................................................24 In re Marriage Cases, 183 P.3d 384 (Cal. 2008) ............................................7, 8, 49 In re Marriage Cases, No. S147999, 2008 Cal. LEXIS 6807 (Cal. June 4, 2008)........................................................78 In re Marriage Cases, 143 Cal. App. 4th 873 (Cal. Ct. App. 2006), rev’d, 183 P.3d 384 (Cal. 2008) .........................................................................74 James v. Valtierra, 402 U.S. 137 (1971) ...........................................................23, 86 Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004)..................................................36 Johnson v. Robison, 415 U.S. 361 (1974) .............................................40, 43, 54, 71 Karcher v. May, 484 U.S. 72 (1987) .........................................................................5 Larson v. Volente, 456 U.S. 228 (1982) ..................................................................13 Lawrence v. Texas, 539 U.S. 558 (2003).....................................................17, 30, 31 Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580 (9th Cir. 2008) ..................................25 Lewis v. Casey, 518 U.S. 343 (1996).......................................................................13 Lockary v Kayfetz, 917 F.2d 1150 (9th Cir. 1990) ..................................................26 Locke v. Davey, 540 U.S. 712 (2004) ......................................................................42 Lockhart v. McCree, 476 U.S. 162 (1986).........................................................21, 23 Lofton v. Secretary of the Dep’t of Children & Family, 358 F.3d 804 (11th Cir. 2004)...................................................................................................36 Loving v. Virginia, 388 U.S. 1 (1967) .....................................................2, 17, 47, 49 Maher v. Roe, 432 U.S. 464 (1977) .........................................................................52 Marshall v. Sawyer, 365 F.2d 105 (9th Cir. 1966) ..................................................21 Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) ...................52, 58 McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005) ..............................85 McDonald v. City of Chicago, 130 S. Ct. 3020 (2010) ...........................................29 McKinnon v. Patterson, 568 F.2d 930 (2d Cir. 1977) .............................................13 Meinhold v. U.S. Dep’t of Defense, 34 F.3d 1469 (9th Cir. 1994) ..........................11
  v

 

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Michael M. v. Superior Court, 450 U.S. 464 (1981) ...................................57, 60, 89 Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) .....................................................20 Miller v. Johnson, 515 U.S. 900 (1995)...................................................................47 Moore v. City of East Cleveland, 431 U.S. 494 (1977) ...........................................32 Nguyen v. INS, 533 U.S. 53 (2001)....................................................................51, 59 Nyquist v. Mauclet, 432 U.S. 1 (1977).....................................................................41 Parham v. Hughes, 441 U.S. 347 (1979).................................................................42 Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008).........................................................87 Plyler v. Doe, 457 U.S. 202 (1982)....................................................................23, 75 Price-Cornelison v. Brooks, 524 F.3d 1103 (10th Cir. 2008) .................................36 Railroad Retirement Bd. v. Fritz, 449 U.S. 166 (1980)...........................................92 Reed v. Reed, 404 U.S. 71 (1971) ............................................................................18 Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978)..........................................41 Reitman v. Mulkey, 387 U.S. 369 (1967).................................................................77 Reno v. ACLU, 521 U.S. 844 (1997)........................................................................23 Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477 (1989)............................................................................................16 Romer v. Evans, 517 U.S. 620 (1996) ...................................... 18, 51, 32, 57, 76, 86 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) ..............................40 Scarbrough v. Morgan County Bd. of Educ., 470 F.3d 250 (6th Cir. 2006) ...........36 Seattle School Dist. No. 1 v. Washington, 633 F.2d 1338 (9th Cir. 1980) ..............86 Service Employees Int’l Union v. Fair Political Practice Comm’n, 955 F.2d 1312 (9th Cir. 1992) ............................................................................23 Sharpe v. Cureton, 319 F.3d 259 (6th Cir. 2003) ....................................................12 Southern Alameda Spanish Speaking Organization v. Union City, 424 F.2d 291 (9th Cir. 1970).....................................................................................................85 Sprint Commc’ns Co., L.P. v. APCC Servs., 128 S. Ct. 2531 (2010)......................10 State Oil Co. v. Khan, 522 U.S. 3 (1997) ................................................................16 Strauss v. Horton, 207 P.3d 48 (Cal. 2009).................................6, 75, 77, 78, 79, 83 Tully v. Griffin, Inc., 429 U.S. 68 (1976).................................................................15
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Turner v. Safley, 482 U.S. 78 (1987) .................................................................17, 31 United States v. $124,570 U.S. Currency, 873 F.2d 1240 (9th Cir. 1989)..............21 United States v. Virginia, 518 U.S. 515 (1996) .......................................................22 Vacco v. Quill, 521 U.S. 793 (1997)........................................................................56 Valdivia v. Schwarzenegger, 599 F.3d 984 (9th Cir. 2010) ....................................21 Valtierra v. Housing Auth. of San Jose, 313 F. Supp. 1 (N.D. Cal. 1970) ..............23 Vance v. Bradley, 440 U.S. 93 (1979) ...................................................34, 55, 57, 58 Warth v. Seldin, 422 U.S. 490 (1975) ......................................................................10 Washington v. Glucksberg, 521 U.S. 702 (1997) ..............................................27, 52 Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982)..................................86 Williamson v. Lee Optical, 348 U.S. 483 (1955)...............................................58, 74 Witt v. Department of the Air Force, 527 F.3d 806 (9th Cir. 2008)..................36, 38 Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989) .................................37 Yocum v. Greenbriar Nursing Home, 130 P.3d 213 (Okla. 2005) ..........................24 Zablocki v. Redhail, 434 U.S. 374 (1978) .........................................................17, 31 Zepeda v. INS, 753 F.2d 719 (9th Cir. 1983)...............................................10, 11, 12 Statutes and Rules 18 U.S.C. § 249........................................................................................................47 18 U.S.C. § 249(a)(2)...............................................................................................46 CAL. EDUC. CODE § 51933(b)(7)..............................................................................87 CAL. FAM. CODE § 297.5..........................................................................................80 CAL. FAM. CODE § 308(b) ........................................................................................87 FED. R. CIV. P. 23 .....................................................................................................10 FED. R. EVID. 201(a).................................................................................................20 Other DAVID BLANKENHORN, THE FUTURE OF MARRIAGE 127-69 (2007).........................68 David Boies, Gay Marriage and the Constitution, WSJ, July 20, 2009 ...................4 Equality California, 2009 Legislative Scorecard at 5-7, at http://www.eqca.org/atf/cf/%7B34f258b3-8482-4943-91cb08c4b0246a88%7D/EQCA_LEG_SCORECARD_2009.PDF ..........................45
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FIONA TASKER, GROWING UP IN A LESBIAN FAMILY: EFFECTS ON CHILD DEVELOPMENT 127-33 (1997) .............................................................................62 HRC, Statewide Employment Laws & Policies, available at http://www.hrc.org/documents/Employment_Laws_and_Policies.pdf (August 4, 2010) .................................................................................................47 HRC, The State of the Workplace at 4 (2009), available at http://www.hrc.org/documents/HRC_Foundation_State_of_the_Workplace_ 2007-2008.pdf (last visited August 4, 2010) ......................................................47 http://www.foxnews.com/politics/2010/10/26/obama-appointsrecord-number-gay-officials/?test=latestnews....................................................46 http://www.hrc.org/scorecard/ ................................................................................45 Jonathan Capehart, Obama Begins Shift on Gay Marriage, THE WASHINGTON POST, Oct. 28, 2010 ................................................................5 Judith Stacey & Timothy J. Biblarz, (How) Does the Sexual Orientation of Parents Matter?, 66 AM. SOC. REV. 159 (2001) ............................................62 Judith Stacey & Timothy J. Biblarz, How Does the Gender of Parents Matter? JOURNAL OF MARRIAGE AND FAMILY 3 (2010) .................62, 63 MCCORMICK ON EVIDENCE § 334 (6th ed., Kenneth Brown, ed. 2006) ..................21 Paul R. Amato, The Impact of Family Formation Change on the Cognitive, Social, and Emotional Well-Being of the Next Generation, 15 FUTURE CHILD 75 (2005) ...............................................................................60 ROBERT L. STERN ET AL., SUPREME COURT PRACTICE 281 (8th ed. 2002)...............16 State Hate Crimes Laws, available at http://www.hrc.org/documents/hate_crime_laws.pdf (last visited August 4, 2010) ...............................................................................47 Wainright, J., Delinquency, Victimization, and Substance Use Among Adolescents With Fame Same-Sex Parents, 20 JOURNAL OF FAMILY PSYCHOLOGY 526, 528 (2006) ............................................................................62 William Meezan & Jonathan Rauch, Gay Marriage, Same-Sex Parenting, and America’s Children, 15 FUTURE CHILDREN 97 (2005) ................................68 WITHERSPOON INSTITUTE, MARRIAGE AND THE PUBLIC GOOD 18-19 (2006) ..........68

 

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INTRODUCTION At the heart of this case are two competing definitions of marriage. The traditional definition of marriage—the one that has prevailed throughout recorded history in virtually all known societies and that was preserved in California by Proposition 8—holds that marriage is by its nature a gendered institution, for it is designed to serve society’s vital interest in channeling potentially procreative sexual relationships into enduring, stable unions for the sake of responsibly producing and raising the next generation. As demonstrated in our opening brief, Prop. Br. 47-70, this understanding of the social meaning and purpose of marriage has been confirmed throughout history by all of the esteemed authorities on the subject, from the lexicographers who have defined marriage, to the eminent scholars in every relevant academic discipline who have explained marriage, to the legislatures and courts that have given legal recognition and effect to marriage. Plaintiffs, arguing that “gender restrictions … were never part of the historical core of the institution of marriage,” Pl. Br. 47 (quoting ER148), offer a competing definition of marriage that is carefully framed to be genderless: “marriage is ‘a couple’s choice to live with each other, to remain committed to one another, and to form a household based on their own feelings about one another, and their agreement to join in an economic partnership and support one another in terms of the material needs of life.’ ” Pl. Br. 47 (quoting SER102 (Cott)). The - 1 - 
 

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central purposes served by marriage, Plaintiffs say, are the “ ‘promotion of the happiness of the parties’ ” to the marriage, Pl. Br. 45 (quoting Baker v. Baker, 13 Cal. 87, 103 (1859)), and providing “state recognition and approval of a couple’s choice” to marry. Pl. Br. 49 (quoting ER102). Plaintiffs’ genderless, adultcentered understanding of the social meaning and purposes of marriage is a recent academic invention; it can trace its pedigree no farther back than the modern movement to redefine marriage to include same-sex couples. And because it deliberately severs the abiding connection between marriage and the uniquely procreative potential of male-female unions, Plaintiffs’ definition of marriage can offer no explanation for why the institution is a ubiquitous, cross-cultural feature of the human experience, nor why it is, as the Supreme Court has consistently emphasized, “fundamental to our very existence and survival.” Loving v. Virginia, 388 U.S. 1, 12 (1967). The issue here, however, is not which of these competing definitions of marriage is the wiser, more prudent choice for the State of California and her communities and people. That issue was before the voters of California in November 2008, and they decided to preserve the traditional definition, at least for now. The issue here is whether people of good will can differ in good faith over these competing definitions of marriage. Plaintiffs, and the court below, say that the answer is no, and that those who disagree with them are not rational. - 2 - 
 

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Plaintiffs, it appears, have moderated on appeal the views they expressed below about supporters of Proposition 8. They now disavow, to their credit, the claim that all “voters who supported Proposition 8 were motivated by malice or hostility toward gay men and lesbians ….” Pl. Br. 104. Nonetheless, Plaintiffs assert that a belief that the traditional opposite-sex definition of marriage meaningfully serves society’s interests is wholly irrational, and that professing such a belief must therefore either be a pretext to mask “[a] bare … desire to harm” gays and lesbians, Pl. Br. 97, or be the result of “simple want of careful, rational reflection ….” Pl. Br. 104 (quoting Board of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 375 (2001) (Kennedy, J. concurring)). In other words, opponents of same-sex marriage, Plaintiffs claim, are either bigoted or benighted. Under rational-basis review, this claim can admit of no exceptions—the traditional definition of marriage either has a conceivable rational justification or it does not. And so the falsity of Plaintiffs’ claim is patent as soon as it is uttered. For it cannot stand up to the fact that every appellate court, both state and federal, to address the validity of traditional opposite-sex marriage laws under the United States Constitution has upheld them as rationally related to the state’s interest in responsible procreation and child-rearing. These rulings certainly are not attributable to a bare desire to harm gays and lesbians or a lack of rational reflection by the judges who rendered them. Nor can Plaintiffs’ claim stand up to - 3 - 
 

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the fact that President Obama and a host of other well-known champions of equal rights for gays and lesbians nonetheless support the traditional definition of marriage. Nor, finally, can Plaintiffs’ claim stand up to this simple truth: Every one of us, including the Members of this Court, is close to someone who opposes redefining marriage to include same-sex couples—they are our family members, our friends, our colleagues, our co-workers, and for some of us, ourselves. Are they (we) all either bigoted or benighted? To be sure, at the extreme edges on both sides of the public debate over same-sex marriage are those who are animated by hostility or irrational fears and prejudice. But this is true in virtually all hotly contested debates over divisive, controversial social issues. Such debates inflame passions and arouse deeply held values and beliefs, and all too often can devolve into partisan efforts to marginalize or, worse, to demonize the other side. See David Boies, Gay Marriage and the Constitution, WSJ, July 20, 2009 (traditional definition of marriage reflects nothing more than “the residue of centuries of figurative and literal gay-bashing”). But the overwhelming majority of people on both sides of the same-sex marriage debate, in California and throughout the country, are good and decent Americans, coming from all walks of life, all political parties, all races and creeds. Their opinions on this issue are motivated by nothing more than “a sincere desire to do what’s best for their marriages, their children, their society,” ER517 (Rauch), - 4 - 
 

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and are entitled to consideration and respect. And their opinions on this issue are not static, but rather are constantly evolving and changing as the debate and experience matures. See Jonathan Capehart, Obama Begins Shift on Gay Marriage, THE WASHINGTON POST, Oct. 28, 2010 (President Obama quoted as saying that attitudes on same-sex marriage evolve, “including mine.”). People of good will can and do differ in good faith on the issue of same-sex marriage, and their differences should be resolved through the political process, not here. ARGUMENT I. PROPONENTS HAVE STANDING. Plaintiffs cannot deny that the Supreme Court has held that a party has standing to defend the constitutionality of a state enactment where that party has “authority under state law” to represent the people’s interest in defending their laws when state officials refuse to do so. Karcher v. May, 484 U.S. 72, 82 (1987). In Karcher, the Supreme Court determined that intervening legislative officers had authority “as a matter of New Jersey law” to appear in lieu of the State’s executive officers because the State’s “Supreme Court has [previously] granted [legislative officers’] applications … to intervene as parties-respondent … in defense of a

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legislative enactment.” Id.1 Here, Plaintiffs admit that the California Supreme Court has likewise granted official initiative proponents leave to intervene to defend the validity of the measures they have sponsored when state officials refuse to do so. Pl. Br. 31 (citing Strauss v. Horton, 207 P.3d 48, 69 (Cal. 2009)). Indeed, in Strauss the California Supreme Court permitted these very Proponents to defend the very Proposition at issue in this case when the Attorney General would not do so. That should be the end of the matter, for Karcher is controlling where the state supreme court has permitted intervening parties to defend the State’s enactment “as agents of the people” when public officials refuse to do so. 2 Arizonans for Official English v. Arizona, 520 U.S. 43, 65 (1997).3
                                                            

Karcher did not reference, let alone rely upon, the New Jersey statutes cited by Plaintiffs. See Pl. Br. 31 n.7. 2 For this reason, Plaintiffs’ reliance on Don’t Bankrupt Washington Committee v. Continental Illinois National Bank of Chicago, 460 U.S. 1077 (1983), is misplaced, for that case did not involve California law, and neither the Supreme Court’s summary ruling nor the papers submitted by the initiative sponsors suggested that Washington law permits sponsors to intervene to defend their initiatives, as California law does. See Jurisdictional Statement in Don’t Bankrupt Washington Committee, No. 82-1445, at 3 (filed Feb. 25, 1983). 3 Plaintiffs claim that Arizonans “distinguished Karcher on the ground that ballot measure sponsors ‘are not elected representatives.’ ” Pl. Br. 31 (quoting Arizonans, 520 U.S. at 65). Here is what the Court said in full: “AOE and its members, however, are not elected representatives, and we are aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.” 520 U.S. at 65. Clearly, the salient distinction was the absence of Arizona law authorizing sponsors to defend initiatives on behalf of the State; the - 6 - 
 

1

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Plaintiffs nevertheless assert that “the California Supreme Court has authoritatively determined that initiative proponents lack standing to represent the State’s interests and are ‘in a position no different from that of any other member of the public.’ ” Pl. Br. 20 (quoting In re Marriage Cases, 183 P.3d 384, 406 (Cal. 2008)); see also Pl. Br. 32-33. But the party seeking leave to appear in In re Marriage Cases—the Proposition 22 Legal Defense & Education Fund (the “Fund”)—was not the official proponent of the challenged initiative. As the Court of Appeal explained, “the Fund itself played no role in sponsoring Proposition 22 because the organization was not even created until one year after voters passed the initiative.” City and County of San Francisco v. Proposition 22 Legal Defense and Educ. Fund, 128 Cal. App. 4th 1030, 1038 (2005). Accordingly, that court squarely held that “this case does not present the question of whether an official proponent of an initiative (Elec. Code, § 342) has a sufficiently direct and immediate interest to permit intervention in litigation challenging the validity of the law enacted.” Id. In concluding that this Fund lacked standing to defend Proposition 22, the California Supreme Court relied on the Court of Appeal’s holding in City and
                                                                                                                                                                                                 

Court certainly did not advance the extraordinary suggestion that Article III somehow forbids States from authorizing unelected individuals to defend the State against federal constitutional challenges to its ballot initiatives. Further, unlike Strauss, none of the Arizona cases cited by Plaintiffs, see Pl. Br. 32 n.8, allowed a proponent to intervene to defend a law when State officials would not. In all events, none of these decisions were brought to the Court’s attention in Arizonans. - 7 - 
 

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County of San Francisco. See In re Marriage Cases, 183 P.3d at 406 & n.8. At no point in its opinion did the California Supreme Court even hint that the Fund “represent[ed] the proponent of Proposition 22,” Pl. Br. 32, much less that it was an “initiative proponent[],” Pl. Br. 20. In contrast, the California Supreme Court’s subsequent holding in Strauss makes clear that the official proponents of an initiative, unlike advocacy groups or members of the general public, do have standing to defend their initiative in lieu of state officials who refuse to do so.4 In short, as Plaintiffs concede, Proponents’ standing to assert the State’s interest in the validity of the initiative they have sponsored “rises or falls” on whether California law has authorized them to do so. Pl. Br. 30-31. Strauss dispositively resolves that issue in Proponents’ favor, and Plaintiffs’ claim that In re Marriage Cases holds to the contrary is demonstrably mistaken. 5

                                                            

Plaintiffs’ erroneous description of In re Marriage Cases likewise fatally undermines their reliance on this precedent, see Pl. Br. 33, in response to Proponents’ alternative submission that they have standing to vindicate “their own particularized interest in defending an initiative they have successfully sponsored, an interest that is created and secured by California law.” See Prop. Br. 22-24. Plaintiffs also argue that, in order to create a particularized interest to defend an initiative, California must confer a cause of action on Proponents. Id. But the cases they cite for this proposition say only that this is one way in which a State may create an interest, and that method makes little sense in the context of standing to defend. 5 In all events, for the reasons set forth in our opening brief, see Prop. Br. 24-29, as well as in the opening and reply briefs of Imperial County, Imperial County also has standing to appeal and should have been allowed to intervene in this case. - 8 - 
 

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II.

THE DISTRICT COURT LACKED JURISDICTION TO GRANT INJUNCTIVE RELIEF TO PERSONS NOT BEFORE THE COURT. Even if this Court concludes that both Proponents and Imperial County lack

standing to appeal the judgment below, the Court is obliged to consider whether the district court exceeded its jurisdiction. In Arizonans, the Supreme Court squarely held that “[e]ven if we were to rule definitively that [appellants] lack standing, we would have an obligation essentially to search the pleadings on core matters of federal-court adjudicatory authority – to inquire not only into this Court’s authority to decide the questions petitioners present, but to consider, also, the authority of the lower courts to proceed.” 520 U.S. at 73. 1. As we have demonstrated, Prop. Br. 29-31, the district court clearly

exceeded its jurisdiction by awarding relief that Plaintiffs lacked standing to seek. Plaintiffs cannot deny that an injunction permitting them, and only them, to marry would have provided them with complete relief for the injuries they have alleged.6 Nor can they assert that they have standing to seek relief for the injuries of others not before the court. To the contrary, the Supreme Court has repeatedly held that, “[i]n the ordinary case, a party is denied standing to assert the rights of third persons.” Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 263
                                                            

See Smelt v. United States, No. 8:09-cv-0286-DOC-MLG, Doc. 36 at 4 (July 15, 2009) (attached as Exhibit A) (“As Plaintiffs’ marriage is valid within California, they cannot present an injury with respect to the recognition of their marriage by the State of California . . . and, therefore, they do not have standing to pursue their claims against the State of California.”). - 9 - 
 

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(1977); see also, e.g., Warth v. Seldin, 422 U.S. 490, 499 (1975) (plaintiff “generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties”).7 In accordance with this settled rule, this Court has held that a federal court “may not attempt to determine the rights of persons not before the court.” Zepeda v. INS, 753 F.2d 719, 726 (9th Cir. 1983). The Court explained that this rule is rooted in plaintiffs’ lack of standing to assert the interests of others absent certification as a class representative: [O]ur legal system does not automatically grant individual plaintiffs standing to act on behalf of all citizens similarly situated. A person who desires to be a “self-chosen representative” and “volunteer champion,” Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 549, (1949), must qualify under rule 23. To be sure, failure to grant class relief may leave a government official – temporarily – in a position to continue treating nonparties in a manner that would be prohibited with respect to named plaintiffs. But that is the nature of the relief. Id. at 728 n.1. Accordingly, the Court held that where, as here, a district court has issued an injunction violating this limitation on its power, this Court “must vacate and remand,” for “the injunction must be limited to apply only to the individual
                                                            

This “ordinary” rule applies “generally,” not invariably, because a district court may “entertain suits which will result in relief for parties that are not themselves directly bringing suit,” but only when the party bringing the suit has been legally authorized to represent the absent party, as in the case of a trustee, a guardian ad litem, or class representative certified pursuant to Fed. R. Civ. P. 23. Sprint Communications Co., L.P. v. APCC Servs., 128 S. Ct. 2531, 2543 (2010). - 10 - 
 

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plaintiffs unless the district judge certifies a class of plaintiffs.” Id. at 727. Plaintiffs argue that “this Court limited Zepeda to its facts,” restricting the rule to preliminary injunction cases. Pl. Br. 106 (citing Bresgal v. Brock, 843 F.2d 1163, 1169 (9th Cir. 1988)). But this Court upheld the injunction in Bresgal because in that case, unlike Zepeda or here, an injunction “extending benefit or protection to persons other than the prevailing parties in the lawsuit … is necessary to give prevailing parties the relief to which they are entitled.” Bresgal, 843 F.2d at 1170-71. In contrast, the Court emphasized, “in Zepeda we noted expressly that in that case the injunctive relief requested could ‘be granted to the individual plaintiffs without the relief inevitably affecting the entire class.’ ” Id. at 1170 (quoting Zepeda, 753 F.2d at 729 n.1). That Zepeda was a preliminary injunction case clearly was not dispositive, as demonstrated by the Bresgal Court’s extensive analysis of whether a broad injunction was necessary to provide complete relief for plaintiffs. In any event, this Court has subsequently applied the rule that injunctive relief may not extend beyond the plaintiffs absent class certification in a permanent injunction case. See Meinhold v. U.S. Dep’t of Defense, 34 F.3d 1469, 1480 (9th Cir. 1994) (vacating injunction prohibiting the Defense Department from discharging any person from the service based on sexual orientation where action was not brought as a class action “except to the extent it enjoins DOD from discharging Meinhold”). - 11 - 
 

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The other case on which Plaintiffs rely, Doe v. Gallinot, 657 F.2d 1017, 1025 (9th Cir. 1981), also merely upheld injunctive relief extending beyond the plaintiffs as “ ‘further necessary or proper relief’ to effectuate the judgment” in favor of the plaintiff. In any case, this Court’s subsequent decisions make clear that “injunctive relief generally should be limited to apply only to named plaintiffs where there is no class certification” except in cases where a broader injunction is necessary to provide complete relief to plaintiffs. Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1501-02 (9th Cir. 1996).8 Other Circuits have applied the same rule. For example, the First Circuit, in an opinion joined by then-Judge Breyer, invoked this Court’s decision in Zepeda to vacate an injunction sweeping beyond the individual plaintiff because classwide injunctive relief “is appropriate only where there is a properly certified class” unless a broader injunction is necessary to give the plaintiffs the relief to which they are entitled. Brown v. Trustees of Boston Univ., 891 F.2d 337, 361 (1st Cir. 1989) (citing Zepeda, 753 F.2d at 727-28 & n.1); see also Sharpe v. Cureton, 319 F.3d 259, 273 (6th Cir. 2003); Everhart v. Bowen, 853 F.2d 1532, 1539 (10th Cir. 1988) (following Zepeda), rev’d on other grounds sub nom, Sullivan v. Everhart,
                                                            

In Easyriders, for example, the injunction against California Highway Patrol officers’ enforcement of California’s motorcycle helmet law could not have been practically limited to plaintiffs since officers would have no way of knowing whether a particular motorcyclist was one of “the named plaintiffs or a member of Easyriders, [so] the plaintiffs would not receive the complete relief to which they were entitled without statewide application of the injunction.” Id. at 1502. - 12 - 
 

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494 U.S. 83 (1990); McKinnon v. Patterson, 568 F.2d 930, 940 (2d Cir. 1977) (“Even as to declaratory relief, … the fact that this suit is not a class action precludes the judgment from being applied to prisoners other than the three named plaintiffs”). While the Supreme Court has yet to address this precise issue, it has considered the closely analogous question whether the actual injuries suffered by plaintiffs can support a broader injunction addressing inadequacies different from those that had produced plaintiffs’ injury-in-fact. Lewis v. Casey, 518 U.S. 343, 357 (1996). The Court concluded that such an injunction is improper, holding that Article III’s “actual-injury requirement” necessarily means that a “remedy must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has established.” Id. The same logic applies here, and limits the district court’s jurisdiction to providing relief for “the injury in fact that the plaintiff[s in this case have] established.” Id. 2. It is especially critical that this Court strictly enforce the limits of the

district court’s jurisdiction and Plaintiffs’ standing given the unique circumstances of this case. “The essence of the standing inquiry is whether the [plaintiffs] … have alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” - 13 - 
 

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Larson v. Volente, 456 U.S. 228, 238-39 (1982) (quotation marks omitted). Here however, if Plaintiffs’ submission that Proponents lack standing is to be credited (and as we have demonstrated, it should not be), that “concrete adverseness” was wholly absent below, for the named defendants were either silent or actively assisting the Plaintiffs. But rather than simply entering a narrow default judgment awarding relief to the four individual Plaintiffs, the district court issued a sweeping constitutional decision nullifying, across the board, a democratically enacted amendment to California’s constitution that reaffirms and reinstates the traditional understanding and structure of society’s oldest institution. The Supreme Court has cautioned against permitting the federal courts to be improperly used to achieve policy results that cannot be obtained in the political process, observing that “public officials sometimes consent to, or refrain from vigorously opposing, decrees that go well beyond what is required by federal law.” Horne v. Flores, 129 S. Ct. 2579, 2594 (2009); see also id. (citing study showing that “government officials may try to use consent decrees to ‘block ordinary avenues of political change’ or to ‘sidestep political constraints’ ”). That is precisely what is threatened here if this Court simultaneously accepts Plaintiffs’ claims that Proponents and Imperial County lack standing to appeal yet fails to enforce the clear limitations on the district court’s jurisdiction. Whatever one’s position on the highly controversial question whether the - 14 - 
 

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State of California should fundamentally redefine the age-old institution of marriage to include same-sex couples, our constitutional system surely does not permit a single federal district court judge, acting on the complaint of four individual plaintiffs in concert with a handful of carefully selected official defendants, all of whom wish to overturn the results of the election, to impose such a revolutionary cultural change on the State as a whole without appellate review. Any federal constitutional right that Plaintiffs may conceivably possess would be fully vindicated by an order limited to them. III. BINDING PRECEDENT FORECLOSES PLAINTIFFS’ CLAIMS. Binding precedent from the Supreme Court and this Court mandate reversal of the district court’s ruling. See Baker v. Nelson, 409 U.S. 810 (1972); Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982). These decisions, like those of every other state or federal appellate court to consider the question, see Prop. Br. 46-47, hold that the traditional definition of marriage does not violate the Federal Constitution. 1. As a summary decision on the merits, Baker constitutes “controlling

precedent, unless and until re-examined by [the Supreme] Court.” Tully v. Griffin, Inc., 429 U.S. 68, 74 (1976). And whatever precedential force it may have in the Supreme Court, see Pl. Br. 34, “a summary dismissal for want of a substantial federal question fully binds the lower courts.” Carpenters Pension Trust v. - 15 - 
 

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Kronschnabel, 632 F.2d 745, 748 (9th Cir. 1980); ROBERT L. STERN ET AL., SUPREME COURT PRACTICE 281 (8th ed. 2002) (“lower courts are to grant [Supreme Court summary dispositions] the same respect as other holdings of higher tribunals”). To undermine the controlling force of a summary disposition, subsequent “ ‘doctrinal developments’ in the Supreme Court’s jurisprudence,” Pl. Br. 35 (quoting Hicks v. Miranda, 422 U.S. 332, 344-45 (1975)), must be necessarily incompatible with the earlier decision and plainly demonstrate that it has been overruled. Any more relaxed approach would be irreconcilable with the Supreme Court’s repeated admonitions that lower courts may not on their own authority renounce binding precedent: We do not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent. We reaffirm that if a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions. Agostini v. Felton, 521 U.S. 203, 237-38 (1997); see also, e.g., Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989); State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (“Despite what Chief Judge Posner aptly described as Albrecht’s “infirmities, [and] its increasingly wobbly, moth-eaten foundations, … [t]he Court of Appeals was correct in applying [the] principle [of - 16 - 
 

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stare decisis] despite disagreement with Albrecht, for it is this Court’s prerogative alone to overrule one of its precedents.”). “[B]inding authority,” in other words, “is very powerful medicine. A decision of the Supreme Court will control that corner of the law unless and until the Supreme Court itself overrules or modifies it.” Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001). The Supreme Court plainly has not repudiated Baker’s due process or equal protection holdings, either expressly or through “doctrinal developments.” Indeed, in Lawrence v. Texas, 539 U.S. 558 (2003), Plaintiffs’ primary post-Baker due process case, the Court went out of its way to emphasize that the case did “not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter,” id. at 578. Plaintiffs’ other due process cases, Turner v. Safley, 482 U.S. 78 (1987), and Zablocki v. Redhail, 434 U.S. 374, 384 (1978), both addressed traditional opposite-sex marriage and recognized the connection between marriage and its procreative purposes. See Prop. Br. 69-70 & n.33. And both decisions expressly followed Loving v. Virginia, 388 U.S. 1 (1967), which was decided five years before Baker. See Zablocki, 434 U.S. at 383 (identifying Loving as “[t]he leading decision[ ] on the right to marry”); Turner, 482 U.S. at 94-95 (holding that the fundamental right to marry “under Zablocki … and Loving … appl[ies] to prison inmates”). - 17 - 
 

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The Supreme Court has likewise never indicated post-Baker that the Equal Protection Clause protects a right to marry a person of the same sex. Romer v. Evans had nothing to do with marriage, and neither held nor even implied that classifications affecting gays and lesbians were subject to anything other than “conventional” rational basis scrutiny under the Equal Protection Clause. 517 U.S. 620, 631-32 (1996). And while the Court has refined its sex discrimination jurisprudence since Baker was decided, it had, prior to that decision, already clearly “depart[ed] from ‘traditional’ rational-basis analysis with respect to sexbased classifications.” Frontiero v. Richardson, 411 U.S. 677, 684 (1973) (plurality) (discussing Reed v. Reed, 404 U.S. 71 (1971)). 2. Plaintiffs’ attempt to portray Baker as not presenting an issue of

sexual orientation discrimination is untenable. Not only did the Jurisdictional Statement spend several pages arguing that Minnesota’s adherence to the traditional definition of marriage was attributable solely to “the continuing impact on our society of prejudice against non-heterosexuals,” it also plainly argued that this adherence subjected “the class of persons who wish to engage in single sex marriages” to “invidious discrimination.” ER 1609-10. Plaintiffs also attempt to distinguish Baker on the grounds that (1) California recognized same-sex relationships as marriages for a few brief months before the voters’ swift reversal of In re Marriage Cases, and (2) California has - 18 - 
 

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accommodated the interests of gays and lesbians by continuing to recognize 18,000 same-sex marriages entered prior to the enactment of Proposition 8 and by recognizing other same-sex relationships as domestic partnerships, which afford essentially the same substantive rights as marriage. The first distinction is nothing more than a historical accident of no constitutional moment. See also infra at 7580. And surely California’s generous efforts to accommodate same-sex couples do not place its marriage laws on a weaker foundation than the laws upheld in Baker. Indeed, any distinction of Baker on this ground would create a perverse incentive for States that wish to preserve the traditional definition of marriage to maintain “an outright refusal … to afford any recognition to same-sex relationships.” Pl. Br. 37. 3. This Court’s decision in Adams v. Howerton, 673 F.2d 1036 (9th Cir.

1982), also mandates reversal of the district court’s decision. Although the case arose in the context of immigration law, this Court nonetheless applied traditional rational-basis review: “We need not … delineate the exact outer boundaries of [the] limited judicial review” that applies in the immigration context, this Court explained, because “[w]e hold that Congress’s decision to confer spouse status … only upon the parties to heterosexual marriages has a rational basis.… There is no occasion to consider in this case whether some lesser standard of review should apply.” Id. at 1042. And contrary to Plaintiffs’ contention, see Pl. Br. 38-39, - 19 - 
 

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Adams is no more undermined by Lawrence or Romer than is Baker. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). 4. As we have demonstrated, Prop. Br. 46-47, the decision below stands

in stark conflict not only with Baker and Adams, but the uniform judgment of appellate courts across the country. Although Plaintiffs, like the district court, do not even address these decisions, they plainly confirm that the decision below must be reversed. IV. THIS COURT OWES NO DEFERENCE TO THE DISTRICT COURT’S RULING. 1. Plaintiffs argue that every so-called “finding of fact” made by the

district court ought to be afforded the deference that would be given to a lower court’s findings of fact regarding, say, a traffic accident. Constitutional law simply does not proceed in this manner—not in the Supreme Court, not in this Court, not in any appellate court in the country. It is well-settled that “[l]egislative facts … are those which have relevance to legal reasoning and the lawmaking process, whether in the formulation of a legal principle or ruling by a judge or court or in the enactment of a legislative body.” FED. R. EVID. 201(a), advisory comm. note to 1972 amendments. In determining legislative facts, a “judge is unrestricted in his investigation and conclusion,” and “may make an independent search for persuasive data.” Id. “This … view … renders inappropriate any limitation in the form of indisputability, and formal - 20 - 
 

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requirements of notice other than those already inherent in affording opportunity to hear and be heard and exchanging briefs, and any requirement of formal findings at any level.” Id. This Court has repeatedly recognized this distinction. See, e.g., Marshall v. Sawyer, 365 F.2d 105, 111 (9th Cir. 1966); United States v. $124,570 U.S. Currency, 873 F.2d 1240, 1244-45 (9th Cir. 1989); cf. Valdivia v. Schwarzenegger, 599 F.3d 984, 994 (9th Cir. 2010). Given these principles, it is plain that an appellate court’s treatment of legislative facts does not in any way turn on whether the lower court held a trial or on the contents of the record below, however it was compiled. Simply put, “[t]here are limits to which important constitutional questions should hinge on the views of social scientists who testify as experts at trial.” Dunagin v. City of Oxford, 718 F.2d 738, 748 n.8 (5th Cir. 1983) (en banc) (plurality); see also Lockhart v. McCree, 476 U.S. 162, 168-69 & n.3 (1986). As a leading treatise on evidence explains: If the social science materials were not clearly inclined to sustain only one conclusion, and the ruling were treated as a factual ruling, the ruling, whichever way it came out, could not be reversed because it would not be clearly erroneous. Law would come to turn on fact and be susceptible to two right answers. This is not going to happen. Legislative facts are not ‘evidence’ in the normal sense of the word. MCCORMICK ON EVIDENCE § 334, at 457 (6th ed., Kenneth Brown, ed. 2006). Not surprisingly, the contrary rule urged by Plaintiffs is flatly inconsistent with the Supreme Court’s approach to legislative facts, even in the very cases on - 21 - 
 

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which Plaintiffs rely. In Brown v. Board of Education, 347 U.S. 483 (1954), for example, the Court did cite a finding made in one of the four cases under review that supported its holding. Id. at 494 n.10, 495. But the judge below did not “rest his decision on that ground,” id. at 486 n.1, nor did the Court purport to defer to it. Indeed, to support its holding, the Court also cited directly to “modern authority” consisting of several works of social science. Id. at 494 n.11. Similarly, while the Court in United States v. Virginia, 518 U.S. 515 (1996), did discuss a trial held below, it proceeded to reject the trial court’s conclusion that an interest in educational diversity supported the State’s maintenance of the Virginia Military Institute as an all-male institution, relying instead on several works of historical scholarship, among other things. See id. at 523-24, 535-40. These cases are by no means unique. Compare, e.g., Grutter v. Bollinger, 137 F. Supp. 2d 821, 851 (E.D. Mich. 2001) (concluding, based on findings of fact, that affirmative action program was not narrowly tailored and was “practically indistinguishable from a quota system”), with Grutter v. Bollinger, 539 U.S. 306, 335-36 (2003) (offering no statement of deference to district court and finding that evidence showed the program was “not transform[ed] … into a quota” and “b[ore] the hallmarks of a narrowly tailored plan”). These and many similar cases plainly cannot be reconciled with any rule requiring deference to district courts’ legislative

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factfinding.9 The Court’s established practice in constitutional cases no doubt explains why in Lockhart v. McCree, 476 U.S. 162, 169 n.3 (1986), the Supreme Court was “far from persuaded … that the ‘clearly erroneous’ standard of Rule 52(a) applies to … ‘legislative’ facts.” Not surprisingly, every court of appeals that has considered the issue has found de novo review to be appropriate. Prop. Br. 37 (citing cases).10

                                                            

Plaintiffs argue that the Supreme Court sometimes adopts findings without discussing the standard of review. Pl. Br. 27-28 (citing Reno v. ACLU, 521 U.S. 844, 849 (1997) (adopting stipulated facts); Plyler v. Doe, 457 U.S. 202, 207 (1982) (accepting trial court’s findings without discussing standard of review)). But even applying de novo review, the Court is of course free to adopt trial court findings if it finds them correct.   10 Plaintiffs claim that Service Employees International Union v. Fair Political Practice Commission, 955 F.2d 1312 (9th Cir. 1992), establishes that there is not “a different standard of review for legislative facts.” Pl. Br. 25. There, the district court made findings regarding the dollar amounts raised by incumbents and challengers during various election cycles, and this Court subjected “these findings” to the clearly erroneous standard of review. Id. at 1317. But when the SEIU Court turned to evaluating matters more like those at issue here, it conducted an independent review. See id. at 1318, 1321 (“we now turn to the question whether viewpoint and content neutral contribution limits that discriminate against challengers and their supporters offend the Constitution”; finding, without citing any district court findings on the matter, that “the state has a legitimate interest in preventing corruption” but that “appellants have made no showing that limiting contributions on a fiscal year basis advances this interest”). In all events, the Supreme Court’s cases control, and it is simply not true that that Court uniformly defers to findings of “discriminatory impact,” as Plaintiffs claim. Pl. Br. 25. Compare Valtierra v. Housing Auth. of the City of San Jose, 313 F. Supp. 1, 5 (N.D. Cal. 1970) (finding that “impact” of a referendum “falls upon minorities”), with James v. Valtierra, 402 U.S. 137, 141 (1971) (affording no deference to - 23 - 
 

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2.

Plaintiffs also seek to characterize several of the district court’s

purported findings as “adjudicative” facts. But “the specific effects” of Proposition 8, Pl. Br. 25—including whether it imposes “stigmas against gays and lesbians,” ER 120, “legitimates [their] unequal treatment,” ER 128, or “perpetuate[s] … stereotype[s]” about them, id.—are paradigmatic legislative facts. See, e.g., Dunagin, 718 F.2d at 748 n.8 (district court’s “finding” that an alcohol-advertisement regulation did not have the effect of preventing increased alcohol consumption was “a legislative and not an adjudicative fact” and thus was not subject to “a clearly erroneous standard of review”); Yocum v. Greenbriar Nursing Home, 130 P.3d 213, 220 n.32 (Okla. 2005) (“[L]egislative facts” include “those which are helpful to a court in determining the … effect … of enactments.”). And determinations about the “meaning” of campaign themes and messages, Pl. Br. 25—including purported “assum[ptions]” inherent in the Proposition 8 campaign, ER 108, and messages “insinuated” by campaign advertisements, ER 140—plainly encompass broad conclusions about the social and psychological impact of political messaging. See, e.g., Equality Found. of
                                                                                                                                                                                                 

district court’s finding and concluding that “the record … would not support any claim that [the] law … is in fact aimed at a racial minority”). Plaintiffs also claim that in Hunter v. Regents of the University of California, 190 F.3d 1061 (9th Cir. 1999), this Court deferred to a “district court’s findings that school admissions requirements satisfied strict scrutiny.” Pls. Br. 26. But Hunter predates Grutter, which makes clear that findings regarding compelling interests and narrow tailoring are not subject to deferential review. - 24 - 
 

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Greater Cincinnati, Inc. v. City of Cincinnati, 54 F.3d 261, 264 n.1, 265 (6th Cir. 1995), vacated on other grounds, 518 U.S. 1001 (1996) (holding that “most, if not all, of the lower court’s findings”—including, inter alia, that “campaign materials were riddled with unreliable data, irrational misconceptions and insupportable misrepresentations about homosexuals”— “constituted ultimate facts and interrelated applications of law, sociological judgments, mixed questions of law and fact, and/or findings designed to support ‘constitutional facts’ ” and were thus subject to “plenary review”). 3. Plaintiffs’ effort to rehabilitate the district court’s erroneous

application of rational-basis review fares no better. The district court plainly (and improperly) imposed a burden of production, if not the burden of proof, on Proponents to sustain Proposition 8’s rationality. See Prop. Br. 32-35. The fact that this Court has held that the party challenging a law may, in certain circumstances, introduce evidence and build a factual record in an attempt to meet its burden of disproving “any reasonably conceivable state of facts that could provide a rational basis” for the law does not excuse the district court’s engaging in standard “courtroom factfinding” with respect to Proposition 8’s rationality. Heller v. Doe, 509 U.S. 312, 320 (1993). See Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 591-92 (9th Cir. 2008) (explaining that “our circuit has allowed plaintiffs to rebut the facts underlying defendants’ asserted rationale for a classification, to - 25 - 
 

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show that the classification could not reasonably be viewed to further the asserted purpose” and citing Lockary v Kayfetz, 917 F.2d 1150 (9th Cir. 1990), as an example of such a case). V. THE TRADITIONAL DEFINITION OF MARRIAGE DOES NOT VIOLATE PLAINTIFFS’ FUNDAMENTAL RIGHT TO MARRY. We have demonstrated that under controlling Supreme Court precedent, it is simply impossible to find a free-standing fundamental right to have a same-sex relationship recognized as a marriage. See Prop. Br. 48-50. Plaintiffs do not—and cannot plausibly—contend otherwise. Rather, they seek to shoehorn such a right into the right to marry that has been recognized by the Supreme Court by redefining that right in a manner utterly inconsistent with history and precedent. 1. Plaintiffs do not dispute that prior to the last decade, marriage has

always been limited to opposite sex unions in this Country and indeed in virtually every society throughout history. Nor do they dispute that the same rule continues to prevail today in the overwhelming majority of jurisdictions in this Country and throughout the world. And they cannot deny that marriage has been uniformly defined as the union of man and woman by dictionaries, legal treatises, and other eminent authorities throughout history. See Prop. Br. 51-60.11 Given that
                                                            

Contrary to Plaintiffs’ claim, see Pl. Br. 40, Proponents repeatedly brought many of these sources demonstrating the deeply rooted, historical understanding to the district court’s attention. See, e.g., ER 1453-59, 1469-75, 1514-19; ER 173739, 1742-44, 1756-58, 1760-62, 1766; ER 1775-84. In all events, as demonstrated - 26 - 
 

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fundamental due process rights are defined by this Nation’s “history, legal traditions, and practices,” Washington v. Glucksberg, 521 U.S. 702, 721 (1997), Plaintiffs’ claim that the traditional opposite-sex definition of marriage reaffirmed by Proposition 8 violates their fundamental right to marry is simply untenable. The same authorities also demonstrate that an animating purpose of marriage in every society throughout history has been to regulate sexual relationships between men and women to increase the likelihood that the unique procreative potential of such relationships benefits rather than harms society— specifically, by increasing the chances that the children resulting from those relationships will be born and raised in stable family units by both the mothers and the fathers who brought them into the world. Indeed, Plaintiffs are forced to concede that this societal purpose is served by marriage, see Pl. Br. 49, ER 1785, though they labor mightily to avoid its import by dismissing it as merely one of many marital purposes. To be sure, in various times and places marriage has served other societal purposes in addition to responsible procreation, and no doubt individuals marry, as they always have, for a wide variety of personal reasons. But no purpose other than responsible procreation can explain why marriage is so universal, so critical to society, or even why it exists at all—let alone why it has existed in every civilized society throughout history.
                                                                                                                                                                                                 

above, this Court’s review of the definition and scope of the fundamental right to marry is in nowise limited to the trial record. See supra at 20-23. - 27 - 
 

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2.

Plaintiffs claim that recognizing the overriding procreative purposes

of marriage necessarily implies that the fundamental right to marry does not extend to infertile opposite-sex couples, and perhaps even that a State could eliminate marriage entirely if it determined that marriage no longer served those purposes. Pl. Br. 40. In so arguing, Plaintiffs fail to grasp the point either of our position or the Supreme Court precedents on which it is based: namely, that the scope of fundamental due process rights is determined by this Nation’s history, traditions, and legal practices. And these sources make clear that the right to marry extends to opposite-sex couples as a class and does not inquire into fertility on a case-bycase basis. The overwhelming evidence recognizing the procreative purposes of marriage certainly makes clear why the right to marry has never included same-sex relationships—which as a class are never fertile—as well as why marriage is both vital and ubiquitous. But these purposes do not limit, nor would they warrant the contraction of, the right to marry beyond its established historical contours. Simply put, there is not, and has never been, a requirement of perfect fit between a right and its animating purposes. Cf. District of Columbia v. Heller, 128 S. Ct. 2783, 2789 (2008) (explaining that the Second Amendment’s prefatory clause “announces a purpose” but does not limit operative right); id. at 2817 (“the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right”); - 28 - 
 

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McDonald v. City of Chicago, 130 S. Ct. 3020, 3042 (2010) (holding that the right to keep and bear arms is a fundamental right incorporated by the due process clause of the Fourteenth Amendment).12 In all events, the alternative purposes for marriage posited by Plaintiffs and the district court not only lack the explanatory power and universal recognition of the procreative purposes repeatedly articulated by eminent authorities throughout the ages, they also afford no better fit with the history, traditions, and practice of marriage in this or any other Nation. For while marriage has never been conditioned on a couple’s ability and desire to have children, neither has it been conditioned on a couple’s actual ability and desire to find “happiness” together, or their actual “personal dedication” to or even “affection” for each other. Pl. Br. 4445. 3. Plaintiffs labor mightily to cull support for their novel interpretation

of the fundamental right to marry by selectively stringing together handpicked quotations from Supreme Court precedents. But they simply cannot avoid the
                                                            

Plaintiffs also assert that acknowledging the procreative purposes served by marriage risks expanding the fundamental right to marry to include prohibited but potentially fertile relationships such as incestuous or polygamous relationships, Pl. Br. 50 n.13, but this contention fails for the same reason. To the contrary, as the amicus States have demonstrated, it is the abstract, ahistorical right asserted by Plaintiffs “to select the partner of one’s choice” that would subject to exacting and perhaps fatal scrutiny the limits the States have traditionally placed on that choice relating to consanguinity, marital status, and even age. See States of Indiana, Virginia, et al. Br. 31-34 (“States Br.”). - 29 - 
 

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facts that (1) every Supreme Court decision that has upheld the fundamental right to marry has involved the union of a man and a woman, (2) the only Supreme Court decision to consider whether this right extended to same-sex couples unanimously and summarily rejected that suggestion, and (3) the Supreme Court cases addressing the right to marry have repeatedly emphasized the abiding connection between marriage and the unique procreative potential of sexual relationships between men and women. See Prop. Br. at 51, 69-70. Contrary to Plaintiffs’ suggestions, Lawrence v. Texas, 539 U.S. 558 (2003), did not hold or imply that the fundamental right to marry confers a right to have a same-sex relationship recognized as a marriage. The Court did hold that a State could not infringe an individual’s autonomy to enter an intimate relationship with a person of the same sex by criminalizing “the most private human conduct, sexual behavior, and in the most private of places, the home.” Id. at 567. Although Plaintiffs attempt, through ellipses and selective quotation, to draw from Lawrence support for a right to have such a relationship recognized as a marriage, they simply cannot overcome that Court’s clear statement that the case did “not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Id. at 578; see also id. at 567 (explaining that Texas’s sodomy prohibition sought “to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of - 30 - 
 

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persons to choose without being punished as criminals”); id. at 585 (O’Connor, J., concurring in judgment) (expressly distinguishing marriage from the law at issue in Lawrence). Indeed, marriage is itself official public recognition and regulation of a couple’s union and is thus the very antithesis of the right to be let alone vindicated in Lawrence: as Plaintiffs themselves emphasize, instead of privacy and autonomy, they seek formal government recognition of their relationships as a marriage “to demonstrate publicly their commitment to one another.” Pl. Stay Opp. 3. Plaintiffs likewise trumpet the Supreme Court’s statements regarding “freedom of personal choice in matters of marriage,” Cleveland Bd. of Educ. v. La Fleur, 414 U.S. 632, 639 (1974), and the importance of the right to marry “for all individuals.” Zablocki v. Redhail, 434 U.S. at 384. But these statements do not get Plaintiffs very far, for the question in this case is not, as Plaintiffs would have it, who has the right to marry but rather what the right to marry is. And try as they might, Plaintiffs cannot avoid the clear answer that history and precedent provide to that question. Nor do the Supreme Court cases cited by Plaintiffs support their attempt to divorce the right to marry from its traditional procreative purposes. As we have demonstrated, see Prop. Br. 69-70 & n.33, both Zablocki and Turner v. Safley, 482 U.S. 78 (1987), upheld the right of a woman to marry a man, and both recognized - 31 - 
 

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marriage’s abiding concern with the procreative potential of such opposite-sex relationships. That Zablocki may have discussed other rights, as well as the right to marry, and that Turner may have recognized purposes served by marriage in addition to responsible procreation is in no way inconsistent with the traditional understanding of marriage and its purposes. Plaintiffs’ reliance on Griswold v. Connecticut, 381 U.S. 479 (1965), is likewise unavailing. To be sure, that decision struck down a prohibition on contraceptive devices, finding a right to privacy that protects an individual’s choice not to procreate. As later cases confirmed, however, this privacy right is distinct from marriage and extends to single individuals as well. See Eisenstadt v. Baird, 405 U.S. 438, 454-55 (1972). While this privacy right certainly helps explain why States have never closely inquired into opposite-sex couples’ childbearing ability or intentions as a precondition to marriage, it just as certainly does not negate marriage’s abiding concern with the procreative potential of such couples.13
                                                            

Even farther afield are Boddie v. Connecticut, which vindicated the principle that “persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard,” 401 U.S. 371, 377 (1971), and Moore v. City of East Cleveland, which struck down a law making it a crime for a grandmother to live with her grandson in light of the “venerable” “tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children,” 431 U.S. 494, 504 (1977). The fact that individuals, including married individuals, have other due process rights in addition to the fundamental right to marry simply does not bear on the scope of that right or its purposes.
 

13

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4.

Plaintiffs also seek to recycle the district court’s flawed historical

analysis of the institution of marriage, largely ignoring our thorough rebuttal of the district court’s reasoning. But like the district court, Plaintiffs fail to refer to a single dictionary, treatise, law, or other historical source defining marriage. Instead, they offer a definition of marriage that cannot be found in any such historical source, because it was invented by one of their expert witnesses for purposes of this case: “[M]arriage is ‘a couple’s choice to live with each other, to remain committed to one another, and to form a household based on their own feelings about one another, and their agreement to join in an economic partnership and support one another in terms of the material needs of life.’ ” Pl. Br. 47. While this carefully formulated definition no doubt describes some of the purposes marriage has served in some societies, it is most noteworthy for its forced, tendentious attempt to cleanse from marriage any reference to the gender of the spouses or the procreative purposes served by the institution—references that we have demonstrated are ubiquitous in genuine historical definitions and descriptions of marriage. Plaintiffs also repeatedly invoke the tired canard that despite the testimony of eminent authorities throughout the ages, marriage cannot be designed to channel potentially procreative sexual relationships into stable family units for the benefit of any resulting children because societies have throughout history chosen to rely - 33 - 
 

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on “the common-sense proposition,” Vance v. Bradley, 440 U.S. 93, 112 (1979), that opposite-sex relationships are in general potentially procreative rather than to undertake burdensome, intrusive, and ultimately ineffective efforts to determine the fertility and childbearing intentions of individual couples seeking to marry on a case-by-case basis. We have already demonstrated that this argument is badly flawed and has been repeatedly rejected by appellate courts throughout the Nation. See Prop. Br. at 60-64. Plaintiffs offer no meaningful response to our arguments and do not even acknowledge the numerous cases squarely dismissing Plaintiffs’ contentions. 5. Finally, Plaintiffs embrace the district court’s efforts to liken the

traditional, opposite-sex definition of marriage to the antimiscegenation laws and coverture restrictions on married women’s rights that once applied in some jurisdictions. But we have already demonstrated that, unlike the traditional opposite-sex definition of marriage, such laws were never a universal—let alone defining—feature of marriage. See Prop. Br. at 64-68. Although Plaintiffs’ expert may claim that antimiscegenation laws were viewed “as very important definitional features of who could and should marry, and who could not and should not,” Pl. Br. 48, Plaintiffs offer not one scrap of historical support for this bald assertion, and contemporaneous dictionaries, treatises, and the legal history of antimiscegenation laws in this country demonstrate that it is simply false. See, - 34 - 
 

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e.g., Prop. Br. 65-66 (contrasting leading 19th century treatise’s recognition of the universal requirement that marriage partners “be of different sex” with its discussion of racial restrictions on marriage that applied only “in particular countries, or States”); id. at 52-53 (collecting historical dictionary definitions of marriage, none of which define marriage with reference to race); id. at 65 (explaining that racial restrictions on marriage were never a part of the common law and never existed in many States); High Impact Leadership Coalition et al. Br. 2-4 (same). * * *

In short, history and precedent do not support, but squarely foreclose, Plaintiffs’ claim that the definition of marriage that has prevailed in virtually every society throughout every period of history somehow violates the fundamental right to marry. VI. PROPOSITION 8 IS SUBJECT TO RATIONAL BASIS SCRUTINY UNDER THE EQUAL PROTECTION CLAUSE. A. Binding precedent establishes that gays and lesbians do not constitute a suspect or quasi-suspect class.

A long line of authority from this Court, beginning with High Tech Gays v. Defense Industrial Services Clearing Office, 895 F.2d 563, 571 (9th Cir. 1990), establishes that “homosexuals do not constitute a suspect or quasi-suspect class entitled to greater than rational basis scrutiny,” id. at 573-74; see Fam. Res. - 35 - 
 

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Council Br. 19 n.20. Plaintiffs contend that because High Tech Gays “premised its equal protection analysis on Bowers v. Hardwick, 478 U.S. 186 (1986),” this authority has been undermined by Lawrence. Pl. Br. 68-69. But while High Tech Gays did observe that Bowers was “incongruous” with deeming gays and lesbians members of a suspect or quasi-suspect class, it also independently analyzed the case for heightened scrutiny and found it wanting. 895 F.2d at 571, 573-74. After setting forth the requirements for such treatment—a history of discrimination, immutability, and political powerlessness—this Court held that gays and lesbians met the first but failed the latter two. Id. at 573-74. This analysis “compel[led]” the holding “that homosexuals do not constitute a suspect or quasi-suspect class entitled to greater than rational basis scrutiny.” Id. at 574. That holding and analysis are controlling here. This Court, of course, has already determined as much in Witt v. Department of the Air Force, 527 F.3d 806, 821 (9th Cir. 2008). See Prop. Br. 70-71 n.34.14 Contrary to Plaintiffs’ contentions, see Pl. Br. 69 n.19, the issue preserved by the plaintiff in Witt for potential en banc consideration was not whether Lawrence
                                                            

This Court’s sister circuits have likewise uniformly continued to apply rational-basis review in this context post-Lawrence. See Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Scarbrough v. Morgan County Bd. of Educ., 470 F.3d 250, 261 (6th Cir. 2006); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866-67 (8th Cir. 2006); PriceCornelison v. Brooks, 524 F.3d 1103, 1114 (10th Cir. 2008); Lofton v. Secretary of the Dep’t of Children & Family, 358 F.3d 804, 818 (11th Cir. 2004). - 36 - 
 

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upset circuit precedent rejecting heightened equal protection scrutiny for gays and lesbians, but simply whether the line drawn by the military’s Don’t Ask Don’t Tell policy between “gay and straight” service members failed even rational-basis review. See Brief of Appellant at 49-50, Witt (No. 06-35644). Nor does Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010), in any way undermine High Tech Gays’ continuing force. While the Court in that case stated in passing that its “decisions have declined to distinguish between [homosexual] status and conduct,” id. at 2990, it did not even address, let alone purport to resolve, whether gays and lesbians constitute a suspect or quasi-suspect class under the Equal Protection Clause. At any rate, to the extent the Court’s passing observation has any relevance here, it simply underscores the degree to which “[h]omosexuality … is fundamentally different from traits such as race, gender, or alienage, which define already existing suspect and quasi-suspect classes,” because “[t]he behavior or conduct of such already recognized classes is irrelevant to their identification,” High Tech Gays, 895 F.2d at 573-74, not integral to it, as Christian Legal Society suggests is the case for homosexuals.15
                                                            

Conduct, of course, is just one of the complex array of factors that, singly or in some combination, have been posited as defining features of homosexuality. See Prop. Br. 71-72. Some courts, like this one, have focused on this behavioral aspect of homosexuality in distinguishing it from established suspect and quasisuspect classifications. See High Tech Gays, 895 F.2d at 573-74; Woodward v. United States, 871 F.2d at 1076. In reaching the same conclusion, other courts have looked to other aspects of homosexuality, like the “subjective and unapparent - 37 - 
 

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Plaintiffs’ reliance on Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000), is likewise misplaced. There, this Court held that “gay men with female sexual identities in Mexico” form a “particular social group” for purposes of the asylum laws. See id. at 1087. In reaching this determination, the Court reasoned that “[s]exual orientation and sexual identity are immutable” in the sense that “they are so fundamental to one’s identity that a person should not be required to abandon them.” Id. at 1093. That formulation, however, is not how immutability is defined for purposes of equal protection law. See Prop. Br. 73-74. And in the equal protection context, this Court has squarely held that homosexuality is not immutable, see High Tech Gays, 895 F.2d at 573-74, and it has continued to apply rational-basis review to classifications based on homosexuality after HernandezMontiel. See Witt, 527 F.3d at 821; Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1137 (9th Cir. 2003). B. Homosexuality is a complex and amorphous phenomenon, distinguishing gays and lesbians from other classes the Supreme Court has recognized as suspect or quasi-suspect.

Further, we have demonstrated that homosexuality is a complex, amorphous phenomenon lacking any consensus definition and that the proposed suspect class of gays and lesbians thus differs sharply from other groups that the Supreme Court has singled out for heightened scrutiny. See Prop. Br. 71-72 & n.36; see also Prof.
                                                                                                                                                                                                 

characteristics such as innate desires, drives, and thoughts,” that some identify as its defining features. Equality Found. v. Cincinnati, 128 F.3d at 294. - 38 - 
 

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Paul McHugh, M.D. Br. 2-18 (“McHugh Br.”); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 445-46 (1985) (declining to extend suspect status to an “amorphous” class of individuals); cf. Holloway v. Arthur Andersen & Co., 566 F.2d 659, 663 (9th Cir. 1977) (rejecting suspect class status for transsexuals because, inter alia, “the complexities involved merely in defining the term ‘transsexual’ would prohibit” such classification). Indeed even Plaintiffs’ own experts disagree about the proper definition of the proposed suspect class. See McHugh Br. 13-14. Plaintiffs respond that same-sex couples who wish to marry should be assumed to be homosexuals. Pl. Br. 65. But such a case-specific assumption provides no clear basis for identifying the proposed suspect class that could apply in all of the various circumstances in which members of this putative class would undoubtedly raise equal protection challenges. Plaintiffs also respond that most individuals can identify themselves as homosexual or straight, but selfidentification is only one of several competing definitions of sexual orientation. Finally, Plaintiffs invoke popular “assumptions” regarding the existence of homosexuals as a discrete class. But the fact that many people may not understand the complexity of defining homosexuality does not eliminate that complexity. Nor is the difficulty in identifying the proposed suspect class merely theoretical—as prominent studies and Plaintiffs’ own experts recognize, the competing definitions - 39 - 
 

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describe very different groups that have remarkably little overlap and range in size from 1 to 21 percent of the population. See Prop. Br. 72 & n.36. C. Plaintiffs misapprehend the requirements for heightened protection under the Equal Protection Clause.

To qualify for heightened scrutiny under the Equal Protection Clause, the burdened class must have experienced a history of discrimination, be defined by an immutable characteristic, and be politically powerless. High Tech Gays, 895 F.2d at 573. Plaintiffs contend that heightened scrutiny may apply absent political powerlessness and immutability. Not only is this argument flatly inconsistent with High Tech Gays, but it also cannot be squared with Supreme Court authority. Indeed, political powerlessness is plainly a sine qua non of protected status: When a group does not lack political power, it can hardly claim the “extraordinary protection from the majoritarian political process” provided by heightened equal protection scrutiny. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973). Furthermore, the Supreme Court has plainly recognized political powerlessness and immutability as “traditional indicia of suspectedness,” Johnson v. Robison, 415 U.S. 361, 375 n.14 (1974), and the groups it has singled out for heightened protection have uniformly satisfied those requirements. Plaintiffs’ cases are not to the contrary. Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), does not hold or imply that political powerlessness is not a - 40 - 
 

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prerequisite for heightened equal protection scrutiny, but only that all government racial discrimination, including “reverse discrimination,” is subject to heightened equal protection scrutiny. See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 289-90 (1978) (opinion of Powell, J.). Furthermore, if Adarand were taken to suggest that political powerlessness is unnecessary to establish suspect class status in the first instance, it would also entail the surprising suggestion that a history of discrimination is unnecessary as well. Nor does Frontiero v. Richardson, 411 U.S. 677 (1973), dispense with the requirement of political powerlessness. There, a plurality of the Court observed that “when viewed in the abstract, women do not constitute a small and powerless minority,” id. at 686 n.17, but that in reality women faced “pervasive … discrimination, … perhaps most conspicuously in the political arena,” id. at 686, and remained “vastly under-represented in this Nation’s decisionmaking councils,” id. at 686 n.17. Plaintiffs claim that Nyquist v. Mauclet, 432 U.S. 1 (1977), dispensed with immutability as a prerequisite to suspect status because it treated “resident aliens as a suspect class despite their ability to opt out of that class voluntarily.” Pl. Br. 60 & n.15. But a key distinguishing characteristic that defines this class—birth in a foreign country—is “determined solely by the accident of birth,” Frontiero, 411 U.S. at 686, and thus is immutable as that term is defined by the Supreme Court. - 41 - 
 

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See also Parham v. Hughes, 441 U.S. 347, 351 (1979) (identifying “alienage” as an “immutable human attribute[]”). Finally, Plaintiffs claim that this Court, in Christian Science Reading Room Jointly Maintained v. San Francisco, 784 F.2d 1010 (9th Cir. 1986), held that “ ‘an individual religion meets the requirements for treatment as a suspect class,’ even though religion is not immutable.” See Pl. Br. 60 n.15 (quoting id. at 1012). But Christian Science Reading Room simply applied rational-basis review to strike down a regulation distinguishing between “religious organizations and all others,” 784 F.2d at 1016; the language Plaintiffs quote was dicta. Further, the Supreme Court has identified the Free Exercise Clause, not the Equal Protection Clause, as the source of heightened constitutional protection against religious discrimination. See Locke v. Davey, 540 U.S. 712, 720 n.3 (2004). D. Gays and lesbians do not meet the requirements for suspect or quasi-suspect classification.

History of Discrimination. We do not dispute that gays and lesbians have suffered a history of discrimination. But as this Court correctly held twenty years ago in High Tech Gays, that history, standing alone, does not warrant applying heightened equal protection scrutiny to laws that classify on the basis of homosexuality. See 895 F.2d at 573. That decision, if anything, is on even firmer ground now, given that, as Plaintiffs’ expert Professor Chauncey notes, “it is hard to think of another group whose circumstances and public reputation have changed - 42 - 
 

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so decisively in so little time. For several decades now, and especially since the 1990s, Americans have become more familiar with their lesbian and gay neighbors and more supportive of them.” ER 1903; see also ER 1902 (explaining that “most [anti-gay discriminatory measures] were dismantled between the 1960s and 1990s”). Immutability. As we have demonstrated, heightened scrutiny is reserved for groups defined by “an immutable characteristic determined solely by accident of birth.” Prop. Br. 73-74; accord Johnson v. Robison, 415 U.S. at 375 n.14. As their own experts admit, Plaintiffs cannot prove that homosexuality is determined solely by accident of birth. See Prop. Br. 74 & n.38; see also McHugh Br. 18-22. Plaintiffs completely ignore this legal requirement, which alone is fatal to their argument for heightened scrutiny under the Equal Protection Clause. In addition, we have demonstrated, and Plaintiffs’ experts admit, that homosexual orientation shifts over time for a substantial number of individuals. See Prop. Br. 74 & n.39; McHugh Br. 22-29. To take just one example, the Chicago Study—which Plaintiffs’ experts recognize as “the authoritative source of data” on sexuality, see Prop. Br. 72—demonstrates that 90 percent of women and 80 percent of men who have had same-sex intimate partners as adults have also had opposite-sex partners. ER 1207. Plaintiffs argue that this shows only “that some gay men and lesbians may have experimented with heterosexual intimacy,” - 43 - 
 

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Pl. Br. 64, but the same study shows that 25 percent of individuals who have had same-sex partners in the last year have also had opposite-sex partners, and that approximately half of men and nearly two-thirds of women who have had same-sex partners in the last five years have also had opposite-sex partners. ER 1207. Plainly these numbers cannot be dismissed as evidence of nothing more than “experimentation.” Plaintiffs also rely on testimony from their expert Professor Herek, but his own research reports that 13 percent of self-identified gay men and 30 percent of self-identified lesbians say that they experience a meaningful degree of choice in their sexual orientation. ER 1912. These statistics, even at face value, are utterly inconsistent with any finding that gays and lesbians are a class defined by an immutable characteristic. Indeed, statistics such as these would be unthinkable for other classes, such as women or racial minorities, that the Supreme Court has singled out for heightened protection under the Equal Protection Clause.16 Political Power. Plaintiffs likewise ignore the controlling legal test of

political power established by the Supreme Court and applied by this Court. See
                                                            

Further, the fact that any given individual reports that he or she experiences little or no choice with respect to homosexual orientation does not mean that his or her orientation has not changed in the past, or that it might not change in the future. See ER 1716-17 (Herek) (acknowledging that study does “not really shed any light” on the question “whether people’s sexual orientation had changed”); ER 1718 (Herek) (acknowledging that “if you are trying to predict for any specific individual whether their identify will predict their sexual behavior in the future, especially, that can be problematic”). - 44 - 
 

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City of Cleburne v. Cleburne Living Ctr., 473 U.S. at 445; High Tech Gays, 895 F.2d at 574 (citing Cleburne). And it is no wonder, because the evidence is overwhelming that gays and lesbians have the “ability to attract the attention of the lawmakers.” Cleburne, 473 U.S. at 445. In California, the Speaker of the Assembly is openly gay, ER 1709; a majority of the members of the legislature have received a 100% rating from the largest gay rights group in the state, Equality California, see Equality California, 2009 Legislative Scorecard at 5-7, at http://www.eqca.org/atf/cf/%7B34f258b3-8482-4943-91cb08c4b0246a88%7D/EQCA_LEG_SCORECARD_2009.PDF; and California has passed more than 60 pieces of legislation sponsored by Equality California over the last decade alone, see Equality Cal. Br. 1-2—virtually the entire political agenda of California’s LGBT community during this period except redefining marriage. At the federal level, gays and lesbians have a staunch ally in Speaker Pelosi, among many other legislators, ER 172017; President Obama has adopted a raft of initiatives sought by gay interest groups, see Concerned Women of America Br. 8-9 (“CWA Br.”); he has appointed more gays and lesbians in the first two years of his administration to positions than President Clinton did in his entire

                                                            

See also http://www.hrc.org/scorecard/ (rating Pelosi at 100% for three consecutive Congresses). - 45 - 
 

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eight years in office18; Congress has enacted hate crimes legislation sought by the LGBT community, see 18 U.S.C. § 249(a)(2); and the House earlier this year voted to end the military’s Don’t Ask Don’t Tell policy, see CWA Br. 8. See generally CWA Br. (detailing gays’ and lesbians’ political power).19 Plaintiffs try to evade this Court’s holding in High Tech Gays that gays and lesbians have the ability to attract the attention of lawmakers on the ground that this case has a “vastly different record.” Pl. Br. 69. Indeed it does. The political power of gays and lesbians has increased exponentially over the last two decades: all of the achievements detailed above (and countless others) have occurred since High Tech Gays was decided; the allies of gays and lesbians have become far more numerous and powerful since that time, see, e.g. ER 1884 (listing scores of civil rights organizations, unions, national organizations, elected officials, and others endorsing the No-on-8 cause); and the vast majority of the numerous local, state,

                                                            

http://www.foxnews.com/politics/2010/10/26/obama-appointsrecord-number-gay-officials/?test=latestnews   19 Plaintiffs ask the Court to ignore the political power of gays in California, but where there are significant regional variations in a group’s power, it surely makes sense to assess political power within the juridical entity that enacted the challenged law. Thus, in City of Richmond v. J. A. Croson Co., 488 U.S. 469, 49596 (1989), where the Supreme Court analyzed the validity of racial quotas enacted by the City of Richmond, the Court properly focused on the fact that blacks were a majority of the City Council and whites were a minority. In any event, while the ability of gays and lesbians to attract the attention of lawmakers is particularly noteworthy in California, their achievements in Washington, D.C. make clear that they plainly do not lack this ability at the federal level. - 46 - 
 

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and federal laws now protecting gays and lesbians postdate High Tech Gays.20 Plaintiffs point out that many states since High Tech Gays have reaffirmed the traditional definition of marriage. But in 1990, no state in the union had redefined marriage to include gays and lesbians, and no state had a domestic partnership regime extending the tangible benefits of marriage to gays and lesbians. Thus, even on the metric highlighted by Plaintiffs, the political landscape shows the increasing power of gays and lesbians. In a last ditch effort to demonstrate political powerlessness, Plaintiffs draw comparisons to the power of African Americans and women. As for African Americans, any comparison is inapposite since “the clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.” Loving v. Virginia, 388 U.S. 1, 10 (1967); Miller v. Johnson, 515 U.S. 900, 904 (1995) (The Equal Protection Clause’s
                                                            

Twenty years ago, for example, laws prohibiting sexual orientation discrimination in employment and punishing hate crimes committed on the basis of sexual orientation were extremely rare. Today, such laws are commonplace. See, e.g., 18 U.S.C. § 249; Human Rights Campaign (“HRC”), State Hate Crimes Laws, available at http://www.hrc.org/documents/hate_crime_laws.pdf (last visited August 4, 2010) (As of June 1, 2009, 31 states and D.C. have laws that address hate crimes based on sexual orientation); HRC, Statewide Employment Laws & Policies, available at http://www.hrc.org/documents/Employment_Laws_and_ Policies.pdf (August 4, 2010) (As of July 26, 2010, 21 states and D.C. prohibit discrimination based on sexual orientation); HRC, The State of the Workplace at 4 (2009), available at http://www.hrc.org/documents/HRC_Foundation_State_of_ the_Workplace_2007-2008.pdf (last visited August 4, 2010) (As of 2008, 181 cities and counties banned employment discrimination on the basis of sexual orientation).  - 47 - 
 

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“central mandate is racial neutrality in governmental decisionmaking.”) (emphasis added). As for women, the plurality in Frontiero v. Richardson, 411 U.S. 677, 685 (1973), identified five ways in which the plight of women mirrored that of slaves: There was a time when neither could hold office, neither could serve on juries, neither could bring suit in their own names, neither had the legal capacity to hold or convey property, and both were denied the right to vote for much of American history. None of these special disabilities have ever been visited upon gays and lesbians because of their sexual orientation. The plurality also noted that “women are vastly under-represented in this Nation’s decisionmaking councils.” 411 U.S. at 686 n.17. At that time, there were no women in the United States Senate, and less than four percent of the members of the House of Representatives were women even though women constituted a majority of the electorate. By contrast, gays and lesbians today constitute over three percent of the California legislature, including the Speaker, see ER 1797, and almost 1% of the U.S. House of Representatives, see ER 1708—and there may well be other gays serving in Congress. Given the percentage of gays and lesbians in the population, the degree of their underrepresentation, if any, simply pales when compared to the facts in Frontiero. Moreover, the majority in Cleburne did not even reference, let alone place dispositive weight upon, the relative underrepresentation of disabled - 48 - 
 

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legislators. E. Proposition 8 does not discriminate on the basis of sex.

As the overwhelming majority of appellate courts to consider the matter have recognized, the traditional definition of marriage treats men and women equally and thus does not discriminate on the basis of sex. See Prop. Br. 75 n.40; Fam. Res. Council Br. 9-16. Plaintiffs’ reliance on Loving is foreclosed by the Supreme Court’s decision in Baker, which summarily rejected, despite appellants’ repeated citations to Loving, the claim that limiting marriage to opposite-sex couples constitutes unconstitutional sex discrimination. See ER 1610-14. Baker is not only controlling, but clearly correct, for Loving involved race discrimination, not sex discrimination. And in the sex-discrimination context, unlike the racediscrimination context, “[a]ll of the [Supreme Court’s] seminal … decisions … have invalidated statutes that single out men or women as a discrete class for unequal treatment.” Baker v. State, 744 A.2d 864, 880 n.13 (Vt. 1999) (collecting cases). Furthermore, the Loving Court easily saw Virginia’s antimiscegenation laws for what they were, regardless of their purported equal treatment of blacks and whites: “measures designed to maintain White Supremacy,” with “patently no legitimate overriding purpose independent of invidious racial discrimination.” 388 U.S. at 11. The definition of marriage as the union of a man and a woman, by - 49 - 
 

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contrast, serves vital societal interests and cannot be dismissed as a relic of “outdated and unfounded” gender stereotypes. Pl. Br. 72; see Prop. Br. 53-59, 6668. Indeed, even the California Supreme Court in In re Marriage Cases rejected the argument that California’s marriage laws—including Proposition 22, the identically worded predecessor to Proposition 8—were “grounded in an outdated stereotypical view of the appropriate roles of men and women in a marriage.” 183 P.3d at 440 n.58. Finally, the premise of Plaintiffs’ sex-discrimination theory, as set forth by Plaintiffs and the district court, is that if Plaintiff “Perry were a man,” she and Plaintiff Stier could marry. Pl. Br. 71-72 (quoting ER 154). But this assertion is at war with the essential theory of Plaintiffs’ case: that because of their homosexual orientation, marriage to a member of the opposite sex is not a meaningful option. So if she became a man but remained homosexual, marriage to a woman would no longer be an option for Plaintiff Perry. It is plain, then, that the gravamen of Plaintiffs’ complaint is not gender discrimination but how Proposition 8 affects them as gays and lesbians. VII. PROPOSITION 8 ADVANCES VITAL STATE INTERESTS, AND THUS PLAINLY SATISFIES RATIONAL BASIS REVIEW. Proposition 8 advances California’s vital interests in responsible procreation and childrearing and in proceeding with caution when considering fundamental changes to the institution of marriage, and thus easily satisfies rational-basis - 50 - 
 

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review.21 Indeed, in light of the importance of these interests, see Prop. Br. 78; SF Br. 9 (conceding that “society has a paramount interest in ‘providing status and stability to the environment in which children are raised’”), as well as their close connection to the traditional definition of marriage, Proposition 8 satisfies heightened scrutiny as well.

                                                            

Like the district court, see, ER 168, Plaintiffs attempt to dismiss these interests as “post hoc” justifications, Pl. Br. 54-55 n.14, 97. But under rationalbasis review, of course, lawmakers “need not actually articulate at any time the purpose or rationale supporting [a] classification.” Heller, 509 U.S. at 320. Indeed, “it is entirely irrelevant for constitutional purposes whether the conceived reason for [Proposition 8] actually motivated” California’s voters. FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993). This is particularly true in the context of a ballot initiative, for it is obviously not possible to identify a single animating purpose of seven million voters, and so the voters’ decision must be upheld if it can be justified on any conceivable rational basis. See Romer, 517 U.S. at 631 (citing Heller, 509 U.S. at 319-20). In any event, even a cursory look at the campaign materials demonstrates that the ProtectMarriage.com campaign clearly articulated these purposes, not only in the official ballot argument, but in video and printed materials. See, e.g., ER 1032 (“Proposition 8 protects marriage as an essential institution of society. While death, divorce, or other circumstances may prevent the ideal, the best situation for a child is to be raised by a married mother and father.”); id. (Proposition 8 “restores the definition of marriage to what the vast majority of California voters already approved and human history has understood marriage to be.”); ER 2006 (“Marriage involves a complex web of social, legal, and spiritual commitments that bind men and women for one overriding societal purpose: to create a loving environment for the raising up of children.”); ER 1036-37; ER 1039. Indeed, Plaintiffs concede that the argument “that ‘the best situation for a child is to be raised by a married mother and father’ was a central theme of the Yes on 8 campaign.” Pl. Br. 77. Further, because Proposition 8 preserves the traditional definition and form of marriage and thus provides special encouragement and support to those relationships that uniquely further the interests that marriage has always served, its purposes are evident “from its text, structure, and operation.” Nguyen v. INS, 533 U.S. 53, 67-68 (2001). - 51 - 
 

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A. Rational basis review is not limited to economic legislation. Plaintiffs complain that the rational basis standard applicable here is the same as that “a court might apply to everyday economic legislation.” Pl. Br. 3. But the Supreme Court has made clear that rational-basis review applies in “areas of social and economic policy” so long as the challenged law, like Proposition 8, “neither proceeds along suspect lines nor infringes fundamental constitutional rights.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993); accord Board of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 366 (2001); Cleburne, 473 U.S. at 440. Indeed, the Supreme Court has repeatedly applied rational-basis review beyond the context of laws that “adjust in nice gradations the economic benefits and burdens of life in American society.” Pl. Br. 3. See, e.g., Glucksberg, 521 U.S. at 728 (assisted suicide); Romer, 517 U.S. at 632 (Colorado’s Amendment 2); Heller, 509 U.S. at 314, 319-21 (“involuntary civil commitments of those alleged to be mentally retarded”); Cleburne, 473 U.S. at 446-47 (discrimination against the mentally retarded); Maher v. Roe, 432 U.S. 464, 478 (1977) (abortion funding); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312-14 (1976) (discrimination against the aged). B. Proposition 8 is closely related to California’s vital interest in responsible procreation and childrearing.

We have demonstrated that a central—indeed animating—purpose of marriage, always and everywhere, has been to further society’s compelling interest - 52 - 
 

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in increasing the likelihood that children will be born to and raised in enduring and stable family units by the couples who brought them into the world. See Prop. Br. 54-60, 78. Because only sexual relationships between men and women can produce children, such relationships have the potential to further—or harm—this interest in a way that other types of relationships do not. See id. 77-87. As state and federal courts across the country have repeatedly recognized, it follows that the “commonsense distinction,” Heller v. Doe, 509 U.S. 312, 326 (1993), that our law has always drawn between opposite-sex couples, on the one hand, and all other types of relationships—including same-sex couples—on the other hand, plainly bears a rational relationship to “the government interest in ‘steering procreation into marriage.’ ” Bruning, 455 F.3d at 867; see also Prop. Br. 82-83, 91-93; States Br. 12-29. Plaintiffs do not dispute that “traditional opposite-sex marriage” furthers this interest. Pl Br. 57; accord id. 23. Indeed, in the proceedings below they expressly conceded that “ ‘responsible procreation’ may provide a rational basis for the State’s recognition of marriages by individuals of the opposite-sex.” ER 1785. Plaintiffs likewise have been forced to acknowledge the biological reality that same-sex relationships do not implicate this interest in the same way opposite-sex relationships do. As Plaintiffs’ lead counsel conceded below, same-sex couples “don’t present a threat of irresponsible procreation” but “heterosexual couples who - 53 - 
 

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practice sexual behavior outside their marriage are a big threat to irresponsible procreation.” ER355. These concessions—forced grudgingly out of Plaintiffs by undeniable biological facts—are the end of this case, for it is well settled both that a classification will be upheld when “the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not,” Johnson, 415 U.S. at 383, and, conversely, that the government may make special provision for a group if its activities “threaten legitimate interests … in a way that other [groups’ activities] would not,” Cleburne, 473 U.S. at 448; see generally Vance, 440 U.S. at 109 (law may “dr[aw] a line around those groups … thought most generally pertinent to its objective”). 1. Without acknowledging the “host of judicial decisions” upholding the

line drawn by the traditional definition of marriage on these essential grounds, Bruning, 455 F.3d at 867; see also Prop. Br. 91-92 (collecting cases), Plaintiffs claim that the rule set forth in Johnson and other cases is limited to circumstances where some line must be drawn to allocate scarce resources. See Pl. Br. 88. Leaving aside the obvious point that some lines must be, and always have been, drawn somewhere between those relationships that the State recognizes as marriages and those that it does not if the institution of marriage is to have any meaning at all, Plaintiffs are simply wrong that the rule is limited to cases involving scarce resources. - 54 - 
 

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While Johnson upheld the Government’s decision to provide educational benefits to active service veterans but not to conscientious objectors who provided alternative service outside the military, neither the Government nor the Court justified this decision on the ground of scarcity. Rather, the Court accepted the Government’s argument that providing the benefits to veterans furthered interests that would not be served by providing the benefits to conscientious objectors. See 415 U.S. at 381-83. Vance upheld the Government’s decision to establish a mandatory retirement age for foreign-service but not civil-service employees. Plainly no principle of scarcity prevented the Government from extending the mandatory retirement age to all employees, but the Court held that the line Congress drew between these two groups of employees was nonetheless justified because the interests served by mandatory retirement were in general more pertinent to foreign-service than to civil-service employees. See 440 U.S. at 10609. And Cleburne—which struck down a municipal zoning law requiring special use permits for homes for mentally retarded individuals but not for other similar uses that implicated the city’s legitimate interests in the same way—obviously did not turn on any sort of scarcity. More generally, these cases simply reflect the broader principle that “where a group possesses ‘distinguishing characteristics relevant to interests the State has the authority to implement,’ a State’s decision to act on the basis of those - 55 - 
 

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differences does not give rise to a constitutional violation,” Board of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 366-67 (2001)—a rule that indisputably applies generally without regard to resource scarcity. See also, e.g., Cleburne, 473 U.S. at 441 (similar); Vacco v. Quill, 521 U.S. 793, 799 (1997) (“The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.”). Plaintiffs’ contrary argument—that when the State recognizes opposite-sex marriages because they serve the State’s procreative interests, it is constitutionally obliged to also recognize same-sex marriages even though they do not similarly further those interests—is a non sequitur that is not, of course, the law. To the contrary, by definition, a line drawn between those who most clearly implicate a government interest and those who do not cannot be said to “rest[ ] on grounds wholly irrelevant to the achievement of the State’s objective,” as it must to fail rational-basis review. Heller, 509 U.S. at 324. Plaintiffs are thus simply wrong in contending that California’s refusal to recognize same-sex relationships as marriages must itself further the State’s interest in responsible procreation. See Pl. Br. 57. To be sure, these interests are, we submit, furthered by California’s refusal to do so—as we have demonstrated, there are substantial reasons for concern that redefining marriage to include samesex relationships would weaken that institution and harm the interests it has traditionally served. See Prop. Br. 93-104. But the relevant constitutional inquiry - 56 - 
 

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is whether the distinction drawn by the traditional definition of marriage between opposite-sex couples and all other types of relationships bears “a rational relationship” to “some legitimate governmental purpose,” Heller, 509 U.S. at 320, not, as Plaintiffs would in effect have it, whether that distinction is necessary to advance that purpose, see, e.g., Vance, 440 U.S. at 102 n.20 (holding it “irrelevant … that other alternatives might achieve approximately the same results”). Indeed, even where heightened scrutiny applies, the Supreme Court has rejected the argument that a statutory distinction may be upheld only if it is necessary to achieve the government’s purpose. See Michael M. v. Superior Court, 450 U.S. 464, 473 (1981) (plurality) (rejecting argument that statutory rape statute punishing only males was “not necessary to deter teenage pregnancy because a genderneutral statute, where both male and female would be subject to prosecution, would serve that goal equally well” as, inter alia, not reflecting “[t]he relevant inquiry”).22 2. Plaintiffs also argue that the classification drawn by the traditional

definition of marriage does not bear a rational relationship to the state’s
                                                            

Contrary to Plaintiffs’ contentions, see Pl. Br. 57-58, 89, Romer does not reflect a different rule. Romer struck down Amendment 2 not because its treatment of gays and lesbians was unnecessary to further the purposes served by “Colorado’s antidiscrimination laws protecting other minority groups,” Pl. Br. 58, but because the sweeping disparity of treatment it established between gay men and lesbians, on the one hand, and all other citizens, on the other hand, did not bear a reasonable relationship to any government purpose. See 517 U.S. at 633, 635. - 57 - 
 

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indisputably legitimate—indeed compelling—interest in responsible procreation because opposite-sex couples who are unable or unwilling to procreate are permitted to marry. See Pl. Br. 89. But it is well settled that rational-basis review allows the State to draw bright lines, “rough accommodations,” Heller, 509 U.S. at 321, and “commonsense distinction[s],” id. at 326, based on “generalization[s],” id., presumptions, see Murgia, 427 U.S. at 315, and “common-sense proposition[s],” Vance, 440 U.S. at 112. And “courts are compelled under rational-basis review to accept [such] generalizations,” Heller, 509 U.S. at 321, presumptions, and propositions unless they hold true in “so few” circumstances “as to render [a line based upon them] wholly unrelated to the objective” of the law drawing that line, Murgia, 427 U.S. at 315-16; see also Williamson v. Lee Optical, 348 U.S. 483, 487 (1955) (upholding categorical rule that was based on an assumption that the legislature “might have concluded” was “often enough” true). The presumption that sexual relationships between men and women can result in pregnancy and childbirth holds true for the vast majority of couples and is plainly sufficient to render rational, at least, the “commonsense distinction” the law has always drawn between opposite-sex couples, on the one hand, and same-sex couples, who are categorically incapable of natural procreation, on the other hand. Furthermore, as we have already demonstrated, any attempt to ensure a closer fit between marriage and society’s interest in responsible procreation would be - 58 - 
 

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burdensome, intolerably intrusive, and ultimately ineffective. See Prop. Br. 60-64. For all of these reasons, it is not surprising that courts have repeatedly rejected the argument that allowing opposite-sex couples who cannot, or do not intend to, have children to marry defeats the rational relationship between marriage and responsible procreation. See id. 61 n.28. Indeed, as the district court recognized in Adams v. Howerton, because caseby-case inquiries into fertility are simply not a “real alternative” for achieving society’s “compelling interest in encouraging and fostering procreation … and providing status and stability to the environment in which children are raised,” allowing “legal marriage as between all couples of opposite sex” is “the least intrusive alternative available to protect the procreative relationship.” 486 F. Supp. 2d 1119, 1124-25 (1980), aff’d on other grounds, 673 F.2d 1036 (9th Cir. 1982). Accordingly, that court concluded that the traditional definition of marriage could survive even strict scrutiny. Id.; see also Nguyen v. INS, 533 U.S. 53, 69-70 (2001) (even where heightened scrutiny applies, courts have not “required that the statute under consideration must be capable of achieving its ultimate objective in every instance” and Congress may enact “an easily administered scheme” to avoid “the subjectivity, intrusiveness, and difficulties of proof” of “an inquiry into any particular bond or tie”). Similarly, applying heightened scrutiny in a closely analogous context, the Supreme Court rejected as “ludicrous” an argument that a - 59 - 
 

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law criminalizing statutory rape for the purpose of preventing teenage pregnancies was “impermissibly overbroad because it makes unlawful sexual intercourse with prepubescent females, who are, by definition, incapable of becoming pregnant.” Michael M., 450 U.S. at 475 (plurality); see also id. at 480 n.10 (Stewart, J., concurring) (rejecting argument that the statute was “overinclusive because it does not allow a defense that contraceptives were used, or that procreation was for some other reason impossible,” because, inter alia, “a statute recognizing [such defenses] would encounter difficult if not impossible problems of proof”). For all of these reasons, society’s undisputed and compelling interest in channeling procreation into marriage plainly suffices to sustain Proposition 8 against Plaintiffs’ constitutional attack. 3. California’s interest in responsible procreation and childrearing does

not depend on any judgment about the relative parenting capabilities of oppositesex and same-sex couples. See Prop. Br. 84-87. Plaintiffs’ discussion of the samesex parenting literature nonetheless confirms that the instinctive, commonsense belief that married biological parents provide the optimal environment for raising children is entirely rational. Plaintiffs fail to cite to a single study comparing outcomes for the children of married biological parents and those of same-sex parents. Thus, Plaintiffs have failed to undermine, let alone remove “from debate,” the studies showing that married biological parents provide the best structure for - 60 - 
 

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raising children. See Prop. Br. 78-82, 87; Paul R. Amato, The Impact of Family Formation Change on the Cognitive, Social, and Emotional Well-Being of the Next Generation, 15 FUTURE CHILD 75, 89 (2005) (ER 371) (“Research clearly demonstrates that children growing up with two continuously married parents are less likely than other children to experience a wide range of cognitive, emotional, and social problems, not only during childhood, but also in adulthood…. This distinction is even stronger if we focus on children growing up with two happily married biological parents.”); see also American College of Pediatricians Br. 4-16 (“ACP Br.”).23 Plaintiffs respond that “[i]f one is studying the impact of parenting by samesex couples, … the appropriate comparison group is unmarried heterosexual parents.” Pl. Br. 86. But such studies would say nothing about whether the benefits of marriage would flow equally to children of gays and lesbians as they do to the children of married biological parents. And even if Plaintiffs framed the right question, the studies they trumpet fail to follow their own methodology: during cross-examination, their expert, Dr. Lamb, admitted that the studies he
                                                            

The weakness of Plaintiffs’ position is underscored by their reliance on the deposition testimony of Dr. Paul Nathanson, Proponents’ withdrawn expert on comparative religion, who expressly disclaimed expertise in fields relevant to the same-sex parenting literature. ER 1997-2000. In any event, Dr. Nathanson clearly expressed his view that it was in society’s interest for children to be raised by their biological mothers and fathers. ER 2001-02.   - 61 - 
 

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relied upon drew no distinction between the children of married and unmarried heterosexual couples. ER 271. As Professor Steven Nock of the University of Virginia has demonstrated, the same-sex parenting literature is a shell game, carefully constructed with two critical steps designed to ensure the desired results. See ER 596; see also, e.g., ACP Br. 6-8. First, researchers start with the assumption that the children of heterosexuals and gays and lesbians have the same outcomes, a dubious assumption in light of the many studies showing that family structures with only one non-biological parent are suboptimal. See, e.g., ER 362, 545. Second, the studies use “miniscule” samples. Judith Stacey & Timothy J. Biblarz, (How) Does the Sexual Orientation of Parents Matter?, 66 AM. SOC. REV. 159, 168 n.9 (2001) (ER 1942, 1951). The small samples allow the many differences observed between the children of opposite-sex and same-sex couples to be dismissed as statistically insignificant, leaving the initial assumption undisturbed.24 The 2010 meta-analysis trumpeted by Plaintiffs makes this very
                                                            

See, e.g., Wainright, J., Delinquency, Victimization, and Substance Use Among Adolescents With Famale Same-Sex Parents, 20 JOURNAL OF FAMILY PSYCHOLOGY 526, 528 (2006) (ER 1897) (children of same-sex parents fared worse than the children of opposite sex parents including being more likely to have sex under the influence of alcohol or drugs and more likely to encounter problems related to alcohol); FIONA TASKER, GROWING UP IN A LESBIAN FAMILY: EFFECTS ON CHILD DEVELOPMENT 127-33 (1997) (ER 1969-75) (finding children of lesbians more likely to engage in premarital promiscuous sex than children of opposite sex couples). - 62 - 
 

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point: “some of the findings of no differences may miss real differences … because some studies use levels of significance that may be too restrictive for their very small samples.” Judith Stacey & Timothy J. Biblarz, How Does the Gender of Parents Matter? JOURNAL OF MARRIAGE AND FAMILY 3, 8 (2010). And to make matters worse, the tiny samples are not randomly selected, and thus the metaanalysis cited by Plaintiffs acknowledges that “[t]his research remains disproportionately on White, middle-class families.” Id. at 10.25 Plaintiffs respond that while past studies lacked representative samples “now there is a study based upon the most representative sample imaginable—the United States Census.” Pl. Br. 87. But even this lone study itself concedes that “the census data are far from ideal for the subject under study here.” SER 572. Further, this study did not purport to find broad similarities between children of same-sex and opposite-sex couples. Rather, it focused narrowly on grade retention— whether children were held back in school—and did not measure any other aspects of child adjustment. SER 577. The study noted “the unadjusted means show that own children of heterosexual married couples are significantly less likely to be left back in school than own children of same-sex couples.” SER 588. It thus tells us
                                                            

Plaintiffs also cite five professional organizations’ policy statements, but these pronouncements rest on the same inconclusive studies relied on by Plaintiffs here, and thus amount to little more than manifestos of prevailing orthodoxy, just as were prior unfavorable statements issued by these very organizations regarding homosexuality. - 63 - 
 

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nothing that undermines the widely shared understanding that married biological parents provide the optimal environment for raising children.26 Plaintiffs cite Professor Norval Glenn as acknowledging that “[t]here have been dozens of studies of same-sex parenting.” Pl. Br. 86 (quoting ER 447). But, Professor Glenn continues, “this body of research leaves open the question about the relative efficacy of same-sex and opposite-sex parenting.” ER 447. He notes that “[t]he research that would provide relevant evidence has not been done, and … is not likely soon to be done.” ER 448. Indeed, he fears the pertinent research will never be conducted due to the political struggle for same-sex marriage. Given the widespread support for same-sex marriage among social and behavioral scientists, it is becoming politically incorrect in academic circles even to suggest that arguments being used in support of samesex marriage might be wrong. There already seems to be some reluctance on the part of researchers and scholars to address issues concerning fatherlessness and the relative merits of same-sex and opposite-sex parenting. Id. Plaintiffs claim that “[Proponents] offered no witness … and identified no
                                                            

Plaintiffs also claim that “whereas earlier opponents of same-sex parenting complained of the absence of ‘long-term, longitudinal studies,’ … now there are studies that have followed children from infancy into early adulthood.” Pl. Br. 87. But the study cited by Plaintiffs as paradigmatic looked at a small sample, did not include gay fathers, and did not purport to compare same-sex parents to married biological parents. See SER 460, 468. Although not all of Plaintiffs’ studies share the complete universe of flaws, the fact remains that none makes a relevant comparison with a robust random sample.  - 64 - 
 

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basis in social science” to support the proposition that children benefit from being raised by their married biological parents. Pl. Br. 83. 27 Not only have we cited authoritative studies making just this point, see Prop. Br. 78-81, 87, Plaintiffs’ own studies acknowledge that “[s]tudies of family structure and children’s outcomes nearly universally find at least a modest advantage for children raised by their married biological parents.” E.g., SER 568. Finally, Plaintiffs claim that a “tide” of research shows that adopted children do just as well as children raised by their biological parents and thus demonstrates that the biological connection between children and parents is irrelevant. Pl. Br.
                                                            

Plaintiffs claim that after Proponents’ withdrawn expert Professor Marks was shown that some studies he relied on included a small number of adopted children as biological children, “he offered to revise his opinion that married biological parents were the ideal family structure … by deleting the word ‘biological.’ ” Pl. Br. 84. To the contrary, while Marks agreed that the word “biological” should be deleted with respect to some of the studies he cited, Marks Depo. at 147, 277-78, he characterized the assertion that the inclusion of adopted children in some of the studies invalidated his conclusions as “ridiculous.” Marks Depo. at 185. (Marks Deposition excerpts are attached as Exhibit B.) Marks ultimately concluded that even with “marriage-based adoptive families as the wild card … there is a potent outcome difference when you combine biology and marriage.” Id. at 169-70. Plaintiffs’ claim that Marks refused to endorse the proposition “that children benefit from having a parent of each gender,” Pl. Br. 84-85, rests on a semantic game. Marks referred to himself as “agnostic” as to the theory of “genderdifferentiated parenting,” only because he considered gender to be “defined as cultural as opposed to sex, which would be more biologically driven.” Marks Depo. at 203-04. He clearly articulated that children benefit from having parents with biologically different sexes, a mother and a father: “I don’t think I make any specific arguments that argue a whole lot about the cultural construct of gender. I’m dealing with sex, a “biological father and biological mother.” Id. at 203; see also ACP Br. 16-27.  - 65 - 
 

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83-84. Yet, as one of the very studies cited by Plaintiffs acknowledges, “many studies and several meta-analyses have shown that adopted children lag behind in physical growth, school performance, and language abilities; show more attachment and behavior problems; and are substantially overrepresented in mental health referrals and services for learning problems.” SER 490. The study also recognizes that “adoptees have to cope with difficulties connected with the lack of genetic relatedness … to their adoptive parents.” SER 491. Further, adoptive parents must pass through a rigorous screening process and are therefore disproportionately likely to be “well educated” and to provide their “adopted children with an enriched and nurturing environment.” SER 491. Thus, evidence that the children of all married, biological parents have similar outcomes to a tiny subclass of children raised by carefully screened adoptive parents does not refute, but supports, the idea that, all things being equal, the interests of children are best served when they are raised by their married, biological parents. Plaintiffs, in short, have not come close to disproving the instinctive, deeply ingrained belief that, all else being equal, children are most likely to thrive when raised by the father and mother who brought them into this world. And Plaintiffs certainly have not shown this belief to be irrational.

 

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C.

Proposition 8 advances California’s interest in proceeding with caution when considering a fundamental change to a vital social institution.

Our opening brief demonstrated why Californians reasonably may decide to await further results of nascent experiments with same-sex marriage in other jurisdictions before fundamentally redefining that bedrock institution. Prop. Br. 93-104. Plaintiffs say that our “failure of proof”—evinced by a lack of supporting affidavits or witness testimony discussing “data” and “studies”—means that this interest in proceeding with caution cannot be sustained. Pl. Br. 92-94. But it is Plaintiffs, not we, who bear the burden of proof. And the burden they bear is not merely to show by a preponderance of the evidence that concerns about the longterm societal impact of fundamentally redefining marriage are unwarranted, but to demonstrate conclusively that such concerns are not even “plausible,” “reasonably conceivable,” “debatable,” or “arguable.” Heller, 509 U.S. at 320, 326, 333. In other words, Plaintiffs must show that those who believe society should further study the issue before fundamentally redefining marriage are not just wrong, but irrational. Plaintiffs cannot, of course, meet this heavy burden. They deride the idea that redefining marriage to include same-sex couples could have negative longterm consequences as simply a “theory,” Pl. Br. 93, but due to the novelty of samesex marriage, opinions about its potential effects—whether positive, negative, or - 67 - 
 

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indifferent—are necessarily theoretical. And while the future societal consequences of redefining marriage cannot yet be known with certainty, concerns about them are certainly rational. They are rooted principally in recognition of the fact that eliminating the necessary presence of a man and a woman from the legal definition of marriage decisively severs any inherent connection between that institution and societal interests in responsible procreation and childrearing, thus leading to the eminently reasonable concern that over time such a change would harm marriage’s ability to serve these vital interests. Indeed, these concerns are shared by scores of scholars from all relevant disciplines, see, e.g., WITHERSPOON INSTITUTE, MARRIAGE AND THE PUBLIC GOOD 18-19 (2006), recognized as reasonable by prominent supporters of same-sex marriage, see, e.g., William Meezan & Jonathan Rauch, Gay Marriage, Same-Sex Parenting, and America’s Children, 15 FUTURE CHILDREN 97, 110 (2005), and based in substantial part on the arguments made in support of same-sex marriage and their necessary implications, see, e.g., DAVID BLANKENHORN, THE FUTURE OF MARRIAGE 127-69 (2007) (ER 1800-1842.). See generally Nat’l Org. Marriage Br. The feeble evidence Plaintiffs marshal against this precautionary interest does nothing to undercut its obvious rationality. Indeed, even the authors of the “seminal” 2009 study that Plaintiffs say “empirically tested” claims that redefining marriage could harm the institution of marriage, Pl. Br. 92, acknowledged that - 68 - 
 

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“[w]e cannot say that we have disproved the existence of a link between laws permitting gay marriage and a negative impact on ‘family values’ indicators,” and that “it may be too early to tell exactly what the effects of laws regulating same-sex marriage are at this point because the debates over gay marriage and its legal recognition and bans are in their infancy,” SER 671. Plaintiffs also point to testimony of various experts—Professors Cott, Peplau, and Badgett and Mr. Blankenhorn—that purportedly undermines this interest. Pl. Br. 17-18. But as we have shown, while Professors Cott and Peplau discussed short-run data from Massachusetts’ still-infant experience with same-sex marriage, both disclaimed giving it much credence. See Prop. Br. 39-41. Professor Badgett’s opinions are likewise based on short-run data from some of the tiny number of “States and countries where [same-sex marriage] has been permitted.” See Pl. Br 17. But the limited empirical data available from the brief experience of a handful of jurisdictions that have redefined marriage does not begin to suffice to eliminate reasonable concerns about the societal impact of fundamentally redefining marriage.28 And while Mr. Blankenhorn acknowledged
                                                            

Plaintiffs point to testimony from Professor Badgett asserting that postsame-sex marriage statistics from the Netherlands are in line with preexisting trends, but the evidence in the record shows that several preexisting negative trends were exacerbated following that Nation’s redefinition of marriage. See Nat’l Org. Marriage Br. 28-29. This data, from the jurisdiction that has longest recognized same-sex relationships as marriages, provides little comfort to those who are concerned about the possible consequences of such a seismic change. - 69 - 
 

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that heterosexuals have contributed to the weakening of marriage through the process of deinstitutionalization, he also opined that redefining marriage to include same-sex couples would “significantly further and in some respects culminate” that process. SER 282. Plaintiffs also claim that the finite and limited number of same-sex marriages that took place in the wake of In re Marriage Cases and remain valid today have not weakened marriage in California. But there is no reason to expect that these few marriages performed just two years ago would produce any meaningful data on the consequences of redefining marriage to include same-sex couples. Much more salient is the action sparked by the court decision that led to those marriages—the enactment of Proposition 8, which reaffirmed the State’s commitment to the traditional understanding of marriage as the union of a man and a woman. D. Proposition 8’s rationality is not undermined by its alleged effects on gays and lesbians and their children.

Throughout their brief, Plaintiffs assert that the traditional definition of marriage reaffirmed by Proposition 8 stigmatizes and harms gays and lesbians and deprives them and their children of the benefits of marriage. Indeed, Plaintiffs recklessly insinuate that the traditional definition of marriage is somehow responsible for suicides and hate crimes. See Pl. Br. 106-07. Such inflammatory claims are false, regrettable, and ultimately do not bear on Proposition 8’s - 70 - 
 

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rationality.29 1. Contrary to Plaintiffs’ bald assertion, we do not agree that

Proposition 8 sends a “discriminatory message” that gay and lesbian individuals are “inferior” and “not good enough,” nor that the traditional definition of marriage “does profound and enduring stigmatic harm to gay men and lesbians—and their families.” Pl. Br. 56. Society defines marriage as an opposite-sex relationship, not because such couples are virtuous or morally praiseworthy, but because of the unique potential such relationships have either to harm, or to further, society’s interests in responsible procreation. That is why the fundamental right to marry has never been conditioned on an inquiry into the virtues and vices of individuals seeking to marry. Society cannot stop the immoral or irresponsible from engaging in potentially procreative sexual relationships and presumes that even such individuals are more likely to take care of the children that result from their sexual activity if they are married than if they are not. Conversely, the fact that same-sex relationships are not recognized as marriages does not reflect a judgment by the State that individuals in such relationships are inferior or undeserving, but simply the fact that such relationships do not implicate society’s interest in responsible procreation in the same way that
                                                            

San Francisco also claims that Proposition 8 costs it money. But California’s Legislative Analyst authoritatively determined that over the long run Proposition 8 would “likely [have] little fiscal impact on state and local governments.” ER 1030. - 71 - 
 

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opposite-sex relationships do. It is simply not stigmatic for the law to treat different things differently. See, e.g., Johnson, 415 U.S. at 383. Plaintiffs themselves brought this point into sharp focus below, unwittingly, with a hypothetical example of a reprobate opposite-sex couple who “can get married the morning after meeting each other at a night club,” while an upstanding same-sex couple in an enduring, committed relationship cannot. ER 1796. But society plainly has a vital interest in encouraging the opposite-sex couple, if and when they do decide to have sexual relations, to marry and to commit themselves to take responsibility for raising any children produced by their union, whether intentionally or unintentionally, into responsible, productive citizens. These vital societal interests are plainly related to the uniquely procreative capacity of opposite-sex relationships, and it is plainly rational for the State to maintain a unique institution to serve these interests. See Prop. Br. 82-85. 2. There is simply no empirical basis for Plaintiffs’ assertion that

California’s decision to adhere to the traditional definition of marriage leads to hate crimes against gays and lesbians or to suicides or any other type of adverse mental health outcome for these individuals. To the contrary, Plaintiffs’ expert Professor Herek admitted at trial that there is no empirical support for the claim that there is a link between hate crimes against gays and lesbians and the traditional definition of marriage. ER 302. Indeed, according to authoritative FBI - 72 - 
 

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statistics, the per capita rate of hate crimes based on sexual orientation is much lower in California than in Massachusetts, which has recognized same-sex relationships as marriages since 2004. See ER 1890. Similarly, Plaintiffs’ expert Professor Meyer admitted that he is unaware of any empirical data suggesting that gays and lesbians suffer from worse mental health outcomes in California than they do in Massachusetts, the Netherlands, or any other jurisdiction that recognizes same-sex relationships as marriages. See ER 249-53. 3. As we have already demonstrated, California protects same-sex

relationships and provides for the children of same-sex couples through the institution of domestic partnership, and there is no empirical evidence whatsoever that those children would obtain any incremental benefits above and beyond those available through domestic partnership if their same-sex parents were married. See Prop. Br. 85 n.45. While Plaintiffs trumpet Mr. Blankenhorn’s statement that children raised by same-sex couples might benefit if their parents were permitted to marry, see Pl. Br. 51, they ignore his further statement that he believes essentially the same benefits “can be achieved through … domestic partnerships.” ER 345.30
                                                            

Nor is there any merit in Plaintiffs’ claim that, like antimiscegenation laws, the age-old definition of marriage is “at war” with its traditional purposes. Pl. Br. 50-51. Not only did the Supreme Court unanimously reject this analogy, see Baker, 409 U.S. 810, but relationships between men and women of different races are exactly the same as any other opposite-sex relationships in all respects - 73 - 
 

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4.

In all events, the voters were entitled to weigh any speculative

potential benefits that might result from redefining marriage to include same-sex relationships against the risk that such a seismic change would weaken that bedrock institution and the vital interests it has traditionally served. See Prop. Br. 93-104; supra at 66-70. Indeed, “[b]y maintaining the traditional definition of marriage while simultaneously granting legal recognition and expanded rights to same-sex relationships, the [State] has struck a careful balance to satisfy the diverse needs and desires of Californians.” In re Marriage Cases, 143 Cal. App. 4th 873, 935-36 (Cal. Ct. App. 2006), rev’d, 183 P.3d 384 (Cal. 2008). The Constitution simply does not “authorize the judiciary to sit as a super legislature” to second guess the wisdom or desirability” of the balance the people of California have struck. Heller v. Doe, 509 U.S. at 319; see also, e.g., Williamson, 348 U.S. at 487 (“it is for the legislature, not the courts, to balance the advantages and disadvantages” of economic or social regulation); Glucksberg, 521 U.S. at 722 (unless “a challenged state action implicate[s] a fundamental right,” there is no need for “complex balancing of competing interests”); Board of Trustees of the Univ. of Ala., 531 U.S. at 357-58 (so long as its actions are rational, State may “quite hard headedly—and perhaps hardheartedly” refuse to accommodate
                                                                                                                                                                                                 

relevant to the fundamental purposes of marriage. In particular, interracial opposite-sex relationships, just like any other such relationships, can in general produce children, often unintentionally, through even casual sexual behavior. The same is simply not true of same-sex relationships. See Prop. Br. 82-87. - 74 - 
 

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competing interests). Accordingly, so long as the traditional definition of marriage is rationally related to a legitimate state interest, Plaintiffs’ contentions regarding the alleged harms that definition inflicts are relevant only to democratic policy decisions, and can provide no basis for judicial invalidation of Proposition 8.31 VIII. NOTHING IN CALIFORNIA LAW NOR THE CIRCUMSTANCES SURROUNDING ITS ENACTMENT RENDERS PROPOSITION 8 UNCONSTITUTIONAL. A. The circumstances that led to Proposition 8’s enactment do not distinguish it from the laws of other states that protect the traditional definition of marriage. Plaintiffs and San Francisco repeatedly characterize Proposition 8 as

1.

“stripping” gays and lesbians of their preexisting rights. As even the California Supreme Court recognized, however, “describ[ing] Proposition 8 as ‘eliminating’ or ‘stripping’ same-sex couples of a fundamental constitutional right … drastically overstates the effect of Proposition 8 on the fundamental state constitutional rights of same-sex couples.” Strauss, 207 P.3d at 102. Such hyperbole also obscures the reality that for all but four-and-a-half months of California’s 161-year existence, marriage has been defined as the union of a man and a woman. The California Supreme Court’s decision in In re Marriage Cases, which briefly interrupted that practice, was overturned by the voters at the first possible opportunity. Indeed,
                                                            

Although San Francisco claims that Plyler v. Doe, 457 U.S. 202 (1982), permits this Court to find Proposition 8 irrational in light of the harms it allegedly inflicts, the Supreme Court has confined that anomalous decision to its facts. See Prop. Br. 34 n.12. - 75 - 
 

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that decision was no more final than the earlier California Court of Appeal decision upholding the State’s traditional definition of marriage: It was reviewed and overturned by a higher tribunal—the People themselves. Further, the United States Constitution is simply not a one-way ratchet that forever binds a State to laws and policies that go beyond what the Fourteenth Amendment would otherwise require. Such a regime not only would be “destructive of a State’s democratic processes and of its ability to experiment,” but it would affirmatively “discourage[ ] the States from providing greater protection” to their citizens than the Fourteenth Amendment requires. Crawford v. Board of Educ., 458 U.S. 527, 535, 539 (1982). “In short, having gone beyond the requirements of the Federal Constitution, [California] was free to return … to the standard prevailing generally throughout the United States.” Id. at 542. 2. Plaintiffs’ description of Proposition 8 as “stripping” gays and

lesbians of a preexisting constitutional right is plainly a gambit to align this case with Romer. But the features of Colorado’s Amendment 2 that led to its invalidation are simply not present here. Most importantly, Colorado’s law, which “prohibit[ed] all legislative, executive or judicial action at any level of state or local government designed to protect” gays and lesbians, simply lacked any “rational relationship to legitimate state interests,” Romer, 517 U.S. at 624, 632, an infirmity that does not afflict Proposition 8. - 76 - 
 

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Furthermore, unlike Amendment 2, Proposition 8 does not impose “a broad and undifferentiated disability” that inexplicably “denies … protection across the board,” id. at 632-33, but rather acts with narrow precision, restoring the traditional definition of marriage while otherwise leaving undisturbed the manifold rights and protections California law provides gays and lesbians. See Strauss v. Horton, 207 P.3d at 102 (contrasting Proposition 8 and its “limited effect” with a law like Amendment 2 that “sweepingly … leaves [a minority] group vulnerable to public or private discrimination in all areas without legal recourse”). And far from being a “peculiar” or “exceptional” law “unprecedented in our jurisprudence,” Romer, 517 U.S. at 632, 633, Proposition 8 simply restored to California law the definition of marriage as it has existed not only throughout California’s history, but throughout the history of the civilized world.32 3. Nor is Proposition 8 part of an “arbitrary and contradictory patchwork

of marriage regulations.” Pl. Br. 58. As an initial matter, of the five categories of
                                                            

For similar reasons, Proposition 8 is also nothing like the California constitutional amendment struck down in Reitman v. Mulkey, 387 U.S. 369 (1967). That measure was enacted in reaction to laws prohibiting racial discrimination in housing, but it “struck more deeply and more widely” than “just repeal[ing] an existing law.” Id. at 377, 380. By broadly establishing a “right to discriminate on racial grounds … immune from legislative, executive, or judicial regulation at any level of the state government,” id. at 376, 377, its only conceivable purpose was impermissibly “authorizing the perpetuation of … private discrimination,” id. at 375. In any event, the issue in Reitman was not whether the challenged law passed rational-basis review, but whether the State’s facilitation of private racial discrimination constituted race discrimination by the State. See id. at 378. - 77 - 
 

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couples Plaintiffs say California marriage law creates, three are present in every state that maintains the traditional definition of marriage: (1) unmarried oppositesex couples, (2) married opposite-sex couples, and (3) unmarried same-sex couples. Furthermore, there is nothing “arbitrary and contradictory” about the other two categories, which consist of same-sex couples legally married before the passage of Proposition 8 that California recognizes as married. Because the California Supreme Court refused to stay the effect of In re Marriage Cases until the people could vote on Proposition 8, see In re Marriage Cases, No. S147999, 2008 Cal. LEXIS 6807, at *1-2 (Cal. June 4, 2008), that court was promptly forced to decide whether Proposition 8 operated to invalidate the same-sex marriages that took place between In re Marriage Cases and Proposition 8’s passage. In holding that Proposition 8 did not apply retroactively, the court acted to protect the vested rights of same-sex couples who had married in reliance on its earlier decision. See Strauss, 207 P.3d at 122. So-called “grandfather clauses” that preserve rights that were vested before a change in the law are common and constitutionally unremarkable. Even where heightened scrutiny applies, the Constitution “does not require that a regulatory regime singlemindedly pursue one objective to the exclusion of all others,” Coyote Publishing, Inc. v. Miller, 598 F.3d 592, 610 (9th Cir. 2010), and the fact that California has struck a “balance” between the interests - 78 - 
 

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served by the traditional definition of marriage and other “important but competing state interests” does not render its interest in preserving the traditional definition of marriage “any less substantial” than if it had struck a different balance, id. at 606. The California Legislature has now purported to extend this rationale to the finite and limited pool of same-sex couples who were legally married outside of California before Proposition 8 was adopted and who subsequently move to California. See CAL. FAM. CODE § 308(b). To the extent this statute can be squared with Proposition 8, see Strauss, 207 P.3d at 122 n.48 (declining to reach the question), it would be for similar reasons as preserving the pre-Proposition 8 California same-sex marriages. To the extent it cannot be squared with Proposition 8, the statute was simply beyond the power of California’s Legislature to enact. Either way, it can provide no basis for invalidating Proposition 8. 4. These features of California marriage law ultimately have their roots

in the In re Marriage Cases decision. That short-lived decision simply cannot be taken to place the traditional definition of marriage in California on shakier constitutional footing than in states that have never recognized same-sex relationships as marriages, for “the Fourteenth Amendment [does not] require the people of a State to adhere to a judicial construction of their State Constitution when that Constitution itself vests final authority in the people.” Crawford, 458 U.S. at 540. If it was rational for California to adhere to the traditional definition - 79 - 
 

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of marriage for the first 159 years of its existence, it was equally rational for California to restore that definition after a 143-day hiatus by enacting Proposition 8. B. Proposition 8 is not irrational in light of other California laws.

California, like other States, has vital interests in encouraging men and women in potentially procreative relationships to form stable and lasting bonds for the purpose of bearing and raising any offspring that may result from their union. And many Californians, like others, have legitimate concerns about the consequences of abandoning the age-old definition of marriage in favor of a new and all-but-untested one that decisively severs the institution’s inherent connection to responsible procreation and childrearing. These interests, rooted in indisputable biological and historical fact, are not undermined by any other provision of California law. 1. Certainly these interests are not undermined by California’s decision

to provide same-sex couples with essentially the same rights and responsibilities of marriage through domestic partnerships, see CAL. FAM. CODE § 297.5, while preserving the denomination of marriage, and the encouragement and support it provides, to those relationships—committed opposite-sex couples—most likely to further the interests marriage has traditionally served. Although Plaintiffs claim that domestic partnerships “stigmatize” gays and lesbians by branding their - 80 - 
 

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relationships “with a mark of inferiority,” Pl. Br. 53-54, it is simply not stigmatic to treat different things differently. See supra at 70-73. Further, Plaintiffs’ claim is belied by the fact that California’s domestic partnership legislation was authored, sponsored, supported, and hailed by leading advocates of gay and lesbian rights.33 And when an alternative status such as domestic partnerships is in place, many gays and lesbians choose that alternative even when marriage is also available. See, e.g., ER 1880 (many Californians entered domestic partnerships during months in 2008 when same-sex relationships could be recognized as marriages); ER 1879 (almost 30% of same-sex couples in the Netherlands enter registered partnerships rather than have their relationships recognized as marriages). Indeed, research by Plaintiffs’ expert Professor Herek shows that more self-identified gays, lesbians, and bisexuals support civil unions or domestic partnerships than support redefining marriage to include same-sex relationships. ER1166 (finding that 89.1% support civil unions, while 77.9% support redefining marriage). Some gay and lesbian rights advocates prefer an alternative institution over redefining marriage in light of the biological, historical, and cultural
                                                            

The California legislation that extended the rights and benefits of marriage to domestic partners was authored by members of California’s Gay and Lesbian Legislative Caucus and sponsored by Equality California. See ER 1875. Upon its enactment, Equality California’s Executive Director stated that “[w]e are overjoyed by the historic passage of this critical civil-rights bill for same-sex couples and their families,” and he thanked “each of the legislators who stood up for civil rights by voting for this bill.” ER1876. - 81 - 
 

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differences between heterosexual and homosexual relationships. See, e.g., ER 1859 (“Larger gains with respect to dignity very likely might be had with the development of a body of family law which is for and by gay and lesbian people. A version of civil unions or domestic partnership may very likely be the way to go then.”). And, as Professor Badgett has acknowledged, some gay rights advocates fear that redefining marriage to include same-sex couples could “marginalize and stigmatize some families” by “creating a hierarchy of relationships within the GLBT community.” ER 1920. For all these reasons, California’s maintenance of domestic partnerships for same-sex couples bears no resemblance to the “separate-and-inherently-unequal” system of racially segregated education struck down in Brown v. Board of Education, 347 U.S. 483 (1954). Pl. Br. 53-54. As even Attorney General Brown argued: “Such hyperbole ignores inconvenient historical facts. Domestic partnerships and civil unions, unlike Jim Crow laws, were not conceived by a majority group for the purpose of oppressing a minority group. Rather, they were sponsored by gay and lesbian rights groups.” Answer Brief of Attorney General and State of California, In re Marriage Cases at 46 (Cal. June 14, 2007) (ER 1789). Nor did Jim Crow laws, unlike the traditional definition of marriage, advance interests wholly independent from invidious discrimination. In sum, California has gone far beyond any legal requirement, and far - 82 - 
 

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beyond the practice of almost every other state, in affording gays and lesbians legal protections, including virtually all the rights, benefits, and privileges of marriage. It is simply specious to argue that by doing so the State has put the traditional definition of marriage on weaker constitutional footing than in those states that have done nothing to recognize same-sex relationships. 2. Plaintiffs and San Francisco maintain that by enacting other laws

regulating parenting and childrearing, California has disclaimed the procreative interests traditionally served by marriage. Those interests, however, reflect biological and historical realities that simply cannot be erased by judicial or legislative fiat. Furthermore, Plaintiffs and San Francisco ignore the most pertinent statement of policy related to these issues in California law—Proposition 8 itself. Indeed, the people of California could not have more forcefully underscored the “state’s current interest … in preserving the traditional definition of marriage” than “by having [it] enshrined in the state Constitution.” Strauss, 207 P.3d at 122. Proposition 8 thus indisputably confirms California’s abiding interest in the traditional institution of marriage and the purposes it has universally served. What is more, California law plainly recognizes irresponsible procreation and fatherlessness as pressing social problems. See Prop. Br. 80 n.41. Against this backdrop, it is untenable to claim that California has somehow rejected the interests served by the traditional definition of marriage. - 83 - 
 

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Indeed, Plaintiffs’ and San Francisco’s conception of what it would take for California rationally to maintain the traditional opposite-sex definition of marriage surely could not be met by any family law system that has ever existed. They apparently would require, among other things, that California: forbid “the old [and] the infertile” from marrying, Pl. Br. 89; limit marriage to couples with an “intent” to have children, SF Br. 11; reserve “parental status” to married couples, SF Br. 11; and completely prohibit “gay men and lesbians [from] rais[ing] children,” Pl. Br. 80. It is absurd to suggest that the Constitution would look more favorably on such a draconian and implausible regime. In the final analysis, Plaintiffs and San Francisco would permit this Court to credit the traditional procreative purposes of marriage only if California singlemindedly pursued them in all areas of her law, while at the same time failing to make any provision whatsoever to accommodate the interests implicated by the practical realities that gays and lesbians form relationships, that some gays and lesbians raise children, that some children will be born outside of marriage, and that some marriages end due to death or divorce or otherwise do not suffice to care for children. This is plainly not the law, see Coyote, 598 F.3d at 610, and such rigidity is particularly inappropriate when the Court is employing the “paradigm of judicial restraint” applicable here. FCC v. Beach Commc’ns, 508 U.S. at 314. Simply put, neither the fact that California could do more to promote responsible - 84 - 
 

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procreation and childrearing through the institution of marriage nor the fact that California has enacted other laws to help ensure the welfare of all of its children in anyway suggests that the institution of marriage in California no longer plays a meaningful role in furthering the compelling interests it has always served. C. The campaign to pass Proposition 8 does not undermine its constitutionality. Plaintiffs argue that (i) the district court was correct in “finding” that

1.

the motivation of seven million voters in supporting Proposition 8 was animus towards gays and lesbians, and (ii) that snippets from a handful of public messages among the cacophony of voices debating Proposition 8 constituted a proper and sufficient basis from which to deduce this motive. To build their case, Plaintiffs first quote McCreary County v. ACLU of Kentucky, 545 U.S. 844, 862 (2005), for the proposition that to discern the purpose of an enactment courts engage in an objective inquiry that can take account of “the traditional external signs that show up in the ‘text, legislative history, and implementation of the statute.’ ” Of course, the snippets of advertisements cited by the district court are none of these things, so Plaintiffs leap beyond McCreary to argue that these snippets are part of the “ ‘historical context’ ” from which a court may discover collective intent. Pl. Br. 99. Remarkably, Plaintiffs cite Southern Alameda Spanish Speaking Organization v. Union City, 424 F.2d 291, 295 (9th Cir. 1970) (“SASSO”), for this proposition. SASSO, however, expressly rejected the notion that “the question of motivation for - 85 - 
 

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[a] referendum (apart from a consideration of its effect) is an appropriate one for judicial inquiry.” Id at 295. When considering constitutional challenges to referenda, the Supreme Court has likewise never relied on the subjective motivations of referenda sponsors or voters. Instead, the Court looks to text and effects. See Hunter v. Erickson, 393 U.S. 385 (1969); James v. Valtierra, 402 U.S. 137 (1971); Crawford v. Board of Educ., 458 U.S. at 543-45 (characterizing “claim of discriminatory intent on the part of millions of voters as but ‘pure speculation’ ” and refusing to “impugn the motives of the State’s electorate”); Romer v. Evans, 517 U.S. 620 (1996). As the Sixth Circuit has correctly recognized, the Supreme Court’s referendum cases thus make clear that a reviewing court “may not even inquire into the electorate’s possible actual motivations for adopting a measure via initiative or referendum.” Equality Found. of Greater Cincinnati v. Cincinnati, 128 F.3d at 293 n.4; see also Arthur v. Toledo, 782 F.2d 565, 573-74 (6th Cir. 1986). Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982), is not to the contrary. There the Court examined the text of the statute and its effect and—as in every other referendum case finding an unconstitutional purpose—ascribed a discriminatory purpose to the electorate only by concluding that the effects of the

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law precluded any other purpose. 458 U.S. at 471.34 2. Like the district court, Plaintiffs, San Francisco, and their amici

selectively quote from a mere handful of the cacophony of messages that were before the voters in the hard fought Proposition 8 campaign in a vain attempt to paint the initiative as driven by animus and bigotry. When understood in context, however, even these cherry-picked messages for the most part reflect valid reasons for supporting the traditional definition of marriage. Like the district court, Plaintiffs and San Francisco highlight statements expressing the view that marriage protects children and parental concerns about what their young children will be taught about marriage. But as we have already explained, neither message is in any way sinister or improper. See Prop. Br. 10809.35
                                                            

In confirming this conclusion, the Court did state that “[n]either the initiative’s sponsors, nor the District Court, nor the Court of Appeals had any difficulty perceiving the racial nature” of the challenged initiative. Id. Significantly, however, the Court of Appeals (this Court) “f[ound] it unnecessary” to address whether the law “was motivated by a discriminatory purpose,” Seattle School Dist. No. 1 v. Washington, 633 F.2d 1338, 1342 (9th Cir. 1980), and thus cannot be said to have looked to any evidence of such purpose.  35 Plaintiffs claim that the education-based argument was “highly misleading.” Pl. Br. 101 n.26. But they cannot deny that: (1) California law requires school districts that provide comprehensive sexual health education to “teach respect for marriage,” CAL. EDUC. CODE § 51933(b)(7); (2) following Massachusetts’ redefinition of marriage second graders in that State were read a book celebrating same-sex marriage without prior parental notification, see Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008); and (3) while same-sex marriage was legal in California, a class of first grade public school students was taken on a field trip - 87 - 
 

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Other statements trumpeted by Plaintiffs and San Francisco reflect other legitimate concerns. San Francisco, for example, makes much of a snippet from an official campaign document stating that a vote against Proposition 8 would destroy “the sanctity of marriage.” See SF Br. 22 (quoting ER 1036). Read in context, however, the statement was simply part of an argument that redefining marriage would deinstitutionalize marriage: If Proposition 8 is defeated, the sanctity of marriage will be destroyed and its powerful influence on the betterment of society will be lost. The defeat of Prop. 8 would result in the very meaning of marriage being transformed into nothing more than a contractual relationship between adults. No longer will the interests of children and families even be a consideration. We will no longer celebrate marriage as a union of husband and wife, but rather a relationship between ‘Party A’ and ‘Party B.’ ER 1036.36 Though often inartfully or unpersuasively expressed, most of the other highlighted messages likewise reflect legitimate views about the potential widespread impact of redefining marriage, the importance of both a mother and a
                                                                                                                                                                                                 

to San Francisco’s City Hall to celebrate their teacher’s same-sex wedding, see ER 2005. These facts are surely sufficient to give a reasonable parent grounds for concern about how same-sex marriage might be taught to young children. 36 A similar example is the simulcast statement of a Princeton University lecturer cited by both Plaintiffs and San Francisco. See Pl. Br. 100 & SF Br. 21 (citing SER 552-53). The statement was part of a broader discussion explaining that a primary purpose of marriage is to bind mothers and fathers to their children. And the problem with affirming same-sex marriage, that discussion makes clear, is that legally redefining marriage to do so sends a message that “kids are not entitled to a … relationship with their genetic parents.” SER 552. - 88 - 
 

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father to a child’s development, and the potential for redefining marriage to include same-sex couples to start society down an undesirable slippery slope.37 3. We do not deny that some extreme statements reflecting bigotry were

made on both sides of the hard-fought Proposition 8 debate, as is perhaps inevitable whenever divisive issues implicate individuals’ most deeply held values and beliefs. See, e.g., ER 2007 (anti-Proposition 8 advertisement reflecting antiMormon bigotry). But while “negative attitudes” may often accompany unconstitutional laws, “their presence alone does not a constitutional violation make.” Board of Trustees v. Garrett, 531 U.S. at 367. Indeed, so long as a law is rationally related to a legitimate state interest, such attitudes are not constitutionally fatal. See id.; see also Michael M. v. Superior Court, 450 U.S. at 472 n.7 (plurality). In particular, though Plaintiffs place great emphasis on certain bigoted and uninformed statements made by Dr. Hak-Shing William Tam, there is no more basis to impute such homophobic views to the more than seven million
                                                            

In addition, many of the materials cited were not part of the official ProtectMarriage.com Yes on 8 campaign, and some may have never been made public at all. One of the items Plaintiffs cite, for example, is a document—plainly a draft—attached to an email sent to ProtectMarriage.com chairman Ron Prentice from an individual affiliated with a different organization. See SER 615-27; Pl. Br. 103 (citing SER 622). In a declaration filed with the district court, Mr. Prentice explained that “neither I nor ProtectMarriage.com is aware of what version, if any, of this document [was] ultimately published, and neither I nor Protect Marriage ever provided any edits or response to this email.” ER1774.   - 89 - 
 

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Californians who supported Proposition 8 than there would be to impute the antireligious bigotry of a small number of Proposition 8 opponents to the millions of Californians who voted against Proposition 8. Certainly, nothing in the evidence suggests that extremist views were held by more than a small sliver of the electorate on either side of the Proposition 8 debate. Indeed, the evidence affirmatively undercuts the notion that Dr. Tam’s views could have influenced the election in any meaningful way. According to his uncontroverted testimony, he had no involvement in formulating the official ProtectMarriage.com campaign’s strategy or messaging, ER 1715, and he did not share his discriminatory viewpoints on homosexuality with anyone from ProtectMarriage.com at any time during the campaign, ER 1714. Dr. Tam’s negligible influence on the campaign is well illustrated by the very “campaign material” Plaintiffs cite—a letter containing offensive, inflammatory rhetoric that they claim Dr. Tam “posted … on his website.” Pl. Br. 101-02 (citing SER 349). In reality, Dr. Tam testified that he sent the letter to approximately 100 people and that he did not even know that a recipient had posted it on the internet. See ER 1712-13. Furthermore, the letter appears not to have been posted until after the campaign was over. See SER 349 (showing “last updated” date of September 4,

- 90 - 
 

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2009).38 Even farther afield are the personal views Dr. Tam expressed during his trial testimony, which could not possibly have affected the Proposition 8 campaign. See Pl. Br. 100. *** In the end, it appears that Plaintiffs themselves are unconvinced by their claim that Proposition 8 was motivated by a “desire to relegate gay men and lesbians to second class status,” or even that voter motivation is relevant: Like their witnesses, see Prop. Br. 107 n.56, Plaintiffs concede that “[t]here are many reasons why someone might be opposed to marriage between individuals of the same sex,” but they argue that Proposition 8 is nonetheless unconstitutional “whatever the reason that voters supported” it because it “embodies an irrational and discriminatory classification that denies gay men and lesbians the fundamental right to marry enjoyed by all other citizens.” Pl. Br. 104-05. Plaintiffs, in other words, apparently recognize that Proposition 8’s constitutionality turns not on voter motivation but rather on whether or not it is rationally related to a legitimate state interest. If that is Plaintiffs’ position, they are right—and because Proposition 8 advances legitimate, indeed compelling, state interests, this Court is bound to
                                                            

Plaintiffs and San Francisco also cite other documents apparently posted on Dr. Tam’s personal website. That website, however, consists largely of articles written in Chinese and had been visited only about 1600 times as of 2010. See ER 1983-84, 1989-90; ER 2003. It could not have played any meaningful role whatsoever in shaping the views of the more than seven million individuals who voted for Proposition 8.   - 91 - 
 

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uphold it. For as the Supreme Court has explained, regardless of what “reasoning in fact underlay the legislative decision,” so long as “there are plausible reasons” supporting the legislation, judicial “inquiry is at an end.” Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 179 (1980). CONCLUSION For these reasons, the district court’s ruling should be reversed. November 1, 2010 Respectfully submitted, s/ Charles J. Cooper Andrew P. Pugno LAW OFFICES OF ANDREW P. PUGNO 101 Parkshore Drive, Suite 100 Folsom, California 95630 (916) 608-3065; (916) 608-3066 Fax Brian W. Raum James A. Campbell ALLIANCE DEFENSE FUND 15100 North 90th Street Scottsdale, Arizona 85260 (480) 444-0020; (480) 444-0028 Fax Charles J. Cooper David H. Thompson Howard C. Nielson, Jr. Peter A. Patterson COOPER AND KIRK, PLLC 1523 New Hampshire Ave., N.W. Washington, D.C. 20036 (202)220-9600; (202) 220-9601 Fax

Attorneys for Defendant-Intervenors-Appellants Hollingsworth, Knight, Gutierrez, Jansson, and ProtectMarriage.com

- 92 - 
 

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Form 8.

Certificate of Compliance Pursuant to 9th Circuit Rules 28-4, 29-2(c)(2) and (3), 32-2 or 32-41 for Case Number

Note: This form must be signed by the attorney or unrepresented litigant and attached to the end of the brief. I certify that (check appropriate option): This brief complies with the enlargement of brief size permitted by Ninth Circuit Rule 28-4. The brief’s type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). This brief is words, lines of text or pages, excluding the portions exempted by Fed. R. App. P. 32(a)(7)(B)(iii), if applicable. This brief complies with the enlargement of brief size granted by court order dated . The brief’s type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). This brief is words, lines of text or pages, excluding the portions exempted by Fed. R. App. P. 32(a)(7)(B)(iii), if applicable.

This brief is accompanied by a motion for leave to file an oversize brief pursuant to Circuit Rule 32-2 and is 23, 274 words, lines of text or pages, excluding the portions exempted by Fed. R. App. P. 32(a)(7)(B)(iii), if applicable. This brief is accompanied by a motion for leave to file an oversize brief pursuant to Circuit Rule 29-2(c)(2) or (3) and is words, lines of text or pages, excluding the portions exempted by Fed. R. App. P. 32(a)(7)(B)(iii), if applicable. This brief complies with the length limits set forth at Ninth Circuit Rule 32-4. The brief’s type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).
Signature of Attorney or Unrepresented Litigant

/s/ Charles J. Cooper
("s/" plus typed name is acceptable for electronically-filed documents)

Date
1

November 1, 2010

If filing a brief that falls within the length limitations set forth at Fed. R. App. P. 32(a)(7)(B), use Form 6, Federal Rules of Appellate Procedure.

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9th Circuit Case Number(s) 10-16696
NOTE: To secure your input, you should print the filled-in form to PDF (File > Print > PDF Printer/Creator).

*********************************************************************************

CERTIFICATE OF SERVICE When All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on (date) . I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. Signature (use "s/" format) *********************************************************************************

CERTIFICATE OF SERVICE When Not All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on (date) . November 1, 2010 Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within 3 calendar days to the following non-CM/ECF participants: Please see attached service list.

Signature (use "s/" format)

/s/ Charles J. Cooper

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SERVICE LIST
 

Arthur N. Bailey, Jr., Esq. HAUSFELD LLP 44 Montgomery Street, Suite 3400 San Francisco, California 94104 Thomas Brejcha THOMAS MORE SOCIETY 29 S. La Salle Street, Suite 440 Chicago, IL 60603 Suzanne B. Goldberg Clinical Professor of Law & Director SEXUALITY & GENDER LAW CLINIC COLUMBIA LAW SCHOOL 435 West 116th Street New York, NY 10027 Maura T. Healey Assistant Attorney General One Ashburton Place Boston, MA 02108 Von G. Keetch KIRTON & McCONKIE, PC Eagle Gate Tower 60 E. South Temple Salt Lake City, UT 84111 Jeffrey Mateer LIBERTY INSTITUTE 2001 W Plano Parkway, Suite 1600 Plano, TX 75075

Jeffrey Hunter Moon Anthony R. Picarello, Jr. Michael F. Moses UNITED STATES CATHOLIC CONFERENCE 3211 Fourth Street, N.E. Washington, DC 20017 Lincoln C. Oliphant COLUMBUS SCHOOL OF LAW The Catholic University of America 3600 John McCormack Road, NE Washington, DC 20064 Stuart J. Roth AMERICAN CENTER FOR LAW AND JUSTICE 201 Maryland Avenue, N.E. Washington, DC 20002 Anita L. Staver LIBERTY COUNSEL P.O. Box 540774 Orlando, FL 32854 Mathew D. Staver LIBERTY COUNSEL 1055 Maitland Center Commons 2nd Floor Maitland, FL 32751

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James F. Sweeney SWEENEY & GREENE LLP 8001 Folsom Boulevard, Suite 101 Sacramento, CA 95826 M. Edward Whelan, III ETHICS AND PUBLIC POLICY CENTER 1730 M Street N.W., Suite 910 Washington, DC 20036

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EXHIBIT A

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. SACV 09-0286 DOC (MLGx) Title: SMELT ET AL. V. UNITED STATES OF AMERICA, ET AL. DOCKET ENTRY
[I hereby certify that this document was served by first class mail or Government messenger service, postage prepaid, to all counsel (or parties) at their respective most recent address of record in this action on this date.] Date:____________ Deputy Clerk: ___________________________________

Date: July 15, 2009

PRESENT: THE HONORABLE DAVID O. CARTER, JUDGE Kristee Hopkins Courtroom Clerk Not Present Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS: NONE PRESENT NONE PRESENT

PROCEEDING (IN CHAMBERS): GRANTING MOTION TO DISMISS Before the Court is Defendant State of California’s (“California”) Motion to Dismiss (the Motion”). After reviewing the moving papers, hearing oral argument, and for the reasons set forth below, the Court hereby GRANTS the Motion. I. BACKGROUND On December 29, 2008, Plaintiffs Arthur Bruno Smelt and Christopher David Hammer (“Plaintiffs”) filed the instant case in California Superior Court. The case was removed to this Court on March 9, 2009. The Plaintiffs in this case are a same-sex couple who received a Declaration of Domestic Partnership from the State of California on January 10, 2000 and were subsequently married under the laws of California, “on or subsequent to July 10, 2008" – i.e., before Proposition 8 was passed in California’s November 4, 2008 election. Plaintiffs allege that “the refusal of all states and jurisdictions” to recognize the validity of their marriage results in the denial to them of numerous rights, benefits and responsibilities bestowed on all other married couples, so long as they are opposite-sex couples. Plaintiffs state that the rights, benefits and responsibilities that they are denied include the MINUTES FORM 11 DOC CIVIL - GEN Initials of Deputy Clerk _kh_ Page 1 of 4

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right to social security survivor benefits, decision-making authority for funeral arrangements and the disposition of a spouse’s body, the right to bereavement leave in the even to of a spouse’s death, the presumption that both spouses are the parent of a child born during marriage, and the right to a certain division of their spouse’s separate property and the couple’s marital property upon the death of a spouse who dies intestate. Plaintiffs further argue that the denial of such rights, benefits and responsibilities has caused them to suffer severe emotional distress, mental anguish, humiliation, loss of liberty and the pursuit of happiness, denial of equal protection of laws, denial of freedom of association, denial of privacy rights, and denial of the right to travel to establish residency anywhere in the United States with the full recognition of the legality of Plaintiffs’ marriage. Plaintiffs target their action at the federal Defense of Marriage Act, 1 U.S.C. §7; 28 U.S.C. §1738C (the “DOMA”), as well as “Proposition 8". Proposition 8 was a provision on the California state ballot in the November 4, 2008 election that amended the California Constitution to define marriage as between a man and a woman only. Plaintiffs assert that this amendment violates several portions of the U.S. Constitution. Plaintiffs seek broad relief. Plaintiffs seek a permanent injunction compelling the United States and the State of California (“Defendants”) to “take all necessary acts to require the entire nation of the United States of America, all of its territories and jurisdictions, to eliminate any distinction in the law that prejudices the rights of Plaintiffs.” Additionally, Plaintiffs seek a declaratory judgment “establishing that any law that restricts Plaintiffs’ rights of distinguishes Plaintiffs’ rights in any way from any opposite gender couple to be unconstitutional, under the United States Constitution, including all provisions of the [DOMA].” In the instant Motion, California moves to dismiss the claims against it, which pertain only to Proposition 8, arguing that Plaintiffs lack standing to pursue said claims. II. LEGAL STANDARD A. Standing Each element of standing is "an indispensable part of the plaintiff's case," and accordingly "must be supported in the same way as any other matter on which the plaintiff bears the burden, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130 (1992). To establish standing, a plaintiff must demonstrate: (1) an ‘injury in fact’ – an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not ‘conjectural’ or ‘hypothetical’”; (2) “there must be a causal connection between the injury and the conduct complained of – the injury has to be ‘fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court;” and (3) “it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’” Id. at 2136 (internal MINUTES FORM 11 DOC CIVIL - GEN Initials of Deputy Clerk _kh_ Page 2 of 4

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citations omitted). See also Bird v. Lewis & Clark College, 303 F.3d 1015, 1019 (9th Cir. 2002) (internal quotation marks and citations omitted)("In the context of declaratory and injunctive relief, [a plaintiff] must demonstrate that [he or she] has suffered or is threatened with a concrete and particularized legal harm . . . coupled with a sufficient likelihood that [he or she] will again be wronged in a similar way."). III. DISCUSSION This is the second time that Plaintiffs have come before this Court, presenting substantially similar arguments each time. In Smelt, et al. v. County of Orange, California, et al., SACV04-1042 DOC (MLGx), Plaintiffs filed suit before Judge Gary L. Taylor, arguing that they had applied for, and been denied, a marriage license by the County Clerk of Orange County, California, in violation of the U.S. Constitution. More specifically, Plaintiffs argued that Section 2 of the DOMA violates the United States Constitution’s Due Process, equal protection rights under the Fifth Amendment, the Right to Privacy and the Full Faith and Credit Clause. Additionally, they argued that Section 3 of the DOMA violates the “liberty interests protected by the Due Process Clause”; discriminates “on the basis of gender” and “sexual orientation” in violation of equal protection; and violates “the privacy interest protected by the Right to Privacy.” Plaintiffs also argued that the California Family Code violated the U.S. Constitution. Plaintiffs sought a declaratory judgment that the relevant sections of the California Family Code and the DOMA were unconstitutional as well as injunctive relief “[m]andating the use of gender-neutral terms and issuing a marriage license to [them].” Judge Taylor (1) abstained from deciding the constitutionality of the challenged sections of the California Family Code until the resolution of cases then-pending before the California Court of appeal concerning whether the portions of the California Family Code that limit marriage to oppositesex couples violated the California Constitution, (2) held that Plaintiffs had no standing to challenge Section 2 of the DOMA, and (3) held that Plaintiffs had no standing to challenge Section 3 of the DOMA but that that section did not violate the U.S. Constitution. In Smelt v. County of Orange, 374 F.Supp.2d 861, 685 (C.D. Cal. 2005), the Ninth Circuit reviewed Judge Taylor’s ruling in SACV041042 DOC (MLGx), upholding his decision to abstain as to Plaintiffs’ challenge to the California Family Code, upholding his decision that Plaintiffs did not have standing to challenge either Section 3 or Section 2 of the DOMA as Plaintiffs were not married (and as they presented abstract and generalized grievances), and vacating his decision regarding the merits of the DOMA Section 3 claim as, given the “abstract facial attack made,” no one could “know whether in the context of some particular statute as applied to some particular person in some particular situation Congress’s use of the word ‘marriage’ [would] amount to an unconstitutional classification.” On remand, the case was transferred to this Court. On August 29, 2008, this Court dismissed the case, as directed by the Ninth Circuit. The Plaintiffs filed the instant lawsuit on November 3, 2008, this time including the fact that, after the filing of the initial lawsuit, they had been married under California law. MINUTES FORM 11 DOC CIVIL - GEN Initials of Deputy Clerk _kh_ Page 3 of 4

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Once again, the instant Motion turns not on the merits of the dispute, but on standing. California correctly asserts that Plaintiffs no longer have standing to pursue their claims against the State of California, as they relate to the enforcement of Proposition 8. Proposition 8, as codified in Section 7.5 to Article I of the California Constitution, was recently held by the California Supreme Court to present no bar to the recognition of Plaintiffs’ marriage within California, as said marriage was performed before Proposition 8 was passed. Strauss v. Horton, 46 Cal.4th 364 (Cal. 2009). As Plaintiffs’ marriage is valid within California, they cannot present an injury with respect to the recognition of their marriage by the State of California under Lujan and, therefore, they do not have standing to pursue their claims against the State of California. 504 U.S. 555. IV. OUTCOME For the foregoing reasons, the Motion is GRANTED and the State of California is HEREBY DISMISSED WITHOUT PREJUDICE. The Clerk shall serve this minute order on all parties to the action.

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EXHIBIT B

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Loren Dean Marks

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October 30, 2009

Washington, DC Page 1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 v.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA KRISTIN M. PERRY, et al., )

Plaintiffs, ) ) No. 09-CV-2292 VRW ) ) ) ) Defendants. )

ARNOLD SCHWARZENEGGER, in his official capacity as Governor of California, et al.,

Washington, D.C. Friday, October 30, 2009 Deposition of LOREN DEAN MARKS, called for examination by counsel for Plaintiffs in the above-entitled matter, the witness being duly sworn by CHERYL A. LORD, a Notary Public in and for the District of Columbia, taken at the offices of COOPER & KIRK PLLC, 1523 New Hampshire Avenue N.W., Washington, D.C., at 9:31 a.m., and the proceedings being taken down by Stenotype by CHERYL A. LORD, RPR, CRR.

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headings in various studies, it's -- it's rarely explicitly mentioned. Q. Is Johnson's study one that you would characterize as gold standard social science? A. I think it's a fine study, yes. Q. Can you turn to page 12, please. A. M-hm. Q. Page 12, the first bullet point numbered 1, I'll read it and you can read along: 10 family types are defined as follows in order of decreasing frequency. 1, mother, father. The respondent reported the presence in the household of a mother and a father, open paren, biological or adoptive, close paren. The respondent did not report in the presence -- the presence in the household of any of the other 7 relations, that is, the respondent did not report living with a stepmother, a stepfather, an other relative, a nonrelative, or a spouse. Do you take that to mean that -- to mean as I do that Johnson defined a mother or a father as a biological or an adoptive mother or father? A. Yes.

criminality and incarceration. In paragraph -- where is it? -- oh, I'm -- yes, paragraph 16, you state that: In another examination of criminality and delinquency, Rickel and Langer found that children who were residing with their biological fathers were the least involved in delinquent behavior, while children with stepfathers fared worse. Single-parented children fell in between. And for that proposition, you cite Rickel and Langer's 1985 study, and you see also to David Popenoe's book. Are you sure as you sit here right now that you used the term that Rickel and Langer -excuse me -- used the term biological fathers as you used the term biological fathers in your report? A. No, not positive. Q. Do you know if Rickel and Langer used the term biological fathers at all? A. One of hundreds of studies, Mr. McGill. Q. So is the answer, you don't know if Rickel and Langer used biological fathers?

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Q. Do you read that as I do that Johnson does not distinguish between biological and adoptive parents? A. He doesn't there. Q. Do you believe that Wilcox -- Wilcox's statement turning back to page 25 -- you need not turn to it because it's quoted in paragraph 15 of your report. Do you believe that Wilcox's statement that teens living with both biological parents are significantly less likely to use illicit drugs, alcohol, tobacco -- do you believe that's accurately supported by the Johnson study? A. Taking a close look at these -- at these definitions as been presented, I would withdraw that. Q. Would you also withdraw your emphasis on both biological parents? A. Certainly so. Q. Would you delete the word biological? A. I would. Q. I want to move now to your discussion of

A. I don't recall. Q. Have you read the Rickel and Langer study? A. I've read just portions of it, as I mentioned earlier. Q. Can you tell me what methodology Rickel and Langer used to reach their conclusions? A. No. Q. Can you tell me when Rickel and Langer gathered the data for their study? A. No. It was published in '85, how -- how far before that, I don't know. Q. If I told you the data was gathered in the late 1960s, would you assume that was correct? A. I couldn't refute it. MR. McGILL: Mark this as exhibit 6, please. (Marks Exhibit No. 6 was marked for identification.) BY MR. McGILL: Q. I want to direct you first to page 601

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focuses specifically on those families is nascent and new. There's hundreds of studies as I mentioned early on, each of which may have their own little twist or wrinkle. In social science, we call it an operational definition. Those -- those differ from study to study. And if I were to tease out every one of those definitions in a 12-page report, we wouldn't -- we would never get to the report. There are some -some admittedly broad-brush strokes and assumptions that are made. As a writer I had to make some of those. And leave it at that. Q. And one of the assumptions you made was that where a study labeled a family intact or as having biological parents, you assumed, did you not, that the parents had a genetic connection to the child? A. I did -Q. So you -A. -- because --

least use an idea or 2. Lansford -- I think Brown at some -- some level has given some similar ideas, but again, we're talking about hundreds of studies, Mr. McGill, to pull one out and specifically looking at an adoption -- Lansford may have, 2001. Q. Based on your work as a social scientist and your experience in the social sciences for -- as a professor for 8 years, in the absence of a study that compared biological parents to nonbiological parents, is it possible to draw an inference that biological parents are superior at generating beneficial child outcomes than nonbiological parents? A. And we're talking about intact forms -Q. Intact. A. -- with everything except biology and place. MR. THOMPSON: Just so the record is clear, is marriage in place in in this question? BY MR. McGILL: Q. My question was, in the absence of any

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Q. Please continue. A. -- because the researchers in -- in, you know, Susan Brown's case and Johnson, they elected to include adoptive families in with their definition of intact. Q. If you were designing a study that sought to demonstrate the importance of biological parenting as opposed to nonbiological parenting, how would you do it? A. I think the way I would probably go about it would be to do a comparison between the intact family as we've discussed to do it with a marriage-based adoptive family and also probably to include a third party of step- -- stepfamily, but I would be very careful to control for income given some of the assumptions that I made earlier about adoptive families having more economic resources. Q. Of any of the studies that you have reviewed in connection with your work as an expert, are you aware of any study that does as you just suggested right there? A. There -- I think there are studies that at

study that compares biological parents to nonbiological parents, is it possible to draw an inference that biological parents are superior to nonbiological parents? A. In terms of the research that exists, I think we've established that -- that question is tough to address, which is I assume why you asked for an inference. I think it's a risky -- risky inference. That's -- that's why we have empirical research. Q. Is there any study that you've discussed in your report or cited in your list of references that tends to demonstrate that biological parents are superior to nonbiological parents at creating beneficial child outcomes? A. With -- with the marriage-based adoptive families as the wild card that sometimes are not included, sometimes as we have seen Johnson '96 are included under the intact heading, there are studies that -- that indicate once again that there is a potent outcome difference when you combine biology

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and marriage. We -- we talked earlier about teasing that out. Causation, no. Correlation, yes. Q. What -- what study are you referring to when you said, powerful evidence of biological parenting combined with marriage? A. There I'm talking about Child Trends 2002, Kristin Moore, et al., McLanahan and Sandefur, 1994, Amato, 2005. Neither of those -- well, I'll just stop there. Q. Can you please turn to paragraph 34 of your report, which is marked as exhibit 2. This is where you discuss the Moore Child Trends report. Correct? A. Correct. Q. And that report states: It is not simply the presence of 2 parents as some have assumed but the presence of 2 biological parents that seems to support children's development. Is this one of the studies that you say is

cite dealt with adolescent development or things of that nature as opposed to others. Q. The -- this is not a study of original research, is it? A. Child Trends is a nonpartisan group that looks at issues that are -- they're viewed to have profound policy implications. They -- they sometimes do conduct primary research. I believe that this particular report is a brief -- or they're relying heavily on studies, especially gold standard studies of others. Q. And -MR. McGILL: Will you mark that as exhibit number 8, please. (Marks Exhibit No. 8 was marked for identification.) BY MR. McGILL: Q. I would direct you to the last paragraph in the right-hand column, which is the portion that you quoted. It states: Children growing up with

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powerful evidence of the importance of biological parenting? A. I don't know that I used the word powerful. I've repeatedly stated that it's not just biology, but biology in connection with marriage, that combination. Q. And Moore and her Child Trends report is one of the studies you cite for that proposition? A. One, yes. Q. And have you read the Kristin Moore Child Trends research brief? A. Kristin, yes. Q. Do you understand it? A. As I said earlier, there's always things that kind of go over your head, but, yes, I believe I do, reasonable. Q. What's the central thesis of her -A. Again, in terms of memory, I struggle, Mr. McGill. There are about 5 Child Trends reports that year. I believe the one that I specifically

stepparents also have lower levels of well-being than children growing up with biological parents. It drops a footnote at that point. Thus it is not simply the presence of 2 parents as some have assumed but the presence of 2 biological parents that seem to support the children's development. In your experience as a social scientist, what authority do you believe Moore, et al., cited for that proposition? A. Let me look at the beginning again. 2 parents versus the presence of biological parents. It's a point among others that both Amato and McLanahan and Sandefur have considered. Q. Do you think that Moore and her colleagues were relying on the source that they cited in footnote 5? A. To -- to make the statement that we just read? Q. Yes. A. I think it's likely that they were relying

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Well, I've listed here that that was drawn from Popenoe. Q. Is your reference to intact families accurate? A. May -- may include adopted as well, but memory doesn't -- doesn't serve me there. Q. Onward we go. Paragraph 37. A. M-hm. Q. Here you quote at some length from Lorraine Blackmon's review: For African American children, parental marriage produces important benefits. And then it ends by saying: Marriage itself appears to be contributing strongly to better outcomes for black children. And then you drop a footnote, footnote 59. And you state there that: The researchers are again referring to marriage between the biological father and the mother. Are you sure that's the case? A. Well, as we've seen in a few of these

although in several of the studies that we've pulled out, they mention that they include in -- different social scientists want to be -- and, you know, more or less inclusive or claiming the definition of who they include in the study. We've seen in several of these cases that they decide to include adoptive families, which are a small, small minority in the general population, a small minority. I don't know the exact figures. But when you're dealing as these researchers are with broad national-based samples, they are as I mentioned earlier, sometimes painting with a broad brush. If some of these studies we're talking about, they use the term biological or intact and they throw in some -- some adopted studies, we would call that noise at some level, that there's a little bit of -- there's a little bit of muddying of concepts, but unless we -- unless we know that conceptually, they're including so many adoptive families, I find that very hard to believe to overthrow the general conclusion of a study based on

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studies, they include -- some of them include intact, adoptive families under -- under biological. That certainly is possible if not probable in some of these studies cited by Blackmon, since it's a review where they cite -- they claimed to cite 120 or so. In this case, I would anticipate that they would probably have at least some studies. They included a handful of adopted marriage-based families in there. Q. Do you wish to revise your statement that the phrase parental marriage refers to marriage between the biological father and mother? A. I think that what I would do there is say typically, conceptually, although some of the studies, Johnson, et al., and others do include in their definition adoptive families under that heading. Q. So we couldn't conclude from Blackmon's conclusion here that the benefits of marriage to -for black children are in any way limited to biological parents? A. I think that that's an overstatement,

thousands and thousands of people. It's -Q. Well, but -A. Well, it's -- it's conceptually an inconvenience to -- to have a nonclear-cut definition, but the points that are being made, if -if adoptive families comprise 1 or 2 or 3 percent of the subgroup of what they're calling intact biological families, we're talking about a study that's still 97 percent pure. It doesn't overthrow -- it makes my definition, which is necessarily messy upfront, less convenient, less clean, but it -- you don't throw out the baby with the bath water because they decided to include a few adoptive families under the intact heading. That's ridiculous. Further if -- if they decided to put the intact families or the marriage-based adoptive families in for whatever reason in with stepparent families, and it only accounted for a very small minority of the studies in that total population, it's -- it's again impure conceptually, but it

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doesn't ruin the whole study. It doesn't ruin the conclusions. You're always by definition dealing with noise in social science. The best of these studies are claiming to explain sometimes 30, 35 percent, 40 percent of the variance. They're offering incomplete explanations. They're doing the very best they can with -- with real life, which is pretty messy, Mr. McGill. And adoptive families as I said before, I -- I -- from a scholarly vantage, I don't have anything particularly for or against them. If -- if some of the researchers decide to put them in with intact, that's -- that's fine. And with stepfamilies, that's fine. But I would prefer -- I believe that they deserve a discrete category themselves. My belief doesn't apply to a hundred different researchers who approach this -- this tough problem. It's a tough problem to -- to tease out, that they're going to approach it in different ways. I would only reframe the statement that I make there

Q. And so you would admit, then, that your footnote 59 where you say that parental marriage was referring to the marriage between a biological mother and a father -- were you not in that footnote trying to draw exactly that inference, that it's the biological marriage that produces importance benefits to the exclusion of other nonbiological marriages? A. That's a reference to the way biological was conceptualized in a number of the studies that were being drawn on. And as I've said, I would want -- you know, in -- in hindsight, your point being a good one, I would be more refined in emphasizing that researchers conceptualize that a little bit differently. MR. THOMPSON: Can we take a 5-minute break? If you're in the middle of something -THE VIDEOGRAPHER: 10 minutes. MR. McGILL: Do you want to wait till the tape is up? MR. THOMPSON: Sure.

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a little bit. I wouldn't -- I wouldn't retract it. It would be ideal to know specifically at the end of the day, to call somebody on these gold standard studies and say, okay, you had 12,000 and 6,000 were intact families, of that 6,000, how many were adopted, so that they could tell you 30, 60, a hundred. And you'd know what kind of noise you were dealing with, but you still wouldn't throw the study out. And I wouldn't throw out my conclusion. I would -- I would refine it, but I wouldn't throw it out. Q. Is there anything in Blackmon's statement that for African American children, parental marriage produces important benefits? Let's focus on that sentence. A. Okay. Q. Is there anything in that sentence that would allow you to infer that a marriage of adoptive parents produces less importance benefits than marriage of biological parents? A. No, I don't think so, from that sense.

THE WITNESS: Let's keep rolling. BY MR. McGILL: Q. In paragraph 41 -- and we're nearing the end of your report -- paragraph 41, you state that: When biological fatherhood and marriage are combined, the research indicates that children tend to fare better, at least in part because married fathers tend to have better relationships with the mothers of their children than fathers in marriage alternatives. And for that proposition, you cite Nock's 1998 book. Do you know if Nock was referring to bio-- referred ever to biological fatherhood? We're in paragraph 41. A. In marriage alternatives. Q. And I'm focused here on the phrase biological fatherhood. A. Biological. I have read Nock's book in its entirety, but it's been a while. Let me look at the statement one more time, Mr. McGill. Married fathers tend to have better

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adjustment than the intact family? MR. THOMPSON: Objection, compound. A. Gay or lesbian -BY MR. McGILL: Q. Let's break -- let's break it up. A. Okay. Go ahead. Q. Do you have an opinion as to whether the -- whether a married lesbian couple, let us say they were married in Massachusetts, is as likely to produce good childhood adjustment, good child adjustment than the intact family? MR. THOMPSON: And I'm going to object on the grounds that his rebuttal report may well address this, but I'm going to let him answer it subject to the caveat that he's thinking about this and will be thinking hard about it over the next week and a half. But go ahead. BY MR. McGILL: Q. If the answer is that you do not yet have an opinion formed, please give that answer, but if you have an opinion, I'd like to hear it. MR. THOMPSON: I'm just saying it's

it would seem right now that it would be likely that the answer to that question would be the intact family would have better child development outcomes. But we've got again, 2 or 3 studies, and I'm going to be patient and see -- let the research speak its piece. Again, as mentioned, I'm formulating. Q. And are you -- in your answer, you are referring to a married lesbian couple? A. That's -- it's a good question, because in terms of marriage, you want to talk about nascent, you know, and brand-new and budding. We're -- we're having to deal, you know, in the research now almost solely to my knowledge in the same-sex parenting literature with cohabiting couple -- or cohabiting lesbian relationships or domestic partnerships. So there's -- in fact, I know of no -- no study that specifically addresses lesbian marriage and child outcomes. Partnerships, yes, cohabiting, yes, but marriage is -- marriage is brand-new. There may be a Massachusetts study coming out that I'm not aware of, but --

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subject to the caveat that he may revise the opinion or expand on the opinion, but it's the focus of ongoing research. But go ahead. A. Intact lesbian married couple -- well, I mean, lesbian married couple compared with intact marriage, my -- my read on the scholarly research is that as I mentioned, there have only been 1 or 2 -perhaps another study or 2 that I'm unaware of that have directly made that kind of a comparison, but there are several that have compared lesbian mothers to single-parent or single-mother families. BY MR. McGILL: Q. I guess I didn't -- I did not get out of that whether you have an opinion or not. A. The opinion that I have would be inferential based on the gold standard studies that I've referred to that indicate the intact families do substantially better across the critical concerns that I outlined in the research report than single-mother or single-parent families do. By inference, cautious, careful inference,

Q. You cite in your report on a few occasions David Popenoe's book, here, Life Without Father. Are you familiar with this book? A. I am. Q. Have you read it in its entirety? A. I have. Q. Are you familiar with Popenoe's argument that gender-differentiated parenting is essential for good child outcomes? A. I am. Q. Do you agree with that argument? A. The research that I have read shows -shows mixed support I would say at best for that thesis of Dr. Popenoe's. There is some research that supports it. There's some that would refute it, including literature that I've read by Dr. Lamb. Q. So you did not rely on the theory most famously espoused by Dr. Popenoe that gender-differentiated parenting is essential for good child outcomes? You did not rely on that theory in

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arriving at your conclusions? A. No. I use -- I don't know that any of the 6 critical concerns that I outline are gender-laden-oriented. I use biological intact parenting not of my choice necessarily, because it's -- it's the phrase as we've seen that -- that Child Trends -that McLanahan and Sandefur use in assessing the scholarship. It's not Popenoe influence. Q. Would it -- is it influenced by a theory of the importance of gender-differentiated parenting at all, whether -- as espoused by Popenoe or someone else? A. I don't -- let me think for a moment. One more time if you don't mind restating the question. Q. Do your conclusions in this case rely upon the theory of gender-differentiated parenting and specifically the importance of gender-differentiated parenting to reaching good child outcomes at all,

and there are parenting activities that women can do that men are very unlikely to do. And I'm not talking about biologically, you know, obvious parenting activities, such as breast feeding, but his theory that men play with their children differently and in a way that women do not, and women care for their children differently in a way that men do not. Is that general theory of parenting taken at its broadest level of generality -- is that at all a basis for the conclusions you reach in your report? A. That's -- that's not a theory that -- that I espouse. In terms of research, I think I mentioned earlier in the day that that's highly contested ground. It's highly contested ground, and frankly, it's not a battle that I would fight either way. I don't know that you'd say I'm agnostic on the issue, but I've seen good scholarship from both sides and I'm not ready to buy either theory. Q. But importantly for this proceeding, it is not a basis for the conclusions in your report? A. It's not a basis for it, no.

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whether as espoused by Popenoe or someone else? A. Gender -- gender is usually defined as cultural as opposed to sex, which would be more biologically driven. In terms of gender-differentiated parenting, I don't think I make any specific arguments that argue a whole lot about the cultural construct of gender. I'm dealing with sex, meaning intact, you know -Q. Right. A. -- biological father and biological mother. I don't -- I don't think that the report deals with gender differentiation specifically. Frankly I felt the critical concerns that I listed were more important, more salient. Q. So I want to just make sure I understand it. Your -- you are -- you do not share the view relied upon by -- or espoused by Popenoe that there are parenting activities that men can do that women cannot do and -- or are very unlikely to do,

Q. Okay. So the basis for your conclusion that the intact family -- I just want to read it -A. You bet. 12? MR. THOMPSON: 44, the conclusions. BY MR. McGILL: Q. 44. Your basis for the conclusion that the intact family is the ideal context for these child outcomes, the basis for your conclusion that the intact family is the ideal context for these child outcomes is based on as I understand it 2 factors. One is the marital structure, and second is the biological link between parents and children. A. That's correct. Q. Are there other -MR. THOMPSON: Do you have anything to add to that? THE WITNESS: No. I'll continue to listen for a moment. MR. THOMPSON: Well, no, if you have more, because you don't know what he's going to say. So if

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Do I impose it on others? I believe in cleaning up my own backyard. Q. And for clarity sake, the -- the dogma that you referred to just in your last response, that's known as the law of chastity. Correct? A. That is correct. Q. Did your religious convictions impact your opinion that the ideal family structure is marriage between man and a woman and a child biologically related to each in any way? A. My exposure to -- to that -- that dogma I'm sure is one of many factors that -- that ran around in my head. But again I was called as an expert witness in the same sense that I wouldn't come in here and make my argument based on what's stated in the family proclamation to the world. I took that same approach in my scholarly -- my scholarly work. I think I've addressed again and again that I acknowledge potential for bias and that that makes challenge fair play. However, please remember

Q. So that belief predates your work as a social scientist? A. Yes. MR. McGILL: We'll take a 1- , 2-minute break and find out if there are any last questions. MR. THOMPSON: Sound good. THE VIDEOGRAPHER: We're going off the record. The time is now 6:09 PM. (Recess.) THE VIDEOGRAPHER: The time is now 6:13 PM. You may proceed. BY MR. McGILL: Q. Dr. Marks, earlier in the deposition today, we addressed paragraph 15 of your report, which is marked as exhibit 2. A. Okay. Q. Can you go back to that. A. I'll try -- I'll try and get there quickly. Okay. Q. And addressing the last sentence: Wilcox and colleagues state that teens living with both biological parents are significantly less likely to

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my earlier statement that I also have taken upon me the burden of challenge. This is -- you know, scholarship is about strengths and challenges, not just dogmatically presenting one. Q. When is the first time you held the belief that the ideal family structure is marriage between a man and a woman and a child biologically related to each? MR. THOMPSON: Objection, relevance. A. Mr. McGill, I don't know. I don't know how to answer that question. BY MR. McGILL: Q. Is it -- is it fair to say that you held that view, you held that belief before your engagement as an expert in this case? A. Yes. Q. Is it fair to say you held that belief before you received your Ph.D. degree? A. Yes. Q. Did you hold that belief before you graduated from college? A. Yes.

illicit drugs alcohol and tobacco. And you said that on reflection, having reviewed with me the Johnson study, you would delete the word biological. A. Said, delete. I probably would have contextualized it differently, added to it to make it accurate for the 1996 study and more precisely consistent with 1996. Q. So you might have said, teens living with both biological and adoptive families? A. Including adoptive, yeah. Q. And my question, which is my very last question, is, are there any other changes you would make to this report that you would -- or any words you would like to delete before trial? A. No. I would want to be more precise on the definitions than I was in a couple of cases. It's the danger of large studies. I would want to be more precise, but I stand behind the report as is. Q. Do you stand behind the -- do you recall -- excuse me -- do you recall when we went --

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when we discussed the Rinkel and Langer report? A. Yes. That was a natural -- or natural father versus biological. Correct? Q. It was -- you used biological -A. And they used natural. Q. -- but Rinkel and Langer studied natural fathers, stepfathers, no father? MR. THOMPSON: Surrogates. A. And surrogates. BY MR. McGILL: Q. Which included stepfather. A. It included adopted under the natural -or it was -- anyway, go ahead. Q. So my question is, would you change that? Would you change that use of biological there? A. Yes, I would be precise -- more precise. Q. Do you recall when we went through the Blackmon paper? A. Yes.

MR. McGILL: Thank you. As Melanie wrote to me, "you are done." THE VIDEOGRAPHER: This concludes the deposition of Dr. Loren Marks. The time is now 6:18 PM. The total number of videotapes used were 7. Thank you. (Whereupon, at 6:18 p.m., the taking of the instant deposition ceased.)

_____________________________ Signature of the Witness

SUBSCRIBED AND SWORN to before me this _______ day of _________________, 20________.

_____________________________ Notary Public

My Commission Expires:________________

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Q. And his use of parental marriage, that term? A. (Nodding head.) Q. Would you change footnote 59 where you say that Blackmon was, quote, referring to marriage between the biological father and mother? A. I would make it more precise. And as a blanket statement, I'd say I would list upfront what I said orally, but not in writing, that some of these studies may included adoptive fathers -- or adoptive with intact, cover it -- that would cover it. Q. Is there any use of biological in this report that you are absolutely certain refers only to children who are genetically related to their parents? A. I would go back and put a statement upfront that says exactly what I just said, it would include -- some of these studies include a very small noise amount of adoptive families. I certainly wouldn't throw the studies out as indicated earlier, but I'd be more precise on -on that.

CERTIFICATE OF COURT REPORTER UNITED STATES OF AMERICA ) DISTRICT OF COLUMBIA ) I, CHERYL A. LORD, the reporter before whom the foregoing deposition was taken, do hereby certify that the witness whose testimony appears in the foregoing deposition was sworn by me; that the testimony of said witness was taken by me in machine shorthand and thereafter transcribed by computer-aided transcription; that said deposition is a true record of the testimony given by said witness; that I am neither counsel for, related to, nor employed by any of the parties to the action in which this deposition was taken; and, further, that I am not a relative or employee of any attorney or counsel employed by the parties hereto, or financially or otherwise interested in the outcome of this action. CHERYL A. LORD Notary Public in and for the District of Columbia My Commission expires April 30, 2011

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