Kristin Perry, et al v. Arnold Schwarzenegger, et al

Filing 310

Filed (ECF) - Arnold Schwarzeneggar response supporting motion (, ,motion to lift stay). Date of service: 03/01/2011. [7664010] (TP)

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Kristin Perry, et al v. Arnold Schwarzenegger, et al Doc. 310 No. 10-16696 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT KRISTIN M. PERRY, et al., Plaintiffs-Appellees, v. ARNOLD SCHWARZENEGGER, et al., Defendants. On Appeal from the United States District Court for the Northern District of California No. 09-cv-2292 VRW Honorable Vaughn R. Walker, District Court Judge Argued December 6, 2010 (Reinhardt, Hawkins, N.R. Smith) ATTORNEY GENERAL'S STATEMENT IN SUPPORT OF MOTION TO VACATE STAY PENDING APPEAL KAMALA D. HARRIS Attorney General of California DOUGLAS J. WOODS Acting Senior Assistant Attorney General CONSTANCE L. LELOUIS Supervising Deputy Attorney General TAMAR PACHTER Deputy Attorney General State Bar No. 146083 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5970 Fax: (415) 703-1234 Email: Tamar.Pachter@doj.ca.gov Attorneys for Attorney General Kamala D. Harris Dockets.Justia.com Attorney General Kamala D. Harris files this statement in support of the motion to vacate the Court's stay of the district court's Order permanently enjoining the application or enforcement of Proposition 8, which prohibits samesex couples from marrying in California. Attorney General Edmund G. Brown Jr. opposed entry of the stay pending appeal last year. Since then, events have demonstrated that if the stay ever was justified, it is no longer. Each of the four factors this Court must consider in determining whether a stay is warranted whether the stay applicant has made a strong showing of likelihood of success on the merits, whether the applicant will be irreparably injured absent a stay, whether issuance of stay will substantially injure other parties interested in the proceeding, and where the public interest lies all weigh in favor of vacating the stay. See Golden Gate Rest. Ass'n v. San Francisco, 512 F.3d 1112, 1115 (9th Cir. 2008); see also In re World Trade Center Disaster Site Litigation, 503 F.3d 167, 170 (2d Cir. 2007) (holding that the same standard applies on a motion to vacate a stay as applies on a motion to enter a stay pending appeal. As Plaintiffs and Plaintiff-Intervenor have demonstrated, the likelihood that the appeal will succeed on the merits has been substantially diminished both by the United States Attorney General's conclusion that classifications based on sexual 1 orientation cannot survive constitutional scrutiny and by this Court's certification order to the California Supreme Court, which seriously questions the Court's jurisdiction to decide the merits of the case. Intervenor-Appellants have been utterly unable to demonstrate that injury will befall them in the absence of a stay because there is no injury that the proponents of Proposition 8 will suffer if samesex couples are permitted to enter into civil marriages in California. Indeed, because the stay continues in effect a law that has been adjudged to violate the plaintiffs' due process and equal protection rights and therefore perpetuates unconstitutional discrimination, it is plaintiffs who continue to suffer substantial injury. Finally, the public interest weighs heavily against the government sanctioning such discrimination by permitting it to continue after it has been judged unconstitutional. The President and the United States Attorney General have determined that they will not continue to defend the Defense of Marriage Act ("DOMA") because it enforces a classification that fails to meet the heightened standard of scrutiny that should apply for equal protection analysis under the Fifth Amendment. While it lacks the force of law, Attorney General Holder's reasoned analysis is entitled to consideration. See Schick v. Reed, 419 U.S. 256, 275 n.12 (1974). It is also consistent with the California Attorney General's long-standing position, 2 convincingly validated after a full trial on the merits, that Proposition 8 violates the equal protection clause of the Fourteenth Amendment of the United States Constitution. For 846 days Proposition 8 has denied equality under law to gay and lesbian couples. Each and every one of those days, same-sex couples have been denied their right to convene loved ones and friends to celebrate marriages sanctioned and protected by California law. Each one of those days, loved ones have been lost, moments have been missed, and justice has been denied. The preconditions for a stay are lacking on this record. The stay should be vacated. Dated: March 1, 2011 Respectfully Submitted, KAMALA D. HARRIS Attorney General of California DOUGLAS J. WOODS Acting Senior Assistant Attorney General CONSTANCE L. LELOUIS Supervising Deputy Attorney General /S/ Tamar Pachter TAMAR PACHTER Deputy Attorney General Attorneys for Attorney General Kamala D. Harris SA2009310603 .doc 3 CERTIFICATE OF COMPLIANCE PURSUANT TO FED.R.APP.P 32(a)(7)(C) AND CIRCUIT RULE 32-1 FOR 3:09-cv-02292-VRW I certify that: (check (x) appropriate option(s)) 1. Pursuant to Fed.R.App.P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, the attached opening/answering/reply/cross-appeal brief is Proportionately spaced, has a typeface of 14 points or more and contains ______________ words (opening, answering and the second and third briefs filed in cross-appeals must not exceed 14,000 words; reply briefs must not exceed 7,000 words or is Monospaced, has 10.5 or fewer characters per inch and contains ____ words or ___ lines of text (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 14,000 words or 1,300 lines of text; reply briefs must not exceed 7,000 words or 650 lines of text). 2. The attached brief is not subject to the type-volume limitations of Fed.R.App.P. 32(a(7)(B) because This brief complies with Fed.R.App.P 32(a)(1)-(7) and is a principal brief of no more than 30 pages or a reply brief of no more than 15 pages. or This brief complies with a page or size-volume limitation established by separate court order dated _________ Proportionately spaced, has a typeface of 14 points or more and contains ______________ words, or is Monospaced, has 10.5 or fewer characters per inch and contains __ pages or __ words or __ lines of text. 3. Briefs in Capital Cases. This brief is being filed in a capital case pursuant to the type-volume limitations set forth at Circuit Rule 32-4 and is Proportionately spaced, has a typeface of 14 points or more and contains ______________ words (opening, answering and the second and third briefs filed in cross-appeals must not exceed 21,000 words; reply briefs must not exceed 9,800 words). or is Monospaced, has 10.5 or fewer characters per inch and contains __ words or __ lines of text (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 75 pages or 1,950 lines of text; reply briefs must not exceed 35 pages or 910 lines of text). X 4. Amicus Briefs. Pursuant to Fed.R.App.P 29(d) and 9th Cir.R. 32-1, the attached amicus brief is proportionally spaced, has a typeface of 14 points or more and contains 7,000 words or less, or is Monospaced, has 10.5 or few characters per inch and contains not more than either 7,000 words or 650 lines of text, or is X Not subject to the type-volume limitations because it is an amicus brief of no more than 15 pages and complies with Fed.R.App.P. 32 (a)(1)(5). March 1, 2011 Dated /s/ Tamar Pachter Tamar Pachter Deputy Attorney General